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 2 2, 2019 (November 22, 2019)
 
Univar Solutions Inc.
(Exact name of registrant as specified in its charter)

					
Delaware	 	001-37443	 	26-1251958	
(State or other jurisdiction of
incorporation or organization)	 	(Commission
File Number)	 	(I.R.S. Employer
Identification No.)	
3075 Highland Parkway, Suite 200
Downers Grove, IL 60515
(Address of principal executive offices, including zip code)
(331) 777-6000
(Registrant’s telephone number, including area code)
Not applicable
(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 (see General Instruction A.2 below):

 	☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	

 	☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	

 	☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))	

 	☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	
Securities registered pursuant to Section 12(b) of the Act:
					
Title of each class	 	Trading
Symbol(s)	 	Name of each exchange
on which registered	
Common stock ($0.01 par value)	 	UNVR	 	New York Stock Exchange	
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging Growth Company  ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

Item 1.01	Entry into a Material Definitive Agreement.	
5.125% Senior Notes due 2027
On November 22, 2019, Univar Solutions USA Inc. (“Univar USA”) closed its private offering of $500.0 million in aggregate principal amount of 5.125% senior notes due 2027 (the “Notes”) and entered into an Indenture with Univar Solutions Inc. (the “Company” or “Univar”) and certain subsidiaries of the Company, as guarantors (collectively with the Company, the “Guarantors”), and U.S. Bank National Association, as Trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of November 22, 2019, among Univar USA, the Guarantors and the Trustee (collectively, the “Indenture”).
Ranking; Guarantees
The Notes are senior unsecured indebtedness of Univar USA and:

 	•	rank equal in right of payment with all of Univar USA’s existing and future senior debt and other obligations that are not, by their terms, expressly subordinated in right of payment to the Notes, including amounts outstanding under Univar USA’s senior credit facilities;	

 	•	rank senior in right of payment to Univar USA’s future debt and other obligations that are, by their terms, expressly subordinated in right of payment to the Notes;	

 	•	are effectively subordinated in right of payment to all of Univar USA’s existing and future senior secured debt (including the senior credit facilities), to the extent of the value of the assets securing such debt, including amounts outstanding under the senior credit facilities; and	

 	•	are structurally subordinated to all obligations of Univar USA and each of Univar’s subsidiaries that is not a guarantor of the Notes.	
The Notes are guaranteed, on a senior unsecured basis, by Univar and its material wholly-owned domestic subsidiaries which guarantee the senior credit facilities. The guarantee of each Guarantor is a senior unsecured obligation of that Guarantor and:

 	•	rank equal in right of payment to all of the applicable Guarantors’ existing and future senior debt and other obligations that are not, by their terms, expressly subordinated in right of payment to such Guarantor’s guarantee of the Notes, including amounts outstanding under the senior credit facilities;	

 	•	rank senior in right of payment to all of the applicable Guarantors’ future debt and other obligations that are, by their terms, expressly subordinated in right of payment to the Notes;	

 	•	are effectively subordinated in right of payment to all of the applicable Guarantors’ existing and future senior secured debt and other obligations (including the senior credit facilities), to the extent of the value of the assets securing such debt and other obligations; and	

 	•	are structurally subordinated to all obligations of any subsidiary of a Guarantor if that subsidiary is not also a guarantor of the Notes.	
Redemption
Univar USA may redeem the Notes, in whole or in part, at any time (1) prior to December 1, 2022, at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, plus the applicable make-whole premium set forth in the Indenture and (2) on and after December 1, 2022, at the applicable redemption price set forth below (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to, but excluding, the relevant redemption date, if redeemed during the 12-month period commencing on December 1 of the years set forth below.
					
Year	 	Percentage	 	
2022	 	 	102.563	%	
2023	 	 	101.281	%	
2024 and thereafter	 	 	100.000	%	

In addition, at any time prior to December 1, 2022, Univar USA may redeem on one or more occasions up to 40.0% of the aggregate principal amount of the Notes with the proceeds of certain equity offerings at a redemption price of 105.125% of the principal amount in respect of the Notes being redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, provided, however, that if the Notes are redeemed, an aggregate principal amount of Notes equal to at least 50.0% of the original aggregate principal amount of Notes (including the principal amount of any additional notes of the same series) must remain outstanding immediately after each such redemption of Notes, unless all such Notes are redeemed substantially concurrently.
Offer to Repurchase
In the event of certain events that constitute a Change of Control (as defined in the Indenture), Univar USA must offer to repurchase all of the Notes (unless otherwise redeemed) at a price equal to 101.0% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the repurchase date. If Univar USA sells assets under certain circumstances, Univar USA must use the proceeds to reinvest in additional assets or to repay any indebtedness (including any unsecured obligations, other than Subordinated Obligations (as defined in the Indenture)) or otherwise make an offer to purchase the Notes at a price equal to 100.0% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase.
Covenants
The Indenture contains covenants that, among other things, limit the ability of Univar USA and the ability of its restricted subsidiaries, as described in the Indenture, to: incur more indebtedness; pay dividends, redeem stock or make other distributions; make investments; make other intercompany transfers; create liens; transfer or sell assets; merge or consolidate; and enter into certain transactions with Univar USA’s affiliates. Most of these covenants will cease to apply for so long as the Notes have investment grade ratings from both Moody’s Investment Services, Inc. and Standard & Poor’s.
Events of Default
The Indenture also provides for events of default, which, if any of them occurs, would permit or require the principal, premium, if any, interest and other monetary obligations on all the then outstanding Notes issued under the Indenture to be due and payable immediately.
The foregoing summary of the Indenture does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Indenture, filed as Exhibit 4.1 hereto and incorporated herein by reference and the First Supplemental Indenture, filed as Exhibit 4.2 hereto and incorporated herein by reference.
Senior Term Loan Facility
On November 22, 2019, the Company and certain of its subsidiaries entered into the Fifth Amendment (the “Fifth Amendment”) to that certain credit agreement, dated July 1, 2015 (as amended prior to the Fifth Amendment, the “Credit Agreement” and as amended by the Fifth Amendment, the “Amended Credit Agreement”). Pursuant to the Fifth Amendment, Goldman Sachs Bank USA and certain other lenders agreed to provide a new USD Term B-5 loan facility in an aggregate principal amount of $400 million (the loans thereunder, the “Incremental Term Loan”) , the proceeds of which were used, in part, to refinance the Euro Term B-2 loans. As of the date of the Fifth Amendment, $1,437,995,570.15 of Term B-3 loans remain outstanding and $245,038,157.49 of Term B-4 loans remain outstanding under the Amended Credit Agreement (together with the Incremental Term Loans, the “Senior Term Facilities”). Pursuant to the Fifth Amendment, Univar Netherlands Holding B.V. was added as a Dutch co-borrower with respect to each of the Senior Term Facilities.

The Senior Term Facilities are (i) secured by a first priority lien on substantially all assets of the loan parties (other than accounts receivable and inventory) and a second priority lien on accounts receivable and inventory and related collateral of the loan parties and (ii) guaranteed on a senior secured basis, jointly and severally, by the Company and certain of its subsidiaries. Guarantees and collateral provided by Univar Netherlands Holding B.V. and any future foreign loan parties are subject to certain agreed security principles.
The interest rates applicable to the loans under the Senior Term Facilities are based on, at the borrower’s option, (i) in the case of the Incremental Term Loans, a fluctuating rate of interest determined by reference to a base rate plus an applicable margin equal to 1.00% or a Eurocurrency rate plus an applicable margin equal to 2.00%. The interest rate applicable to the Term B-4 loans and the Term B-3 loans remain unchanged. Other than as discussed above, the terms of the Amended Credit Agreement are principally unchanged from the provisions in the Credit Agreement.
The foregoing summary of the Senior Term Facilities does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Fifth Amendment and the Amended Credit Agreement, filed as Exhibit 10.1 hereto and incorporated herein by reference.
Senior ABL Credit Facility
On November 22, 2019, the Company and certain of its U.S. and Canadian subsidiaries entered into the First Amendment (the “First Amendment”) to that certain Amended and Restated ABL Credit Agreement (the facility thereunder, the “Senior ABL Facility”), in connection with the incurrence of the Incremental Term Loan and the addition of Univar Netherlands Holding B.V. as co-borrower.
The Senior ABL Facility is secured by (i) a first priority lien on the loan parties’ accounts receivable, inventory and related collateral, and (ii) a second priority lien on substantially all other assets of the loan parties, in each case subject to various limitations and exceptions. Guarantees and collateral provided by Univar Netherlands Holding B.V. and any future foreign loan parties are subject to certain agreed security principles.
The interest rates applicable to the loans under the Senior ABL Facility are based on, at the borrower’s option, (i) with respect to initial term loan facility under the Senior ABL Facility, a fluctuating rate of interest determined by reference to either a base rate plus an applicable margin ranging from 1.00% to 1.25% and a prime rate plus an applicable margin ranging from 2.00% to 2.25% and (ii) with respect to the U.S. and Canadian revolving loans under the Senior ABL Facility, a fluctuating rate of interest determined by reference to a base rate plus an applicable margin ranging from 0.25% to 0.50% or a prime rate or Eurocurrency rate plus an applicable margin ranging from 1.25% to 1.50%. The applicable margin is adjusted after the completion of each full fiscal quarter based upon the pricing grid in the Senior ABL Facility. The Senior ABL Facility contains a number of customary affirmative and negative covenants and events of default.
The foregoing summary of the Senior ABL Facility does not purport to be complete and is qualified in its entirety by reference to the Amended and Restated ABL Credit Facility Agreement, a copy of which is attached as Exhibit 10.1 to Univar’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 1, 2019 and incorporated herein by reference.

Item 2.03	Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.	
The information contained in Item 1.01 above with respect to the Indenture, the Notes, the Senior Term Facilities and the Senior ABL Facility is hereby incorporated by reference into this Item 2.03, insofar as it relates to the creation of a direct financial obligation.

Item 7.01	Regulation FD Disclosure.	
Attached as Exhibit 99.1 and incorporated by reference herein is a copy of the Company’s press release dated November 22, 2019 announcing the closing of the offering of the Notes, the Incremental Term Loan and the First Amendment.
The information in this Item 7.01 and Exhibit 99.1 attached hereto are being “furnished” and shall not be deemed “filed” for purposes of Section 18 of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), or incorporated by reference into those filings of the Company that provide for the incorporation of all reports and documents filed by the Company under the Exchange Act.

Item 9.01	Financial Statements and Exhibits.	

(d)	Exhibits.	
See the Exhibit Index set forth below for a list of exhibits included with this Current Report on Form 8-K.
					
Exhibit
Number	 	 	Description	
 	  4.1	 	 	Indenture, dated as of November 22, 2019, between Univar Solutions USA Inc., Univar Solutions Inc., the guarantors listed on the signature pages thereto and U.S. Bank National Association.	
 	 	 	 	 	
 	  4.2	 	 	First Supplemental Indenture, dated as of November 22, 2019, between Univar Solutions USA Inc., Univar Solutions Inc., the guarantors listed on the signature pages thereto and U.S. Bank National Association.	
 	 	 	 	 	
 	  4.3	 	 	Form of 5.125% Senior Notes due 2027 (included in Exhibit 4.1 hereto).	
 	 	 	 	 	
 	10.1	 	 	Fifth Amendment, dated November 22, 2019, among Univar Solutions USA Inc., Univar Solutions Inc., Univar Netherlands Holding B.V, the several banks and financial institutions from time to time party thereto, Goldman Sachs Bank USA and Bank of America, N.A., to the Credit Agreement dated July 1, 2015, between Univar Solutions USA Inc., Univar Solutions Inc., Univar Netherlands Holding B.V., the several banks and financial institutions from time to time party thereto and Bank of America, N.A.;	
 	 	 	 	 	
 	10.2	 	 	First Amendment, dated November 22, 2019, among Univar Solutions Inc. and certain of its subsidiaries, the several banks and financial institutions from time to time party thereto and Bank of America, N.A., to the Amended and Restated ABL Credit Agreement, dated as of February 28, 2019, between Univar Solutions Inc. and certain of its subsidiaries, the several banks and financial institutions from time to time party thereto and Bank of America, N.A.;	
 	 	 	 	 	
 	99.1	 	 	Press release dated November 22, 2019.	
 	 	 	 	 	
 	104	 	 	Cover Page Interactive Data File (formatted in iXBRL in Exhibit 101).	

SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: November 22, 2019
			
UNIVAR SOLUTIONS INC.	
 	 	 	
By:	 	/s/ Noelle J. Perkins	
Name:	 	Noelle J. Perkins	
Title:	 	Senior Vice President, General Counsel and Secretary	

Exhibit 4.1
Execution Version
UNIVAR SOLUTIONS USA INC.
as initial Issuer
UNIVAR SOLUTIONS INC.
as Company
the Subsidiary Guarantors from time to time parties hereto
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee

INDENTURE
DATED AS OF November 22, 2019

PROVIDING FOR ISSUANCE OF NOTES IN SERIES

TABLE OF CONTENTS

 	 	 	  	Page	 	
	
ARTICLE I	 	
	
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION	 

Section 101.	 	Definitions	  	 	1	 	
Section 102.	 	Other Definitions	  	 	50	 	
Section 103.	 	Rules of Construction	  	 	51	 	
Section 104.	 	[Reserved]	  	 	52	 	
Section 105.	 	[Reserved]	  	 	52	 	
Section 106.	 	Compliance Certificates and Opinions	  	 	52	 	
Section 107.	 	Form of Documents Delivered to Trustee	  	 	53	 	
Section 108.	 	Acts of Noteholders; Record Dates	  	 	53	 	
Section 109.	 	Notices, Etc., to Trustee, Issuer and Company	  	 	56	 	
Section 110.	 	Notices to Holders; Waiver	  	 	56	 	
Section 111.	 	Effect of Headings and Table of Contents	  	 	57	 	
Section 112.	 	Successors and Assigns	  	 	57	 	
Section 113.	 	Separability Clause	  	 	57	 	
Section 114.	 	Benefits of Indenture	  	 	57	 	
Section 115.	 	GOVERNING LAW	  	 	57	 	
Section 116.	 	Legal Holidays	  	 	58	 	
Section 117.	 	No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders	  	 	58	 	
Section 118.	 	Exhibits and Schedules	  	 	58	 	
Section 119.	 	Counterparts	  	 	58	 	
Section 120.	 	Force Majeure	  	 	58	 	
Section 121.	 	Limited Condition Acquisition	  	 	59	 	
	
ARTICLE II	 	
	
NOTE FORMS	 	
			
Section 201.	 	Forms Generally	  	 	60	 	
Section 202.	 	Form of Trustee’s Certificate of Authentication	  	 	61	 	
Section 203.	 	Restrictive and Global Note Legends	  	 	62	 	
	
ARTICLE III	 	
	
THE NOTES	 	
			
Section 301.	 	Amount Unlimited; Issuable in Series	  	 	65	 	
Section 302.	 	Denominations	  	 	66	 	
Section 303.	 	Execution, Authentication and Delivery and Dating	  	 	66	 	
 
i

							
Section 304.	 	Temporary Notes	  	 	67	 	
Section 305.	 	Note Registrar and Paying Agent	  	 	67	 	
Section 306.	 	Mutilated, Destroyed, Lost and Stolen Notes	  	 	68	 	
Section 307.	 	Payment of Interest Rights Preserved	  	 	69	 	
Section 308.	 	Persons Deemed Owners	  	 	70	 	
Section 309.	 	Cancellation	  	 	70	 	
Section 310.	 	Computation of Interest	  	 	70	 	
Section 311.	 	CUSIP Numbers, ISINs, Etc.	  	 	70	 	
Section 312.	 	Book-Entry Provisions for Global Notes	  	 	70	 	
Section 313.	 	Special Transfer Provisions	  	 	72	 	
	
ARTICLE IV	 	
	
COVENANTS	 	
			
Section 401.	 	Payment of Principal, Premium and Interest	  	 	75	 	
Section 402.	 	Maintenance of Office or Agency	  	 	75	 	
Section 403.	 	Money for Payments to Be Held in Trust	  	 	76	 	
Section 404.	 	[Reserved]	  	 	77	 	
Section 405.	 	SEC Reports	  	 	77	 	
Section 406.	 	Statement as to Default	  	 	80	 	
Section 407.	 	Limitation on Indebtedness	  	 	80	 	
Section 408.	 	[Reserved]	  	 	86	 	
Section 409.	 	Limitation on Restricted Payments	  	 	86	 	
Section 410.	 	Limitation on Restrictions on Distributions from Restricted Subsidiaries	  	 	91	 	
Section 411.	 	Limitation on Sales of Assets and Subsidiary Stock	  	 	93	 	
Section 412.	 	Limitation on Transactions with Affiliates	  	 	97	 	
Section 413.	 	Limitation on Liens	  	 	99	 	
Section 414.	 	Future Subsidiary Guarantors	  	 	99	 	
Section 415.	 	Purchase of Notes Upon a Change of Control	  	 	100	 	
Section 416.	 	Suspension of Covenants on Achievement of Investment Grade Rating	  	 	101	 	
	
ARTICLE V	 	
	
SUCCESSORS	 	
			
Section 501.	 	When the Company May Merge, Etc.	  	 	103	 	
Section 502.	 	Successor Company or Successor Issuer Substituted	  	 	105	 	
	
ARTICLE VI	 	
	
REMEDIES	 	
			
Section 601.	 	Events of Default	  	 	105	 	
Section 602.	 	Acceleration of Maturity; Rescission and Annulment	  	 	109	 	
Section 603.	 	Other Remedies; Collection Suit by Trustee	  	 	109	 	
Section 604.	 	Trustee May File Proofs of Claim	  	 	109	 	
 
ii

							
Section 605.	 	Trustee May Enforce Claims Without Possession of Notes	  	 	110	 	
Section 606.	 	Application of Money Collected	  	 	110	 	
Section 607.	 	Limitation on Suits	  	 	110	 	
Section 608.	 	[Reserved]	  	 	111	 	
Section 609.	 	Restoration of Rights and Remedies	  	 	111	 	
Section 610.	 	Rights and Remedies Cumulative	  	 	111	 	
Section 611.	 	Delay or Omission Not Waiver	  	 	111	 	
Section 612.	 	Control by Holders	  	 	111	 	
Section 613.	 	Waiver of Past Defaults	  	 	112	 	
Section 614.	 	Undertaking for Costs	  	 	112	 	
Section 615.	 	Waiver of Stay, Extension or Usury Laws	  	 	112	 	
	
ARTICLE VII	 	
	
THE TRUSTEE	 	
			
Section 701.	 	Certain Duties and Responsibilities	  	 	113	 	
Section 702.	 	Notice of Defaults	  	 	113	 	
Section 703.	 	Certain Rights of Trustee	  	 	114	 	
Section 704.	 	Not Responsible for Recitals or Issuance of Notes	  	 	115	 	
Section 705.	 	May Hold Notes	  	 	115	 	
Section 706.	 	Money Held in Trust	  	 	115	 	
Section 707.	 	Compensation and Reimbursement	  	 	115	 	
Section 708.	 	Conflicting Interests	  	 	116	 	
Section 709.	 	Corporate Trustee Required; Eligibility	  	 	116	 	
Section 710.	 	Resignation and Removal; Appointment of Successor	  	 	116	 	
Section 711.	 	Acceptance of Appointment by Successor	  	 	117	 	
Section 712.	 	Merger, Conversion, Consolidation or Succession to Business	  	 	118	 	
Section 713.	 	Preferential Collection of Claims Against the Issuer	  	 	118	 	
Section 714.	 	Appointment of Authenticating Agent	  	 	118	 	
	
ARTICLE VIII	 	
	
HOLDERS’ LISTS AND REPORTS BY
TRUSTEE AND THE ISSUER	 

Section 801.	 	The Issuer to Furnish Trustee Names and Addresses of Holders	  	 	119	 	
Section 802.	 	Preservation of Information; Communications to Holders	  	 	119	 	
Section 803.	 	Reports by Trustee	  	 	119	 	
	
ARTICLE IX	 	
	
AMENDMENT, SUPPLEMENT OR WAIVER	 	
			
Section 901.	 	Without Consent of Holders	  	 	120	 	
Section 902.	 	With Consent of Holders	  	 	121	 	
Section 903.	 	Execution of Amendments, Supplements or Waivers	  	 	122	 	
 
iii

							
Section 904.	 	Revocation and Effect of Consents	  	 	122	 	
Section 905.	 	[Reserved]	  	 	122	 	
Section 906.	 	Notation on or Exchange of Notes	  	 	123	 	
	
ARTICLE X	 	
	
REDEMPTION OF NOTES	 	
			
Section 1001.	 	Applicability of Article	  	 	123	 	
Section 1002.	 	[Reserved]	  	 	123	 	
Section 1003.	 	Election to Redeem; Notice to Trustee	  	 	123	 	
Section 1004.	 	Selection by Trustee of Notes to Be Redeemed	  	 	123	 	
Section 1005.	 	Notice of Redemption	  	 	124	 	
Section 1006.	 	Deposit of Redemption Price	  	 	125	 	
Section 1007.	 	Notes Payable on Redemption Date	  	 	125	 	
Section 1008.	 	Notes Redeemed in Part	  	 	126	 	
	
ARTICLE XI	 	
	
SATISFACTION AND DISCHARGE	 	
			
Section 1101.	 	Satisfaction and Discharge of Indenture	  	 	126	 	
Section 1102.	 	Satisfaction and Discharge of Notes of a Series	  	 	127	 	
Section 1103.	 	Application of Trust Money	  	 	128	 	
	
ARTICLE XII	 	
	
DEFEASANCE OR COVENANT DEFEASANCE	 	
			
Section 1201.	 	The Issuer’s Option to Effect Defeasance or Covenant Defeasance	  	 	129	 	
Section 1202.	 	Defeasance and Discharge	  	 	129	 	
Section 1203.	 	Covenant Defeasance	  	 	129	 	
Section 1204.	 	Conditions to Defeasance or Covenant Defeasance	  	 	130	 	
Section 1205.	 	Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions	  	 	131	 	
Section 1206.	 	Reinstatement	  	 	132	 	
Section 1207.	 	Repayments to Issuer	  	 	132	 	
	
ARTICLE XIII	 	
	
GUARANTEES	 	
			
Section 1301.	 	Guarantees Generally	  	 	132	 	
Section 1302.	 	Continuing Guarantees	  	 	134	 	
Section 1303.	 	Release of Subsidiary Guarantees	  	 	134	 	
Section 1304.	 	[Reserved]	  	 	135	 	
Section 1305.	 	Waiver of Subrogation	  	 	135	 	
Section 1306.	 	Notation Not Required	  	 	136	 	
 
iv

							
Section 1307.	 	Successors and Assigns of Guarantors	  	 	136	 	
Section 1308.	 	Execution and Delivery of Guarantees	  	 	136	 	
Section 1309.	 	Notices	  	 	136	 	

Exhibit A	  	Form of Initial Note	
Exhibit B	  	[Reserved]	
Exhibit C	  	Form of Certificate of Beneficial Ownership	
Exhibit D	  	Form of Regulation S Certificate	
Exhibit E	  	Form of Supplemental Indenture in Respect of Subsidiary Guarantees	
Exhibit F	  	Form of Certificate from Acquiring Institutional Accredited Investors	
Exhibit G	  	Form of Supplemental Indenture Establishing a Series of Notes	
 
v

INDENTURE, dated as of November 22, 2019 (as amended, supplemented or otherwise modified from time to time, this “Indenture”), among Univar Solutions USA Inc., a corporation organized under the laws of the State of Washington, as initial Issuer, Univar Solutions Inc., a corporation organized under the laws of the State of Delaware, as Company, the Subsidiary Guarantors from time to time parties hereto, and U.S. Bank National Association, a national banking association, as Trustee.
RECITALS OF THE COMPANY
The initial Issuer and the Company have duly authorized the execution and delivery of this Indenture to provide for the issuance of the Notes.
All things necessary to make this Indenture a valid agreement of the initial Issuer and the Company in accordance with the terms of the Initial Notes and this Indenture have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed, for the benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
“2023 Notes” means the Issuer’s 6.75% Senior Notes due 2023 pursuant to the 2023 Notes Indenture and outstanding on the Issue Date.
“2023 Notes Indenture” means the indenture for the 2023 Notes, dated as of July 1, 2015, between the Issuer, the Company, the other guarantors party thereto and Wilmington Trust, National Association, as trustee, as in effect on the Issue Date and as amended, modified or supplemented from time to time.
“Acquired Indebtedness” means Indebtedness of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from such Person, in each case other than Indebtedness Incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be Incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.
“Additional Assets” means (i) any property or assets that replace the property or assets that are the subject of an Asset Disposition; (ii) any property or assets (other than Indebtedness and Capital Stock) used or to be used by the Company or a Restricted Subsidiary or otherwise useful in a Related Business, and any capital expenditures in respect of any property or assets already so used; (iii) the Capital Stock of a Person that is engaged in a Related Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or (iv) Capital Stock of any Person that at such time is a Restricted Subsidiary acquired from a third party.
 
1

“Additional Notes” means any notes issued under this Indenture in addition to the Initial Notes (other than any Notes issued pursuant to Section 304, 305, 306, 312(d), 312(e) or 1008).
“Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Asset Disposition” means any sale, lease, transfer or other disposition of shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying shares, or (in the case of a Foreign Subsidiary) to the extent required by applicable law), property or other assets (each referred to for the purposes of this definition as a “disposition”) by the Company or any of its Restricted Subsidiaries (including any disposition by means of a merger, consolidation or similar transaction) other than (i) a disposition to the Company or a Restricted Subsidiary, (ii) a disposition in the ordinary course of business, including any disposition of obsolete, uneconomic, surplus or worn-out property or equipment in the ordinary course of business or consistent with past practice or any disposition of inventory or goods (or other assets) held for sale or no longer used or useful in the ordinary course of business, (iii) a disposition of Cash Equivalents, Investment Grade Securities or Temporary Cash Investments, (iv) the sale or discount (with or without recourse, and on customary or commercially reasonable terms, as determined by the Company in good faith) of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable, (v) any Restricted Payment Transaction, (vi) a disposition that is governed by Article V, (vii) any Financing Disposition, (viii) any “fee in lieu” or other disposition of assets to any Governmental Authority that continue in use by the Company or any Restricted Subsidiary, so long as the Company or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee, (ix) any exchange of property pursuant to or intended to qualify under Section 1031 (or any successor section) of the Code or comparable law or regulation, or any exchange of equipment to be leased, rented or otherwise used in a Related Business, (x) any financing transaction with respect to property built or acquired by the Company or any Restricted Subsidiary after the Issue Date, including without limitation any sale/leaseback transaction or asset securitization, (xi) any disposition arising from foreclosure, condemnation, eminent domain or similar action with respect to any property or other assets, or exercise of termination rights under any lease, license, concession or other agreement, or necessary or advisable (as determined by the Company in good faith) in order to consummate any acquisition of any Person, business or assets, or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement, or of non-core assets acquired in connection with any acquisition of any Person, business or assets, (xii) any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or an Immaterial Subsidiary, (xiii) a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom
 
2

such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition, (xiv) a disposition of not more than 5.0% of the outstanding Capital Stock of a Foreign Subsidiary that has been approved by the Board of Directors, (xv) any disposition or series of related dispositions for aggregate consideration not to exceed the greater of $85.0 million and 10.0% of LTM EBITDA, (xvi) the abandonment or other disposition of patents, trademarks or other intellectual property that are, in the reasonable judgment of the Company, no longer economically practicable to maintain or useful in the conduct of, or that is not material to, the business of the Company and its Subsidiaries taken as a whole, (xvii) any license, sublicense or other grant of rights in or to any trademark, copyright, patent or other intellectual property, or (xviii) any Exempt Sale and Leaseback Transaction.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 714 to act on behalf of the Trustee to authenticate Notes of one or more series.
“Available RP Capacity Amount” means (i) the amount of Restricted Payments that may be made at the time of determination pursuant to Section 409(a)(3) and Section 409(b)(iii), (iv), (v) and (vi), minus (ii) the sum of the amount of the available RP Capacity Amount utilized by the Company or any Restricted Subsidiary to (A) make Restricted Payments in reliance on Section 409(a)(3) and Section 409(b)(iii), (iv), (v) and (vi) and (B) incur Indebtedness pursuant to Section 407(b)(xvi), plus (iii) the aggregate principal amount of Indebtedness prepaid prior to or substantially concurrently at such time, solely to the extent such Indebtedness was incurred pursuant to Section 407(b)(xvi) (it being understood that the amount under this clause (iii) shall only be available for use pursuant to Section 407(b)(xvi)).
“Bank Products Agreement” means any agreement pursuant to which a bank or other financial institution agrees to provide (a) treasury services, (b) credit card, merchant card, purchasing card or stored value card services (including, without limitation, the processing of payments and other administrative services with respect thereto), (c) cash management services (including, without limitation, controlled disbursements, automated clearinghouse transactions, return items, netting, overdrafts, depository, lockbox, stop payment, electronic funds transfer, information reporting, wire transfer and interstate depository network services) and (d) other banking products or services as may be requested by the Company or any Restricted Subsidiary (other than letters of credit and other than loans and advances, except indebtedness arising from services described in clauses (a) through (c) of this definition).
“Bank Products Obligations” of any Person means the obligations of such Person pursuant to any Bank Products Agreement.
“Board of Directors” means, for any Person, the board of directors or other governing body of such Person or, if such Person does not have such a board of directors or other governing body and is owned or managed by a single entity, the board of directors or other governing body of such entity or, in either case, any committee thereof duly authorized to act on behalf of such board of directors or other governing body. Unless otherwise provided, “Board of Directors” means the Board of Directors of the Company.
 
3

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York, New York, United States (or any other city in which a paying agent maintains its office). When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day and such extension of time shall not be reflected in computing interest or fees, as the case may be.
“Canadian Subsidiary” means any Restricted Subsidiary of the Company which is incorporated or otherwise organized under the laws of Canada or any province or territory thereof.
“Capital Market Indebtedness” means any series of capital market Indebtedness with an aggregate principal amount outstanding in excess of the greater of $150.0 million and 17.5% of LTM EBITDA.
“Capital Stock” of any Person means any and all shares or units of, rights to purchase, warrants or options for, or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.
“Capitalized Lease Obligation” means an obligation that is required to be classified and accounted for as a capitalized lease (and, for the avoidance of doubt, not a straight-line or operating lease) for financial reporting purposes in accordance with GAAP. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined in accordance with GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty; provided that all obligations of the Company and its Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on January 1, 2015 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease Obligation) for purposes of this Indenture regardless of any change in GAAP following January 1, 2015 (that would otherwise require such obligation to be recharacterized as a Capitalized Lease Obligation).
“Captive Insurance Subsidiary” means any Subsidiary of the Company that is subject to regulation as an insurance company (or any Subsidiary thereof).
“Cash Equivalents” means any of the following: (a) money, (b) securities issued or fully guaranteed or insured by the United States of America, Canada or a member state of the European Union or any agency or instrumentality of any thereof, (c) time deposits, certificates of deposit or bankers’ acceptances of (i) any bank or other institutional lender under any Senior Credit Facility or any affiliate thereof or (ii) any commercial bank having capital and surplus in excess of $500.0 million (or the foreign currency equivalent thereof as of the date of such investment) and the commercial paper of the holding company rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses
 
4

(b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c)(i) or (c)(ii) above, (e) money market instruments, commercial paper or other short-term obligations rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (f) investments in money market funds subject to the risk-limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940, as amended, (g) investments similar to any of the foregoing denominated in foreign currencies approved by the Board of Directors, and (h) solely with respect to any Captive Insurance Subsidiary, any investment that Person is permitted to make in accordance with applicable law.
“CD&R” means Clayton, Dubilier & Rice, LLC and any successor in interest thereto, and any successor to its investment management business.
“Change of Control” means:
(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders or a Parent, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50.0% of the total voting power of the Voting Stock of the Company; provided that (x) so long as the Company is a Subsidiary of any Parent, no “person” shall be deemed to be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of the Company unless such “person” shall be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such Parent and (y) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the “beneficial owner”; or
(ii) the Company sells or transfers, in one or a series of related transactions, all or substantially all of the assets of the Company and its Restricted Subsidiaries to, another Person (other than one or more Permitted Holders) and any “person” (as so defined in clause (i) above), other than one or more Permitted Holders or any Parent, is or becomes the “beneficial owner” (as so defined in clause (i) above), directly or indirectly, of more than 50.0% of the total voting power of the Voting Stock of the transferee Person in such sale or transfer of assets, as the case may be; provided that (x) so long as such transferee Person is a Subsidiary of a parent Person, no “person” shall be deemed to be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such transferee Person unless such “person” shall be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such parent Person and (y) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the beneficial owner.
For the purpose of this definition, so long as, at the time of any Minority Business Disposition or any Minority Business Offering, the Minority Business Disposition Condition is met, the Minority Business Assets shall not be deemed at any time to constitute all or substantially all of the assets of the Company and its Restricted Subsidiaries, and any sale or transfer of all or any part of the Minority Business Assets (whether directly or indirectly, whether by sale or transfer
 
5

of any such assets, or of any Capital Stock or other interest in any Person holding such assets, or by merger or consolidation, or any combination thereof, and whether in one or more transactions, or otherwise, including any Minority Business Offering or any Minority Business Disposition) shall not be deemed at any time to constitute a sale or transfer of all or substantially all of the assets of the Company and its Restricted Subsidiaries.
“Clearstream” means Clearstream Banking, société anonyme, or any successor securities clearing agency.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commodities Agreement” means, in respect of a Person, any commodity futures contract, forward contract, option or similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or beneficiary.
“Company” means Univar Solutions Inc., a Delaware corporation, and any successor in interest thereto.
“Consolidated Coverage Ratio” as of any date of determination means the ratio of (i) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters of the Company ending prior to the date of such determination for which consolidated financial statements of the Company are available, to (ii) Consolidated Interest Expense for such four fiscal quarters; provided that:
(1) if, since the beginning of such period, the Company or any Restricted Subsidiary has Incurred any Indebtedness or the Company has issued any Designated Preferred Stock that remains outstanding on such date of determination or the Company has caused any Reserved Indebtedness Amount to be deemed to be incurred during such period or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness or an issuance of Designated Preferred Stock of the Company, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness or Designated Preferred Stock as if such Indebtedness or Designated Preferred Stock had been Incurred or issued, as applicable, on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B) if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation),
(2) if, since the beginning of such period, the Company or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness or any Designated Preferred Stock of the Company that is no longer outstanding on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit
 
6

facility, unless such Indebtedness has been repaid with an equivalent permanent reduction in commitments thereunder) or a Discharge of Designated Preferred Stock of the Company, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness or Designated Preferred Stock, including with the proceeds of such new Indebtedness or new Designated Preferred Stock of the Company, as if such Discharge had occurred on the first day of such period,
(3) if, since the beginning of such period, the Company or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business, including any such disposition occurring in connection with a transaction causing a calculation to be made hereunder, or designated any Restricted Subsidiary as an Unrestricted Subsidiary (any such disposition or designation, a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period, and Consolidated Interest Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to any Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to the Company and its continuing Restricted Subsidiaries in connection with such Sale for such period (including, but not limited to, through the assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is disposed of in such Sale or any Restricted Subsidiary is designated as an Unrestricted Subsidiary, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale,
(4) if, since the beginning of such period, the Company or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder, or designated any Unrestricted Subsidiary as a Restricted Subsidiary (any such Investment, acquisition or designation, a “Purchase”), Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period, and
(5) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (2), (3) or (4) above if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period;
 
7

provided that (in the event that the Company shall classify Indebtedness Incurred on the date of determination as Incurred in part under Section 407(a) and in part under Section 407(b), as provided in Section 407(c)(iii)) any such pro forma calculation of Consolidated Interest Expense shall not give effect to any such Incurrence of Indebtedness on the date of determination pursuant to Section 407(b) (other than, if the Company at its option has elected to disregard Indebtedness being Incurred on the date of determination in part pursuant to Section 407(a) for purposes of calculating the Consolidated Total Leverage Ratio for Incurring Indebtedness on the date of determination in part pursuant to Section 407(b)(x), Section 407(b)(x)) or to any Discharge of Indebtedness from the proceeds of any such Incurrence pursuant to Section 407(b) (other than Section 407(b)(x), if the Incurrence of Indebtedness pursuant to Section 407(b)(x) is being given effect to in the calculation of the Consolidated Coverage Ratio).
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred, Designated Preferred Stock issued, or Indebtedness or Designated Preferred Stock repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including without limitation in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or an authorized Officer of the Company; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the Company to be taken no later than 18 months after the date of determination. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness). If any Indebtedness bears, at the option of the Company or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as the Company or such Restricted Subsidiary may designate. If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
“Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period, plus (x) the following to the extent deducted in calculating such Consolidated Net Income, without duplication: (i) provision for all taxes (whether or not paid, estimated or accrued) based on income, profits, revenue or capital, including federal, foreign, state, provincial, territorial, local, unitary, excise, property, franchise, value added and similar taxes (such as Delaware franchise tax, Pennsylvania capital tax, and provincial capital taxes paid in Canada) and withholding taxes (including any future taxes or other levies which replace or are intended to be
 
8

in lieu of such taxes and any penalties and interest related to such taxes or arising from tax examinations) and similar taxes of such Person paid or accrued during such period (including in respect of repatriated funds), any distributions made to a Parent with respect to the foregoing and the net tax expense associated with any adjustments made pursuant to the definition of “Consolidated Net Income” in each case, to the extent deducted (and not added back) in computing Consolidated Net Income, (ii) Consolidated Interest Expense, all items excluded from the definition of Consolidated Interest Expense pursuant to clause (iii) thereof (other than Special Purpose Financing Expense), any Special Purpose Financing Fees, and to the extent not reflected in Consolidated Interest Expense, costs of surety bonds in connection with financing activities, (iii) depreciation, (iv) amortization (including but not limited to amortization of goodwill and intangibles and amortization and write-off of financing costs), (v) any non-cash charges, write-downs, expenses, losses or items (provided that if any such non-cash charge, write-down, expense, loss or item represents an accrual or reserve for potential cash items in any future period, the Company may elect not to add back such non-cash charge, expense or loss in the current period) or other items classified by the Company as special items less other non-cash items of income increasing Consolidated Net Income (excluding any amortization of a prepaid cash item that was paid in a prior period or such non-cash item of income to the extent it represents a receipt of cash in any future period), (vi) any expenses or charges related to any Equity Offering, Permitted Payment, Investment or Indebtedness permitted by this Indenture (whether or not consummated or incurred, and including any offering or sale of Capital Stock to the extent the proceeds thereof were intended to be contributed to the equity capital of the Company or its Restricted Subsidiaries), (vii) the amount of any loss attributable to any minority or non-controlling interests, (viii) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Hedging Obligations or other derivative instruments, (ix) any management, monitoring, consulting and advisory fees and related expenses permitted to be paid in accordance with Section 412, (x) interest and investment income, (xi) the amount of loss on any Financing Disposition, and (xii) any costs or expenses pursuant to any management or employee stock option or other equity-related plan, program or arrangement, or other benefit plan, program or arrangement, or any equity subscription or equityholder agreement, to the extent funded with cash proceeds contributed to the capital of the Company or an issuance of Capital Stock of the Company (other than Disqualified Stock) and excluded from the calculation set forth in Section 409(a)(3), (xiii) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any Restricted Subsidiary during such period, (xiv) with respect to any joint venture, an amount equal to the proportion of those items described in clauses (i), (iii) and (iv) above relating to such joint venture corresponding to the Company’s and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary) to the extent deducted (and not added back) in computing Consolidated Net Income and (xv) adjustments of the nature or type used in connection with the calculation of “Further Adjusted EBITDA” as set forth in footnote (2) of “Summary—Summary Consolidated Historical and Pro Forma Financial Information” contained in the offering memorandum relating to the Notes and other adjustments of a similar nature to the foregoing and any due diligence quality of earnings report from time to time prepared with respect to the target of an acquisition or Investment by a nationally recognized accounting firm plus (y) the amount of net cost savings, operating expense reductions, other operating improvements and initiatives and synergies projected by the Company in good faith to be realized as the result of actions taken or to be taken on or prior to the date that is 18 months after the Issue Date, or 18 months after the
 
9

consummation of any operational change, respectively (calculated on a pro forma basis as though such cost savings, reductions, improvements, initiatives and synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions (which adjustments may be incremental to pro forma adjustments made pursuant to the proviso to the definition of “Consolidated Coverage Ratio,” “Consolidated Secured Leverage Ratio” or “Consolidated Total Leverage Ratio”).
“Consolidated Interest Expense” means, for any period, (i) the total interest expense of the Company and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of the Company and its Restricted Subsidiaries, including without limitation, any such interest expense consisting of (A) interest expense attributable to Capitalized Lease Obligations (excluding, for the avoidance of doubt, any lease, rental, or other expense in connection with a lease that is not a Capitalized Lease Obligation), (B) amortization of debt discount, (C) interest in respect of Indebtedness of any other Person that has been Guaranteed by the Company or any Restricted Subsidiary, but only to the extent that such interest is actually paid by the Company or any Restricted Subsidiary, (D) non-cash interest expense, (E) the interest portion of any deferred payment obligation, and (F) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, plus (ii) Preferred Stock dividends paid in cash in respect of Disqualified Stock of the Company held by Persons other than the Company or a Restricted Subsidiary, or in respect of Designated Preferred Stock of the Company pursuant to Section 409(b)(xi)(A), minus (iii) to the extent otherwise included in such interest expense referred to in clause (i) above, Special Purpose Financing Expense, accretion or accrual of discounted liabilities not constituting Indebtedness, expense resulting from discounting of Indebtedness in conjunction with recapitalization or purchase accounting, and any “additional interest” in respect of registration rights arrangements for any securities, amortization or write-off of financing costs, and any expensing of bridge, commitment or other financing fees, in each case under clauses (i) through (iii) above as determined on a Consolidated basis in accordance with GAAP; provided that gross interest expense shall be determined after giving effect to any net payments made or received by the Company and its Restricted Subsidiaries with respect to Interest Rate Agreements.
“Consolidated Net Income” means, for any period, the net income (loss) of the Company and its Restricted Subsidiaries, determined on a Consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided that, without duplication, there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Unrestricted Subsidiary and (solely for purposes of determining the amount available for Restricted Payments under Section 409(a)(3)(A), any net income (loss) of any Person if such Person is not the Company or a Restricted Subsidiary, except that (A) the Company’s or any Restricted Subsidiary’s net income of any such Person for such period shall be increased by the aggregate amount actually dividended or distributed or that (as determined by the Company in good faith, which determination shall be conclusive) could have been dividended or distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (ii) below), to the extent not already included therein, and (B) the Company’s or any Restricted Subsidiary’s equity in the net loss of such Person shall be included to the extent of the aggregate Investment of the Company or any of its Restricted Subsidiaries in such Person,
 
10

(ii) solely for purposes of determining the amount available for Restricted Payments under Section 409(a)(3)(A), any net income (loss) of any Restricted Subsidiary that is not a Subsidiary Guarantor if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or indirectly, to the Company by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than (x) restrictions that have been waived or otherwise released, (y) restrictions pursuant to the Notes or this Indenture, and (z) restrictions in effect on the Issue Date with respect to a Restricted Subsidiary and other restrictions with respect to such Restricted Subsidiary that taken as a whole are not materially less favorable to the Noteholders than such restrictions in effect on the Issue Date as determined by the Company in good faith), except that (A) the Company’s equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that (as determined by the Company in good faith, which determination shall be conclusive) could have been made by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary (subject, in the case of a dividend that could have been made to another Restricted Subsidiary, to the limitation contained in this clause (ii)) and (B) the net loss of such Restricted Subsidiary shall be included to the extent of the aggregate Investment of the Company or any of its other Restricted Subsidiaries in such Restricted Subsidiary,
(iii) (x) any gain or loss realized upon the sale, abandonment or other disposition of any asset of the Company or any Restricted Subsidiary (including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise disposed of in the ordinary course of business (as determined in good faith by the Board of Directors) and (y) any gain or loss realized upon the disposal, abandonment or discontinuation of operations of the Company or any Restricted Subsidiary,
(iv) any extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges (or any amortization thereof) associated with the Transactions or any acquisition, merger or consolidation, whether or not completed, after the Issue Date or any accounting change), any severance, relocation, consolidation, closing, integration, facilities opening, business optimization, transition or restructuring costs, charges or expenses, any signing, retention or completion bonuses, and any costs associated with curtailments or modifications to pension and post-retirement employee benefit plans,
(v) the cumulative effect of a change in accounting principles,
(vi) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments,
 
11

(vii) any unrealized gains or losses in respect of Hedge Agreements,
(viii) any unrealized foreign currency translation gains or losses, including in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person,
(ix) any non-cash compensation charge arising from any grant of limited liability company interests, stock, stock options or other equity-based awards,
(x) to the extent otherwise included in Consolidated Net Income, any unrealized foreign currency translation gains or losses, including in respect of Indebtedness or other obligations of the Company or any Restricted Subsidiary owing to the Company or any Restricted Subsidiary,
(xi) any non-cash charge, expense or other impact attributable to application of the purchase or recapitalization method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-up of assets to the extent resulting from such purchase or recapitalization accounting adjustments), non-cash charges for deferred tax valuation allowances and non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP,
(xii) expenses related to the conversion of various employee benefit programs in connection with the IPO and non-cash compensation-related expenses, and
(xiii) to the extent covered by insurance and actually reimbursed (or the Company has determined that there exists reasonable evidence that such amount will be reimbursed by the insurer and such amount is not denied by the applicable insurer in writing within 180 days and is reimbursed within 365 days of the date of such evidence (with a deduction in any future calculation of Consolidated Net Income for any amount so added back to the extent not so reimbursed within such 365-day period)), any expenses with respect to liability or casualty events or business interruption;
provided, further, that the exclusion of any item pursuant to the foregoing clauses (i) through (xiii) shall also exclude the tax impact of any such item, if applicable.
In the case of any unusual or nonrecurring gain, loss or charge not included in Consolidated Net Income pursuant to clause (iv) above in any determination thereof, the Company will deliver an Officer’s Certificate to the Trustee promptly after the date on which Consolidated Net Income is so determined, setting forth the nature and amount of such unusual or nonrecurring gain, loss or charge. Notwithstanding the foregoing, for the purpose of Section 409(a)(3)(A) only, there shall be excluded from Consolidated Net Income, without duplication, any income consisting of dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary, and any income consisting of return of capital, repayment or other proceeds from dispositions or repayments of Investments consisting of Restricted Payments, in each case to the extent such income would be included in Consolidated Net Income and such related dividends, repayments, transfers, return of capital or other proceeds are applied by the Company to increase the amount of Restricted Payments permitted under Section 409(a)(3)(C) or Section 409(a)(3)(D).
 
12

“Consolidated Secured Indebtedness” means, as of any date of determination, (i) an amount equal to the sum of, without duplication, Consolidated Total Indebtedness (without regard to clause (ii) of the definition thereof) and any Ratio Tested Committed Amount as of such date that, in each case, is either (x) then secured by Liens on property or assets of the Company and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby) or (y) Incurred (or, in the case of any Ratio Tested Committed Amount, established) pursuant to Section 407(b)(i)(II), minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Section 407(b)(ix), (B) cash, Cash Equivalents and Temporary Cash Investments held by the Company and its Restricted Subsidiaries as of the end of the most recent four consecutive fiscal quarters of the Company ending prior to the date of such determination for which consolidated financial statements of the Company are available and (C) if included in clause (i) above, any undrawn Reserved Indebtedness Amount.
“Consolidated Secured Leverage Ratio” means, as of any date of determination, the ratio of (i) the sum of (x) Consolidated Secured Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) and (y) the drawn Reserved Indebtedness Amount then secured by Liens on property or assets of the Company and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters of the Company ending prior to the date of such determination for which consolidated financial statements of the Company are available, provided that:
(1) if, since the beginning of such period, the Company or any Restricted Subsidiary shall have made a Sale (including any Sale occurring in connection with a transaction causing a calculation to be made hereunder), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, the Company or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
 
13

provided that, in the event that the Company shall classify Indebtedness Incurred on the date of determination as Incurred in part pursuant to Section 407(b)(i)(II) and, that is secured by Liens on property or assets of the Company and its Restricted Subsidiaries, in part pursuant to one or more other clauses or subclauses of Section 407(b) and/or pursuant to Section 407(a) (as provided in Section 407(c)(ii) and Section 407(c)(iii)), Consolidated Secured Indebtedness shall not include any such Indebtedness (and shall not give effect to any Discharge of Consolidated Secured Indebtedness from the proceeds thereof) to the extent Incurred pursuant to any such other clause or subclause of such Section 407(b) and/or pursuant to such Section 407(a).
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including, without limitation, in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another authorized Officer of the Company; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the Company to be taken no later than 18 months after the date of determination.
“Consolidated Total Assets” means, as of any date of determination, the total assets, in each case reflected on the consolidated balance sheet of the Company as at the end of the most recently ended fiscal quarter of the Company for which a balance sheet is available, determined on a Consolidated basis in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or Liens or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
“Consolidated Total Indebtedness” means, as of any date of determination, an amount equal to (i) the aggregate principal amount of outstanding Indebtedness of the Company and its Restricted Subsidiaries as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts in respect of funded letters of credit); Capitalized Lease Obligations; debt obligations evidenced by bonds, debentures, notes or similar instruments (but excluding surety bonds, performance bonds or other similar instruments); Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a Subsidiary Guarantor) Preferred Stock, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Hedging Obligations) minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Section 407(b)(ix),(B) cash, Cash Equivalents and Temporary Cash Investments held by the Company and its Restricted Subsidiaries as of the end of the most recent four consecutive fiscal quarters of the Company ending prior to the date of such determination for which consolidated financial statements of the Company are available and (C) any undrawn Reserved Indebtedness.
 
14

“Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (i) the sum of (x) Consolidated Total Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) and (y) without duplication, the drawn Reserved Indebtedness to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters of the Company ending prior to the date of such determination for which consolidated financial statements of the Company are available, provided that:
(1) if, since the beginning of such period, the Company or any Restricted Subsidiary shall have made a Sale (including any Sale occurring in connection with a transaction causing a calculation to be made hereunder), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, the Company or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
provided that, for purposes of the foregoing calculation, in the event that the Company shall classify Indebtedness Incurred on the date of determination as Incurred in part pursuant to Section 407(b)(x) (other than by reason of subclause (2) of the proviso to such Section 407(b)(x)) and in part pursuant to one or more other clauses of such Section 407(b) and/or (unless the Company at its option has elected to disregard Indebtedness being Incurred on the date of determination in part pursuant to subclause (2) of the proviso to Section 407(b)(x) for purposes of calculating the Consolidated Coverage Ratio for Incurring Indebtedness on the date of determination in part under Section 407(a)) pursuant to Section 407(a) (as provided in Section 407(c)(ii) and (iii)), Consolidated Total Indebtedness shall not include any such Indebtedness Incurred pursuant to one or more such other clauses of such Section 407(b) and/or pursuant to such Section 407(a), and shall not give effect to any Discharge of any Indebtedness from the proceeds of any such Indebtedness being disregarded for purposes of the calculation of the Consolidated Total Leverage Ratio that otherwise would be included in Consolidated Total Indebtedness.
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including, without limitation, in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another authorized Officer of the Company; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the Company to be taken no later than 18 months after the date of determination.
 
15

“Consolidation” means the consolidation of the accounts of each of the Restricted Subsidiaries with those of the Company in accordance with GAAP; provided that “Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of the Company or any Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an investment. The term “Consolidated” has a correlative meaning.
“Contribution Amounts” means the aggregate amount of capital contributions applied by the Company to permit the Incurrence of Contribution Indebtedness pursuant to Section 407(b)(xi).
“Contribution Indebtedness” means Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount not greater than twice the aggregate amount of cash contributions (other than Excluded Contributions, the proceeds from the issuance of Disqualified Stock or contributions by the Company or any Restricted Subsidiary) made to the capital of the Company or such Restricted Subsidiary after the Issue Date (whether through the issuance or sale of Capital Stock or otherwise); provided that such Contribution Indebtedness (a) is Incurred within 180 days after the receipt of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to an Officer’s Certificate on or promptly following the date of Incurrence thereof.
“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be administered, which office on the Issue Date is located at 190 South LaSalle Street, 10th floor, Chicago IL, 60603.
“Credit Facilities” means one or more of (i) the Senior Term Facility, (ii) the Senior ABL Facility, (iii) the European ABL Facility, and (iv) any other facilities or arrangements designated by the Company, in each case with one or more banks or other lenders or institutions providing for revolving credit loans, term loans, receivables, inventory or real estate financings (including without limitation through the sale of receivables, inventory, real estate and/or other assets to such institutions or to special purpose entities formed to borrow from such institutions against such receivables, inventory, real estate and/or other assets or the creation of any Liens in respect of such receivables, inventory, real estate and/or other assets in favor of such institutions), letters of credit or other Indebtedness, in each case, including all agreements, instruments and documents executed and delivered pursuant to or in connection with any of the foregoing, including but not limited to any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original banks, lenders or institutions or other banks, lenders or institutions or otherwise, and whether provided under any original Credit Facility or one or more other credit agreements, indentures, financing agreements or other Credit Facilities or otherwise). Without limiting the generality of
 
16

the foregoing, the term “Credit Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Credit Facility Indebtedness” means any and all amounts, whether outstanding on the Issue Date or thereafter Incurred, payable under or in respect of any Credit Facility, including without limitation principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Restricted Subsidiary whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees, other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.
“Currency Agreement” means, in respect of a Person, any foreign exchange contract, currency swap agreement or other similar agreement or arrangements (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
“CVC” means CVC Capital Partners Limited.
“Default” means any event or condition that is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” means The Depository Trust Company, its nominees and successors.
“Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Notes (other than a Screened Affiliate) is a party (whether or not requiring further performance by such Person), the value and/or cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes and/or the creditworthiness of the Issuer and/or any one or more of the Guarantors (the “Performance References”).
“Designated Noncash Consideration” means noncash consideration received by the Company or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation.
“Designated Preferred Stock” means Preferred Stock of the Company (other than Disqualified Stock) or any Parent that is issued after the Issue Date for cash (other than to a Restricted Subsidiary) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate of the Company; provided that the amount of cash proceeds of such issuance shall be excluded from the calculation set forth in Section 409(a)(3)(B).
“Designated Senior Indebtedness” means with respect to a Person (i) the Credit Facility Indebtedness under or in respect of any Senior Credit Facility and (ii) any other Senior Indebtedness of such Person that, at the date of determination, has an aggregate principal amount equal to or under which, at the date of determination, the holders thereof are committed to lend up to, at least $25.0 million and is specifically designated by such Person in an agreement or instrument evidencing or governing such Senior Indebtedness as “Designated Senior Indebtedness” for purposes of this Indenture.
 
17

“Disinterested Directors” means, with respect to any Affiliate Transaction, one or more members of the Board of Directors of the Company, or one or more members of the Board of Directors of a Parent, having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of any such Board of Directors shall not be deemed to have such a financial interest by reason of such member’s holding Capital Stock of the Company or any Parent or any options, warrants or other rights in respect of such Capital Stock or by reason of such member receiving any compensation from the Company or any Parent, as applicable, on whose board of directors such member serves in such member’s role as director.
“Disqualified Stock” means, with respect to any Person, any Capital Stock (other than Management Stock) that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an Asset Disposition or other disposition) (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control,” or an Asset Disposition or other disposition), in whole or in part, in each case on or prior to the final Stated Maturity of the Notes; provided that Capital Stock issued to any employee benefit plan, or by any such plan to any employees of the Company or any Subsidiary, shall not constitute Disqualified Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.
“Domestic Subsidiary” means any Restricted Subsidiary of the Company other than a Foreign Subsidiary.
“Equity Offering” means a sale of Capital Stock (x) that is a sale of Capital Stock of the Company (other than Disqualified Stock or sales to Restricted Subsidiaries of the Company) or (y) proceeds of which in an amount equal to or exceeding the Redemption Amount are contributed to the equity capital of the Company or any of its Restricted Subsidiaries (other than proceeds from a sale to Restricted Subsidiaries of Capital Stock of the Company).
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, or any successor securities clearing agency.
“European ABL Agreement” means the European ABL Facility Agreement, dated as of March 24, 2014, among Univar B.V., the other Subsidiaries of the Company borrowers from time to time party thereto from time to time, the Company, as guarantor, J.P. Morgan Europe Limited, as administrative agent and collateral agent, and certain other parties thereto from time to time; as such agreement may be amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and
 
18

lenders or otherwise, and whether provided under the original European ABL Agreement or other credit agreements or otherwise, except to the extent that such agreement, instrument or document expressly provides that it is not intended to be and is not a European ABL Agreement). Any reference to the European ABL Agreement hereunder shall be deemed a reference to each European ABL Agreement then in existence.
“European ABL Facility” means the collective reference to the European ABL Agreement, any Credit Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original European ABL Agreement or one or more other credit agreements, indentures (including this Indenture) or financing agreements or otherwise), except to the extent that such agreement, instrument or document expressly provides that it is not intended to be and is not a European ABL Facility. Without limiting the generality of the foregoing, the term “European ABL Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Excluded Contribution” means Net Cash Proceeds, or the Fair Market Value of property or assets, received by the Company as capital contributions to the Company after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the Company, in each case to the extent designated as an Excluded Contribution pursuant to an Officer’s Certificate of the Company and not previously included in the calculation set forth in Section 409(a)(3)(B)(x) for purposes of determining whether a Restricted Payment may be made.
“Exempt Sale and Leaseback Transaction” means any Sale and Leaseback Transaction (a) in which the sale or transfer of property occurs within 180 days of the acquisition of such property by the Company or any of its Subsidiaries or (b) that involves property with a book value of $100.0 million or less and is not part of a series of related Sale and Leaseback Transactions involving property with an aggregate value in excess of such amount and entered into with a single Person or group of Persons. For purposes of the foregoing, “Sale and Leaseback Transaction” means any arrangement with any Person providing for the leasing by the Company or any of its Subsidiaries of real or personal property that has been or is to be sold or transferred by the Company or any such 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 Company or such Subsidiary.
 
19

“Fair Market Value” means, with respect to any asset or property, the fair market value of such asset or property as determined in good faith by senior management of the Company or the Board of Directors, whose determination shall be conclusive.
“Financing Disposition” means any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets (a) by the Company or any Subsidiary thereof to or in favor of any Special Purpose Entity, or by any Special Purpose Subsidiary, in each case in connection with the Incurrence by a Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets or (b) by the Company or any Subsidiary thereof to or in favor of any Special Purpose Entity that is not a Special Purpose Subsidiary.
“Fixed GAAP Date” means July 1, 2015; provided that at any time after the Issue Date, the Company may by written notice to the Trustee elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.
“Fixed GAAP Terms” means (a) the definitions of the terms “Capitalized Lease Obligation,” “Consolidated Coverage Ratio,” “Consolidated EBITDA,” “Consolidated Interest Expense,” “Consolidated Net Income,” “Consolidated Secured Indebtedness,” “Consolidated Secured Leverage Ratio,” “Consolidated Total Assets,” “Foreign Borrowing Base,” “Foreign Segment Consolidated Total Assets,” “Consolidated Total Leverage Ratio,” “Consolidation,” “Inventory,” “LTM EBITDA,” “North American Borrowing Base” or “Receivables,” (b) all defined terms in this Indenture to the extent used in or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and (c) any other term or provision of this Indenture or the Notes that, at the Company’s election, may be specified by the Company by written notice to the Trustee from time to time.
“Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“Foreign Borrowing Base” means the sum of (1) 85% of the book value of Inventory of Foreign Subsidiaries (other than Canadian Subsidiaries), (2) 85% of the book value of Receivables of Foreign Subsidiaries (other than Canadian Subsidiaries) and (3) cash, Cash Equivalents and Temporary Cash Investments of Foreign Subsidiaries (other than Canadian Subsidiaries) (in each case, determined as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith.
“Foreign LTM EBITDA” means, as of any date of determination, the sum of the Foreign Segment LTM EBITDA of each Foreign Subsidiary Reporting Segment.
 
20

“Foreign Segment LTM EBITDA” means with respect to each Foreign Subsidiary Reporting Segment, as of any date of determination, LTM EBITDA, in each case of such Foreign Subsidiary Reporting Segment as at the end of the most recently ended fiscal quarter of the Company, determined by consolidating the accounts of each of the Subsidiaries within such Foreign Subsidiary Reporting Segment in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
“Foreign Subsidiary” means any Subsidiary of the Company (a) that is not organized under the laws of the United States of America or any state thereof or the District of Columbia, and any Subsidiary of such Foreign Subsidiary (including, for the avoidance of doubt, any Subsidiary of the Company which is organized and existing under the laws of Puerto Rico or any other territory of the United States of America), or (b) that has no material assets other than securities or indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof), intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof), and/or other assets (including cash, Cash Equivalents and Temporary Cash Investments) relating to an ownership interest in any such securities, indebtedness, intellectual property or Subsidiaries.
“Foreign Subsidiary Reporting Segment” means a group of Foreign Subsidiaries of the Company which the Company treats as an operating segment in connection with its internal financial reporting.
“GAAP” means generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Indenture), including those 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 have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature used in this Indenture shall be construed, and all computations of amounts and ratios referred to in this Indenture shall be made without giving effect to any election under Accounting Standards Codification Topic 825—Financial Instruments, or any successor thereto or comparable accounting principle (including pursuant to the Accounting Standards Codification), to value any Indebtedness of the Company or any Subsidiary at “fair value,” as defined therein and the amount of any Indebtedness under GAAP with respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capitalized Lease Obligation. At any time after the Issue Date, the Company may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Indenture); provided that any such election, once made, shall be irrevocable; provided, further, any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Company shall give notice of any such election made in accordance with this definition to the Trustee. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness.
 
21

If there occurs a change in IFRS or GAAP, as the case may be, following the Fixed GAAP Date and such change would cause a change in the method of calculation of any standards, terms or measures (including all computations of amounts and ratios) used in this Indenture (an “Accounting Change”), then the Company may elect that such standards, terms or measures shall be calculated as if such Accounting Change had or had not occurred.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor Subordinated Obligations” means, with respect to a Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Subsidiary Guarantor under its Guarantee pursuant to a written agreement.
“Guarantor Supplemental Indenture” means a Supplemental Indenture, to be entered into substantially in the form attached hereto as Exhibit E.
“Guarantors” means the Company together with the Subsidiary Guarantors from time to time party to this Indenture.
“Hedge Agreements” means, collectively, Interest Rate Agreements, Currency Agreements and Commodities Agreements.
“Hedging Obligations” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodities Agreement.
“Holder” or “Noteholder” means the Person in whose name a Note is registered in the Note Register.
“IFRS” means International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such board, or the SEC, as the case may be), as in effect from time to time.
“Immaterial Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Company that (i) has not guaranteed any other Indebtedness of the Company, (ii) (x) contributed 5.00% or less of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Company are available, and (y) had consolidated assets representing 5.00% or less of Consolidated Total Assets as of the end of the most recently ended financial
 
22

period for which consolidated financial statements of the Company are available; and (iii) together with all other Immaterial Subsidiaries designated pursuant to the preceding clause (ii), (x) contributed 10.00% or less of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Company are available, and (y) had consolidated assets representing 10.00% or less of Consolidated Total Assets as of the end of the most recently ended financial period for which consolidated financial statements of the Company are available.
“Incur” means issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock, will be deemed not to be an Incurrence of Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
“Indebtedness” means, with respect to any Person on any date of determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed) (except to the extent such reimbursement obligations relate to Trade Payables and such obligations are expected to be satisfied within 30 days of becoming due and payable);
(iv) all obligations of such Person to pay the deferred and unpaid purchase price of property (except Trade Payables), which purchase price is due more than one year after the date of placing such property in final service or taking final delivery and title thereto;
(v) all Capitalized Lease Obligations of such Person;
(vi) the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such Person is a Subsidiary of the Company other than a Subsidiary Guarantor) any Preferred Stock of such Subsidiary, but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Capital Stock, or if less (or if such Capital Stock has no such fixed price), to the
 
23

involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Capital Stock, such fair market value shall be as determined in good faith by senior management of the Company, the Board of Directors of the Company or the Board of Directors of the issuer of such Capital Stock);
(vii) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of Indebtedness of such Person shall be the lesser of (A) the fair market value of such asset at such date of determination (as determined in good faith by the Company) and (B) the amount of such Indebtedness of such other Persons;
(viii) all Guarantees by such Person of Indebtedness of other Persons, to the extent so Guaranteed by such Person; and
(ix) to the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such time).
provided that, Indebtedness shall not include (t) any obligations attributable to the exercise of dissenters’ or appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, (u) any liability for federal, state, local or other taxes owed or owing to any government or other taxing authority, (v) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, (w) obligations, to the extent such obligations constitute Indebtedness, under any agreement that has been defeased or satisfied and discharged pursuant to the terms of such agreement, (x) in connection with the purchase by the Company or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing (so long as (i) at the time of closing, the amount of any such payment is not determinable and (ii) to the extent such payment thereafter becomes fixed and determined, the amount is paid in a timely manner), (y) for the avoidance of doubt, any obligations or liabilities which would be required to be classified and accounted for as an operating lease for financial reporting purposes in accordance with GAAP as of December 15, 2018 or (z) any joint and several or any netting or set-off arrangement arising in each case by operation of law as a result of the existence or establishment of a fiscal unity for corporate income tax, trade tax or value added tax purposes or similar purposes or any analogous arrangement.
The amount of Indebtedness of any Person at any date shall be determined as set forth above or as otherwise provided for in this Indenture, or otherwise shall equal the amount thereof that would appear as a liability on a balance sheet of such Person (excluding any notes thereto) prepared in accordance with GAAP.
“Initial Additional Notes” means Additional Notes issued in an offering not registered under the Securities Act (and any Notes issued in respect thereof pursuant to Section 304, 305, 306, Section 312(d), Section 312(e) or 1008).
 
24

“Initial Notes” means the 5.125% Senior Notes due 2027 of the initial Issuer issued on the Issue Date pursuant to the first Notes Supplemental Indenture, dated as of November 22, 2019 (and any Notes issued in respect thereof pursuant to Section 304, 305, 306, Section 312(d), Section 312(e) or 1008).
“initial Issuer” means Univar Solutions USA Inc., a Washington corporation, and any successor in interest thereto.
“interest,” with respect to the Notes, means interest on the Notes and, except for purposes of Article IX, additional or special interest pursuant to the terms of any Note.
“Interest Payment Date” means, when used with respect to any Note and any installment of interest thereon, the date specified in such Note as the fixed date on which such installment of interest is due and payable, as set forth in such Note.
“Interest Rate Agreement” means, with respect to any Person, any interest rate protection agreement, future agreement, option agreement, swap agreement, cap agreement, collar agreement, hedge agreement or other similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
“Inventory” means goods held for sale, lease or use by a Person in the ordinary course of business, net of any reserve for goods that have been segregated by such Person to be returned to the applicable vendor for credit, as determined in accordance with GAAP.
“Investment” in any Person by any other Person means any direct or indirect advance, loan or other extension of credit (other than to customers, dealers, licensees, franchisees, suppliers, consultants, directors, officers or employees of any Person in the ordinary course of business) or capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person. For purposes of the definition of “Unrestricted Subsidiary” and Section 409 only, (i) “Investment” shall include the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (x) the Company’s “Investment” in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation, and (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value (as determined in good faith by the Company) at the time of such transfer and (iii) for purposes of Section 409(a)(3)(C), the amount resulting from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary shall be the Fair Market Value of the Investment in such Unrestricted Subsidiary at the time of such redesignation. Guarantees shall not be deemed to be Investments. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the Company’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment;
 
25

provided that to the extent that the amount of Restricted Payments outstanding at any time pursuant to Section 409(a) is so reduced by any portion of any such amount or value that would otherwise be included in the calculation of Consolidated Net Income, such portion of such amount or value shall not be so included for purposes of calculating the amount of Restricted Payments that may be made pursuant to Section 409(a).
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or any equivalent rating by any other Rating Agency.
“Investment Grade Securities” means (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents); (ii) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries; (iii) investments in any fund that invests exclusively in investments of the type described in clauses (i) and (ii) above, which fund may also hold cash pending investment or distribution; and (iv) corresponding instruments in countries other than the United States customarily utilized for high-quality investments.
“IPO” means the initial public offering of the Company’s common stock which closed on June 23, 2015.
“Issue Date” means the first date on which Initial Notes are issued.
“Issuer” means, with respect to the Initial Notes so long as such notes remain outstanding, the initial Issuer and, with respect to any outstanding series of Additional Notes, the “Issuer” as such term is defined in the Notes Supplemental Indenture establishing such series of Notes.
“Issuer Request” and “Issuer Order” mean, respectively, a written request, order or consent signed in the name of the Issuer by an Officer of the Issuer.
“Junior Capital” means, collectively, any Indebtedness of any Parent or the Company that (i) is not secured by any asset of the Company or any Restricted Subsidiary, (ii) has a final maturity date that is not earlier than, and provides for no scheduled payments of principal prior to, the date that is 91 days after the maturity of the Notes (other than through conversion or exchange of any such Indebtedness for Capital Stock (other than Disqualified Stock) of the Company, Capital Stock of any Parent or any other Junior Capital), (iii) has no mandatory redemption or prepayment obligations other than obligations that are subject to the prior payment in full in cash of the Notes and (iv) does not require the payment of cash interest until the date that is 91 days after the maturity of the Notes.
“Liabilities” means, collectively, any and all claims, obligations, liabilities, causes of action, actions, suits, proceedings, investigations, judgments, decrees, losses, damages, fees, costs and expenses (including without limitation interest, penalties and fees and disbursements of attorneys, accountants, investment bankers and other professional advisors), in each case whether incurred, arising or existing with respect to third parties or otherwise at any time or from time to time.
 
26

“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).
“Long Derivative Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.
“LTM EBITDA” means Consolidated EBITDA of the Company measured for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements are available (which may be internal financial statements), in each case with such pro forma adjustments giving effect to such Indebtedness, acquisition or Investment, as applicable, since the start of such four quarter period and as are consistent with the pro forma adjustments set forth in the definition of “Consolidated Coverage Ratio.”
“Limited Condition Acquisition” means (x) any acquisition, including by way of merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise, or Investment by one or more of the Company and its Restricted Subsidiaries of any assets, business or Person or any other Investment permitted by this Indenture, in each case, whose consummation is not conditioned on the availability of, or on obtaining, third party financing or (y) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.
“Management Advances” means (1) loans or advances made to directors, management members, officers, employees or consultants of any Parent, the Company or any Restricted Subsidiary (x) in respect of travel, entertainment or moving-related expenses incurred in the ordinary course of business, (y) in respect of moving-related expenses incurred in connection with any closing or consolidation of any facility or (z) in the ordinary course of business and (in the case of this clause (z)) not exceeding the greater of $70.0 million and 8.0% of LTM EBITDA in the aggregate outstanding at any time, (2) promissory notes of Management Investors acquired in connection with the issuance of Management Stock to such Management Investors, (3) Management Guarantees, or (4) other Guarantees of borrowings by Management Investors in connection with the purchase of Management Stock, which Guarantees are permitted under Section 407.
“Management Agreements” means, collectively, (i) the Indemnification Agreement, dated as of November 30, 2010, among the Company, Univar USA Inc., CD&R and certain of its Affiliates, (ii) the Indemnification Agreement, dated as of November 30, 2010, among the Company, Univar USA Inc. and certain Affiliates of CVC, (iii) the Fourth Amended and Restated Stockholders Agreement, among the Company, CD&R, certain Affiliates of CD&R and CVC, and certain other parties thereto, dated as of June 23, 2015 and (iv) any other agreement primarily providing for indemnification and/or contribution for the benefit of any Permitted Holder in respect of Liabilities resulting from, arising out of or in connection with, based upon or relating
 
27

to (a) any management consulting, financial advisory, financing, underwriting or placement services or other investment banking activities, (b) any offering of securities or other financing activity or arrangement of or by any Parent or any of its Subsidiaries or (c) any action or failure to act of or by any Parent or any of its Subsidiaries (or any of their respective predecessors); in each case as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof and of this Indenture.
“Management Guarantees” means guarantees (x) of up to an aggregate principal amount outstanding at any time of $30.0 million of borrowings by Management Investors in connection with their purchase of Management Stock or (y) made on behalf of, or in respect of loans or advances made to, directors, officers, employees or consultants of any Parent, the Company or any Restricted Subsidiary (1) in respect of travel, entertainment and moving related expenses incurred in the ordinary course of business or (2) in the ordinary course of business and (in the case of this clause (2)) not exceeding $15.0 million in the aggregate outstanding at any time.
“Management Indebtedness” means Indebtedness Incurred to (a) any Person other than a Management Investor of up to an aggregate principal amount outstanding at any time of $15.0 million and (b) any Management Investor, in each case, to finance the repurchase or other acquisition of Capital Stock of the Company, any Restricted Subsidiary or any Parent (including any options, warrants or other rights in respect thereof) from any Management Investor, which repurchase or other acquisition of Capital Stock is permitted by Section 409.
“Management Investors” means the management members, officers, directors, employees and other members of the management of any Parent, the Company or any of their respective Subsidiaries, or family members or relatives of any of the foregoing (provided that, solely for purposes of the definition of “Permitted Holders,” such relatives shall include only those Persons who are or become Management Investors in connection with estate planning for or inheritance from other Management Investors, as determined in good faith by the Company, which determination shall be conclusive), or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the Company, any Restricted Subsidiary or any Parent.
“Management Stock” means Capital Stock of the Company, any Restricted Subsidiary or any Parent (including any options, warrants or other rights in respect thereof) held by any of the Management Investors.
“Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of capital stock of the Company or any direct or indirect parent company on the date of declaration of the relevant dividend or making of any other Restricted Payment, as applicable, multiplied by (ii) the arithmetic mean of the closing prices per share of such capital stock on the New York Stock Exchange (or, if the primary listing of such capital stock is on another exchange, on such other exchange) for the 30 consecutive trading days immediately preceding the date of declaration of such dividend.
 
28

“Minority Business” means any business unit of the Company that represents less than 50.0% of the Consolidated EBITDA of the Company and its Restricted Subsidiaries for and as of the end of the last four fiscal quarters of the Company for which financial statements have been delivered pursuant to Section 405.
“Minority Business Assets” means the assets of the Company and its Subsidiaries, including Capital Stock of Subsidiaries, that relate to or form part of a Minority Business.
“Minority Business Disposition” means (i) any sale or other disposition of Capital Stock of any Minority Business Subsidiary (whether by issuance or sale of Capital Stock, merger, or otherwise) to one or more Persons (other than the Company or a Restricted Subsidiary) in any transaction or series of related transactions following the consummation of which such Minority Business Subsidiary is no longer a Restricted Subsidiary of the Company (excluding any Minority Business Offering) or (ii) any sale or other disposition of any assets of any Minority Business Subsidiary or other Minority Business Assets, including all or substantially all of the assets of any Minority Business Subsidiary, to one or more Persons (other than the Company or a Restricted Subsidiary) in any transaction or series of related transactions.
“Minority Business Disposition Condition” means at any date of determination after giving effect to the Minority Business Disposition or Minority Business Offering, either (1) the Company could Incur at least $1.00 of Indebtedness pursuant to Section 407(a) or (2) the Consolidated Coverage Ratio of the Company would equal or exceed the Consolidated Coverage Ratio of the Company immediately prior to giving effect thereto.
“Minority Business Offering” means a public offering of Capital Stock of any Minority Business Subsidiary pursuant to a registration statement filed with the SEC.
“Minority Business Subsidiary” means any of the Company’s Subsidiaries and successors in interest thereto to the extent any of such Subsidiaries form part of the relevant Minority Business.
“Moody’s” means Moody’s Investors Service, Inc., and its successors.
“Net Available Cash” from an Asset Disposition means an amount equal to the cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of (i) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or to be accrued as a liability under GAAP, in each case as a consequence of, or in respect of, such Asset Disposition (including as a consequence of any transfer of funds in connection with the application thereof in accordance with Section 411), (ii) all payments made, and all installment payments required to be made, on any Indebtedness (x) that is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or (y) that must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds
 
29

from such Asset Disposition, including but not limited to any payments required to be made to increase borrowing availability under any revolving credit facility, (iii) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition, or to any other Person (other than the Company or a Restricted Subsidiary) owning a beneficial interest in the assets disposed of in such Asset Disposition, (iv) any liabilities or obligations associated with the assets disposed of in such Asset Disposition and retained, indemnified or insured by the Company or any Restricted Subsidiary after such Asset Disposition, including without limitation pension and other post-employment benefit liabilities, liabilities related to environmental matters, and liabilities relating to any indemnification obligations associated with such Asset Disposition, and (v) the amount of any purchase price or similar adjustment (x) claimed by any Person to be owed by the Company or any Restricted Subsidiary, until such time as such claim shall have been settled or otherwise finally resolved, or (y) paid or payable by the Company or any Restricted Subsidiary, in either case in respect of such Asset Disposition.
“Net Cash Proceeds” means, with respect to any issuance or sale of any securities of the Company or any Subsidiary by the Company or any Subsidiary, or any capital contribution, the amount of cash proceeds of such issuance, sale, contribution or Incurrence net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance, sale, contribution or Incurrence and net of all taxes paid or payable as a result, or in respect, thereof.
“Net Short” means, with respect to a Holder or beneficial owner, as of a date of determination, either (i) the value of its Short Derivative Instruments exceeds the sum of the (x) the value of its Notes plus (y) the value of its Long Derivative Instruments as of such date of determination or (ii) it is reasonably expected that such would have been the case were a Failure to Pay or Bankruptcy Credit Event (each as defined in the 2014 ISDA Credit Derivatives Definitions) to have occurred with respect to the Issuer or any Guarantor immediately prior to such date of determination.
“Non-U.S. Person” means a Person who is not a U.S. person, as defined in Regulation S.
“North American Borrowing Base” means the sum of (1) 85% of the book value of Inventory of the Company, its Domestic Subsidiaries and its Canadian Subsidiaries, (2) 85% of the book value of Receivables of the Company, its Domestic Subsidiaries and its Canadian Subsidiaries, and (3) cash, Cash Equivalents and Temporary Cash Investments of the Company, its Domestic Subsidiaries and its Canadian Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month of the Company for which internal consolidated financial statements of the Company are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).
“Notes” means the Initial Notes, any Additional Notes and any notes issued in respect thereof pursuant to Section 304, 305, 306, 312(d), 312(d) or 1008.
 
30

“Notes Supplemental Indenture” means a Supplemental Indenture pursuant to which an Issuer issues Notes in accordance with Section 301, which may be substantially in the form attached hereto as Exhibit G, or in such other form as the Issuer may determine in accordance with Section 301.
“Obligations” means, with respect to any Indebtedness, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Restricted Subsidiary whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.
“Offering Memorandum” means the confidential Offering Memorandum of the Issuer, dated November 15, 2019, relating to the offering of the Initial Notes.
“Officer” means, with respect to an Issuer, the Company or any other obligor upon the Notes, the Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, any Vice President, the Controller, the Treasurer or the Secretary (a) of such Person or (b) if such Person is owned or managed by a single entity, of such entity (or any other individual designated as an “Officer” for the purposes of this Indenture by the Board of Directors).
“Officer’s Certificate” means, with respect to any Issuer, any other obligor upon the Notes or the Company, a certificate signed by one Officer of such Person. Unless otherwise specified, any requirement to provide an Officer’s Certificate hereunder shall mean Officer’s Certificate of the Company.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the applicable Issuer, the Company or the Trustee.
“Outstanding” or “outstanding,” when used with respect to Notes means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent in trust for the Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor reasonably satisfactory to the Trustee has been made; and
(iii) Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture.
 
31

A Note does not cease to be Outstanding because the Company or any Affiliate of the Company holds the Note (and such Note shall be deemed to be outstanding for purposes of this Indenture); provided that in determining whether the Holders of the requisite amount of Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the reasonable satisfaction of the Trustee the pledgee’s right to act with respect to such Notes and that the pledgee is not the Company or an Affiliate of the Company.
“Parent” means any Other Parent and any other Person that is a Subsidiary of any Other Parent and of which the Company is a Subsidiary. As used herein, “Other Parent” means a Person of which the Company becomes a Subsidiary after the Issue Date that is designated by the Company as an “Other Parent” and solely for so long as the Company remains a Subsidiary of such Person; provided that either (x) immediately after the Company first becomes a Subsidiary of such Person, more than 50.0% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50.0% of the Voting Stock of the Company or a Parent of the Company immediately prior to the Company first becoming such Subsidiary or (y) such Person shall be deemed not to be an Other Parent for the purpose of determining whether a Change of Control shall have occurred by reason of the Company first becoming a Subsidiary of such Person. The Company shall not in any event be deemed to be a “Parent.”
“Parent Expenses” means (i) costs (including all professional fees and expenses) incurred by any Parent in connection with maintaining its existence or in connection with its reporting obligations under, or in connection with compliance with, applicable laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other agreement or instrument relating to Indebtedness of the Company or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act, the Exchange Act or the respective rules and regulations promulgated thereunder, (ii) expenses incurred by any Parent in connection with the acquisition, development, maintenance, ownership, prosecution, protection and defense of its intellectual property and associated rights (including but not limited to trademarks, service marks, trade names, trade dress, patents, copyrights and similar rights, including registrations and registration or renewal applications in respect thereof; inventions, processes, designs, formulae, trade secrets, know-how, confidential information, computer software, data and documentation, and any other intellectual property rights; and licenses of any of the foregoing), or assertions of infringement, misappropriation, dilution or other violation of third-party intellectual property or associated rights, to the extent such intellectual property and associated rights or assertions relate to the business or businesses of the Company or any Subsidiary thereof, (iii) indemnification obligations of any Parent owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written agreements with or for the benefit of any such Person (including pursuant to certain Management Agreements), or obligations in respect of director and officer insurance (including premiums therefor), (iv) other administrative and operational expenses of any Parent incurred in the ordinary course of business, (v) fees and expenses incurred by any Parent in connection with maintenance and implementation of any management equity incentive plan associated with the management of the Company and its Subsidiaries, and (vi) fees and expenses incurred by any Parent in connection with any offering of
 
32

Capital Stock or Indebtedness, (w) which offering is not completed, or (x) where the net proceeds of such offering are intended to be received by or contributed or loaned to the Company or a Restricted Subsidiary, or (y) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received, contributed or loaned, or (z) otherwise on an interim basis prior to completion of such offering so long as any Parent shall cause the amount of such expenses to be repaid to the Company or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed.
“Paying Agent” means any Person authorized by the applicable Issuer to pay the principal of (and premium, if any) or interest on any Notes on behalf of such Issuer; provided that neither the Company nor any of its Affiliates shall act as Paying Agent for purposes of Section 1103 or Section 1205. The Trustee will initially act as Paying Agent for the Notes.
“Permitted Holder” means any of the following: (i) any of the Management Investors and their respective Affiliates and (ii) any Person acting in the capacity of an underwriter (solely to the extent that and for so long as such Person is acting in such capacity) in connection with a public or private offering of Capital Stock of any Parent or the Company. In addition, any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) whose status as a “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) constitutes or results in a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture, together with its Affiliates, shall thereafter constitute Permitted Holders.
“Permitted Investment” means an Investment by the Company or any Restricted Subsidiary in, or consisting of, any of the following:
(i) a Restricted Subsidiary, the Company, or a Person that will, upon the making of such Investment, become a Restricted Subsidiary (and any Investment held by such Person that was not acquired by such Person, or made pursuant to a commitment by such Person that was not entered into, in contemplation of so becoming a Restricted Subsidiary);
(ii) another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, or is liquidated into, the Company or a Restricted Subsidiary (and, in each case, any Investment held by such other Person that was not acquired by such Person, or made pursuant to a commitment by such Person that was not entered into, in contemplation of such merger, consolidation or transfer);
(iii) Temporary Cash Investments, Investment Grade Securities or Cash Equivalents;
(iv) receivables owing to the Company or any Restricted Subsidiary, if created or acquired in the ordinary course of business;
(v) any securities or other Investments received as consideration in, or retained in connection with, sales or other dispositions of property or assets, including Asset Dispositions made in compliance with Section 411;
 
33

(vi) securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, the Company or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;
(vii) Investments in existence or made pursuant to legally binding written commitments in existence on the Issue Date, and in each case any extension, modification, replacement, reinvestment or renewal thereof; provided that the amount of any such Investment may be increased in such extension, modification, replacement, reinvestment or renewal only (x) as required by the terms of such Investment or binding commitment as in existence on the Issue Date or (y) as otherwise permitted by this Indenture;
(viii) Currency Agreements, Interest Rate Agreements, Commodities Agreements and related Hedging Obligations, which obligations are Incurred in compliance with Section 407;
(ix) pledges or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 413;
(x) (1) Investments in or by any Special Purpose Subsidiary, or in connection with a Financing Disposition by, to, in or in favor of any Special Purpose Entity, including Investments of funds held in accounts permitted or required by the arrangements governing such Financing Disposition or any related Indebtedness, or (2) any promissory note issued by the Company, or any Parent; provided that if such Parent receives cash from the relevant Special Purpose Entity in exchange for such note, an equal cash amount is contributed by any Parent to the Company;
(xi) bonds secured by assets leased to and operated by the Company or any Restricted Subsidiary that were issued in connection with the financing of such assets so long as the Company or any Restricted Subsidiary may obtain title to such assets at any time by paying a nominal fee, canceling such bonds and terminating the transaction;
(xii) the Notes;
(xiii) any Investment to the extent made using Capital Stock of the Company (other than Disqualified Stock), Capital Stock of any Parent or Junior Capital as consideration;
(xiv) Management Advances;
(xv) Investments in Related Businesses in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $600.0 million and 65.0% of LTM EBITDA (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income
 
34

and similar amounts) in respect of such Investments (without duplication for purposes of the covenant described in Section 409 of any amounts applied pursuant to Section 409(a)(3)) with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value; provided, however, that if any Investment pursuant to this clause is made in any Person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such Person becomes the Company or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (i) above and shall cease to have been made pursuant to this clause;
(xvi) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with Section 412(b) (except transactions described in clauses (i), (ii)(4), (iii), (v), (vi) and (ix) of Section 412(b)), including any Investment pursuant to any transaction described in Section 412(b)(ii) (whether or not any Person party thereto is at any time an Affiliate of the Company);
(xvii) any Investment by any Captive Insurance Subsidiary in connection with the provision of insurance to the Company or any of its Subsidiaries, which Investment is made in the ordinary course of business of such Captive Insurance Subsidiary, or by reason of applicable law, rule, regulation or order, or that is required or approved by any regulatory authority having jurisdiction over such Captive Insurance Subsidiary or its business, as applicable;
(xviii) other Investments in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $600.0 million and 65.0% of LTM EBITDA (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without duplication for purposes of Section 409 of any amounts applied pursuant to Section 409(a)(3)) with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value; provided, however, that if any Investment pursuant to this clause is made in any Person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such Person becomes the Company or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (i) above and shall cease to have been made pursuant to this clause;
(xix) Investments consisting of purchases or other acquisitions of inventory, supplies, services, material or equipment or the licensing (including sublicensing) or contribution of intellectual property pursuant to joint marketing or other arrangements with other Persons;
(xx) any Investment in any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business or consistent with past practice;
 
35

(xxi) Investments made in the ordinary course of business or consistent with past practice in connection with obtaining, maintaining or renewing client contracts and loans or advances made to distributors in the ordinary course of business or consistent with past practice; and
(xxii) any other Investment so long as, immediately after giving pro forma effect to the Investment and the incurrence of any Indebtedness the net proceeds of which are used to make such Investment, the Consolidated Total Leverage Ratio shall be no greater than 4.50 to 1.00.
If any Investment pursuant to clause (xv) or (xviii) above, or Section 409(b)(vi) or Section 409(b)(xv), as applicable, is made in any Person that is not a Restricted Subsidiary and such Person thereafter (A) becomes a Restricted Subsidiary or (B) is merged or consolidated into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary, then such Investment shall thereafter be deemed to have been made pursuant to clause (i) or (ii) above, respectively, and not clause (xv) or (xviii) above, or Section 409(b)(vi) or Section 409(b)(xv), as applicable.
“Permitted Liens” means:
(a) Liens for taxes, assessments or other governmental charges not yet delinquent or the nonpayment of which in the aggregate would not reasonably be expected to have a material adverse effect on the Company and its Restricted Subsidiaries, taken as a whole, or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or a Subsidiary thereof, as the case may be, in accordance with GAAP;
(b) Liens with respect to outstanding motor vehicle fines, and carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations that are not overdue for a period of more than 60 days or that are bonded or that are being contested in good faith and by appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers’ compensation, professional liability insurance, insurance programs, unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business;
 
36

(e) (i) easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, charges, and other similar encumbrances or title defects or irregularities incurred, (ii) any other matters that would be disclosed in an accurate survey affecting real property or (iii) leases or subleases granted, licensed or sublicensed, or occupancy agreements granted to others, whether or not of record, and whether now in existence or hereafter entered into, in the ordinary course of business, which do not in the aggregate materially interfere with the ordinary conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements existing on, the Issue Date, or (in the case of any such Liens securing Indebtedness of the Company or any of its Subsidiaries existing or arising under written arrangements existing on the Issue Date) securing any Refinancing Indebtedness in respect of such Indebtedness (other than Indebtedness Incurred under Section 407(b)(i) and secured under clause (k)(1) of this definition) so long as the Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Company or any Restricted Subsidiary of the Company has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
(h) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Hedging Obligations, Bank Products Obligations, Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with Section 407;
(i) Liens arising out of judgments, decrees, orders or awards in respect of which the Company or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;
(j) leases, subleases, licenses, sublicenses or occupancy agreements to or from third parties;
(k) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of (1) Indebtedness Incurred in compliance with Section 407(b)(i), Section 407(b)(iv), Section 407(b)(v), Section 407(b)(vii), Section 407(b)(viii) or Section 407(b)(xv), or Section 407(b)(iii) (other than Refinancing Indebtedness Incurred in respect of Indebtedness described in Section 407(a)), (2) Credit Facility Indebtedness Incurred in compliance with Section 407(b) (excluding, in the case of Section 407(b)(iii), any Refinancing Indebtedness Incurred in respect of Indebtedness described in Section 407(a)), (3) the Notes, (4) Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor (limited, in the case of this clause (4), to Liens on any of the property and assets of any Restricted Subsidiary that is not a Subsidiary Guarantor), or (5) obligations in respect of Management Advances or Management Guarantees; in each case under the foregoing clauses (1) through (5) including Liens securing any Guarantee of any thereof;
 
37

(l) Liens existing on property or assets of a Person at, or provided for under written arrangements existing at, the time such Person becomes a Subsidiary of the Company (or at the time the Company or a Restricted Subsidiary acquires such property or assets, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary); provided, however, that such existing Liens and arrangements are not created in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; provided, further, that for purposes of this clause (l), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of the Company, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
(m) Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or joint venture that secure Indebtedness or other obligations of such Unrestricted Subsidiary or joint venture, respectively;
(n) any encumbrance or restriction (including, but not limited to, pursuant to put and call agreements or buy/sell arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(o) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness (other than Indebtedness Incurred under Section 407(b)(i) and secured under clause (k)(1) of this definition) secured by, or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other obligation secured by, any other Permitted Liens; provided that any such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations to which such Liens relate;
(p) Liens (1) arising by operation of law (or by agreement to the same effect) in the ordinary course of business, including Liens arising under or by reason of the Perishable Agricultural Commodities Act of 1930, as amended from time to time, (2) on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets, (3) on receivables (including related rights), (4) on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such
 
38

cash, in either case to the extent that such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose, (5) securing or arising by reason of any netting or set-off or customer deposit arrangement entered into in the ordinary course of banking or other trading activities (including in connection with purchase orders and other agreements with customers), (6) in favor of the Company or any Subsidiary (other than Liens on property or assets of the Company or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary Guarantor), (7) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business, (8) on inventory or other goods and proceeds securing obligations in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or other goods, (9) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business, (10) attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business; (11) arising in connection with repurchase agreements permitted under Section 407 on assets that are the subject of such repurchase agreements; (12) on equipment of the Company or any of its Restricted Subsidiaries granted in the ordinary course of business to the Company’s or a Restricted Subsidiary’s customers or (13) (x) on accounts receivable or notes receivable (including any ancillary rights pertaining thereto) purported to be sold in connection with any factoring agreement or similar arrangements to secure obligations owed under such factoring agreement or similar arrangements and (y) any bank accounts used by the Company or any Restricted Subsidiary in connection with any factoring agreement or any similar arrangements;
(q) other Liens securing Indebtedness or other obligations that in the aggregate at any time outstanding do not exceed an amount equal to the greater of $500.0 million and 55.0% of LTM EBITDA at the time of Incurrence of such Indebtedness or other obligations;
(r) [Reserved];
(s) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) or other obligations of, or in favor of, any Special Purpose Entity, or in connection with a Special Purpose Financing or otherwise Incurred pursuant to Section 407(b)(ix).
For purposes of determining compliance with this definition, (u) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition 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), (v) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, the Company shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition, (w) the principal amount of Indebtedness secured by a Lien outstanding under any category of Permitted Liens shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness, (x) any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the
 
39

Incurrence of such Indebtedness shall also be permitted to secure any increase in the amount of such Indebtedness in connection with the accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock, (y) if any Indebtedness or other obligation is secured by any Lien outstanding under any category of Permitted Liens measured by reference to a percentage of LTM EBITDA at the time of incurrence of such Indebtedness or other obligations, and is refinanced by any Indebtedness or other obligation secured by any Lien incurred by reference to such category of Permitted Liens, and such refinancing would cause the percentage of LTM EBITDA to be exceeded if calculated based on the LTM EBITDA on the date of such refinancing, such percentage of LTM EBITDA shall not be deemed to be exceeded (and such refinancing Lien shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness or other obligation does not exceed the principal amount of such Indebtedness or other obligation being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with such refinancing and (z) if any Indebtedness or other obligation is secured by any Lien outstanding under any category of Permitted Liens measured by reference to a dollar amount, and is refinanced by any Indebtedness or other obligation secured by any Lien incurred by reference to such category of Permitted Liens, and such refinancing would cause such dollar amount to be exceeded, such dollar amount shall not be deemed to be exceeded (and such refinancing Lien shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness or other obligation does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with such refinancing.
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Place of Payment” means a city or any political subdivision thereof in which any Paying Agent appointed pursuant to Article III is located.
“Predecessor Notes” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 306 in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
“Preferred Stock” as applied to the Capital Stock of any corporation or company means Capital Stock of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation or company, over Capital Stock of any other class of such corporation or company.
“Purchase” is as defined in the definition of “Consolidated Coverage Ratio”.
 
40

“Purchase Money Obligations” means any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets, and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
“QIB” means a “qualified institutional buyer,” as that term is defined in Rule 144A.
“Rating Agencies” means S&P, Moody’s and Fitch or if no rating of S&P, Moody’s or Fitch is publicly available, as the case may be, the equivalent of such rating selected by the Company by any other Nationally Recognized Statistical Ratings Organization.
“Receivable” means a right to receive payment pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay, as determined in accordance with GAAP.
“Redemption Amount” means with respect to any series of Notes, “Redemption Amount” as such term is defined in the Notes Supplemental Indenture establishing such series of Notes.
“Redemption Date,” when used with respect to any Note to be redeemed or purchased, means the date fixed for such redemption or purchase by or pursuant to this Indenture and the Notes.
“Redemption Price” means with respect to any series of Notes, “Redemption Price” as such term is defined in the Notes Supplemental Indenture establishing such series of Notes.
“refinance” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell or extend (including pursuant to any defeasance or discharge mechanism); and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this Indenture shall have a correlative meaning.
“Refinancing Indebtedness” means Indebtedness that is Incurred to refinance any Indebtedness (or unutilized commitment in respect of Indebtedness) existing on the date of this Indenture or Incurred (or established) in compliance with this Indenture (including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary (to the extent permitted in this Indenture) and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness Incurred pursuant to a commitment that refinances any Indebtedness or unutilized commitment; provided, that (1) if the Indebtedness being refinanced is Subordinated Obligations or Guarantor Subordinated Obligations, the Refinancing Indebtedness has a final Stated Maturity at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the final Stated Maturity of the Indebtedness being refinanced (or if shorter, of the Notes), (2) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of (x) the aggregate principal amount then outstanding of the Indebtedness being refinanced, plus (y) an amount equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise then outstanding under a Credit Facility or other financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be drawn in compliance with
 
41

Section 407 immediately prior to such refinancing, plus (z) fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such Refinancing Indebtedness and (3) Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor that refinances Indebtedness of an Issuer, the Company or a Subsidiary Guarantor that could not have been initially Incurred by such Restricted Subsidiary pursuant to Section 407 or (y) Indebtedness of the Company or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary.
“Regular Record Date” means with respect to any series of Notes, “Regular Record Date” as such term is defined in the Notes Supplemental Indenture establishing such series of Notes.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Certificate” means a certificate substantially in the form attached hereto as Exhibit D.
“Related Business” means those businesses in which the Company or any of its Subsidiaries is engaged on the Issue Date, or that are similar, related, complementary, incidental or ancillary thereto or extensions, developments or expansions thereof.
“Related Taxes” means (x) any taxes, charges or assessments, including but not limited to sales, use, transfer, rental, ad valorem, value added, stamp, property, consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges or assessments (other than federal, state or local taxes measured by income and federal, state or local withholding imposed by any government or other taxing authority on payments made by any Parent other than to another Parent), required to be paid by any Parent by virtue of its being incorporated or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than the Company, any of its Subsidiaries or any Parent), or being a holding company parent of the Company, any of its Subsidiaries or any Parent or receiving dividends from or other distributions in respect of the Capital Stock of the Company, any of its Subsidiaries or any Parent, or having guaranteed any obligations of the Company or any Subsidiary thereof, or having made any payment in respect of any of the items for which the Company or any of its Subsidiaries is permitted to make payments to any Parent pursuant to Section 409, or acquiring, developing, maintaining, owning, prosecuting, protecting or defending its intellectual property and associated rights (including but not limited to receiving or paying royalties for the use thereof), or assertions of infringement, misappropriation, dilution or other violation of third-party intellectual property or associated rights, to the extent relating to the business or businesses of the Company or any Subsidiary thereof, (y) any other federal, state, foreign, provincial or local taxes measured by income for which any Parent is liable up to an amount not to exceed, with respect to federal taxes, the amount of any such taxes that the Company and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated basis as if the Company had filed a consolidated return on behalf of an affiliated group (as defined in Section 1504 of the Code) of which it were the common parent, or with respect to state and local taxes, the amount of any such taxes that the Company and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated, combined, unitary
 
42

or affiliated basis as if the Company had filed a consolidated, combined, unitary or affiliated return on behalf of an affiliated group (as defined in the applicable state, foreign, provincial or local tax laws for filing such return) consisting only of the Company and its Subsidiaries or (z) any other foreign taxes measured by income for which any Parent is liable. Taxes include all interest, penalties and additions relating thereto.
“Resale Restriction Termination Date” means, with respect to any Note, the date that is one year (or such other period as may hereafter be provided under Rule 144 under the Securities Act or any successor provision thereto as permitting the resale by non-affiliates of Restricted Securities without restriction) after the later of the original issue date in respect of such Note and the last date on which the applicable Issuer or any Affiliate of such Issuer was the owner of such Note (or any Predecessor Note thereto).
“Responsible Officer” when used with respect to the Trustee means any officer within the corporate trust department of the Trustee, including any vice president or assistant vice president, assistant secretary, trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
“Restricted Payment Transaction” means any Restricted Payment permitted pursuant to Section 409, any Permitted Payment, any Permitted Investment, or any transaction specifically excluded from the definition of the term “Restricted Payment” (including pursuant to the exception contained in clause (i) of such definition and the parenthetical exclusions contained in clauses (ii) and (iii) of such definition).
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.
“Restricted Security” has the meaning assigned to such term in Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be entitled to receive, at its request, and conclusively rely on an Opinion of Counsel with respect to whether any Note constitutes a Restricted Security.
“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and its successors.
“Sale” is as defined in the definition of “Consolidated Coverage Ratio”.
“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate and such screens prohibit
 
43

the sharing of information with respect to the Company or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes, and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders in connection with its investment in the Notes.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended from time to time.
“Senior ABL Agreement” means the Amended and Restated ABL Credit Agreement, dated as of February 28, 2019, among the Company, the Issuer, Univar Canada Ltd., a company formed under the laws of the Province of Alberta, the Domestic Subsidiaries of the Company from time to time party thereto, the lenders party thereto from time to time, Bank of America, N.A., as U.S. administrative agent, collateral agent, U.S. swingline lender and a U.S. letter of credit issuer, and Bank of America, N.A. (acting through its Canada branch), as Canadian administrative agent, a Canadian swingline lender and a Canadian letter of credit issuer, as such agreement may be amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise), except to the extent such agreement, instrument or other document expressly provides that it is not intended to be and is not a Senior ABL Agreement. Any reference to the Senior ABL Agreement hereunder shall be deemed a reference to each Senior ABL Agreement then in existence.
“Senior ABL Facility” means the collective reference to the Senior ABL Agreement, any Credit Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior ABL Agreement or one or more other credit agreements, indentures (including this Indenture) or financing agreements or otherwise), except to the extent such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior ABL Facility. Without limiting the generality of the foregoing, the term “Senior ABL Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Senior Credit Agreements” means, collectively, the Senior ABL Agreement and the Senior Term Agreement.
 
44

“Senior Credit Facilities” means, collectively, the Senior ABL Facility and the Senior Term Facility.
“Senior Indebtedness” means any Indebtedness of the Company or any Restricted Subsidiary other than, (x) in the case of any Issuer or the Company, Subordinated Obligations and (y) in the case of any Subsidiary Guarantor, Guarantor Subordinated Obligations.
“Senior Term Agreement” means the Credit Agreement, dated as of July 1, 2015, among the Company, the initial Issuer, the lenders party thereto from time to time, and Bank of America, N.A., as administrative agent and collateral agent, as such agreement may be further amended, supplemented, waived or otherwise modified from time to time (including as of January 19, 2017, November 28, 2017, February 23, 2019 and February 28, 2019) or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior Term Agreement or one or more other credit agreements or otherwise), except to the extent such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior Term Agreement. Any reference to the Senior Term Agreement hereunder shall be deemed a reference to each Senior Term Agreement then in existence.
“Senior Term Facility” means the collective reference to the Senior Term Agreement, any Loan Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior Term Agreement or one or more other credit agreements, indentures (including this Indenture) or financing agreements or otherwise), except to the extent such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior Term Facility. Without limiting the generality of the foregoing, the term “Senior Term Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Short Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.
 
45

“Significant Subsidiary” means any Issuer and any Restricted Subsidiary that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC, as such Regulation is in effect on the Issue Date.
“Special Purpose Entity” means (x) any Special Purpose Subsidiary or (y) any other Person that is engaged in the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time), other accounts and/or other receivables, and/or related assets and/or (ii) financing or refinancing in respect of Capital Stock of any Special Purpose Subsidiary.
“Special Purpose Financing” means any financing or refinancing of assets consisting of or including Receivables of the Company or any Restricted Subsidiary that have been transferred to a Special Purpose Entity or made subject to a Lien in a Financing Disposition (including any financing or refinancing in respect of Capital Stock of a Special Purpose Subsidiary held by another Special Purpose Subsidiary).
“Special Purpose Financing Expense” means for any period, (a) the aggregate interest expense for such period on any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary, which Indebtedness is not recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), and (b) Special Purpose Financing Fees.
“Special Purpose Financing Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Special Purpose Financing.
“Special Purpose Financing Undertakings” means representations, warranties, covenants, indemnities, guarantees of performance and (subject to clause (y) of the proviso below) other agreements and undertakings entered into or provided by the Company or any of its Restricted Subsidiaries that the Company determines in good faith (which determination shall be conclusive) are customary or otherwise necessary or advisable in connection with a Special Purpose Financing or a Financing Disposition; provided that (x) it is understood that Special Purpose Financing Undertakings may consist of or include (i) reimbursement and other obligations in respect of notes, letters of credit, surety bonds and similar instruments provided for credit enhancement purposes, (ii) Hedging Obligations, or other obligations relating to Interest Rate Agreements, Currency Agreements or Commodities Agreements entered into by the Company or any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing Disposition, or (iii) any Guarantee in respect of customary recourse obligations (as determined in good faith by the Company, which determination shall be conclusive) in connection with any Special Purpose Financing or Financing Disposition, including in respect of Liabilities in the event of any involuntary case commenced with the collusion of any Special Purpose Subsidiary or any Affiliate thereof, or any voluntary case commenced by any Special Purpose Subsidiary, under any applicable bankruptcy law, and (y) subject to the preceding clause (x), any such other agreements and undertakings shall not include any Guarantee of Indebtedness of a Special Purpose Subsidiary by the Company or a Restricted Subsidiary that is not a Special Purpose Subsidiary.
 
46

“Special Purpose Subsidiary” means any Subsidiary of the Company that (a) is engaged solely in (x) the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code or any analogous law as in effect in any applicable jurisdiction from time to time) and other accounts and receivables (including any thereof constituting or evidenced by chattel paper, instruments or general intangibles), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and/or (ii) owning or holding Capital Stock of any Special Purpose Subsidiary and/or engaging in any financing or refinancing in respect thereof, and (y) any business or activities incidental or related to such business, and (b) is designated as a “Special Purpose Subsidiary” by the Company.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity” means, with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).
“Subordinated Obligations” means any Indebtedness of the Company or any Issuer (whether outstanding on the Issue Date or thereafter Incurred) that is expressly subordinated in right of payment to the applicable Notes pursuant to a written agreement.
“Subsidiary” of any Person means any corporation, association, partnership or other business entity of which more than 50.0% of the total voting power of shares of Capital Stock or other equity interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person or (ii) one or more Subsidiaries of such Person.
“Subsidiary Guarantee” means any guarantee of the Notes that may from time to time be entered into by a Restricted Subsidiary of the Company on the Issue Date or after the Issue Date pursuant to Section 414. As used in this Indenture, “Subsidiary Guarantee” refers to a Subsidiary Guarantee of the Notes.
“Subsidiary Guarantor” means any Restricted Subsidiary of the Company that enters into a Subsidiary Guarantee, in each case, unless and until such Subsidiary is released from such Subsidiary Guarantee in accordance with the terms of this Indenture.
“Tax Sharing Agreement” means any tax sharing agreement among the Company, a Parent and any of their respective Affiliates.
“Temporary Cash Investments” means any of the following: (i) any investment in (x) direct obligations of the United States of America, Canada, a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the Company or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any thereof, or obligations
 
47

Guaranteed by the United States of America or a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the Company or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any of the foregoing, or obligations guaranteed by any of the foregoing or (y) direct obligations of any foreign country recognized by the United States of America rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (ii) overnight bank deposits, and investments in time deposit accounts, certificates of deposit, bankers’ acceptances and money market deposits (or, with respect to foreign banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by (x) any bank or other institutional lender under a Credit Facility or any affiliate thereof or (y) a bank or trust company that is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital and surplus aggregating in excess of $250.0 million (or the foreign currency equivalent thereof) and whose long term debt is rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization) at the time such Investment is made, (iii) repurchase obligations with a term of not more than 30 days for underlying securities or instruments of the types described in clause (i) or (ii) above entered into with a bank meeting the qualifications described in clause (ii) above, (iv) Investments in commercial paper, maturing not more than 270 days after the date of acquisition, issued by a Person (other than that of the Company or any of its Subsidiaries), with a rating at the time as of which any Investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (v) Investments in securities maturing not more than one year after the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vi) Indebtedness or Preferred Stock (other than of the Company or any of its Subsidiaries) having a rating of “A” or higher by S&P or “A2” or higher by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vii) investment funds investing 95.0% of their assets in securities of the type described in clauses (i) through (vi) above (which funds may also hold cash pending investment and/or distribution), (viii) any money market deposit accounts issued or offered by a domestic commercial bank or a commercial bank organized and located in a country recognized by the United States of America, in each case, having capital and surplus in excess of $250.0 million (or the foreign currency equivalent thereof), or investments in money market funds subject to the risk limiting conditions of Rule 2a-7 (or any successor rule) of the SEC under the Investment Company Act of 1940, as amended, and (ix) similar investments approved by the Board of Directors in the ordinary course of business.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§77aaa-77bbbb) as in effect on the date of this Indenture, except as otherwise provided herein.
 
48

“Trade Payables” means, with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services.
“Transactions” means, collectively, any or all of the following: (i) the entry into this Indenture, and the offer and issuance of the Notes, (ii) the entry into the Senior Credit Facilities and Incurrence of Indebtedness thereunder by one or more of the Company and its Subsidiaries, (iii) the refinancing of certain existing Indebtedness of the Company and its Subsidiaries, (iv) the redemption of the 2023 Notes and (v) all other transactions relating to any of the foregoing (including payment of fees and expenses related to any of the foregoing).
“Trust Officer” means any corporate trust officer or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such corporate trust officers who shall have direct responsibility for the administration of this Indenture, or any other officer of the Trustee to whom a corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect in the state of New York from time to time.
“Unrestricted Subsidiary” means (i) any Subsidiary of the Company that at the time of determination is an Unrestricted Subsidiary, as designated by the Board of Directors in the manner provided below, and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary of the Company), other than an Issuer and any direct or indirect parent entity of an Issuer, to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the Company or any other Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided, that (A) such designation was made at or prior to the Issue Date, or (B) the Subsidiary to be so designated has total consolidated assets of $1,000 or less or (C) if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Section 409. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that immediately after giving effect to such designation (x) the Company could Incur at least $1.00 of additional Indebtedness under Section 407(a) or (y) the Consolidated Coverage Ratio would be greater than it was immediately prior to giving effect to such designation or (z) such Subsidiary shall be a Special Purpose Subsidiary with no Indebtedness outstanding other than Indebtedness that can be Incurred (and upon such designation shall be deemed to be Incurred and outstanding) pursuant to Section 407(b). Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the resolution of the Company’s Board of Directors giving effect to such designation and an Officer’s Certificate of the Company certifying that such designation complied with the foregoing provisions.
 
49

“U.S. Government Obligation” means (x) any security that is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under the preceding clause (i) or (ii) is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation that is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation that is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
“Voting Stock” of an entity means all classes of Capital Stock of such entity then outstanding and normally entitled to vote in the election of directors or all interests in such entity with the ability to control the management or actions of such entity.
Section 102. Other Definitions.

	Term	  	Defined in Section	
“Act”	  	  108		
“Affiliate Transaction”	  	  412		
“Agent Members”	  	  312		
“Amendment”	  	  410		
“Authentication Order”	  	  303		
“Bankruptcy Law”	  	  601		
“Certificate of Beneficial Ownership”	  	  313		
“Change of Control Offer”	  	  415		
“Covenant Defeasance”	  	1203		
“Custodian”	  	  601		
“Declined Excess Proceeds”	  	  411		
“Default Direction”	  	  601		
“Defaulted Interest”	  	  307		
“Defeasance”	  	1202		
“Defeased Notes”	  	1201		
“Directing Holder”	  	  601		
“Discharge”	  	  101		
“Election Date”	  	  409		
“Event of Default”	  	  601		
“Excess Proceeds”	  	  411		
“Expiration Date”	  	  108		
“Foreign Disposition”	  	  411		
“Global Notes”	  	  201		
“Guaranteed Obligations”	  	1301		
“Initial Agreement”	  	  410		
 
50

				
	Term	  	Defined in Section	
“Initial Lien”	  	  413		
“LCA Election”	  	  121		
“LCA Test Date”	  	  121		
“Noteholder Direction”	  	  601		
“Note Register” and “Note Registrar”	  	  305		
“Notice of Default”	  	  601		
“Offer”	  	  411		
“Permitted Payment”	  	  409		
“Physical Notes”	  	  201		
“Position Representation”	  	  601		
“Private Placement Legend”	  	  203		
“Ratio Tested Committed Amount”	  	  407		
“Refinancing Agreement”	  	  410		
“Refunding Capital Stock”	  	  409		
“Regulation S Global Notes”	  	  201		
“Regulation S Note Exchange Date”	  	  313		
“Regulation S Physical Notes”	  	  201		
“Reporting Date”	  	  405		
“Reserved Indebtedness Amount”	  	  407		
“Restricted Payment”	  	  409		
“Reversion Date”	  	  416		
“Rule 144A Global Notes”	  	  201		
“Rule 144A Physical Notes”	  	  201		
“Successor Company”	  	  501		
“Successor Issuer”	  	  501		
“Suspended Covenants”	  	  416		
“Suspension Date”	  	  416		
“Suspension Period”	  	  416		
“Treasury Capital Stock”	  	  409		
“Verification Covenant”	  	  601		
Section 103. Rules of Construction. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Indenture have the meanings assigned to them in this Indenture;
(2) “or” is not exclusive;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(4) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
 
51

(5) all references to “$” or “dollars” shall refer to the lawful currency of the United States of America;
(6) the words “include,” “included” and “including,” as used herein, shall be deemed in each case to be followed by the phrase “without limitation,” if not expressly followed by such phrase or the phrase “but not limited to;”
(7) words in the singular include the plural, and words in the plural include the singular;
(8) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(9) any reference to a Section, Article or clause refers to such Section, Article or clause of this Indenture; and
(10) notwithstanding any provision of this Indenture, no provision of the TIA shall apply or be incorporated by reference into this Indenture or the Notes, except as specifically set forth in this Indenture.
Section 104. [Reserved].
Section 105. [Reserved].
Section 106. Compliance Certificates and Opinions. Upon any application or request by the Company, an Issuer or by any other obligor upon the Notes (including any Guarantor) to the Trustee to take any action under any provision of this Indenture, the Company, such Issuer or such other obligor (including any Guarantor), as the case may be, shall furnish to the Trustee such certificates and opinions as may be required under this Indenture. Each such certificate or opinion shall be given in the form of one or more Officer’s Certificates, if to be given by an Officer, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of this Indenture. Notwithstanding the foregoing, in the case of any such request or application as to which the furnishing of any Officer’s Certificate or Opinion of Counsel is specifically required by any provision of this Indenture relating to such particular request or application, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 406) shall include:
(1) a statement that the individual signing such certificate or opinion has read such covenant or condition, as applicable, and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
52

(3) a statement that, in the opinion of such individual, he or she made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition, as applicable, has been complied with; and
(4) a statement as to whether, in the opinion of such individual, such condition or covenant, as applicable, has been complied with.
Section 107. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers to the effect that the information with respect to such factual matters is in the possession of the Company or the applicable Issuer, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 108. Acts of Noteholders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby expressly required, to the Company or the applicable Issuer, as the case may be. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 701) conclusive in favor of the Trustee, the Company, any Issuer, and any other obligor upon the Notes, if made in the manner provided in this Section 108.
 
53

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or a member of a partnership or other legal entity other than an individual, on behalf of such corporation or partnership or entity, such certificate or affidavit shall also constitute sufficient proof of such Person’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind the Holder of every Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, suffered or omitted to be done by the Trustee, any Issuer or any other obligor upon the Notes in reliance thereon, whether or not notation of such action is made upon such Note.
(e) (i) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Notes, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date (or their duly designated proxies), and no other Holders, shall be entitled to take the relevant action, whether or not such Persons remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Notes in the manner set forth in Section 110.
(ii) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Notes entitled to join in the giving or making of (A) any Notice of Default, (B) any declaration of acceleration referred to in Section 602, (C) any request to institute proceedings referred to in Section 607(ii) or (D) any direction referred to in Section 612, in each case with respect to Notes. If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Notes on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant
 
54

to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Notes in the manner set forth in Section 110.
(iii) With respect to any record date set pursuant to this Section 108, the party hereto that sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the Company or the Trustee, whichever such party is not setting a record date pursuant to this Section 108(e) in writing, and to each Holder of Notes in the manner set forth in Section 110, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 108, the party hereto that set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
(iv) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
(v) Without limiting the generality of the foregoing, a Holder, including the Depositary, that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and the Depositary, as the Holder of a Global Note, may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such depositary’s standing instructions and customary practices.
(vi) The Issuer may fix a record date for the purpose of determining the persons who are beneficial owners of interests in any Global Note held by the Depositary entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such persons, shall be entitled to make, give or take such request, demand, authorization direction, notice consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date.
 
55

Section 109. Notices, Etc., to Trustee, Issuer and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by any Issuer or by any other obligor upon the Notes shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at 190 South LaSalle Street, 10th floor, Chicago IL, 60603, (telephone: (312) 332-8008) or at any other address furnished in writing to each Issuer by the Trustee,
(2) the initial Issuer by the Trustee or by any Holder shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, to the initial Issuer at 3075 Highland Parkway, Suite 200, Downers Grove, Illinois 60515, Attention: Noelle J. Perkins, Senior Vice President, General Counsel and Secretary, with copies to Kerri Howard, Vice President and Treasurer; and with copies to Kirkland & Ellis LLP at 601 Lexington Avenue, New York, New York 10022, Attention: Ross M. Leff, P.C., or at any other address furnished in writing to the Trustee by the initial Issuer,
(3) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, to the Company at 3075 Highland Parkway, Suite 200, Downers Grove, Illinois 60515, Attention: Noelle J. Perkins, Senior Vice President, General Counsel and Secretary, with copies to Kerri Howard, Vice President and Treasurer; and with copies to Kirkland & Ellis LLP at 601 Lexington Avenue, New York, New York 10022, Attention: Ross M. Leff, P.C., or at any other address furnished in writing to the Trustee by the Company, or
(4) the Company, any Issuer or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
Section 110. Notices to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, or by overnight air courier guaranteeing next day delivery, to each Holder affected by such event, at such Holder’s address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail notice of any event as required by any provision of this Indenture, then such notification as shall be made with the approval of the Trustee (such approval not to be unreasonably withheld) shall constitute a sufficient notification for every purpose hereunder.
 
56

Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Note (or its designee) pursuant to the customary procedures of such Depositary (including delivery by electronic mail).
The Trustee shall have the right to accept and act upon instructions or directions pursuant to this Indenture sent in the form of a manually signed document by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Issuer shall provide to the Trustee an incumbency certificate listing designated persons with the authority to provide such instructions and containing specimen signatures of such designated persons, which incumbency certificate shall be amended whenever a person is to be added or deleted from the listing. If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding that such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 111. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 112. Successors and Assigns. All covenants and agreements in this Indenture by the Company, any Issuer shall bind its respective successors and assigns, whether so expressed or not. All agreements of the Trustee in this Indenture shall bind its successors.
Section 113. Separability Clause. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 114. Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 115. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE COMPANY, EACH ISSUER, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES, EACH GUARANTOR AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
 
57

EACH OF THE ISSUER, THE COMPANY, THE SUBSIDIARY GUARANTORS PARTY HERETO, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES CONTEMPLATED HEREBY.
Section 116. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Note shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Notes) payment of interest or principal and premium (if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue on such payment for the intervening period.
Section 117. No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders. No director, officer, employee, incorporator or stockholder of any Issuer, any Guarantor or any Subsidiary of any thereof shall have any liability for any obligation of any Issuer or any Guarantor under this Indenture, the Notes or any Guarantee, or for any claim based on, in respect of, or by reason of, any such obligation or its creation. Each Noteholder, by accepting the Notes, waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 118. Exhibits and Schedules. All exhibits and schedules attached hereto are by this reference made a part hereof with the same effect as if herein set forth in full.
Section 119. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
Section 120. Force Majeure. To the extent permitted by the TIA, in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances).
 
58

Section 121. Limited Condition Acquisition. In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Indenture which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Company, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if the Company has exercised its option under the first sentence of this Section 121, and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Indenture which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Indenture (including baskets measured as a percentage of LTM EBITDA and Foreign LTM EBITDA);
in each case, at the option of the Company (the Company’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters of the Company ending prior to the LCA Test Date for which consolidated financial statements of the Company are available, the Company could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Company has made an LCA Election and any of the ratios, baskets or amounts for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio, basket or amount, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets of the Company or the Person subject to such Limited Condition Acquisition 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 Company has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Company or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
 
59

The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
ARTICLE II
NOTE FORMS
Section 201. Forms Generally. The Initial Notes and Initial Additional Notes and the Trustee’s certificate of authentication relating thereto shall be in substantially the forms set forth, or referenced, in this Article II and Exhibit A attached hereto (as such forms may be modified in accordance with Section 301). Any Additional Notes that are not Initial Additional Notes and the Trustee’s certificate of authentication relating thereto shall be in substantially the forms set forth, or referenced, in this Article II and Exhibit A attached hereto (as such forms may be modified in accordance with Section 301). Each of Exhibits A and B is hereby incorporated in and expressly made a part of this Indenture. The Notes may have such appropriate insertions, omissions, substitutions, notations, legends, endorsements, identifications and other variations as are required or permitted by law, stock exchange rule or depositary rule or usage, agreements to which the applicable Issuer is subject, if any, or other customary usage, or as may consistently herewith be determined by the Officers of the Issuer executing such Notes, as evidenced by such execution (provided always that any such notation, legend, endorsement, identification or variation is in a form acceptable to such Issuer). Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibits A and B are part of the terms of this Indenture. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
Initial Notes and any Initial Additional Notes offered and sold in reliance on Rule 144A shall, unless the Issuer of such Notes otherwise notifies the Trustee in writing, be issued in the form of one or more permanent global Notes substantially in the form attached hereto as Exhibit A (as such form may be modified in accordance with Section 301), except as otherwise permitted herein. Such Global Notes shall be referred to collectively herein as the “Rule 144A Global Notes,” and shall be deposited with the Trustee, as custodian for the Depositary or its nominee, for credit to an account of an Agent Member, and shall be duly executed by the Issuer of such Notes and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of a Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
 
60

Initial Notes and any Initial Additional Notes offered and sold in offshore transactions in reliance on Regulation S under the Securities Act shall, unless the Issuer of such Notes otherwise notifies the Trustee in writing, be issued in the form of one or more permanent global Notes substantially in the form attached hereto as Exhibit A (as such form may be modified in accordance with Section 301), except as otherwise permitted herein. Such Global Notes shall be referred to herein as the “Regulation S Global Notes,” and shall be deposited with the Trustee, as custodian for the Depositary or its nominee for the accounts of designated Agent Members holding on behalf of Euroclear or Clearstream and shall be duly executed by the Issuer of such Notes and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of a Regulation S Global Note may from time to time be increased or decreased by adjustments made in the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
Subject to the limitations on the issuance of certificated Notes set forth in Sections 312 and 313, Initial Notes and any Initial Additional Notes issued pursuant to Section 305 in exchange for or upon transfer of beneficial interests (x) in a Rule 144A Global Note shall be in the form of permanent certificated Notes substantially in the form attached hereto as Exhibit A (as such form may be modified in accordance with Section 301) (the “Rule 144A Physical Notes”) or (y) in a Regulation S Global Note (if any) shall be in the form of permanent certificated Notes substantially in the form attached hereto as Exhibit A (as such form may be modified in accordance with Section 301) (the “Regulation S Physical Notes”), respectively, as hereinafter provided.
The Rule 144A Physical Notes and Regulation S Physical Notes shall be construed to include any certificated Notes issued in respect thereof pursuant to Section 304, 305, 306 or 1008, and the Rule 144A Global Notes and Regulation S Global Notes shall be construed to include any global Notes issued in respect thereof pursuant to Section 304, 305, 306 or 1008. The Rule 144A Physical Notes and the Regulation S Physical Notes, together with any other certificated Notes issued and authenticated pursuant to this Indenture, are sometimes collectively herein referred to as the “Physical Notes.” The Rule 144A Global Notes and the Regulation S Global Notes, together with any other global Notes that are issued and authenticated pursuant to this Indenture, are sometimes collectively referred to as the “Global Notes.”
Section 202. Form of Trustee’s Certificate of Authentication. The Notes will have endorsed thereon a Trustee’s certificate of authentication in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.

 	
 	
as Trustee	 		
		
By:	 	 	
	 	Authorized Officer	
Dated:
 
61

If an appointment of an Authenticating Agent is made pursuant to Section 714, the Notes may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternative certificate of authentication in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.

[NAME]	

as Trustee	
		
By:	 	 	
	 	As Authenticating Agent	
		
By:	 	 	
	 	Authorized Officer	
Dated:
Section 203. Restrictive and Global Note Legends. Each Global Note and Physical Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the following legend set forth below (the “Private Placement Legend”) on the face thereof until the Private Placement Legend is removed or not required in accordance with Section 313(4):
“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT.
 
62

BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED NOTES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE (1) PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES, IN COMPLIANCE WITH RULE 904 UNDER REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (2) ONLY IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE FURTHER AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”
Each Global Note, whether or not an Initial Note, shall also bear the following legend on the face thereof:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
 
63

TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 312 AND 313 OF THE INDENTURE (AS DEFINED HEREIN).”
Each Regulation S Global Note shall also bear the following legend on the face thereof:
“BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON, NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON, AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
EXCEPT AS SPECIFIED IN THE INDENTURE, BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN ANY OTHER NOTE REPRESENTING AN INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40 DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT). DURING SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS REGULATION S GLOBAL NOTE MAY NOT BE SOLD, PLEDGED OR TRANSFERRED TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON.”
Each note issued with OID will contain a legend substantially to the following effect:
THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY FOR SUCH NOTE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO: UNIVAR USA INC., TREASURER, 3075 HIGHLAND PARKWAY, SUITE 200, DOWNERS GROVE, IL 60515.
 
64

ARTICLE III
THE NOTES
Section 301. Amount Unlimited; Issuable in Series. The aggregate principal amount of Notes that may be authenticated and delivered and Outstanding under this Indenture is not limited. The Notes may be issued from time to time in one or more series. Except as provided in Section 902, all Notes will vote (or consent) as a class with the other Notes and otherwise be treated as Notes for all purposes of this Indenture.
The following matters shall be established with respect to each series of Notes issued hereunder in a Notes Supplemental Indenture:
(1) the title of the Notes of the series (which title shall distinguish the Notes of the series from all other series of Notes);
(2) the issuer of the Notes of the series;
(3) any limit (if any) upon the aggregate principal amount of the Notes of the series that may be authenticated and delivered under this Indenture (which limit shall not pertain to Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes of the series pursuant to Section 304, 305, 306, 312(d), 312(e) or 1008);
(4) the date or dates on which the principal of and premium, if any, on the Notes of the series is payable or the method of determination and/or extension of such date or dates, and the amount or amounts of such principal and premium, if any, payments and methods of determination thereof;
(5) the rate or rates at which the Notes of the series shall bear interest, if any, or the method of calculating and/or resetting such rate or rates of interest, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, and the Interest Payment Dates on which any such interest shall be payable;
(6) the period or periods within which, the price or prices at which, and other terms and conditions upon which Notes of the series may be redeemed, in whole or in part, at the option of the Issuer, if the Issuer is to have the option;
(7) if other than the principal amount thereof, the portion of the principal amount of Notes of the series that shall be payable upon declaration of acceleration of maturity thereof pursuant to Section 602 or the method by which such portion shall be determined;
(8) in the case of any Notes, other than Initial Notes, any addition to or change in the Events of Default which apply to any Notes of the series and any change in the right of the Trustee or the requisite Holders of such Notes to declare the principal amount thereof due and payable pursuant to Section 602;
 
65

(9) in the case of any Notes, other than Initial Notes, any addition to or change in the covenants set forth in Article IV and V; and
(10) in the case of any Notes, other than Initial Notes, any addition to or change in the definitions in Section 101 related to additions or changes contemplated by the foregoing clauses (8) and (9).
The form of the Notes of such series, as set forth in Exhibit A or B as the case may be, may be modified to reflect such matters as so established in such Notes Supplemental Indenture.
Such matters may also be established in a Notes Supplemental Indenture for any Additional Notes issued hereunder that are to be of the same series as any Notes previously issued hereunder. Notes that have the same terms described in the foregoing clauses (1) though (10) will be treated as the same series, unless otherwise designated by the Company.
Section 302. Denominations. The Notes shall be issuable only in fully registered form, without coupons, and only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Section 303. Execution, Authentication and Delivery and Dating. The Notes shall be executed on behalf of the Issuer of such Notes by one Officer of such Issuer. The signature of any such Officer on the Notes may be manual or by facsimile.
Notes bearing the manual or facsimile signature of an individual who was at any time an Officer of the Issuer of such Notes shall bind such Issuer, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of such Notes.
At any time and from time to time after the execution and delivery of this Indenture, any Issuer may deliver Notes executed by such Issuer to the Trustee for authentication; and the Trustee, pursuant to an Issuer Order, shall authenticate and deliver (i) Initial Notes for original issue in the aggregate principal amount not to exceed $500.0 million and (ii) subject to Section 407, Additional Notes in one or more series (which may be of the same series as any Notes previously issued hereunder, or of a different series) from time to time for original issue in aggregate principal amounts specified by the Issuer of such Notes, in each case specified in clauses (i) and (ii) above, upon a written order of the Issuer of such Notes in the form of an Officer’s Certificate of the Issuer (an “Authentication Order”). Such Officer’s Certificate shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated, the “CUSIP”, “ISIN”, “Common Code” or other similar identification numbers of such Notes, if any, whether the Notes are to be Initial Notes or Additional Notes and whether the Notes are to be issued as one or more Global Notes or Physical Notes and such other information as the Issuer of such Notes may include or the Trustee may reasonably request.
All Notes shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
 
66

Section 304. Temporary Notes. Until definitive Notes are ready for delivery, the Issuer of such Notes may prepare and upon receipt of an Authentication Order the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Issuer of such Notes considers appropriate for temporary Notes. If temporary Notes are issued, the Issuer of such Notes will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer of such Notes in a Place of Payment, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer of such Notes shall execute and upon receipt of an Authentication Order the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations. Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes of the same series and tenor.
Section 305. Note Registrar and Paying Agent. Each Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of such Issuer in a Place of Payment being herein sometimes collectively referred to as the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, such Issuer shall provide for the registration of Notes and of transfers of Notes. Each Issuer may have one or more co-registrars. The term “Note Registrar” includes any co-registrars.
The initial Issuer initially appoints the Trustee as “Note Registrar” and “Paying Agent” in connection with the Notes, until such time as it has resigned or a successor has been appointed. Each Issuer may have one or more additional paying agents, and the term “Paying Agent” shall include any additional Paying Agent. Each Issuer may change the Paying Agent or Note Registrar without prior notice to the Holders of Notes. Each Issuer may enter into an appropriate agency agreement with any Note Registrar or Paying Agent not a party to this Indenture. Any such agency agreement shall implement the provisions of this Indenture that relate to such agent. Each Issuer shall notify the Trustee in writing of the name and address of any such agent. If any Issuer fails to appoint or maintain a Note Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 707. The Company or any wholly-owned Domestic Subsidiary of the Company (including any Issuer) may act as Paying Agent (except for purposes of Section 1103 or Section 1205) or Note Registrar.
Upon surrender for transfer of any Note at the office or agency of the Issuer of such Note in a Place of Payment, in compliance with all applicable requirements of this Indenture and applicable law, such Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of the same series, of any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of the same series, of any authorized denominations and of a like tenor and aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, the Issuer of such Notes shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive.
 
67

All Notes issued upon any transfer or exchange of Notes shall be the valid obligations of the Issuer of such Notes, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such transfer or exchange.
Every Note presented or surrendered for transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer of such Note duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.
No service charge shall be made for any registration, transfer or exchange of Notes, but the Issuer of such Notes may require payment of a sum sufficient to cover any transfer tax or other governmental charge that may be imposed in connection therewith.
No Issuer or Notes Registrar shall be required (i) to issue, transfer or exchange any Note during a period beginning at the opening of business 15 Business Days before the day of the mailing of a notice of redemption (or purchase) of Notes selected for redemption (or purchase) under Section 1004 and ending at the close of business on the day of such mailing, or (ii) to transfer or exchange any Note so selected for redemption (or purchase) in whole or in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes. If a mutilated Note is surrendered to the Note Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer of such Notes shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) notifies the Issuer of such Notes or the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Note Registrar does not register a transfer prior to receiving such notification, (b) makes such request to the Issuer of such Notes or the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code and (c) satisfies any other reasonable requirements of the Issuer of such Notes. If required by the Trustee or the Issuer of such Notes, such Holder shall furnish an indemnity bond sufficient in the judgment of (i) the Trustee to protect the Trustee and (ii) such Issuer to protect such Issuer, the Trustee, a Paying Agent and the Note Registrar, from any loss that any of them may suffer if a Note is replaced.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Issuer of such Notes in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 306, the Issuer of such Notes may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 306 in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer of such Note, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and ratably with any and all other Notes duly issued hereunder.
 
68

The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 307. Payment of Interest Rights Preserved. Interest on any Note that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest specified in Section 4 of the applicable Notes Supplemental Indenture.
Unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 301, any interest on any Note that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Issuer of such Note, at its election, as provided in clause (1) or clause (2) below:
(1) The Issuer of such Notes may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer of such Notes shall notify the Trustee and Paying Agent in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and such Issuer shall deposit with the Trustee or Paying Agent an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to the Trustee or Paying Agent for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause (1). Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee and the Paying Agent of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Notes of such Special Record Date and, in the name and at the expense of such Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Issuer of such Notes may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange.
 
69

Subject to the foregoing provisions of this Section 307, each Note delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Note.
Section 308. Persons Deemed Owners. The Issuer of such Note, any Guarantor, the Trustee, the Paying Agent and any agent of any of them may treat the Person in whose name any Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any), and (subject to Section 307) interest on, such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of such Issuer, any Guarantor, the Trustee, the Paying Agent nor any agent of any of them shall be affected by notice to the contrary.
Section 309. Cancellation. All Notes surrendered for payment, redemption, transfer, exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The Issuer of such Notes may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder that such Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 309, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures (subject to the record retention requirements of the Exchange Act).
Section 310. Computation of Interest. Unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 301, interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers, ISINs, Etc. Each Issuer in issuing Notes may use “CUSIP” numbers, ISINs and “Common Code” numbers (if then generally in use), and if so, the Trustee may use the CUSIP numbers, ISINs and “Common Code” numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of such numbers printed in the notice or on the Notes; that reliance may be placed only on the other identification numbers printed on the Notes; and that any redemption shall not be affected by any defect in or omission of such numbers.
Section 312. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of the Depositary for such Global Note or the nominee of such Depositary, in each case for credit to the account of an Agent Member, and (ii) be delivered to the Trustee as custodian for such Depositary. No Issuer, no agent of any Issuer nor the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
 
70

(b) Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or its custodian, or under such Global Notes. The Depositary may be treated by each applicable Issuer, any other obligor upon the Notes, the Trustee and any agent of any of them as the absolute owner of the Global Notes for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer of such Notes, any other obligor upon the Notes, the Trustee or any agent of any of them from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Note. The Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.
(c) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but, subject to the immediately succeeding sentence, not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Note may not be transferred or exchanged for Physical Notes unless (i) the Issuer of such Notes has consented thereto in writing, or such transfer or exchange is made pursuant to the next sentence, and (ii) such transfer or exchange is in accordance with the applicable rules and procedures of the Depositary and the provisions of Section 305 and Section 313. Subject to the limitation on issuance of Physical Notes set forth in Section 313(3), Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the relevant Global Note, if (i) the Depositary notifies the Issuer of such Notes at any time that it is unwilling or unable to continue as Depositary for the Global Notes and a successor depositary is not appointed within 120 days; (ii) the Depositary ceases to be registered as a “Clearing Agency” under the Exchange Act and a successor depositary is not appointed within 120 days; (iii) the Issuer of such Notes, at its option, notifies the Trustee that it elects to cause the issuance of Physical Notes; or (iv) an Event of Default shall have occurred and be continuing with respect to the Notes and the Trustee has received a written request from the Depositary to issue Physical Notes.
(d) In connection with any transfer or exchange of a portion of the beneficial interest in any Global Note to beneficial owners for Physical Notes pursuant to Section 312(c), the Note Registrar shall record on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the beneficial interest in the Global Note being transferred, and the Issuer of such Notes shall execute, and upon receipt of an Authentication Order the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and principal amount of authorized denominations.
(e) In connection with a transfer of an entire Global Note to beneficial owners for Physical Notes pursuant to Section 312(c), the applicable Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer of such Notes shall execute, and upon receipt of an Authentication Order the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary, in exchange for its beneficial interest in the applicable Global Note, an equal aggregate principal amount of Rule 144A Physical Notes (in the case of any Rule 144A Global Note) or Regulation S Physical Notes (in the case of any Regulation S Global Note), as the case may be, of authorized denominations.
 
71

(f) The transfer and exchange of a Global Note or beneficial interests therein shall be effected through the Depositary, in accordance with this Indenture (including applicable restrictions on transfer set forth in Section 313) and the procedures therefor of the Depositary. Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in a different Global Note will, upon transfer, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest. A transferor of a beneficial interest in a Global Note shall deliver to the Note Registrar a written order given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the relevant Global Note. Subject to Section 313, the Note Registrar shall, in accordance with such instructions, instruct the Depositary to credit to the account of the Person specified in such instructions a beneficial interest in such Global Note and to debit the account of the Person making the transfer the beneficial interest in the Global Note being transferred.
(g) Any Physical Note delivered in exchange for an interest in a Global Note pursuant to Section 312(c) shall, unless such exchange is made on or after the Resale Restriction Termination Date applicable to such Note and except as otherwise provided in Section 203 and Section 313, bear the Private Placement Legend.
(h) Notwithstanding the foregoing, through the Restricted Period, a beneficial interest in a Regulation S Global Note may be held only through designated Agent Members holding on behalf of Euroclear or Clearstream unless delivery is made in accordance with the applicable provisions of Section 313.
Section 313. Special Transfer Provisions.
(1) Transfers to Non-U.S. Persons. The following provisions shall apply with respect to the registration of any proposed transfer of a Note that is a Restricted Security to any Non-U.S. Person: The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 305) and,
(a) if (x) such transfer is after the relevant Resale Restriction Termination Date with respect to such Note or (y) the proposed transferor has delivered to the Note Registrar and the Issuer of such Notes and the Trustee a Regulation S Certificate and, unless otherwise agreed by such Issuer, an opinion of counsel, certifications and other information satisfactory to such Issuer, and
(b) if the proposed transferor is or is acting through an Agent Member holding a beneficial interest in a Global Note, upon receipt by the Note Registrar and the Issuer of such Notes and the Trustee of (x) the certificate, opinion, certifications and other information, if any, required by clause (a) above and (y) written instructions given in accordance with the procedures of the Note Registrar and of the Depositary;
 
72

whereupon (i) the Note Registrar shall reflect on its books and records the date and (if the transfer does not involve a transfer of any Outstanding Physical Note) a decrease in the principal amount of the relevant Global Note in an amount equal to the principal amount of the beneficial interest in the relevant Global Note to be transferred, and (ii) either (A) if the proposed transferee is or is acting through an Agent Member holding a beneficial interest in a relevant Regulation S Global Note, the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of such Regulation S Global Note in an amount equal to the principal amount of the beneficial interest being so transferred or (B) otherwise the Issuer of such Notes shall execute and (upon receipt of an Authentication Order) the Trustee shall authenticate and deliver one or more Physical Notes of like tenor and amount.
(2) Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Note that is a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons): The Note Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 305) and,
(a) if such transfer is being made by a proposed transferor who has checked the box provided for on the form of such Note stating, or has otherwise certified to the Note Registrar and the Issuer of such Notes and the Trustee in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of such Note stating, or has otherwise certified to Note Registrar and such Issuer and the Trustee in writing, that it is purchasing such Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding such Issuer as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; and
(b) if the proposed transferee is an Agent Member, and the Note to be transferred consists of a Physical Note that after transfer is to be evidenced by an interest in a Global Note or consists of a beneficial interest in a Global Note that after the transfer is to be evidenced by an interest in a different Global Note, upon receipt by the Note Registrar of written instructions given in accordance with the Depositary’s and the Note Registrar’s procedures, whereupon the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of the transferee Global Note in an amount equal to the principal amount of the Physical Note or such beneficial interest in such transferor Global Note to be transferred, and the Trustee shall cancel the Physical Note so transferred or reflect on its books and records the date and a decrease in the principal amount of such transferor Global Note, as the case may be.
 
73

(3) Limitation on Issuance of Physical Notes. No Physical Note shall be exchanged for a beneficial interest in any Global Note, except in accordance with Section 312 and this Section 313.
A beneficial owner of an interest in a Regulation S Global Note shall not be permitted to exchange such interest for a Physical Note until a date, which must be after the end of the Restricted Period, on which the Issuer of such Notes receives a certificate of beneficial ownership substantially in the form attached hereto as Exhibit C from such beneficial owner (a “Certificate of Beneficial Ownership”). Such date, as it relates to a Regulation S Global Note, is herein referred to as the “Regulation S Note Exchange Date.”
(4) Private Placement Legend. Upon the transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Note Registrar shall deliver Notes that do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Notes bearing the Private Placement Legend, the Note Registrar shall deliver only Notes that bear the Private Placement Legend unless (i) the requested transfer is after the relevant Resale Restriction Termination Date with respect to such Notes, (ii) upon written request of the Issuer of such Notes after there is delivered to the Note Registrar an opinion of counsel (which opinion and counsel are satisfactory to the Issuer) to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act, (iii) with respect to a Regulation S Global Note (on or after the Regulation S Note Exchange Date with respect to such Regulation S Global Note) or Regulation S Physical Note, in each case with the agreement of the Issuer of such Notes, or (iv) such Notes are sold or exchanged pursuant to an effective registration statement under the Securities Act.
(5) Other Transfers. The Note Registrar shall effect and register, upon receipt of a written request from the Issuer to do so, a transfer not otherwise permitted by this Section 313, such registration to be done in accordance with the otherwise applicable provisions of this Section 313, upon the furnishing by the proposed transferor or transferee of a written opinion of counsel (which opinion and counsel are satisfactory to the Issuer of such Notes) to the effect that, and such other certifications or information as such Issuer may require (including, in the case of a transfer to an Accredited Investor (as defined in Rule 501(a)(1), (2), (3) or (7) under Regulation D promulgated under the Securities Act), a certificate substantially in the form attached hereto as Exhibit F) to confirm that, the proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
A Note that is a Restricted Security may not be transferred other than as provided in this Section 313. A beneficial interest in a Global Note that is a Restricted Security may not be exchanged for a beneficial interest in another Global Note other than through a transfer in compliance with this Section 313.
(6) General. By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture.
 
74

The Note Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 312 or this Section 313 (including all Notes received for transfer pursuant to this Section 313). Each Issuer shall have the right to require the applicable Note Registrar to deliver to such Issuer, at such Issuer’s expense, copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Note Registrar.
In connection with any transfer of any Note, the Trustee, the Note Registrar and the Issuer of such Notes shall be entitled to receive, shall be under no duty to inquire into, may conclusively presume the correctness of, and shall be fully protected in relying upon the certificates, opinions and other information referred to herein (or in the forms provided herein, attached hereto or to the Notes, or otherwise) received from any Holder and any transferee of any Note regarding the validity, legality and due authorization of any such transfer, the eligibility of the transferee to receive such Note and any other facts and circumstances related to such transfer.
ARTICLE IV
COVENANTS
Section 401. Payment of Principal, Premium and Interest. The Issuer of each series of Notes shall duly and punctually pay the principal of (and premium, if any) and interest on such Notes in accordance with the terms of such Notes and this Indenture. Principal amount (and premium, if any) and interest on the Notes shall be considered paid on the date due if the Issuer of such Notes shall have deposited with the Paying Agent (if other than such Issuer or another wholly-owned Domestic Subsidiary of the Company) as of 12:00 p.m. New York City time on the due date money in immediately available funds and designated for and sufficient to pay all principal amount (and premium, if any) and interest then due. At the option of the Issuer of any series of Notes, payment of interest on such Note may be made through the Paying Agent by wire transfer of immediately available funds to the account designated to such Issuer by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.
Section 402. Maintenance of Office or Agency.
(a) The Issuer of each series of Notes shall maintain in the United States an office or agency where such Notes may be presented or surrendered for payment, where such Notes may be surrendered for transfer or exchange and where notices and demands to or upon such Issuer in respect of such Notes and this Indenture may be served. The Issuer of each series of Notes shall give prompt written notice to the Trustee of the location, and of any change in the location, of such office or agency. If at any time the Issuer of any series of Notes shall fail to maintain such office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee; provided that no service of legal process may be made against the Issuer at any office of the Trustee.
 
75

(b) The Issuer of any series of Notes may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all purposes and may from time to time rescind such designations.
The initial Issuer hereby designates the Corporate Trust Office of the Trustee, as one such office or agency of such Issuer in accordance with Section 305.
Section 403. Money for Payments to Be Held in Trust. If the Issuer of a series of Notes shall at any time act as Paying Agent, it shall, on or before 12:00 p.m., New York City time, on each due date of the principal of (and premium, if any) or interest on, any of such Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee in writing of its action or failure so to act.
If the Issuer of a series of Notes is not acting as Paying Agent, it shall, on or prior to 12:00 p.m., New York City time, on each due date of the principal of (and premium, if any) or interest on, such Notes, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) such Issuer shall promptly notify the Trustee in writing of its action or failure so to act.
If the Issuer of a series of Notes is not acting as Paying Agent, such Issuer shall cause any Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 403, that such Paying Agent shall:
(1) hold all sums held by it for the payment of principal of (and premium, if any) or interest on Notes of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by such Issuer (or any other obligor upon the Notes) in the making of any such payment of principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the provisions of this Indenture relating to the duties, rights and liabilities of such Paying Agent.
The Issuer of any Notes may at any time, for the purpose of obtaining the satisfaction and discharge of such Notes, this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by such Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by such Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
 
76

Any money deposited with the Trustee or any Paying Agent, or then held by an Issuer, in trust for the payment of principal of (and premium, if any) or interest on any Note and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Issuer on Issuer Request, or (if then held by an Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer of such Notes for payment thereof unless an applicable abandoned property law designates another Person, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of such Issuer as trustee thereof, shall thereupon cease.
Section 404. [Reserved].
Section 405. SEC Reports. So long as any Notes are outstanding:
(a) Notwithstanding that following the Issue Date the Company may not be required to be or remain subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company will furnish to the Trustee within 15 days after the time periods specified below:
(i) within 105 days following the end of each fiscal year of the Company (or such longer period as may be permitted by the SEC if the Company were then subject to SEC reporting requirements as a non-accelerated filer), the consolidated financial statements of the Company for such year prepared in accordance with GAAP, together with a report thereon by the Company’s independent auditors, and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be included in an Annual Report on Form 10-K (as in effect on the Issue Date) filed with the SEC by the Company (if the Company were required to prepare and file such form); it being understood that (x) the Company shall not be required to include any separate consolidating financial information with respect to the Company, any Issuer, any Subsidiary Guarantor or any other affiliate of the Company, or any separate financial statements or information for the Company, any Issuer, any Subsidiary Guarantor or any other affiliate of the Company and (y) the consolidated financial statements of the Company or any similar reference shall, in each case, include each variable interest entity that the Company would otherwise be required to consolidate under GAAP;
(ii) within 60 days after the end of each of the first three fiscal quarters of the Company in each fiscal year of the Company (or such longer period as may be permitted by the SEC if the Company were then subject to SEC reporting requirements as a non-accelerated filer), the condensed consolidated financial statements of the Company for such quarter prepared in accordance with GAAP, together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” with respect to such financial statements substantially similar to that which would be included in a
 
77

Quarterly Report on Form 10-Q (as in effect on the Issue Date) filed with the SEC by the Company (if the Company were required to prepare and file such form); it being understood that (x) the Company shall not be required to include any separate consolidating financial information with respect to the Company, any Issuer, any Subsidiary Guarantor or any other affiliate of the Company, or any separate financial statements or information for the Company, any Issuer, any Subsidiary Guarantor or any other affiliate of the Company and (y) the consolidated financial statements of the Company or any similar reference shall, in each case, include each variable interest entity that the Company is required to consolidate under GAAP; and
(iii) information substantially similar to the information that would be required to be included in a Current Report on Form 8-K (as in effect on the Issue Date) filed with the SEC by the Company (if the Company were required to prepare and file such form) pursuant to Item 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets) or 5.01 (Changes in Control of Registrant) of such form (and in any event excluding, for the avoidance of doubt, the financial statements, pro forma financial information and exhibits, if any, that would be required by Item 9.01 (Financial Statements and Exhibits) of such form), within 15 days after the date of filing that would have been required for a current report on Form 8-K.
In addition, to the extent not satisfied by the foregoing, for so long as the Notes remain subject to this paragraph (b), the Company will furnish to Holders thereof and prospective investors in such Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) (as in effect on the Issue Date). In connection with this covenant, it being understood that the Company shall not be required to (a) comply with Section 302, Section 404 and Section 906 of the Sarbanes Oxley Act of 2002, as amended, or related Items 307, 308 and 308T of Regulation S-K under the Securities Act; (b) provide the type of information contemplated by Rules 3-09, 3-10 or 3-16 of Regulation S-X under the Securities Act or any schedules required thereunder, or in each case, any successor provisions; (c) provide the type of information required by Regulation G under the Exchange Act; and (d) provide other information customarily excluded from an offering memorandum, including any information that is not otherwise of the type and form currently included (which, for the avoidance of doubt, shall not include items customarily incorporated by reference in an offering memorandum) in the offering memorandum relating to the Notes.
(b) Substantially concurrently with the furnishing or making available to the Trustee of the information specified in paragraph (a) above pursuant thereto, the Company shall also (1) use its commercially reasonable efforts (i) to post copies of such reports on such website as may be then maintained by the Company, or (ii) to post copies of such reports on a website (which may be nonpublic) to which access is given to Holders, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act that certify their status as such to the reasonable satisfaction of the Company), and securities analysts (to the extent providing research and analysis of investment in the Notes to investors and prospective investors therein) and market-making financial institutions reasonably satisfactory to the Company, or (iii) otherwise to provide substantially comparable availability of such reports (as determined by the Company in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another private
 
78

electronic information service shall constitute substantially comparable availability), or (2) to the extent the Company determines in good faith that it cannot make such reports available in the manner described in the preceding clause (1) after the use of its commercially reasonable efforts, furnish such reports to the Holders of the Notes, upon their request; provided that the Company may deny access to any competitively-sensitive information and reports otherwise to be provided pursuant to this paragraph that is a competitor of the Company and its Subsidiaries to the extent that the Company determines in good faith that the provision of such information and reports to such Person would be competitively harmful to the Company and its Subsidiaries. The Company may condition the delivery of any such reports to such Holders, prospective investors in the Notes and securities analysts and market making financial institutions on the agreement of such Persons to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports (and the information contained therein) and information for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein) and information.
(c) If, at any time, any audited or reviewed financial statements or information required to be included in any such statement or filing pursuant to paragraph (a) above are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or transmitting or making available the financial statements or information, documents and reports so required to be filed, transmitted or made available, as the case may be, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information; provided that (i) the Company shall in any event be required to make such filing and so transmit or make available, as applicable, such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this paragraph (such initial date, the “Reporting Date”) and (ii) if the Company makes such an election and such filing has not been made, or such information, documents and reports have not been transmitted or made available, as the case may be, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The Trustee shall have no independent responsibility to determine if liquidated damages are due or the amount of any such liquidated damages.
The Company may satisfy its obligations in this covenant with respect to financial information relating to the Company by furnishing financial information relating to a Parent; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent (and other Parents included in such information, if any), on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
 
79

Notwithstanding anything to the contrary set forth above, if the Company or any Parent has furnished the Holders of Notes or filed with the SEC the reports described in the preceding paragraphs with respect to the Company or any Parent, the Company shall be deemed to be in compliance with the provisions of this covenant.
Subject to Article VII, delivery of reports, information and documents to the Trustee under this Section 405 is for informational purposes only and the Trustee’s receipt (or constructive receipt) of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). Subject to Article VII, the Trustee is not obligated to confirm that the Company has complied with its obligations contained in this Section 405 to file such reports with the SEC or post such reports and information on its website.
Section 406. Statement as to Default. Each Issuer and the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company commencing with the Company’s fiscal year ending December 31, 2019, an Officer’s Certificate to the effect that to the best knowledge of the signer thereof (on behalf of such Issuer or the Company, as applicable) such Issuer or the Company, as applicable, is or is not in default in the performance and observance of any of the terms, provisions and conditions of this Indenture applicable to such Issuer or the Company, as applicable (without regard to any period of grace or requirement of notice provided hereunder) and, if such Issuer or the Company, as applicable, shall be in default, specifying all such defaults and the nature and status thereof of which such signer may have knowledge.
Section 407. Limitation on Indebtedness.
(a) The Company will not, and will not permit any Restricted Subsidiary to, Incur any Indebtedness; provided, however, that the Company or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00.
(b) Notwithstanding the foregoing Section 407(a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to any Credit Facility (including but not limited to in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than pursuant to any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, either (I) in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $2,980.0 million, plus (B) the amount equal to the greater of (x) $1,900.0 million and (y) an amount equal to (1) the North American Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Section 407(b)(ix), plus (C) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing or (II) if on the date of the Incurrence of such Indebtedness (other than any
 
80

such Refinancing Indebtedness), after giving effect to such Incurrence (or, at the Company’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness (such committed amount, a “Ratio Tested Committed Amount”), in which case such Ratio Tested Committed Amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause) the Consolidated Secured Leverage Ratio would be equal to or less than 4.50:1.00; and (in the case of this subclause (II)) any Refinancing Indebtedness with respect to any such Indebtedness (or Ratio Tested Committed Amount);
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company, or (B) of the Company or any Restricted Subsidiary to any Restricted Subsidiary; provided that, in the case of this Section 407(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Company or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Section 407(b)(ii);
(iii) Indebtedness represented by the Notes (other than Additional Notes), any Indebtedness (other than the Indebtedness under the Senior Credit Facilities described in Section 407(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Issue Date and any Refinancing Indebtedness Incurred in respect of any Indebtedness (or unutilized commitments) described in this Section 407(b)(iii) or Section 407(a) above;
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the acquisition of Capital Stock of any Person at any time outstanding pursuant to this clause shall not exceed an amount equal to the greater of $350.0 million and 40.0% of LTM EBITDA;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407), or (B) without limiting Section 413, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407);
 
81

(vii) Indebtedness of the Company or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business, or (B) consisting of guarantees, indemnities, obligations in respect of earnouts, deferred purchase price, or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Company or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an aggregate principal amount at any time outstanding not exceeding the greater of $315.0 million and 35.0% of LTM EBITDA or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 407 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this Section 407(b)(ix);
(x) Indebtedness of (A) the Company or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Company or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Company would have a Consolidated Total Leverage Ratio equal to or less than 5.00:1.00 or (2) the Consolidated Total Leverage Ratio of the Company would equal or be less than the Consolidated Total Leverage Ratio of the Company immediately prior to giving effect thereto; and any Refinancing Indebtedness with respect to any such Indebtedness;
 
82

(xi) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Section 407(a), and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $500.0 million and 55.0% of LTM EBITDA;
(xiv) Indebtedness (A) of the Company or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Company or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $500.0 million and 55.0% of LTM EBITDA or (B) constituted Acquired Indebtedness;
(xv) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to (A) the greater of $500.0 million and 55.0% of Foreign LTM EBITDA plus (B) an amount equal (but not less than zero) to (1) the Foreign Borrowing Base less the Foreign Borrowing Base as calculated on September 30, 2019 less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) in excess of the amount set forth in the immediately preceding clause (1) plus (C) in the event of any refinancing of any Indebtedness Incurred under this clause (x), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred in connection with such refinancing;
(xvi) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause and then outstanding, will not exceed the Available RP Capacity Amount (determined on the date of such incurrence);
(xvii) any obligation, or guaranty of any obligation, of the Company or any Restricted Subsidiary to reimburse or indemnify a Person extending credit to customers of the Company or a Restricted Subsidiary incurred in the ordinary course of business or consistent with past practice for all or any portion of the amounts payable by such customers to the Person extending such credit; and
(xviii) Indebtedness incurred by the Company or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy or discharge the Notes or exercise the Issuer’s legal defeasance or covenant defeasance, in each case, in accordance with this Indenture.
 
83

(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 407, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 407) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 407(b), the Company, in its sole discretion, shall classify and reclassify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses or subclauses of Section 407(b) (including in part under one such clause or subclause and in part under another such clause or subclause); provided that (if the Company shall so determine) any Indebtedness Incurred pursuant to Section 407(b)(iv), Section 407(b)(vii)(H), Section 407(b)(xiii), Section 407(b)(xiv) or Section 407(b)(xv) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Section 407(a) from and after the first date on which the Company or any Restricted Subsidiary could have Incurred such Indebtedness under Section 407(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under Section 407(a), the Company, in its sole discretion, may classify and reclassify a portion of such Indebtedness as having been Incurred under Section 407(a) and the remainder of such Indebtedness as having been Incurred under Section 407(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of Indebtedness outstanding under any clause of Section 407(b) shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of Section 407(b) measured by reference to a percentage of LTM EBITDA at the time of Incurrence or Foreign LTM EBITDA at the time of Incurrence, and such refinancing would cause such percentage of LTM EBITDA or Foreign LTM EBITDA, as applicable, to be exceeded if calculated based on the LTM EBITDA or Foreign LTM EBITDA, as applicable, on the date of such refinancing, such percentage of LTM EBITDA or Foreign LTM EBITDA, as applicable, shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing; (vii) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of Section 407(b) measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the extent the principal amount of such newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (viii) for all purposes herein, including for
 
84

purposes of calculating the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, in connection with the incurrence, issuance or assumption of any Indebtedness pursuant to the paragraphs (a) or (b) above or the incurrence or creation of any Lien pursuant to the definition of “Permitted Liens,” the Company may elect, at its option, to treat all or any portion of the committed amount of any Indebtedness (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) which is to be incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be (any such committed amount elected until revoked as described below, the “Reserved Indebtedness Amount”), as being incurred as of such Election Date (as defined below), and, if such Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision herein, as applicable, is complied with (or satisfied) with respect thereto on such Election Date, any subsequent borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be deemed to be permitted under this covenant or the definition of “Permitted Liens,” as applicable, whether or not the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision herein, as applicable, at the actual time of any subsequent borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) is complied with (or satisfied) for all purposes (including as to the absence of any continuing Default or Event of Default); provided that for purposes of subsequent calculations of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision herein, as applicable, the Reserved Indebtedness Amount shall be deemed to be outstanding, whether or not such amount is actually outstanding, for so long as such commitments are outstanding or until the Company revokes an election of a Reserved Indebtedness Amount. Notwithstanding anything herein to the contrary, Indebtedness outstanding on the Issue Date under the Senior Credit Facilities shall be classified as Incurred under Section 407(b), and not under Section 407(a).
(d) For purposes of determining compliance with any provision of Section 407(b) (or any category of Permitted Liens described in the definition thereof) measured by a dollar amount or by reference to a percentage of LTM EBITDA or Foreign LTM EBITDA, in each case, for the Incurrence of Indebtedness or Liens securing Indebtedness denominated in a foreign currency, the dollar equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness; provided that (x) the dollar equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, (v) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable provision of Section 407(b) (or category of Permitted Liens) measured by a dollar amount or by reference to a percentage of LTM EBITDA or Foreign LTM EBITDA, as applicable, to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such provision of Section 407(b) (or category of Permitted Liens) measured by a dollar amount or by reference to a percentage of LTM EBITDA or Foreign LTM EBITDA, as applicable, shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting
 
85

discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (z) the dollar equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to the Senior ABL Facility, the Senior Term Facility or the European ABL Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, (A) the Issue Date, (B) any date on which any of the respective commitments under the Senior ABL Facility, the Senior Term Facility or the European ABL Facility, as applicable, shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (C) the date of such Incurrence. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
Section 408. [Reserved].
Section 409. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Company is a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Company held by Persons other than the Company or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Company or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:
(1) other than in the case of (i) any Investment or (ii) amounts attributable to Section 409(3)(B)—(D) below, an Event of Default shall have occurred and be continuing (or would result therefrom);
(2) other than in the case of (i) any Investment or (ii) amounts attributable to Section 409(3)(B)—(D) below, the Company could not Incur at least an additional $1.00 of Indebtedness pursuant to Section 407(a); or
 
86

(3) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount so expended, if other than in cash, to be as determined in good faith by the Issuer) declared or made subsequent to the Issue Date and then outstanding would exceed, without duplication, the sum of:
(A) (x) $100.0 million plus (y) 50.0% of the Consolidated Net Income accrued during the period (treated as one accounting period) beginning on July 1, 2015 to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements of the Company are available (or, in case such Consolidated Net Income shall be a negative number, 100.0% of such negative number);
(B) the aggregate Net Cash Proceeds and the fair value (as determined in good faith by the Company) of property or assets received (x) by the Company as capital contributions to the Company after July 1, 2015 or from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock) after July 1, 2015 (other than Excluded Contributions and Contribution Amounts) or (y) by the Company or any Restricted Subsidiary from the Incurrence by the Company or any Restricted Subsidiary after the July 1, 2015 of Indebtedness that shall have been converted into or exchanged for Capital Stock of the Company (other than Disqualified Stock) or Capital Stock of any Parent, plus the amount of any cash and the fair value (as determined in good faith by the Company) of any property or assets, received by the Company or any Restricted Subsidiary upon such conversion or exchange;
(C) (i) the aggregate amount of cash and the fair value (as determined in good faith by the Company) of any property or assets received from dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of assets to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary, including dividends or other distributions related to dividends or other distributions made pursuant to Section 409(b)(ix), plus (ii) the aggregate amount resulting from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary (valued in each case as provided in the definition of “Investment”); and
(D) in the case of any disposition or repayment of any Investment constituting a Restricted Payment (without duplication of any amount deducted in calculating the amount of Investments at any time outstanding included in the amount of Restricted Payments), the aggregate amount of cash and the fair value (as determined in good faith by the Company) of any property or assets received by the Company or a Restricted Subsidiary with respect to all such dispositions and repayments.
 
87

(b) The provisions of Section 409(a) do not prohibit any of the following (each, a “Permitted Payment”):
(i) (x) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Capital Stock of the Company (“Treasury Capital Stock”) or Subordinated Obligations made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the issuance or sale of, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary) (“Refunding Capital Stock”) or a capital contribution to the Company, in each case other than Excluded Contributions and Contribution Amounts; provided that the Net Cash Proceeds from such issuance, sale or capital contribution shall be excluded in subsequent calculations under Section 409(a)(3)(B) and (y) if immediately prior to such acquisition or retirement of such Treasury Capital Stock, dividends thereon were permitted pursuant to Section 409(b)(xi), dividends on such Refunding Capital Stock in an aggregate amount per annum not exceeding the aggregate amount per annum of dividends so permitted on such Treasury Capital Stock;
(ii) any dividend paid or redemption made within 60 days after the date of declaration thereof or of the giving of notice thereof, as applicable, if at such date of declaration or the giving of such notice, such dividend or redemption would have complied with this Section 409;
(iii) Investments or other Restricted Payments in an aggregate amount outstanding at any time not to exceed the amount of Excluded Contributions;
(iv) loans, advances, dividends or distributions by the Company to any Parent to permit any Parent to repurchase or otherwise acquire its Capital Stock (including any options, warrants or other rights in respect thereof), or payments by the Company to repurchase or otherwise acquire Capital Stock of any Parent or the Company (including any options, warrants or other rights in respect thereof), in each case from current or former Management Investors (including any repurchase or acquisition by reason of the Company or any Parent retaining any Capital Stock, option, warrant or other right in respect of tax withholding obligations, and any related payment in respect of any such obligation), such payments, loans, advances, dividends or distributions not to exceed an amount (net of repayments of any such loans or advances) equal to (x) (1) $50.0 million, plus (2) $25.0 million multiplied by the number of calendar years that have commenced since July 1, 2015, plus (y) the Net Cash Proceeds received by the Company since July 1, 2015 from, or as a capital contribution from, the issuance or sale to Management Investors of Capital Stock (including any options, warrants or other rights in respect thereof), to the extent such Net Cash Proceeds are not included in any calculation under Section 409(a)(3)(B)(x), plus (z) the amount of cash proceeds of key man life insurance policies received by the Company or any Restricted Subsidiary (or by any Parent and contributed to the Company) since July 1, 2015 to the extent such cash proceeds are not included in any calculation under Section 409(a)(3)(A); provided that any cancellation of Indebtedness owing to the Company or any Restricted Subsidiary by any current or former Management Investor in connection with any repurchase or other acquisition of Capital Stock (including any options, warrants or other rights in respect thereof) from any Management Investor shall not constitute a Restricted Payment for purposes of this covenant or any other provision of this Indenture;
 
88

(v) the payment by the Company of, or loans, advances, dividends or distributions by the Company to any Parent to pay, dividends on the common stock, units or equity of the Company or any Parent in an amount not to exceed in any fiscal year of the Company the greater of (x) 6.0% of the aggregate gross proceeds received by the Company (whether directly, or indirectly through a contribution to common equity capital) in or from a public offering (including from the IPO) and (y) 6.0% of Market Capitalization;
(vi) Restricted Payments (including loans or advances) in an aggregate amount outstanding at any time not to exceed an amount (net of repayments of any such loans or advances) equal to the greater of $500.0 million and 55.0% of LTM EBITDA;
(vii) loans, advances, dividends or distributions to any Parent or other payments by the Company or any Restricted Subsidiary (A) to satisfy or permit any Parent to satisfy obligations under the Management Agreements, (B) pursuant to any Tax Sharing Agreement, or (C) to pay or permit any Parent to pay (but without duplication) any Parent Expenses or any Related Taxes;
(viii) payments by the Company, or loans, advances, dividends or distributions by the Company to any Parent to make payments, to holders of Capital Stock of the Company or any Parent in lieu of issuance of fractional shares of such Capital Stock;
(ix) dividends or other distributions of, or Investments paid for or made with, Capital Stock, Indebtedness or other securities of Unrestricted Subsidiaries;
(x) [reserved];
(xi) (A) dividends on any Designated Preferred Stock of the Company issued after the Issue Date; provided that at the time of such issuance and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio would be at least 2.00:1.00, (B) loans, advances, dividends or distributions to any Parent to permit dividends on any Designated Preferred Stock of any Parent issued after the Issue Date if the net proceeds of the issuance of such Designated Preferred Stock have been contributed to the Company or any of its Restricted Subsidiaries; provided that the aggregate amount of all loans, advances, dividends or distributions paid pursuant to this subclause (B) shall not exceed the net proceeds of such issuance of Designated Preferred Stock received by or contributed to the Company or any of its Restricted Subsidiaries or (C) any dividend on Refunding Capital Stock that is Preferred Stock; provided that at the time of the declaration of such dividend and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio would be at least 2.00:1.00;
(xii) distributions or payments of Special Purpose Financing Fees;
(xiii) the declaration and payment of dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted Subsidiary, Incurred in accordance with the terms of Section 407;
 
89

(xiv) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Subordinated Obligations (w) made by exchange for, or out of the proceeds of the Incurrence of, Indebtedness of the Company or Refinancing Indebtedness Incurred in compliance with Section 407, (x) from Net Available Cash or an equivalent amount to the extent permitted by Section 411, (y) following the occurrence of a Change of Control (or other similar event described therein as a “change of control”), but only if the Issuer shall have complied with Section 415 and, if required, purchased all Notes tendered pursuant to the offer to repurchase all the Notes required thereby, prior to purchasing or repaying such Subordinated Obligations or (z) constituting Acquired Indebtedness;
(xv) Investments or other Restricted Payments in an aggregate amount outstanding at any time not to exceed an amount equal to Declined Excess Proceeds;
(xvi) payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as a result of, exercise of dissenters’ or appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a merger, amalgamation, consolidation or transfer of assets that complies with Section 501; and
(xvii) any Restricted Payment; provided that on a pro forma basis after giving effect to such Restricted Payment the Consolidated Total Leverage Ratio would be equal to or less than 4.00:1.00;
provided that (A) in the case of Section 409(b)(ii), Section 409(b)(v) and Section 409(b)(viii), the net amount of any such Permitted Payment shall be included in subsequent calculations of the amount of Restricted Payments, (B) in all cases other than pursuant to clause (A) immediately above, the net amount of any such Permitted Payment shall be excluded in subsequent calculations of the amount of Restricted Payments, and (C) solely with respect to clauses Section 409(b)(vi) and Section 409(b)(xvii), no Default or Event of Default shall have occurred and be continuing at the time of any such Permitted Payment after giving effect thereto. The Company, in its sole discretion, may divide or classify any Investment or other Restricted Payment (or later divide, classify or reclassify in whole or in part in its sole discretion) as being made in part under one of the clauses or subclauses of this Section 409, or one or more of the clauses or subclauses of the definition of “Permitted Investments” and in part under one or more other such clauses or subclauses (or, as applicable, clauses or subclauses).
In connection with any commitment, definitive agreement or similar event relating to an Investment or any committed amount of Indebtedness, the Company or the applicable Restricted Subsidiary may designate such Investment or Indebtedness as having occurred or been incurred on the date of the commitment, definitive agreement or similar event relating thereto (such date, the “Election Date”) if, after giving pro forma effect to such Investment or Indebtedness, as applicable, and all related transactions in connection therewith and any related pro forma adjustments, the Company or any of its Restricted Subsidiaries would have been permitted to make such Investment or incurred such Indebtedness, as applicable, on the relevant Election Date in compliance with this Indenture, and any related subsequent actual making of such Investment or incurrence of such Indebtedness, as applicable, will be deemed for all purposes herein to have been made on such Election Date, including for purposes of calculating any ratio,
 
90

compliance with any test, usage of any baskets hereunder (if applicable), Consolidated EBITDA, Consolidated Net Income and LTM EBITDA and for purposes of determining whether there exists any Default or Event of Default (and all such calculations on and after the Election Date until the termination, expiration, passing, rescission, retraction or rescindment of such commitment, definitive agreement or similar event shall be made on a pro forma basis giving effect thereto and all related transactions in connection therewith).
If the Company or a Restricted Subsidiary makes a Restricted Payment which at the time of the making of such Restricted Payment would in the good faith determination of the Company be permitted under the provisions herein, such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to Parent’s financial statements affecting Consolidated EBITDA, Consolidated Net Income or LTM EBITDA of Parent for any period.
Notwithstanding any other provision of this Indenture, this Indenture does not restrict any redemption or other payment by the Company or any Restricted Subsidiary made as a mandatory principal redemption or other payment in respect of Subordinated Obligations pursuant to an “AHYDO saver” provision of any agreement or instrument in respect of Subordinated Obligations, and the Company’s determination in good faith of the amount of any such “AHYDO saver” mandatory principal redemption or other payment shall be conclusive and binding for all purposes under this Indenture.
Section 410. Limitation on Restrictions on Distributions from Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Company, (ii) make any loans or advances to the Company or (iii) transfer any of its property or assets to the Company (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will be deemed not to constitute such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered into on the Issue Date, any Credit Facility, this Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary, or which agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets from such Person, or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that for purposes of this clause (2), if a Person other than the Company is the Successor Company with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Company or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Company;
 
91

(3) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in clause (1) or (2) of this Section 410 or this clause (3) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Holders of the Notes than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Company);
(4) (A) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset subject thereto, (B) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of the Company or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits, net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (H) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or such Restricted Subsidiary, or (I) pursuant to Hedging Obligations or Bank Products Obligations;
(5) with respect to any agreement for the direct or indirect disposition of Capital Stock of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such sale or disposition;
(6) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary; or
 
92

(7) pursuant to an agreement or instrument (A) relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 407 (i) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders of the Notes than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Company) or (ii) if such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined in good faith by the Company) and either (x) the Company determines in good faith that such encumbrance or restriction will not materially affect any Issuer’s ability to make principal or interest payments on the Notes or (y) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (B) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (C) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity.
Section 411. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition unless:
(i) the Company or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value of the shares and assets subject to such Asset Disposition, as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by the Company, whose determination shall be conclusive (including as to the value of all noncash consideration);
(ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) of $100.0 million or more, at least 75.0% of the consideration (excluding, in the case of each Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) for such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) received by the Company or such Restricted Subsidiary is in the form of cash; and
 
93

(iii) an amount equal to 100% (as may be adjusted pursuant to clause (3) of the proviso to this clause (iii)) of the Net Available Cash from such Asset Disposition is applied by the Company (or any Restricted Subsidiary (including any Issuer), as the case may be) as follows:
(A) first, either (x) to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Credit Facility Indebtedness, any Senior Indebtedness of the Company or any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor), to prepay, repay or purchase any such Indebtedness or Obligations in respect thereof or (in the case of letters of credit, bankers’ acceptances or other similar instruments) cash collateralize any such Indebtedness or Obligations in respect thereof (in each case other than Indebtedness owed to the Company or a Restricted Subsidiary) within 450 days after the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash, or (y) to the extent the Company or such Restricted Subsidiary elects, to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of the date of such Asset Disposition and the date of receipt of such Net Available Cash or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project;
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above (such balance, the “Excess Proceeds”), to make an offer to purchase Notes and (to the extent the Company or such Restricted Subsidiary elects, or is required by the terms thereof) to purchase, redeem or repay any other Senior Indebtedness of the Company or a Restricted Subsidiary, pursuant and subject to Section 411(b) and Section 411(c) and the agreements governing such other Indebtedness; and
(C) third, to the extent of the balance of such Net Available Cash after application in accordance with clauses (A) and (B) above (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations or the making of other Restricted Payments);
provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (A)(y) above with respect to such Asset Disposition; and (3) the foregoing percentage in this Section 411(a)(iii) shall be reduced to 50.0% if the Consolidated Total Leverage Ratio would be equal to or less than 4.00:1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a result of the application of this clause (3) of this proviso shall collectively constitute “Total Leverage Excess Proceeds”).
 
94

Notwithstanding the foregoing provisions of this Section 411, the Company and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Section 411 except to the extent that the aggregate Net Available Cash from all Asset Dispositions or equivalent amount that is not applied in accordance with this Section 411 (excluding all Total Leverage Excess Proceeds) exceeds the greater of (a) $135.0 million and (b) 15.0% of LTM EBITDA. If the aggregate principal amount of Notes and/or other Indebtedness of the Company or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise subject to purchase, redemption or repayment) in connection with an offer pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds will be apportioned between such Notes and such other Indebtedness of the Company or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in respect of such Notes to equal the lesser of (x) the Excess Proceeds amount multiplied by a fraction, the numerator of which is the outstanding principal amount of such Notes and the denominator of which is the sum of the outstanding principal amount of the Notes and the outstanding principal amount of the relevant other Indebtedness of the Company or a Restricted Subsidiary, and (y) the aggregate principal amount of Notes validly tendered and not withdrawn.
For the purposes of Section 411(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents; (2) the assumption of Indebtedness of the Company (other than Disqualified Stock of the Company) or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition; (4) securities received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days; (5) consideration consisting of Indebtedness of the Company or any Restricted Subsidiary; (6) Additional Assets; and (7) any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause, not to exceed an aggregate amount at any time outstanding equal to the greater of $170.0 million and 2.0% of LTM EBITDA (with the Fair Market Value of each item of Designated Noncash Consideration being measured on the date a legally binding commitment for such disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of Notes pursuant to Section 411(a)(iii)(B), the Issuer will be required to purchase Notes tendered pursuant to an offer by the Issuer for the Notes (the “Offer”) at a purchase price of 100.0% of their principal amount plus accrued and unpaid interest, if any, to, but excluding, the date of purchase in accordance with the procedures (including prorating in the event of oversubscription provided that the authorized denominations are maintained) set forth in Section 411(c). If the aggregate purchase price of the Notes tendered pursuant to the Offer is less than the Net Available Cash
 
95

allotted to the purchase of Notes, the remaining Net Available Cash will be available to the Company and the Restricted Subsidiaries for use in accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Issuer shall not be required to make an Offer for Notes pursuant to this Section 411 if the Net Available Cash available therefor (after application of the proceeds as provided in Section 411(a)(iii)(A)) is less than the greater of (a) $135.0 million and (b) 15.0% of LTM EBITDA for any particular Asset Disposition (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). No Note will be repurchased in part if less than $2,000 in original principal amount of such Note would be left outstanding.
(c) The Issuer shall, not later than 45 days after the Issuer becomes obligated to make an Offer pursuant to this Section 411, mail a notice to each Holder with a copy to the Trustee stating: (1) that an Asset Disposition that requires the purchase of a portion of the Notes has occurred and that such Holder has the right (subject to the prorating described below) to require the applicable Issuer to purchase a portion of such Holder’s Notes at a purchase price in cash equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date falling prior to or on the purchase date); (2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is mailed, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase is delayed as provided in clause (5) of this Section 411(c)); (3) the instructions determined by the Issuer, consistent with this Section 411, that a Holder must follow in order to have its Notes purchased; (4) the amount of the Offer which amount may be contingent upon the Net Available Cash remaining following the application of Net Available Cash pursuant to Section 411(a)(iii)(A) and (5) if such notice is mailed prior to the date the Net Available Cash attributable to such Asset Disposition is received, that such offer is conditioned upon receipt of such Net Available Cash and that the purchase date may, in the Issuer’s discretion, be delayed until such time as the Net Available Cash is received. If, upon the expiration of the period for which the Offer remains open, the aggregate principal amount of Notes surrendered by Holders exceeds the amount of the Offer, the Issuer, acting together, shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer, acting together, so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased).
(d) Pending the final application of an amount equal to the Net Proceeds pursuant to this Section 411, the holder of such Net Proceeds may apply such amount of Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, including under the Senior Credit Facilities, or otherwise invest such amount of Net Proceeds in any manner not prohibited by this Indenture. The Issuer or any Restricted Subsidiary, as the case may be, may elect to apply an amount equal to the Net Proceeds under clause (A) above prior to receiving the Net Proceeds attributable to any given Asset Sale; provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Sale, execution of a definitive agreement for the relevant Asset Sale and consummation of the relevant Asset Sale, and deem the amount so invested to be applied pursuant to and in accordance with clause (A) above with respect to such Asset Sale.
 
96

(e) To the extent that any portion of the Net Proceeds payable in respect of the Notes is denominated in a currency other than U.S. Dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in U.S. Dollars that is actually received by the Company or any Restricted Subsidiary, upon converting such portion into U.S. Dollars.
(f) Notwithstanding any other provisions of this Section 411, (i) to the extent that any of or all the Net Proceeds of any Asset Sale are received or deemed to be received by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments, in each case, from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be applied in compliance with this covenant, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, documents or agreements will not permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and the amount of such repatriated Net Proceeds will be promptly (and in any event not later than five Business Days after such repatriation could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not repatriation actually occurs) in compliance with this covenant and (ii) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition would have a material adverse Tax consequence (which for the avoidance of doubt, includes, but is not limited to, any prepayment out of such Net Proceeds whereby doing so the Company, any of its Subsidiaries, any Parent or any of their respective affiliates and/or equity owners would incur a material Tax liability), the Net Proceeds so affected may be retained by the applicable Foreign Subsidiary. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(g) To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 411, the Issuer will not be deemed to have breached its obligations under this covenant by virtue of compliance therewith. The Issuer may rely on any no-action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
Section 412. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate consideration in excess of $50.0 million unless (i) the terms of such Affiliate Transaction are not materially less
 
97

favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $100.0 million, the terms of such Affiliate Transaction have been approved by a majority of the Board of Directors. For purposes of this Section 412(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 412(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer or director or consultant of or to the Company, any Restricted Subsidiary or any Parent heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans in the ordinary course of business to any such management members, employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity related interests or other securities, to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of the Company or any of its Subsidiaries or any Parent (as determined in good faith by the Company, such Subsidiary or such Parent), or (5) Management Advances and payments in respect thereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction between or among any of the Company, one or more Restricted Subsidiaries, or one or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Issue Date (other than any Management Agreements referred to in Section 412(b)(vii)), and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Company, or are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity,
 
98

(vii) (1) the execution, delivery and performance of any Tax Sharing Agreement and any Management Agreements, and (2) payments (x) for any management, consulting or advisory services, or in respect of financing, underwriting or placement services or other investment banking activities (if any), as may be approved by a majority of the Disinterested Directors, (y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are made pursuant to the Management Agreements or are approved by a majority of the Board of Directors in good faith, and (z) of all out-of-pocket expenses incurred in connection with such services or activities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, and
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Company or Junior Capital or any capital contribution to the Company.
Section 413. Limitation on Liens. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Lien (other than Permitted Liens) on any of its property or assets (including Capital Stock of any other Person), whether owned on the date of this Indenture or thereafter acquired, securing any Indebtedness (the “Initial Lien”), unless contemporaneously therewith effective provision is made to secure the Indebtedness due under this Indenture and the Notes or, in respect of Liens on any Restricted Subsidiary’s property or assets, any Subsidiary Guarantee of such Restricted Subsidiary, equally and ratably with (or on a senior basis to, in the case of Subordinated Obligations or Guarantor Subordinated Obligations) such obligation for so long as such obligation is so secured by such Initial Lien. Any such Lien thereby created in favor of the Notes or any such Subsidiary Guarantee will be automatically and unconditionally released and discharged upon (i) the release and discharge of the Initial Lien to which it relates, (ii) in the case of any such Lien in favor of any such Subsidiary Guarantee, upon the termination and discharge of such Subsidiary Guarantee in accordance with the terms of Section 1303 or (iii) any sale, exchange or transfer (other than a transfer constituting a transfer of all or substantially all of the assets of the Company that is governed by Section 501) to any Person not an Affiliate of the Company of the property or assets secured by such Initial Lien, or of all of the Capital Stock held by the Company or any Restricted Subsidiary in, or all or substantially all the assets of, any Restricted Subsidiary creating such Initial Lien.
Section 414. Future Subsidiary Guarantors. The Company will cause each Domestic Subsidiary that guarantees payment by the Company, any Issuer or any Subsidiary Guarantor of any Indebtedness of the Company, any Issuer or any such Subsidiary Guarantor under either of the Senior Credit Facilities (including by reason of being a borrower under the Senior ABL Facility on a joint and several basis with the Company, any Issuer or a Subsidiary Guarantor) or consisting of any Capital Market Indebtedness to promptly execute and deliver to the Trustee a supplemental indenture or other instrument pursuant to which such Domestic Subsidiary will guarantee payment of the Notes, whereupon such Domestic Subsidiary will become a Subsidiary Guarantor for all purposes under this Indenture. In addition, the Company may, at its option, elect to cause any Subsidiary that is not a Subsidiary Guarantor to guarantee payment of the Notes and become a Subsidiary Guarantor.
 
99

Section 415. Purchase of Notes Upon a Change of Control.
(a) Upon the occurrence after the Issue Date of a Change of Control, each Holder of Notes will have the right to require the Issuer of such Notes to repurchase all or any part of such Notes at a purchase price in cash equal to 101.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase; provided that if the repurchase date is on or after the Regular Record Date and on or before the corresponding Interest Payment Date, then Holders in whose names the Notes are registered at the close of business on such Regular Record Date will receive interest on the repurchase date; provided further, however, that the Issuer of such Notes shall not be obligated to repurchase Notes pursuant to this Section 415 in the event that it has exercised its right to redeem all of the Notes as provided in Article X.
(b) In the event that, at the time of such Change of Control, the terms of any Credit Facility Indebtedness constituting Designated Senior Indebtedness restrict or prohibit the repurchase of the Notes pursuant to this Section 415, then prior to the mailing of the notice to Holders provided for in Section 415(c) but in any event not later than 30 days following the date the Company or the Issuer of such Notes obtains actual knowledge of any Change of Control (unless the Issuer of such Notes has exercised its right to redeem all the Notes as provided in Article X), the Company shall, or shall cause one or more of its Subsidiaries to, (i) repay in full all such Credit Facility Indebtedness subject to such terms or offer to repay in full all such Credit Facility Indebtedness and repay the Credit Facility Indebtedness of each lender who has accepted such offer or (ii) obtain the requisite consent under the agreements governing such Credit Facility Indebtedness to permit the repurchase of the Notes as provided for in Section 415(c). The Company shall first comply with the provisions of the immediately preceding sentence before the Issuer of any Notes shall be required to repurchase such Notes pursuant to the provisions set forth in this Section 415. The Company’s or any applicable Issuer’s failure to comply with the provisions of this Section 415(b) or Section 415(c) shall constitute an Event of Default described in Section 601(iv) and not under Section 601(ii).
(c) Unless an Issuer has exercised its right to redeem all the Notes issued by it as described in Article X, such Issuer shall, not later than 30 days following the date the Company or such Issuer obtains actual knowledge of any Change of Control having occurred, mail a notice (a “Change of Control Offer”) to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred or may occur and that such Holder has, or upon such occurrence will have, the right to require such Issuer to purchase such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on a record date to receive interest on the relevant Interest Payment Date falling prior to or on the purchase date);
(2) the repurchase date (which shall be no earlier than 10 days nor later than 60 days from the date such notice is mailed, except that such notice may be delivered more than 60 days prior to the purchase date if the purchase date is delayed as provided in clause (4) of this Section 415(c));
 
100

(3) the instructions determined by such Issuer, consistent with this Section 415, that a Holder must follow in order to have its Notes purchased; and
(4) if such notice is mailed prior to the occurrence of a Change of Control, that such offer is conditioned on the occurrence of such Change of Control and that the purchase date may, in such Issuer’s discretion, be delayed until such time as the Change of Control has occurred. No Note will be repurchased in part if less than $2,000 in original principal amount of such Note would be left outstanding and all Notes tendered must be in increments of $1,000.
(d) No Issuer will be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by such Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(e) If Holders of not less than 90% in aggregate principal amount of the Outstanding Notes of any series validly tender and do not withdraw such Notes in a Change of Control Offer and any Issuer, or any third party making a Change of Control Offer in lieu of such Issuer as described in Section 415(d), purchases all of the Notes of such series validly tendered and not withdrawn by such Holders, such Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to such Change of Control Offer, to redeem all Notes of such series that remain outstanding following such purchase at a price in cash equal to 101.0% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of such redemption.
(f) To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Issuer will not be deemed to have breached its obligations under this covenant by virtue of compliance therewith. The Issuer may rely on any no-action letters issued by the SEC indicating that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
Section 416. Suspension of Covenants on Achievement of Investment Grade Rating.
(a) If on any day following the Issue Date (a) the Notes have Investment Grade Ratings from both Rating Agencies, and (b) no Default has occurred and is continuing under this Indenture, then, beginning on that day (the “Suspension Date”) subject to the provisions of the following paragraph, the covenants listed under Section 407, Section 409, Section 410, Section 411, Section 412, Section 414, Section 501(a)(iii) and Section 501(a)(iv) (collectively, the “Suspended Covenants”) will be suspended. During any period that the foregoing covenants have been suspended, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries unless such designation would have complied with Section 409 as if Section 409 would have been in effect during such period.
 
101

(b) If on any subsequent date one or both of the Rating Agencies downgrade the ratings assigned to the Notes below an Investment Grade Rating, the foregoing covenants will be reinstated as of and from the date on which the Company obtains actual knowledge of such rating decline (any such date, a “Reversion Date”). The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Upon such reinstatement, all Indebtedness Incurred during the Suspension Period will be deemed to have been Incurred under the exception provided by Section 407(b)(iii). With respect to Restricted Payments made after any such reinstatement, the amount of Restricted Payments will be calculated as if Section 409 had been in effect prior to, but not during, the Suspension Period. For purposes of Section 411, upon the occurrence of a Reversion Date the amount of Net Available Cash not applied in accordance with such covenant will be deemed to be reset to zero. In addition, for purposes of Section 412, all agreements and arrangements entered into by the Company and any Restricted Subsidiary with an Affiliate of the Company during the Suspension Period prior to such Reversion Date will be deemed to have been entered into on or prior to the Issue Date, and for purposes of Section 410, all contracts entered into during the Suspension Period prior to such Reversion Date that contain any of the encumbrances or restrictions subject to such covenant will be deemed to have been existing on the Issue Date. The Subsidiary Guarantees of the Subsidiary Guarantors will be suspended during the Suspension Period.
(c) During the Suspension Period, any reference in the definitions of “Permitted Liens” and “Unrestricted Subsidiary” to Section 407 or any provision thereof shall be construed as if such covenant were in effect during the Suspension Period.
Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of any actions taken by the Company or any Subsidiary (including for the avoidance of doubt any failure to comply with the Suspended Covenants) or other events that occurred during any Suspension Period (or upon termination of the Suspension Period or after that time arising out of events that occurred or actions taken during the Suspension Period) and the Company and any Subsidiary will be permitted, without causing a Default or Event of Default or breach of any kind under this Indenture, to honor, comply with or otherwise perform any contractual commitments or obligations entered into during a Suspension Period following a Reversion Date and to consummate the transactions contemplated thereby.
(d) The Company shall deliver promptly to the Trustee an Officer’s Certificate notifying it of the occurrence of any Suspension Date or any Reversion Date, but failure to so notify the Trustee shall not invalidate the occurrence of any Suspension Date or Reversion Date and shall not constitute a Default or Event of Default by the Company. The Trustee shall have no independent obligation to determine if a Suspension Period has commenced or terminated or to notify Holders regarding the same.
 
102

ARTICLE V
SUCCESSORS
Section 501. When the Company May Merge, Etc.
(a) The Company will not consolidate with or merge with or into, or convey, lease or otherwise transfer all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) will expressly assume all the obligations of the Company under the Notes and this Indenture by executing and delivering to the Trustee a supplemental indenture or one or more other documents or instruments in form reasonably satisfactory to the Trustee;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), no Event of Default has occurred and is continuing to exist;
(iii) immediately after giving pro forma effect to such transaction, either (A) the Company (or, if applicable, the Successor Company with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Section 407(a), (B) the Consolidated Coverage Ratio of the Company (or, if applicable, the Successor Company with respect thereto) would equal or exceed the Consolidated Coverage Ratio of the Company immediately prior to giving effect to such transaction or (C) the Consolidated Total Leverage Ratio of the Company and its Restricted Subsidiaries would not be higher than it was immediately prior to giving effect to such transaction;
(iv) each Issuer and each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a supplemental indenture or other document or instrument in form reasonably satisfactory to the Trustee, confirming, with regard to each Issuer, its obligations under the Notes, and with regard to a Subsidiary Guarantor, its Subsidiary Guarantee (other than any Subsidiary Guarantee that will be discharged or terminated in connection with such transaction); and
(v) the Company will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Section 501(a); provided that (x) in giving such opinion such counsel may rely on an Officer’s Certificate as to compliance with the foregoing clauses (ii) and (iii) and as to any matters of fact, and (y) no Opinion of Counsel will be required for a consolidation, merger or transfer described in Section 501(c).
 
103

(b) No Issuer will consolidate with or merge with or into any Person, unless:
(i) the resulting or surviving Person (the “Successor Issuer”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Issuer (if not the Issuer) will expressly assume all the obligations of the Issuer under the Notes and this Indenture by executing and delivering to the Trustee a supplemental indenture or one or more other documents or instruments in form reasonably satisfactory to the Trustee;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Company or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Company or such Restricted Subsidiary at the time of such transaction), no Event of Default exists;
(iii) each applicable Guarantor (other than (x) any Guarantor that will be released from its obligations under its Guarantee in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a supplemental indenture or other document or instrument in form reasonably satisfactory to the Trustee, confirming its Guarantee (other than any Guarantee that will be discharged or terminated in connection with such transaction); and
(iv) the Company will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Section 501(b); provided that (x) in giving such opinion such counsel may rely on an Officer’s Certificate as to compliance with the foregoing clauses (i) and (ii) and as to any matters of fact, and (y) no Opinion of Counsel will be required for a consolidation, merger or transfer described in Section 501(c).
Any Indebtedness that becomes an obligation of the Company (or, if applicable, the Successor Company with respect thereto) or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Section 501, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Section 407.
(c) Clauses (ii) and (iii) of Section 501(a) and clause (ii) of Section 501(b) will not apply to any transaction in which the Company or any Issuer, as applicable, consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Company or such Issuer, as applicable, in another jurisdiction or changing its legal structure to a limited liability company, partnership or other entity or (y) a Restricted Subsidiary of the Company so long as all assets of the Company and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Section 501(a) will not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to the Company. Section 501(b) will not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to any Issuer.
 
104

There is no precise established definition of the phrase “substantially all” under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve “all or substantially all” of the property or assets of a Person.
(d) For purposes of this Section 501, so long as at the time of any Minority Business Disposition or any Minority Business Offering the Minority Business Disposition Condition is met, the Minority Business Assets shall not be deemed at any time to constitute all or substantially all of the assets of the Company, and any sale or transfer of all or any part of the Minority Business Assets (whether directly or indirectly, whether by sale or transfer of any such assets, or of any Capital Stock or other interest in any Person holding such assets, or any consolidation or merger, or any combination thereof, and whether in one or more transactions, or otherwise, including any Minority Business Offering or any Minority Business Disposition) shall not be deemed at any time to constitute a consolidation with or merger with or into, or conveyance, transfer or lease of all or substantially all of the assets of the Company to, any Person.
Section 502. Successor Company or Successor Issuer Substituted. The Successor Company or any Successor Issuer, as applicable, will succeed to, and be substituted for, and may exercise every right and power of, the Company or the applicable Issuer, as applicable, under this Indenture, and thereafter the predecessor Company or predecessor Issuer, as applicable, shall be relieved of all obligations and covenants under this Indenture, except that the predecessor Company or predecessor Issuer, as applicable, in the case of a lease of all or substantially all its assets shall not be released from the obligation to pay the principal of and interest on the Notes.
ARTICLE VI
REMEDIES
Section 601. Events of Default. An “Event of Default” means the occurrence of the following:
(i) a default in any payment of interest on any Note when due, continued for a period of 30 days;
(ii) a default in the payment of principal of any Note when due, whether at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise;
(iii) the failure by the Company or any Issuer, as the case may be, to comply with its obligations under Sections 501(a) or Section 501(b), as applicable;
(iv) the failure by the Company or any Issuer to comply for 30 days after the notice specified in the penultimate paragraph of this Section 601 with any of its obligations under Section 415 (other than a failure to purchase the Notes);
 
105

(v) the failure by the Company to comply for (x) 180 days after the notice specified in the penultimate paragraph of this Section 601 with any of its obligations under Section 405 (other than a failure to comply with an obligation under Section 405(a) or Section 405(b) for which the Company (1) is entitled to elect to rely on the alternative obligations set forth in Section 405(d) and (2) has elected to so rely on Section 405(d)) or (y) 60 days after the notice specified in the penultimate paragraph of this Section 601 with its other agreements contained in the Notes or this Indenture;
(vi) the failure by any Guarantor to comply for 45 days after the notice specified in the penultimate paragraph of this Section 601 with its obligations under its Guarantee;
(vii) the failure by the Company or any Restricted Subsidiary to pay any Indebtedness for borrowed money (other than Indebtedness owed to the Company or any Restricted Subsidiary) within any applicable grace period after final maturity or the acceleration of any such Indebtedness by the holders thereof because of a default, if the total amount of such Indebtedness so unpaid or accelerated exceeds the greater of $170.0 million and 20.0% of LTM EBITDA or their foreign currency equivalents; provided that no Default or Event of Default will be deemed to occur with respect to any such Indebtedness that is paid or otherwise acquired or retired (or for which such failure to pay or acceleration is waived or rescinded) within 30 Business Days after such failure to pay or such acceleration;
(viii) the taking of any of the following actions by the Company, any Issuer or a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) the commencement of a voluntary case;
(B) the consent to the entry of an order for relief against it in an involuntary case;
(C) the consent to the appointment of a Custodian of it or for any substantial part of its property; or
(D) the making of a general assignment for the benefit of its creditors;
(ix) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company, any Issuer or any Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company, any Issuer or any Significant Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company, any Issuer or any Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 days;
 
106

(x) the rendering of any judgment or decree for the payment of money in an amount (net of any insurance or indemnity payments actually received in respect thereof prior to or within 90 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) in excess of the greater of $170.0 million and 20.0% of LTM EBITDA or their foreign currency equivalents against the Company or a Significant Subsidiary (including any Issuer), that is not discharged, or bonded or insured by a third Person, if such judgment or decree remains outstanding for a period of 90 days following such judgment or decree and is not discharged, waived or stayed; or (xi) the failure of any Guarantee by the Company or a Subsidiary Guarantor that is a Significant Subsidiary to be in full force and effect (except as contemplated by the terms thereof or of this Indenture) or the denial or disaffirmation in writing by the Company or any Subsidiary Guarantor that is a Significant Subsidiary of its obligations under this Indenture or any Guarantee (other than by reason of the termination of this Indenture or such Guarantee or the release of such Guarantee in accordance with such Guarantee or this Indenture), if such Default continues for 10 days.
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
The term “Bankruptcy Law” means Title 11, United States Code, or any similar Federal, state or foreign law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
However, a Default under Section 601(vii) or Section 601(ix) will not constitute an Event of Default until the Trustee or the Holders of at least 30% in principal amount of the Outstanding Notes notify the Issuer of the Default and, with respect to Section 601(vii) and Section 601(ix), the Company does not cure such Default within the time specified in Section 601(vii) and Section 601(ix) after receipt of such notice; provided that a notice of Default may not be given with respect to any action taken, and reported publicly or to Holders, more than two years prior to such notice of Default. Any time period in this Indenture to cure any actual or alleged Default or Event of Default may be extended or stayed by a court of competent jurisdiction. Any notice of Default, notice of acceleration or instruction to the Trustee to provide a notice of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders (each a “Directing Holder”) must be accompanied by a written representation from each such Holder delivered to the Issuer and the Trustee that such Holder is not (or, in the case such Holder is DTC or its nominee, that such Holder is being instructed solely by beneficial owners that are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to the delivery of a notice of Default (a “Default Direction”) shall be deemed a continuing representation until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder is deemed, at the time of providing a Noteholder Direction, to covenant to provide the Issuer with such other information as the Issuer may reasonably request from time to time in order to verify the accuracy of such Noteholder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee and DTC shall be entitled to conclusively rely on such Position Representation and Verification Covenant in delivering its direction to the Trustee.
 
107

If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an Officer’s Certificate stating that the Issuer has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Default, Event of Default or acceleration (or notice thereof) that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to such Default or Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer provides to the Trustee an Officer’s Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Default or Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio, with the effect that such Default or Event of Default shall be deemed never to have occurred, acceleration voided and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default.
Notwithstanding anything in the preceding two paragraphs to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of a bankruptcy or similar proceeding shall not require compliance with the foregoing paragraphs.
However, a Default under Section 601(iv), Section 601(v) or Section 601(vi) will not constitute an Event of Default until the Trustee or the Holders of at least 30.0% in principal amount of the Outstanding Notes (which contain such Default) notify the Company in writing of the Default and the Company does not cure such Default within the time specified in such clause after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default.” When a Default or an Event of Default is cured, it ceases.
Each applicable Issuer and the Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any Event of Default under Section 601(vii) or Section 601(x) and any event that with the giving of notice or the lapse of time would become an Event of Default under Section 601(iv), Section 601(v) or Section 601(vi), its status and what action such Issuer and the Company is taking or proposes to take with respect thereto.
 
108

Section 602. Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other than an Event of Default specified in Section 601(viii) or Section 601(ix) with respect to the Company or any Issuer) occurs and is continuing, unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 301, the Trustee by written notice to the Company and such Issuer, or the Holders of at least 30.0% in principal amount of the Outstanding Notes (which contain such Default) by written notice to the Company and such Issuer and the Trustee, in either case specifying in such notice the respective Event of Default and that such notice is a “notice of acceleration,” may declare the principal of and accrued but unpaid interest on all the Notes to be due and payable. Upon the effectiveness of such a declaration, such principal and interest will be due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in Section 601(viii) or Section 601(ix) with respect to the Company or any Issuer occurs and is continuing, unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture as contemplated by Section 301, the principal of and accrued but unpaid interest on all the Outstanding Notes will ipso facto become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the Outstanding Notes (which contain such Event of Default which has been accelerated) by notice to the Company, the Issuer of Notes containing such Event of Default and the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except non-payment of principal or interest that has become due solely because of such acceleration. No such rescission shall affect any subsequent Default or impair any right consequent thereto.
Section 603. Other Remedies; Collection Suit by Trustee. If an Event of Default occurs and is continuing, the Trustee may, but is not obligated under this Section 603 to, pursue any available remedy to collect the payment of principal of or interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. If an Event of Default specified in Section 601(i) or Section 601(ii) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer of such Notes for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 707.
Section 604. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to any Issuer or any other obligor upon the Notes, its creditors or its property and, unless prohibited by law or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 707.
 
109

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 605. Trustee May Enforce Claims Without Possession of Notes. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment has been recovered.
Section 606. Application of Money Collected. Any money or property collected by the Trustee pursuant to this Article VI shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal (or premium, if any) or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: to the payment of all amounts due the Trustee under Section 707;
Second: to the payment of the amounts then due and unpaid upon the Notes for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal (and premium, if any) and interest, respectively; and
Third: to the Company.
Section 607. Limitation on Suits. Subject to Section 608, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:
(i) such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(ii) Holders of at least 30.0% in principal amount of the Outstanding Notes (which contain such Event of Default) have requested the Trustee in writing to pursue the remedy;
(iii) such Holder or Holders have offered to the Trustee security or indemnity satisfactory to it against any loss, liability or expense;
(iv) the Trustee has not complied with the request within 60 days after receipt of the request and the offer of security or indemnity; and
(v) Holders of a majority in principal amount of the Outstanding Notes have not given the Trustee a written direction inconsistent with the request within such 60-day period.
 
110

A Holder may not use this Indenture to affect, disturb or prejudice the rights of another Holder, to obtain a preference or priority over another Holder or to enforce any right under this Indenture except in the manner herein provided and for the equal and ratable benefit of all Holders.
Section 608. [Reserved].
Section 609. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture or any Note and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Issuer of such Notes, any other obligor upon the Notes, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 610. Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 611. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 612. Control by Holders. The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes (which contain the Event of Default for which a remedy is being enforced) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee; provided that?
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to Section 701, that the Trustee determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any action under this Indenture, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.
 
111

Section 613. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes (which contain such Default) may on behalf of the Holders of all the Notes waive any past Default hereunder and its consequences, except a Default:
(1) in the payment of principal of or interest on any Note (which may only be waived with the consent of each Holder of Notes affected), or
(2) in respect of a covenant or provision hereof that pursuant to the second paragraph of Section 902 cannot be modified or amended without the consent of the Holder of each Outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. In case of any such waiver, any Issuer, any other obligor upon the Notes, the Trustee and the Holders shall be restored to their former positions and rights hereunder and under the Notes, respectively.
Section 614. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Note by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or the Notes, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant. This Section 614 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10.0% in principal amount of the Outstanding Notes (which contain the applicable Event of Default), or to any suit instituted by any Holder for the enforcement of the payment of principal of (or premium, if any) or interest on any Note on or after the respective Stated Maturity or Interest Payment Dates expressed in such Note.
Section 615. Waiver of Stay, Extension or Usury Laws. Each Issuer agrees (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other similar law wherever enacted, now or at any time hereafter in force, that would prohibit or forgive the Issuer from paying all or any portion of the principal of (or premium, if any) or interest on the Notes contemplated herein or in the Notes or that may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
 
112

ARTICLE VII
THE TRUSTEE
Section 701. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but need not verify the contents thereof.
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (i) this paragraph does not limit the effect of Section 701(a); (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 612.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 701 and Section 703.
Section 702. Notice of Defaults. If a Default occurs and is continuing and written notice of such Default has been provided to a Responsible Officer of the Trustee, the Trustee must mail within 90 days after it occurs, to all Holders as their names and addresses appear in the Note Register, notice of such Default hereunder known to the Trustee unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of principal of, or premium, if any, or interest on any Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
 
113

Section 703. Certain Rights of Trustee. Subject to the provisions of Section 701:
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of any Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order thereof, and any resolution of any Person’s board of directors shall be sufficiently evidenced if certified by an Officer of such Person as having been duly adopted and being in full force and effect on the date of such certificate;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate of the Company;
(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, other evidence of indebtedness or other paper or document;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) to the extent permitted by applicable law, the Trustee shall not be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage;
 
114

(9) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty unless so specified herein; and
(10) the rights, privileges, protections, immunities and benefits given to the Trustee hereunder, including, without limitations, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its other capacities hereunder.
Section 704. Not Responsible for Recitals or Issuance of Notes. The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the applicable Issuer, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility and Qualification on Form T-1 supplied to the Company and any other obligor upon the Notes in connection with the registration of any Notes or Guarantees issued hereunder are and will be true and accurate subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by any Issuer of any series of Notes or the proceeds thereof.
Section 705. May Hold Notes. The Trustee, any Authenticating Agent, any Paying Agent, any Note Registrar or any other agent of any Issuer, in its individual or any other capacity, may become the owner or pledgee of Notes and, subject to Section 708 and Section 713, may otherwise deal with such Issuer or its Affiliates with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or such other agent.
Section 706. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Issuer.
Section 707. Compensation and Reimbursement. Each Issuer agrees,
(1) to pay to the Trustee from time to time the reasonable compensation agreed to by such Issuer in writing for all services rendered by the Trustee hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable out-of-pocket expenses incurred by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or willful misconduct on the Trustee’s part, arising out of or in connection with the administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
 
115

No Issuer need pay for any settlement made without its consent (which consent shall not be unreasonably withheld). The provisions of this Section 707 shall survive the termination of this Indenture or the resignation and removal of the Trustee.
The Trustee shall have a claim prior to the Notes for payment of all amounts due the Trustee under this Section 707 on all money or property held or collected by the Trustee, other than money or property held in trust to pay the principal of and interest on any Notes.
Section 708. Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the TIA, the Trustee shall eliminate such interest, apply to the SEC for permission to continue as Trustee with such conflict or resign, to the extent and in the manner provided by, and subject to the provisions of, the TIA and this Indenture. The Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Initial Notes and Additional Notes, or a trustee under any other indenture between the Company or any Issuer and the Trustee.
Section 709. Corporate Trustee Required; Eligibility. There shall at all times be one (and only one) Trustee hereunder. The Trustee shall be a Person that is eligible pursuant to the TIA to act as such and has a combined capital and surplus of at least $50.0 million. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 709 and to the extent permitted by the TIA, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 709, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 710. Resignation and Removal; Appointment of Successor. No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 711.
The Trustee may resign at any time by giving written notice thereof to the Company and each Issuer. If the instrument of acceptance by a successor Trustee required by Section 711 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
The Trustee may be removed at any time upon 30 days’ written notice by Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Trustee and to the Company and each Issuer.
 
116

If at any time:
(1) the Trustee shall fail to comply with Section 708 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 709 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company may remove the Trustee, or (B) subject to Section 614, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company shall promptly appoint a successor Trustee and shall comply with the applicable requirements of Section 711. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 711, become the successor Trustee and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 711, then, subject to Section 614, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 110. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding the replacement of the Trustee pursuant to this Section 710, each Issuer’s obligations under Section 707 shall continue for the benefit of the retiring Trustee.
Section 711. Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor Trustee, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
 
117

Upon request of any such successor Trustee, the Company and each Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to above.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article VII.
Section 712. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be otherwise qualified and eligible under this Article VII, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.
Section 713. Preferential Collection of Claims Against the Issuer. If and when the Trustee shall be or become a creditor of any Issuer (or any other obligor upon the Notes), the Trustee shall be subject to the provisions of the TIA regarding the collection of claims against such Issuer (or any such other obligor) or realizing on certain property received by it in respect of such claims.
Section 714. Appointment of Authenticating Agent. With respect Notes of any series the Trustee may appoint an Authenticating Agent acceptable to the Issuer of Notes of such series to authenticate such Notes. Any such appointment shall be evidenced by an instrument in writing signed by a Trust Officer, a copy of which instrument shall be promptly furnished to the applicable Issuer. Unless limited by the terms of such appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication (or execution of a certificate of authentication) by the Trustee includes authentication (or execution of a certificate of authentication) by such Authenticating Agent. An Authenticating Agent has the same rights as any Note Registrar, Paying Agent or agent for service of notices and demands.
 
118

ARTICLE VIII
HOLDERS’ LISTS AND REPORTS BY
TRUSTEE AND THE ISSUER
Section 801. The Issuer to Furnish Trustee Names and Addresses of Holders. The Issuer of each series of Notes will furnish or cause to be furnished to the Trustee
(1) semi-annually, not more than 10 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of such series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by such Issuer of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and to the extent and so long as the Trustee shall be the Note Registrar, no such list need be furnished pursuant to this Section 801.
Section 802. Preservation of Information; Communications to Holders. The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list, if any, furnished to the Trustee as provided in Section 801 and the names and addresses of Holders received by the Trustee in its capacity as Note Registrar; provided, however, that if and so long as the Trustee shall be the Note Registrar, the Note Register shall satisfy the requirements relating to such list. None of the Issuer, any Guarantor or the Trustee or any other Person shall be under any responsibility with regard to the accuracy of such list. The Trustee may destroy any list furnished to it as provided in Section 801 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Notes, and the corresponding rights and privileges of the Trustee, shall be as provided by the TIA.
Every Holder of Notes, by receiving and holding the same, agrees with the Issuer of such Note and the Trustee that neither such Issuer, nor the Trustee, nor any agent of any of them, shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the TIA.
Section 803. Reports by Trustee. Within 60 days after each July 1, beginning with July 1, 2020, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the TIA at the times and in the manner provided pursuant thereto for so long as any Notes remain outstanding. A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee or any applicable listing agent with each stock exchange upon which any Notes are listed, with the SEC and with the Company. The Company shall notify the Trustee in writing when any Notes are listed on any stock exchange, but any failure to so notify the Trustee shall not constitute a Default or Event of Default by Company.
 
119

ARTICLE IX
AMENDMENT, SUPPLEMENT OR WAIVER
Section 901. Without Consent of Holders. Without the consent of the Holders of any Notes, each applicable Issuer, the Trustee and (as applicable) any Guarantor may amend or supplement this Indenture or the Notes for any of the following purposes:
(1) to cure any ambiguity, mistake, omission, defect or inconsistency,
(2) to provide for the assumption by a successor of the obligations of the Company, any Issuer or a Guarantor under this Indenture or the Notes,
(3) to provide for uncertificated Notes in addition to or in place of certificated Notes,
(4) to secure the Notes,
(5) to evidence a successor Trustee,
(6) to add Guarantees with respect to the Notes, or to confirm and evidence the release, termination or discharge of any Guarantee or Lien with respect to or securing the Notes when such release, termination or discharge is provided for under this Indenture or the Notes,
(7) to add to the covenants of the Company or the Issuer for the benefit of the Holders or to surrender any right or power conferred upon the Company or the Issuer,
(8) to provide for or confirm the issuance of Initial Notes or Additional Notes,
(9) to conform the text of this Indenture (including any supplemental indenture or any other instrument pursuant to which Notes are issued), the Notes (including any Additional Notes), or any Guarantee to any provision of the “Description of Notes” section of the Offering Memorandum, or, with respect to any Additional Notes and any supplemental indenture or other instrument pursuant to which such Additional Notes are issued, to the “Description of Notes” section of the offering memorandum relating to the issuance of such Additional Notes solely to the extent that such “Description of Notes” section provides for terms of such Additional Notes that differ from the terms of the Initial Notes, in accordance with Section 301,
(10) to increase the minimum denomination of the Notes to equal the dollar equivalent of €1,000 rounded up to the nearest $1,000 (including for purposes of redemption or repurchase of any Note in part),
(11) to make any change that does not materially adversely affect the rights of any Holder under the Notes or this Indenture, or
 
120

(12) to comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA or otherwise.
Section 902. With Consent of Holders. Subject to Section 608, the Company, each applicable Issuer, the Trustee and (as applicable) any Guarantor may amend or supplement this Indenture or the Notes with the written consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for Notes) and the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes by written notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for Notes) may waive any existing Default or Event of Default or compliance by Company, any Issuer, or any Guarantor with any provision of this Indenture, the Notes or any Guarantee; provided that (x) if any such amendment or waiver will only affect one series of Notes (or less than all series of Notes) then outstanding under this Indenture, then only the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding (including, in each case, consents obtained in connection with a tender offer or exchange offer for Notes) shall be required and (y) if any such amendment or waiver by its terms will affect a series of Notes in a manner different and materially adverse relative to the manner such amendment or waiver affects other series of Notes, then the consent of the Holders of a majority in principal amount of the Notes of such series then outstanding (including, in each case, consents obtained in connection with a tender offer or exchange offer for Notes) shall be required.
Notwithstanding the provisions of this Section 902, without the consent of Holders of at least 90% of the principal amount of the Notes affected, an amendment or waiver, including a waiver pursuant to Section 613, may not:
(i) reduce the principal amount of the Notes whose Holders must consent to an amendment or waiver;
(ii) reduce the rate of or extend the time for payment of interest on any Note;
(iii) reduce the principal of or extend the Stated Maturity of any Note;
(iv) reduce the premium payable upon the redemption of any Note or change the date on which any Note may be redeemed as described in Section 6 of the applicable Notes Supplemental Indenture;
(v) make any Note payable in money other than that stated in such Note;
(vi) modify the legal right of any Holder of any Note to receive payment of principal of and interest on such Note on or after the respective Stated Maturity for such principal or Interest Payment Date for such interest expressed in such Note, or to institute suit for the enforcement of any such payment on or after such respective Stated Maturity or Interest Payment Date; or
(vii) make any change in the amendment or waiver provisions described in this paragraph.
 
121

Any amendment, supplement or waiver consented to by at least 90% of the principal amount of the Notes affected will be binding on any non-consenting Holder of the Notes affected.
It shall not be necessary for the consent of the Holders under this Section 902 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 902 becomes effective, the Company shall mail to the Holders, with a copy to the Trustee, a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any supplemental indenture or the effectiveness of any such amendment, supplement or waiver.
Section 903. Execution of Amendments, Supplements or Waivers. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article IX if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment, supplement or waiver, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel to the effect that the execution of such amendment, supplement or waiver is authorized or permitted or complies with this Indenture, that all conditions precedent to such amendment, supplement or waiver required by this Indenture have been complied with and that such amendment, supplement or waiver is a valid and binding agreement of each Issuer, enforceable against such Issuer in accordance with its terms. For the avoidance of doubt, no Officer’s Certificate or Opinion of Counsel shall be required on the Issue Date for the execution of any Note Supplemental Indenture, supplemental indenture pursuant to Sections 501(a)(i) or Section 501(b)(i), as applicable, or Guarantor Supplemental Indenture.
Section 904. Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of that Note or any Note that evidences all or any part of the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. Subject to the following paragraph of this Section 904, any such Holder or subsequent Holder may revoke the consent as to such Holder’s Note by written notice to the Trustee or the Company, received by the Trustee or the Company, as the case may be, before the date on which the Trustee receives an Officer’s Certificate from the Company certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver as set forth in Section 108.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder of Notes.
Section 905. [Reserved].
 
122

Section 906. Notation on or Exchange of Notes. If an amendment, supplement or waiver changes the terms of a Note, the Trustee shall (if required by the Issuer of such Note and in accordance with the specific direction of such Issuer) request the Holder of the Note to deliver it to the Trustee. The Trustee shall (if required by the Issuer of such Note and in accordance with the specific direction of such Issuer) place an appropriate notation on the Note about the changed terms and return it to the Holder. Alternatively, if the Issuer of such Note or the Trustee so determines, such Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
ARTICLE X
REDEMPTION OF NOTES
Section 1001. Applicability of Article. Notes of or within any series that are redeemable in whole or in part before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 301) in accordance with this Article X.
Section 1002. [Reserved].
Section 1003. Election to Redeem; Notice to Trustee. In case of any redemption at the election of the Issuer of such Notes of less than all of the Notes of any series, such Issuer should, at least two Business Days (but not more than 60 days (except that such notice may be delivered more than 60 days prior to the Redemption Date if the Redemption Date is delayed as provided in Section 6 of the applicable Notes Supplemental Indenture)), prior to the date on which notice is required to be mailed or caused to be mailed to Holders pursuant to Section 1005, notify the Trustee of such Redemption Date and of the principal amount of Notes to be redeemed, but failure to so notify the Trustee shall not invalidate any notice given in accordance with Section 1005 and shall not constitute a Default or Event of Default by the Company.
Section 1004. Selection by Trustee of Notes to Be Redeemed. Unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 301, in the case of any partial redemption, selection of the Notes for redemption will be made, in the case of global notes, in accordance with procedures of the Depositary or, in the case of certificated Notes, by the Trustee not more than 60 days prior to the Redemption Date (except that such notice may be delivered more than 60 days prior to the Redemption Date if the Redemption Date is delayed as provided in Section 6 of the applicable Notes Supplemental Indenture) on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate, in integral multiples of $1,000, although no Note of $2,000 in original principal amount or less will be redeemed in part.
The Trustee shall promptly notify the Issuer of such Notes in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. On and after the Redemption Date, interest will cease to accrue on Notes or portions thereof called for redemption.
 
123

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of such Note that has been or is to be redeemed.
Section 1005. Notice of Redemption. Subject to the final paragraph of Section 110, unless otherwise specified for Notes of any series in the applicable Notes Supplemental Indenture, as contemplated by Section 301, notice of redemption or purchase as provided in Section 1001 shall be given electronically or, at the applicable Issuer’s option, by first-class mail, postage prepaid, mailed not less than 10 nor more than 60 days prior to the Redemption Date (except that such notice may be delivered more than 60 days prior to the Redemption Date if such notice is issued in connection with the defeasance of Notes pursuant to Section 1201 or a satisfaction and discharge of this Indenture pursuant to Section 1101 or of such Notes pursuant to Section 1102, or if the Redemption Date is delayed as provided in Section 6 of the applicable Notes Supplemental Indenture), to each Holder of Notes to be redeemed, at such Holder’s address appearing in the Note Register.
Any such notice shall state:
(1) the expected Redemption Date,
(2) the redemption price (or the formula by which the redemption price will be determined),
(3) if less than all Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption, the portion of the respective principal amounts) of the Notes to be redeemed,
(4) that, on the Redemption Date, the redemption price will become due and payable upon each such Note, and that, unless the Issuer defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest thereon shall cease to accrue from and after said date, and
(5) the place where such Notes are to be surrendered for payment of the redemption price.
In addition, if such redemption, purchase or notice is subject to satisfaction (or, waiver by the Issuer of such Notes in its sole discretion) of one or more conditions precedent, as permitted by Section 6 of the applicable Notes Supplemental Indenture, such notice shall describe each such condition, and if applicable, shall state that, in such Issuer’s discretion, the Redemption Date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied (or waived by such Issuer in its sole discretion), or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been (or, in such Issuer’s sole determination, may not be) satisfied (or waived by such Issuer in its sole discretion) by the Redemption Date, or by the Redemption Date as so delayed.
 
124

The Issuer of such Notes may provide in such notice that payment of the redemption price and the performance of the Issuer’s obligations with respect to such redemption may be performed by another Person.
Notice of such redemption or purchase of Notes to be so redeemed or purchased at the election of the Issuer of such Notes shall be given by such Issuer or, at such Issuer’s request (made to the Trustee at least 15 days (or such shorter period as shall be reasonably satisfactory to the Trustee) prior to the Redemption Date), by the Trustee in the name and at the expense of the Issuer. Any such request will set forth the information to be stated in such notice, as provided by this Section 1005.
The notice if mailed in the manner herein provided shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Note.
Section 1006. Deposit of Redemption Price. On or prior to 12:00 p.m., New York City time, on any Redemption Date, the Issuer of such Notes shall deposit with the Trustee or with a Paying Agent (or, if such Issuer is acting as its own Paying Agent, such Issuer shall segregate and hold in trust as provided in Section 403) an amount of money sufficient to pay the redemption price of, and any accrued and unpaid interest on, all the Notes or portions thereof which are to be redeemed on that date.
Section 1007. Notes Payable on Redemption Date. Notice of redemption having been given as provided in this Article X, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the redemption price herein specified and from and after such date (unless the Issuer of such Notes shall default in the payment of the redemption price or the Paying Agent is prohibited from paying the redemption price pursuant to the terms of this Indenture) such Notes shall cease to bear interest. Upon surrender of such Notes for redemption in accordance with such notice, such Notes shall be paid by the Issuer of such Notes at the redemption price. Installments of interest whose Interest Payment Date is on or prior to the Redemption Date shall be payable to the Holders of such Notes registered as such on the relevant Regular Record Dates according to their terms and the provisions of Section 307.
On and after any Redemption Date, if money sufficient to pay the redemption price of and any accrued and unpaid interest on Notes called for redemption shall have been made available in accordance with Section 1006, the Notes (or the portions thereof) called for redemption will cease to accrue interest and the only right of the Holders of such Notes (or portions thereof) will be to receive payment of the redemption price of and, subject to the last sentence of the preceding paragraph, any accrued and unpaid interest on such Notes (or portions thereof) to the Redemption Date. If any Note (or portion thereof) called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Note (or portion thereof).
 
125

Section 1008. Notes Redeemed in Part. Any Note that is to be redeemed only in part shall be surrendered at the Place of Payment (with due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer of such note duly executed by, the Holder thereof or its attorney duly authorized in writing) and such Issuer shall execute and (upon receipt of an Authentication Order) the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered (or if the Note is a global note, an adjustment shall be made to the schedule attached thereto).
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 1101. Satisfaction and Discharge of Indenture. The Outstanding Notes and this Indenture shall be discharged and shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Notes herein expressly provided for), and the Trustee, on demand of and at the expense of each Issuer, shall execute proper instruments acknowledging satisfaction and discharge of the Outstanding Notes and this Indenture, when
(i) either
(a) all Notes theretofore authenticated and delivered (other than (i) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 306, and (ii) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer of such Notes and thereafter repaid to the Issuer of such Notes or discharged from such trust, as provided in Section 403) have been cancelled or delivered to the Trustee for cancellation; or
(b) all such Notes not theretofore cancelled or delivered to the Trustee for cancellation
(1) have become due and payable,
(2) will become due and payable at their Stated Maturity within one year, or
(3) have been called for redemption, or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer of such Notes;
(ii) each Issuer has irrevocably deposited or caused to be deposited with the Trustee money, U.S. Government Obligations or a combination thereof, sufficient (without reinvestment) to pay and discharge the entire Indebtedness on the Notes of such Issuer not previously cancelled or delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Notes that have become due and payable), or to the Stated Maturity or Redemption Date, as the case may be (provided that if such redemption shall be pursuant to Section 6(c) of the applicable Notes Supplemental Indenture, (x) the amount of money or U.S. Government Obligations,
 
126

or a combination thereof, that such Issuer must irrevocably deposit or cause to be deposited shall be determined using an assumed Applicable Premium calculated as of the date of such deposit, as calculated by such Issuer in good faith, and (y) such Issuer must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date, as required by Section 1006, as necessary to pay the Applicable Premium as determined on such date);
(iii) each Issuer has paid or caused to be paid all other sums then payable hereunder by such Issuer; and
(iv) each Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each to the effect that all conditions precedent provided for in this Section 1101 relating to the satisfaction and discharge of this Indenture have been complied with; provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with the foregoing clauses (i), (ii) and (iii)).
Notwithstanding the satisfaction and discharge of this Indenture, (a) the obligations of each Issuer to the Trustee under Section 707 and, if money shall have been deposited with the Trustee pursuant to Section 1101(ii), the obligations of the Trustee under Section 1103 shall survive such satisfaction and discharge, and (b) if such satisfaction and discharge is effected through redemption in accordance with Section 1101(i)(b)(3), the provisions of Section 1007 shall survive such satisfaction and discharge, and the other provisions of Article X (and Section 6 of each applicable Notes Supplemental Indenture) shall survive such satisfaction and discharge until the Redemption Date shall have occurred.
Section 1102. Satisfaction and Discharge of Notes of a Series. The Outstanding Notes of any series shall be discharged and shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of such Notes herein expressly provided for), and the Trustee, on demand of and at the expense of the Issuer of such Notes, shall execute proper instruments acknowledging satisfaction and discharge of the Outstanding Notes of such series, when
(i) either
(a) all Notes of such series theretofore authenticated and delivered (other than (i) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 306, and (ii) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer of such Notes and thereafter repaid to such Issuer or discharged from such trust, as provided in Section 403) have been cancelled or delivered to the Trustee for cancellation; or
(b) all Notes of such series not theretofore cancelled or delivered to the Trustee for cancellation
(1) have become due and payable,
(2) will become due and payable at their Stated Maturity within one year, or
 
127

(3) have been called for redemption, or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer of such Notes;
(ii) the Issuer of such Notes has irrevocably deposited or caused to be deposited with the Trustee money, U.S. Government Obligations or a combination thereof, sufficient (without reinvestment) to pay and discharge the entire Indebtedness on such Notes not previously cancelled or delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Notes that have become due and payable), or to the Stated Maturity or Redemption Date, as the case may be (provided that if such redemption shall be pursuant to Section 6(c) of the applicable Notes Supplemental Indenture, (x) the amount of money or U.S. Government Obligations, or a combination thereof, that the Issuer of such Notes must irrevocably deposit or cause to be deposited shall be determined using an assumed Applicable Premium calculated as of the date of such deposit, as calculated by such Issuer in good faith, and (y) such Issuer must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date, as required by, as necessary to pay the Applicable Premium as determined on such date);
(iii) the Issuer of such Notes has paid or caused to be paid all other sums then payable hereunder by such Issuer; and
(iv) the Issuer of such Notes has delivered to the Trustee an Officer’s Certificate of such Issuer and an Opinion of Counsel each to the effect that all conditions precedent provided for in this Section 1102 relating to the satisfaction and discharge of the Notes of such series have been complied with; provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with the foregoing clauses (i), (ii) and (iii)).
Notwithstanding the satisfaction and discharge of the Notes of any series, if such satisfaction and discharge is effected through redemption in accordance with Section 1102(i)(b)(3), the provisions of Section 1007 shall survive such satisfaction and discharge, and the other provisions of Article X (and Section 6 of each applicable Notes Supplemental Indenture) shall survive such satisfaction and discharge until the Redemption Date shall have occurred.
Section 1103. Application of Trust Money. Subject to the provisions of the last paragraph of Section 403, all money and/or U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 1101 or Section 1102 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest on the Notes; but such money need not be segregated from other funds except to the extent required by law.
 
128

ARTICLE XII
DEFEASANCE OR COVENANT DEFEASANCE
Section 1201. The Issuer’s Option to Effect Defeasance or Covenant Defeasance. The Company may, at its option, at any time, elect to have terminated the obligations of the Company and each Issuer with respect to Outstanding Notes and to have terminated all of the obligations of the Guarantors with respect to the Guarantees, in each case, as set forth in this Article XII, and elect to have either Section 1202 or 1203 be applied to all of the Outstanding Notes (the “Defeased Notes”), upon compliance with the conditions set forth below in Section 1204 either Section 1202 or Section 1203 may be applied to the Defeased Notes to any Redemption Date or the Stated Maturity of the Notes.
Section 1202. Defeasance and Discharge. Upon the Company’s exercise under Section 1201 of the option applicable to this Section 1202, the Company and each Issuer shall be deemed to have been released and discharged from its obligations with respect to the Defeased Notes and the Guarantors shall be deemed to have been released and discharged from their obligations with respect to the Guarantees on the date the relevant conditions set forth in Section 1204 are satisfied (hereinafter, “Defeasance”). For this purpose, such Defeasance means that each applicable Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the Defeased Notes, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1205 and the other Sections of this Indenture referred to in clauses (a) and (b) below, and each Issuer, and each of the Guarantors shall be deemed to have satisfied all other obligations under such Notes, Guarantees and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following, which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Defeased Notes to receive, solely from the trust fund described in Section 1204 and as more fully set forth in such Section, payments in respect of principal of and premium, if any, and interest on such Notes when such payments are due, (b) each Issuer’s obligations with respect to such Defeased Notes under Sections 304, 305, 306, 402, and 403, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including the Trustee’s rights (and each Issuer’s obligations) under Section 707, and (d) this Article XII. If the Company exercises its option under this Section 1202, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. Subject to compliance with this Article XII, the Company may, at its option and at any time, exercise its option under this Section 1202 notwithstanding the prior exercise of its option under Section 1203 with respect to the Notes.
Section 1203. Covenant Defeasance. Upon the Company’s exercise under Section 1201 of the option applicable to this Section 1203, (a) the Company, each Issuer and the Guarantors shall be released from their respective obligations under any covenant or provision contained in Section 405, Sections 407 through 415, the provisions of clauses (iii), (iv) and (v) of Section 501(a) and the provisions of clauses (iii) and (iv) of Section 501(b) shall not apply, and (b) the occurrence of any event specified in clause (iv), (v) (with respect to Section 405, Sections 407 through 415, inclusive), (vi), (vii), (viii) (with respect to Subsidiaries), (ix) (with respect to Subsidiaries), (x) or (xi) of Section 601 shall be deemed not to be or result in an Event of Default, in each case with respect to the Defeased Notes on and after the date the conditions set
 
129

forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants or provisions, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company, each applicable Issuer and the other Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant or provision, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or provision or by reason of any reference in any such covenant or provision to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 601, but, except as specified above, the remainder of this Indenture and such Outstanding Notes shall be unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section 1202 or Section 1203 to the Outstanding Notes:
(1) Each Issuer shall have irrevocably deposited or caused to be deposited with the Trustee, in trust, money or U.S. Government Obligations, or a combination thereof, in amounts as will be sufficient (without reinvestment), to pay and discharge the principal of, and premium, if any, and interest on the Defeased Notes issued by such Issuer to the Stated Maturity or relevant Redemption Date in accordance with the terms of this Indenture and the Notes (provided that if such redemption shall be pursuant to Section 6(c) of the applicable Notes Supplemental Indenture, (x) the amount of money or U.S. Government Obligations or a combination thereof that such Issuer must irrevocably deposit or cause to be deposited shall be determined using an assumed Applicable Premium calculated as of the date of such deposit, as calculated by such Issuer in good faith and (y) such Issuer must irrevocably deposit or cause to be deposited additional money in trust on the Redemption Date, as required by Section 1006, as necessary to pay the Applicable Premium as determined on such date);
(2) No Default or Event of Default shall have occurred and be continuing on the date of such deposit;
(3) Such deposit shall not result in a breach or violation of, or constitute a Default or Event of Default under, this Indenture or any other material agreement or instrument to which the Company, any Issuer or any Guarantor is a party or by which it is bound;
(4) In the case of an election under Section 1202, the Company shall have delivered to the Trustee an Opinion of Counsel from Kirkland & Ellis LLP or other counsel in the United States to the effect that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the Issue Date, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm to the effect that, the Holders and beneficial owners of the Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Defeasance and will be subject to Federal income tax on
 
130

the same amounts, in the same manner and at the same times as would have been the case if such Defeasance had not occurred; provided that such Opinion of Counsel need not be delivered if all Notes theretofore authenticated and delivered (other than (i) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 306, and (ii) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer of such Notes and thereafter repaid to the Issuer of such Notes or discharged from such trust, as provided in Section 403) not theretofore delivered to the Trustee for cancellation have become due and payable, will become due and payable at their Stated Maturity within one year, or have been called for redemption or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee in the name, and at the expense, of the Issuer of such Notes;
(5) In the case of an election under Section 1203, the Company shall have delivered to the Trustee an Opinion of Counsel from Kirkland & Ellis LLP or other counsel in the United States to the effect that the Holders and beneficial owners of the Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; and
(6) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel from Kirkland & Ellis LLP or other counsel in the United States, each to the effect that all conditions precedent provided for in this Section 1204 relating to either the Defeasance under Section 1202 or the Covenant Defeasance under Section 1203, as the case may be, have been complied with. In rendering such Opinion of Counsel, counsel may rely on an Officer’s Certificate as to compliance with the foregoing clauses (1), (2) and (3) of this Section 1204 or as to any matters of fact.
Section 1205. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 403, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or such other Person that would qualify to act as successor trustee under Article VII, collectively and solely for purposes of this Section 1205, the “Trustee”) pursuant to Section 1204 in respect of the Defeased Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
Each Issuer shall pay and indemnify the Trustee and its agents and hold them harmless against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited by such Issuer pursuant to Section 1204, or the principal, premium, if any, and interest received in respect thereof, other than any such tax, fee or other charge that by law is for the account of the Holders of the Defeased Notes.
 
131

Anything in this Article XII to the contrary notwithstanding, the Trustee shall deliver to each Issuer from time to time, upon Issuer Request from such Issuer, any money or U.S. Government Obligations held by it as provided in Section 1204 for such Issuer that, in the opinion of a nationally recognized accounting or investment banking firm expressed in a written certification thereof to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Defeasance or Covenant Defeasance. Subject to Article VII, the Trustee shall not incur any liability to any Person by relying on such opinion.
Section 1206. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 1202 or 1203, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of each Issuer and the Guarantors under this Indenture, the Notes and the Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 1202 or 1203, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money and U.S. Government Obligations in accordance with Section 1202 or 1203, as the case may be; provided, however, that if any Issuer or any Guarantor makes any payment of principal, premium, if any, or interest on any Note following the reinstatement of its obligations, such Issuer or Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money and U.S. Government Obligations held by the Trustee or Paying Agent.
Section 1207. Repayments to Issuer. The Trustee shall pay to each Issuer upon Issuer Request any money held by it for such Issuer for the payment of principal or interest that remains unclaimed for two years after the Stated Maturity or the Redemption Date, as the case may be. After payment to any Issuer, Holders entitled to money must look to the Issuer of the applicable series of Notes for payment as general creditors unless an applicable abandoned property law designates another Person and all liability of the Trustee or Paying Agent with respect to such money shall thereupon cease.
ARTICLE XIII
GUARANTEES
Section 1301. Guarantees Generally.
(a) Guarantee of Each Guarantor. Each Guarantor, as primary obligor and not merely as surety, hereby jointly and severally, irrevocably and fully and unconditionally Guarantees, on an unsecured senior basis, the punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all monetary obligations of each Issuer (other than its own primary obligations in its capacity as Issuer, if applicable) under this Indenture and the Notes, whether for principal of or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Guarantors being herein called the “Guaranteed Obligations”).
The obligations of each Subsidiary Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor (including, but not limited to, any Guarantee by it of any Credit Facility Indebtedness) and after giving effect to any collections from or payments made by or on behalf of any other
 
132

Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors.
(b) Further Agreements of Each Guarantor.
(i) Each Guarantor hereby agrees that (to the fullest extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of this Indenture, the Notes or the obligations of any Issuer or any other Guarantor to the Holders or the Trustee hereunder or thereunder, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against any Issuer, any action to enforce the same, whether or not a notation concerning its Guarantee is made on any particular Note, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(ii) Each Guarantor hereby waives (to the fullest extent permitted by law) the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of any Issuer, any right to require a proceeding first against any Issuer, protest, notice and all demands whatsoever and covenants that (except as otherwise provided in Section 1303) its Guarantee will not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and this Guarantee. Such Guarantee is a guarantee of payment and not of collection. Each Guarantor further agrees (to the fullest extent permitted by law) that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, subject to this Article XIII, (1) the maturity of the obligations guaranteed by its Guarantee may be accelerated as and to the extent provided in Article VI for the purposes of such Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed by such Guarantee, and (2) in the event of any acceleration of such obligations as provided in Article VI, such obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor in accordance with the terms of this Section 1301 for the purpose of such Guarantee. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Guaranteed Obligations or against any Issuer or any other Person or any property of any Issuer or any other Person before the Trustee is entitled to demand payment and performance by any or all Guarantors of their obligations under their respective Guarantees or under this Indenture.
(iii) Until terminated in accordance with Section 1303, each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against any Issuer for liquidation or reorganization, should any Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of such Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded
 
133

or reduced in amount, or must otherwise be restored or returned by any obligee on such Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(c) Each Guarantor that makes a payment or distribution under its Guarantee shall have the right to seek contribution from the applicable Issuer or any non-paying Guarantor that has also Guaranteed the relevant Guaranteed Obligations in respect of which such payment or distribution is made, so long as the exercise of such right does not impair the rights of the Holders under the Guarantees.
(d) Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its Guarantee, and the waiver set forth in Section 1305, are knowingly made in contemplation of such benefits.
(e) Each Guarantor, pursuant to its Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under its Guarantee.
Section 1302. Continuing Guarantees.
(a) Each Guarantee shall be a continuing Guarantee and shall (i) subject to Section 1303, remain in full force and effect until payment in full of the principal amount of all Outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other Guaranteed Obligations then due and owing, (ii) be binding upon such Guarantor, and (iii) inure to the benefit of and be enforceable by the Trustee, the Holders and their permitted successors, transferees and assigns.
(b) The obligations of each Guarantor hereunder shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment which would otherwise have reduced or terminated the obligations of any Guarantor hereunder and under its Guarantee (whether such payment shall have been made by or on behalf of an Issuer, or by or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation or reorganization of any Issuer, or any Guarantor or otherwise, all as though such payment had not been made.
Section 1303. Release of Subsidiary Guarantees. Notwithstanding the provisions of Section 1302, Subsidiary Guarantees will be subject to termination and discharge under the circumstances described in this Section 1303. Any Subsidiary Guarantor will automatically and unconditionally be released from all obligations under its Subsidiary Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force or effect, (i) concurrently with any direct or indirect sale, exchange, transfer or other disposition (by merger, amalgamation, consolidation, dividend distribution or otherwise) of any Subsidiary Guarantor or any interest therein, or any other transaction, in accordance with the terms of this Indenture (including Section 411 and Section 501), following which such Subsidiary Guarantor is no longer
 
134

a Restricted Subsidiary of the Company, (ii) at any time that such Subsidiary Guarantor is (or, substantially concurrently with the release of the Subsidiary Guarantee of such Subsidiary Guarantor or if as a result of the release of the Subsidiary Guarantee of such Subsidiary Guarantor, will be) released from all of its obligations under its Guarantee of payment by the Company, the Issuer and all other Subsidiary Guarantors of any Indebtedness of the Company, such Issuer and such other Subsidiary Guarantors under the Senior Credit Facilities (including by reason of ceasing to be a borrower under the Senior ABL Facility) or any Capital Market Indebtedness that (in the case of such Capital Market Indebtedness) when initially granted resulted in such Subsidiary’s obligation to Guarantee the Notes pursuant to Section 414 (it being understood that a release subject to contingent reinstatement is still a release, and that if any such Guarantee is so reinstated, such Subsidiary Guarantee shall also be reinstated to the extent that such Subsidiary Guarantor would then be required to provide a Subsidiary Guarantee pursuant to Section 414), (iii) upon the merger or consolidation of any Subsidiary Guarantor with and into the Company, any Issuer or another Subsidiary Guarantor that is the surviving Person in such merger or consolidation, or upon the liquidation of such Subsidiary Guarantor following the transfer of all of its assets to the Company, any Issuer or another Subsidiary Guarantor, (iv) concurrently with any Subsidiary Guarantor becoming an Unrestricted Subsidiary or ceasing to constitute a Domestic Subsidiary of the Company, (v) during the Suspension Period (it being understood that on a Reversion Date, such Subsidiary Guarantee shall also be reinstated to the extent that such Subsidiary would then be required to provide a Subsidiary Guarantee pursuant to Section 414), (vi) to the extent that such Subsidiary Guarantor is not an Immaterial Subsidiary solely due to the operation of clause (i) of the definition of “Immaterial Subsidiary,” upon the release of the Guarantee referred to in such clause, (vii) upon Defeasance or Covenant Defeasance of the Issuer’s obligations, or satisfaction and discharge of this Indenture pursuant to Section 1101, (viii) subject to Section 1302(b), upon payment in full of the aggregate principal amount of all Notes then Outstanding and all other Guaranteed Obligations then due and owing or (ix) as described under Article IX. In addition, the Company will have the right, upon 10 days’ notice to the Trustee (or such shorter period as agreed to by the Trustee in its sole discretion), to cause any Subsidiary Guarantor that has not guaranteed payment by the Company, any Issuer or another Subsidiary Guarantor of any Indebtedness of the Company, such Issuer or such other Subsidiary Guarantor under the Senior Credit Facilities or any Capital Market Indebtedness to be unconditionally released from all obligations under its Subsidiary Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force or effect.
Upon any such occurrence specified in this Section 1303, the Trustee shall upon receipt of an Officer’s Certificate and Opinion of Counsel, at the Company’s expense, execute any documents reasonably requested by the Company in order to evidence such release, discharge and termination in respect of the applicable Subsidiary Guarantee.
Section 1304. [Reserved].
Section 1305. Waiver of Subrogation. Each Guarantor hereby irrevocably waives any claim or other rights that it may now or hereafter acquire against any Issuer that arise from the existence, payment, performance or enforcement of such Issuer’s obligations under the Notes and this Indenture or such Guarantor’s obligations under its Guarantee and this Indenture, including any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim or remedy of any Holder of Notes against such Issuer, whether or not such claim,
 
135

remedy or right arises in equity, or under contract, statute or common law, until this Indenture is discharged and all of the Notes are discharged and paid in full. If any amount shall be paid to any Guarantor in violation of the preceding sentence and the Notes shall not have been paid in full, such amount shall be deemed to have been paid to such Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Notes, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon the Notes, whether matured or unmatured, in accordance with the terms of this Indenture.
Section 1306. Notation Not Required. No Issuer or any Guarantor shall be required to make a notation on the Notes to reflect any such Guarantee or any release, termination or discharge thereof.
Section 1307. Successors and Assigns of Guarantors. All covenants and agreements in this Indenture by each Guarantor shall bind its respective successors and assigns, whether so expressed or not.
Section 1308. Execution and Delivery of Guarantees. The Company shall cause each Restricted Subsidiary that is required to become a Guarantor pursuant to Section 414, and each Subsidiary of the Company that the Company causes to become a Guarantor pursuant to Section 414, to promptly execute and deliver to the Trustee a Guarantor Supplemental Indenture, or a supplemental indenture otherwise in form reasonably satisfactory to the Trustee evidencing its Guarantee on substantially the terms set forth in this Article XIII. Concurrently therewith, the Company shall deliver to the Trustee an Opinion of Counsel to the effect that such Guarantor Supplemental Indenture has been duly authorized or permitted or complies with this Indenture, that all conditions precedent to such Guarantor Supplemental Indenture required by this Indenture have been complied with and that such Guarantor Supplemental Indenture is a valid and binding agreement of the applicable Guarantor, enforceable against such Guarantor in accordance with its terms.
Section 1309. Notices. Notice to any Guarantor shall be sufficient if addressed to such Guarantor care of the Company at the address, place and manner provided in Section 109.
 
136

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.

UNIVAR SOLUTIONS USA INC.	
		
By:	 	/s/ Kerri Howard	
	 	Name: Kerri Howard	
	 	Title: Treasurer	
	
GUARANTORS:	
	
UNIVAR SOLUTIONS INC.	
		
By:	 	/s/ Carl J. Lukach	
	 	Name: Carl J. Lukach	
	 	Title: Executive Vice President and Chief Financial Officer	
	
UNIVAR HOLDCO LLC	
UNIVAR HOLDCO III LLC	
CHEMPOINT.COM INC.	
PILATES MERGER SUB II LLC	
UNIVAR USA DELAWARE INC.	
UNIVAR DELAWARE INC.	
TPG ACCOLADE DELAWARE LLC	
NEXEO SOLUTIONS HOLDINGS LLC	
NEXEO SOLUTIONS SUB HOLDINGS LLC	
NEXEO SOLUTIONS LLC	
ARCHWAY SALES, LLC	
CHEMICAL SPECIALIST AND DEVELOPMENT LLC	
NEXEO SOLUTIONS FINANCE CORPORATION	
STARTEX DISTRIBUTION WEST LLC	
STARTEX CHEMICAL LLC	
		
By:	 	/s/ Kerri Howard	
	 	Name: Kerri Howard	
	 	Title: Treasurer	
[Signature Page to Indenture]

			
U.S. BANK NATIONAL ASSOCIATION, as Trustee	
		
By:	 	/s/ Patricia M. Trlak	
	 	Name: Patricia M. Trlak	
	 	Title: EVice President	
[Signature Page to Indenture]

EXHIBIT A
Form of Initial Note1
(FACE OF NOTE)
[                 ]2
[    ]% Senior Notes due 20[    ]

CUSIP No. [        ]3 / [        ]4	  		
No. _________         $_________	
[__________________, _________________]5 (and its successors and assigns, the “Issuer”) hereby promises to pay to _________________, or its registered assigns, the principal sum of $_________________ ([                ] United States Dollars) [(or such lesser or greater amount as shall be outstanding hereunder from time to time in accordance with Sections 312 and 313 of the Indenture referred to on the reverse hereof)]6 (the “Principal Amount”) on [                ], 20[    ]. The Issuer hereby promises to pay interest semi-annually in arrears on [                ] and [                ] in each year, commencing [                ], 20[    ], at the rate of [    ]% per annum (subject to adjustment as provided below), until the Principal Amount is paid or made available for payment. [Interest on this Note will accrue from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no interest has been paid, from the Issue Date.]7 [Interest on this Note will accrue (or will be deemed to have accrued) from the most recent date to which interest on this Note or any of its Predecessor Notes has been paid or duly provided for or, if no such interest has been paid, from _____________, ____8.]9 Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the [                ] or [                ] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close

1 	Insert any applicable legends as provided in Article II of the Indenture.	
2 	Insert name of Issuer.	
3 	Insert for Rule 144A Note only.	
4 	Insert for Regulation S Note only.	
5 	Insert name, form and jurisdiction of Issuer.	
6 	Include only if the Note is issued in global form.	
7 	Include only for Initial Notes.	
8 	Insert applicable date.	
9 	Include only for Additional Notes.	
 
A-1

of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of principal of (and premium, if any) and interest on this Note will be made at the Corporate Trust Office of the Trustee, or such other office or agency of the Issuer maintained for that purpose; provided, however, that at the option of the Issuer payment of interest may be made through the Paying Agent by wire transfer or immediately available funds to the account designated to the Issuer by the Person entitled thereto or by check mailed to the address of the Person entitled thereto as such address shall appear in the Note Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 
A-2

IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

[        	 	]10	
		
By:	 	 	
	 	Name:	
	 	Title:	

10 	Insert name of Issuer.	
 
A-3

This is one of the Notes referred to in the within-mentioned Indenture.

U.S. BANK NATIONAL ASSOCIATION
as Trustee	
		
By:	 	 	
	 	Authorized Officer	
Dated:
 
A-4

(REVERSE OF NOTE)
This Note is one of the duly authorized issue of [    ]% Senior Notes due 20[    ] of the Issuer (herein called the “Notes”), issued under an Indenture, dated as of November 22, 2019 (the “Indenture,” which term shall have the meaning assigned to it in such instrument), among Univar Solutions USA Inc., as initial issuer, Univar Solutions Inc., a corporation duly organized and existing under the laws of the State of Delaware, as parent guarantor (the “Company”), the Subsidiary Guarantors from time to time parties thereto, and U.S. Bank National Association, in its capacity as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, any other obligor upon this Note, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. The terms of the Notes include those stated in the Indenture and Holders are referred to the Indenture for a statement of such terms. To the maximum extent permitted by law, in the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control. Additional Notes may be issued from time to time in one or more series under the Indenture and (except as provided in Section 902 of the Indenture) will vote as a class with the Notes and otherwise be treated as Notes for purposes of the Indenture.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
This Note may hereafter be entitled to certain other senior Guarantees made for the benefit of the Holders. Reference is made to Article XIII of the Indenture for terms relating to such Guarantees, including the release, termination and discharge thereof. Neither the Issuer nor any Guarantor shall be required to make any notation on this Note to reflect any Guarantee or any such release, termination or discharge.
The Notes are redeemable, at the Issuer’s option, in whole or in part, as provided in the Indenture and the [[                ] Supplemental Indenture, dated as of [                ], 20[    ], [between][among] the Issuer, the Company[, the Subsidiary Guarantors party thereto] and the Trustee].11 The Indenture provides (as and to the extent set forth therein) that, upon the occurrence after the Issue Date of a Change of Control, each Holder will have the right to require that the Issuer repurchase all or any part of such Holder’s Notes at a purchase price in cash equal to 101.0% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of such repurchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the purchase date); provided, however, that the Issuer shall not be obligated to repurchase Notes in the event it has exercised its right to redeem all the Notes as provided in the Indenture.
The Notes will not be entitled to the benefit of a sinking fund.

11 	Revise to reflect appropriate parties.	
 
A-5

The Indenture contains provisions for defeasance at any time of the entire Indebtedness of this Note or certain restrictive covenants and certain Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.
[If an Event of Default with respect to the Notes shall occur and be continuing, the principal of and accrued but unpaid interest on the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.]12 The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the Guarantors and the rights of the Holders of the Notes to be effected under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of at least a majority in principal amount of the Notes at the time Outstanding to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Issuer, the Guarantors and their Subsidiaries with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than 30.0% in principal amount of the Notes at the time Outstanding (which contain such Event of Default) shall have made written request to the Trustee to pursue such remedy in respect of such Event of Default as Trustee and offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of security or indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or interest hereon on or after the respective due dates expressed herein.
As provided in the Indenture and subject to certain limitations and other provisions therein set forth, (a) the transfer of this Note is registrable in the Note Register, upon surrender of this Note for registration of transfer at the office or agency of the Issuer in a Place of Payment, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees, (b) the Notes are issuable only in fully registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof, and (c) the Notes are exchangeable for a like aggregate principal amount of Notes of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

12 	Include unless otherwise provided in the Notes Supplemental Indenture establishing the applicable series of Notes.	
 
A-6

No service charge shall be made for any such registration, transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration or transfer, the Issuer, any other obligor in respect of this Note, the Trustee and any agent of any of them may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, any other obligor in respect of this Note, the Trustee nor any such agent shall be affected by notice to the contrary.
No director, officer, employee, incorporator or stockholder, as such, of the Issuer, any Guarantor or any other obligor in respect of any Note or any Subsidiary of any thereof shall have any liability for any obligation of the Issuer, any Guarantor or any other obligor in respect of any Note under the Indenture, the Notes, or any Guarantee, or for any claim based on, in respect of, or by reason of, any such obligation or its creation. Each Holder, by accepting this Note, hereby waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE ISSUER, ANY OTHER OBLIGOR IN RESPECT OF THIS NOTE AND (BY ITS ACCEPTANCE OF THIS NOTE) THE HOLDER HEREOF AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THIS NOTE, OR THE GUARANTEES.
 
A-7

[FORM OF CERTIFICATE OF TRANSFER]
FOR VALUE RECEIVED the undersigned holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.

(Please print or typewrite name and address including zip code of assignee)	 	                                	

		
 	 		
the within Note and all rights thereunder, hereby irrevocably constituting and appointing	 		

attorney to transfer such Note on the books of the Issuer with full power of substitution in the premises.	 		
Check One

[    ] (a)	  	this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.	
	
or	
		
[    ] (b)	  	this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture.	
If neither of the foregoing boxes is checked, the Trustee or other Note Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 313 of the Indenture shall have been satisfied.
Date:                             

 
A-8

			
	 	NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.	
Signature Guarantee: ____________________________
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
 
A-9

TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

Date:                                                                     	 		 	                                                                     	
	 	        	 	NOTICE: To be executed by an executive officer	
 
A-10

OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuer pursuant to Section 411 or Section 415 of the Indenture, check the box: [    ].
If you wish to have a portion of this Note purchased by the Issuer pursuant to Section 411 or Section 415 of the Indenture, state the amount (in principal amount) below:

$_____________	
	
Date: ______________	
	
Your Signature: ______________	
	
(Sign exactly as your name appears on the other side of this Note)	
	
Signature Guarantee: ______________	
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
 
A-11

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:

Date of
Exchange	  	Amount of
decreases in
Principal
Amount of this
Global Note	  	Amount of
increases in
Principal
Amount of this
Global Note	  	Principal amount
of this Global
Note following such
decreases or increases	  	Signature of
authorized
officer of
Trustee	
 
A-12

EXHIBIT B
[Reserved]
 
B-1

EXHIBIT C
Form of Certificate of Beneficial Ownership
On or after [___________], 20[    ]
U.S. BANK NATIONAL ASSOCIATION
[address]
Attention:	13 	

	 	Re:  [                             ] (the “Issuer”)	
		
	 	[    ]% Senior Notes due [    ], 20[    ] (the “[    ] Notes”)	
Ladies and Gentlemen:
This letter relates to $____________ principal amount of Notes represented by the offshore global note certificate (the “Regulation S Global Note”). Pursuant to Section 313(3) of the Indenture dated as of November 22, 2019, relating to the Notes (as amended, supplemented, waived or otherwise modified, the “Indenture”), we hereby certify that (1) we are the beneficial owner of such principal amount of Notes represented by the Regulation S Global Note and (2) we are either (i) a Non-U.S. person to whom the Notes could be transferred in accordance with Rule 903 or 904 of Regulation S (“Regulation S”) promulgated under the Securities Act of 1933, as amended (the “Act”) or (ii) a U.S. person who purchased securities in a transaction that did not require registration under the Act.
You, the Issuer, and counsel for the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.

Very truly yours,	
	
[Name of Holder]	
		
By:	 	 	
	 	Authorized Signature	

13 	Insert successor address or Trustee, as applicable.	
 
C-1

EXHIBIT D
Form of Regulation S Certificate
U.S. BANK NATIONAL ASSOCIATION
[address]
Attention:	14 	

	 	Re:  [                             ] (the “Issuer”)	
		
	 	[    ]% Senior Notes due [    ], 20[    ] (the “Notes”)	
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal amount of Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S (“Regulation S”) under the Securities Act of 1933, as amended (the “Securities Act”), and accordingly, we hereby certify as follows:
1. The offer of the Notes was not made to a person in the United States (unless such person or the account held by it for which it is acting is excluded from the definition of “U.S. person” pursuant to Rule 902(k) of Regulation S under the circumstances described in Rule 902(h)(3) of Regulation S) or specifically targeted at an identifiable group of U.S. citizens abroad.
2. Either (a) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market, and neither we nor any person acting on our behalf knows that the transaction was pre-arranged with a buyer in the United States.
3. No directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable.
4. The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession or other fee or remuneration in respect of the Notes, and the proposed transfer takes place before end of the distribution compliance period under Regulation S, or we are an officer or director of the Issuer or a distributor, we certify that the proposed transfer is being made in accordance with the provisions of Rules 903 and 904 of Regulation S.

14 	Insert successor address or Trustee, as applicable.	
 
D-1

6. If the proposed transfer takes place before the end of the distribution compliance period under Regulation S, the beneficial interest in the Notes so transferred will be held immediately thereafter through Euroclear (as defined in such Indenture) or Clearstream (as defined in such Indenture).
7. We have advised the transferee of the transfer restrictions applicable to the Notes.
You, the Issuer, and counsel for the Issuer are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.

Very truly yours,	
	
[NAME OF SELLER]	
		
By:	 	 	
	 	Name:	
	 	Title:	
	 	Address:	
Date of this Certificate: _____________________, 20__
 
D-2

EXHIBIT E
Form of Supplemental Indenture in Respect of Guarantee
SUPPLEMENTAL INDENTURE, dated as of [___________] (this “Supplemental Indenture”), among [name of Guarantor(s)] (the “Guarantor(s)”), [name of Issuer[s]] ([collectively,] the “Issuer”), [name of Company] (the “Company”), and each other then-existing Guarantor under the Indenture referred to below (the “Existing Guarantors”), and U.S. Bank National Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, each Issuer, any Existing Guarantors and the Trustee have heretofore become parties to an Indenture, dated as of November 22, 2019 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of Notes in series;
WHEREAS, Section 1308 of the Indenture provides that the Company is required to cause the Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which the Guarantors shall guarantee [each] Issuer’s Subsidiary Guaranteed Obligations under the Notes pursuant to a Guarantee on the terms and conditions set forth herein and in Article XIII of the Indenture;
WHEREAS, each Guarantor desires to enter into such supplemental indenture for good and valuable consideration, including substantial economic benefit in that the financial performance and condition of such Guarantor is dependent on the financial performance and condition of the Company and each Issuer, the obligations hereunder of which such Guarantor has guaranteed, and on such Guarantor’s access to working capital through the initial Issuer’s access to revolving credit borrowings and term borrowings under the Senior Credit Agreements; and
WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guarantors, [each] Issuer, the Company, the Existing Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Agreement to Guarantee. [The] [Each] Guarantor hereby agrees, jointly and severally with [all] [any] other Guarantors and fully and unconditionally, to guarantee the Guaranteed Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in Article XIII of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Subsidiary Guarantor.
 
E-1

3. Termination, Release and Discharge. [The] [Each] Guarantor’s Guarantee shall terminate and be of no further force or effect, and [the] [each] Guarantor shall be released and discharged from all obligations in respect of such Guarantee, as and when provided in Section 1303 of the Indenture.
4. Parties. Nothing in this Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of [the] [each] Guarantor’s Guarantee or any provision contained herein or in Article XIII of the Indenture.
5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, EACH ISSUER, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
6. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or as to the accuracy of the recitals to this Supplemental Indenture.
7. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
8. Headings. The section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
 
E-2

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

[NAME OF GUARANTOR(S)],
as Guarantor	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
UNIVAR SOLUTIONS USA INC.	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
UNIVAR SOLUTIONS INC.	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
U.S. BANK NATIONAL ASSOCIATION,
as Trustee	
		
By:	 	 	
	 	Authorized Officer	
 
E-3

EXHIBIT F
Form of Certificate from Acquiring Institutional Accredited Investors
U.S. BANK NATIONAL ASSOCIATION
[address]
 
Attention:	15 	

	 	Re:  [__________] (the “Issuer”)	
		
	 	    [                 ]% Senior Notes due [    ], 20[    ] (the “Notes”)	
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount of Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject to certain restrictions and conditions set forth in the Indenture dated as of November 22, 2019, relating to the Notes (as amended, supplemented, waived or otherwise modified, the “Indenture”) and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).
2. We understand that the Notes have not been registered under the Securities Act or any other applicable securities law, and that the Notes may not be offered, sold or otherwise transferred except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should offer, sell, transfer, pledge, hypothecate or otherwise dispose of any Notes within one year after the original issuance of the Notes, we will do so only (A) to the Issuer, (B) inside the United States to a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act, (C) inside the United States to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes to you a signed letter substantially in the form of this letter, (D) outside the United States to a foreign person in compliance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if available), or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any person purchasing any of the Notes from us a notice advising such purchaser that resales of the Notes are restricted as stated herein and in the Indenture.
3. We understand that, on any proposed transfer of any Notes prior to the later of the original issue date of the Notes and the last date the Notes were held by an affiliate of the Issuer pursuant to paragraphs 2(C), 2(D) and 2(E) above, we will be required to furnish to you and the Issuer such certifications, legal opinions and other information as you and the Issuer may
reasonably require to confirm that the proposed transfer complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

15 	Insert successor address or Trustee, as applicable.	
 
F-1

4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are acquiring the Notes for investment purposes and not with a view to, or offer or sale in connection with, any distribution in violation of the Securities Act, and we are each able to bear the economic risk of our or its investment.
5. We are acquiring the Notes purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.
You, the Issuer and counsel to the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
	
(Name of Transferee)	
		
By:	 	 	
	 	Authorized Signature	
 
F-2

EXHIBIT G
FORM OF SUPPLEMENTAL INDENTURE ESTABLISHING A SERIES OF NOTES
[NAME OF ISSUER]
as Issuer
[NAME OF COMPANY]
as Company
and
the Subsidiary Guarantors from time to time party to the Indenture
and
[NAME]
as Trustee

[            ] SUPPLEMENTAL INDENTURE
DATED AS OF [            ], 20[    ]

[            ]% Senior Notes Due 20[    ]
 
G-1

[                 ]16 SUPPLEMENTAL INDENTURE, dated as of [_________], 20[    ] (this “Supplemental Indenture”), among [name of Issuer] (the “Issuer”), as issuer, [[name of Company], as parent guarantor (the “Company”),]17 the Subsidiary Guarantors under the Indenture referred to below (the “Subsidiary Guarantors”), and [NAME], as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Issuer, [the Company,] the Subsidiary Guarantors and the Trustee, are party to an Indenture, dated as of November 22, 2019 (as amended, supplemented, waived or otherwise modified, the “Indenture”), relating to the issuance from time to time by the Issuer of Notes in series;
WHEREAS, Section 901(8) of the Indenture provides that the Issuer may provide for the issuance of Notes of any series as permitted by Section 301 therein;
WHEREAS, in connection with the issuance of the [                ] Notes (as defined herein), the Issuer has duly authorized the execution and delivery of this Supplemental Indenture to establish the forms and terms of the [                ] Notes as hereinafter described; and
WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, [the Company,] the Subsidiary Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as so defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Title of Notes. There shall be a series of Notes of the Issuer designated the “[    ]%18 Senior Notes due 20[    ]”19 (the “[                ]20 Notes”).

16 	Insert supplement number.	
17 	Include if the Company is not the issuer.	
18 	Insert interest rate.	
19 	Insert year during which the maturity date falls.	
20 	Insert title of notes.	
 
G-2

3. Maturity Date. The final Stated Maturity of the [                ] Notes shall be [[                ], 20[    ]].21
4. Interest and Interest Rates. Interest on the Outstanding principal amount of [                ] Notes will accrue at the rate of [    ]%22 per annum and will be payable semi-annually in arrears on [[    ] and [                ]]23 in each year, commencing on [[                ], 20[    ]],24 to holders of record on the immediately preceding [[    ] and [                ]],25 respectively (each such [                ] and [                ], a “Regular Record Date”). Interest on the [                ] Notes will accrue from the most recent date to which interest has been paid or provided for or, if no interest has been paid, from [                ], 20[    ], except that interest on any Additional [                ] Notes (as defined below) issued on or after the first Interest Payment Date will accrue (or will be deemed to have accrued) from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid on such Additional [                ] Notes, from the Interest Payment Date immediately preceding the date of issuance of such Additional [                ] Notes (or if the date of issuance of such Additional [                ] Notes is an Interest Payment Date, from such date of issuance); provided that if any [                ] Note issued in exchange therefor are surrendered for exchange on or after a record date for an Interest Payment Date that will occur on or after the date of such exchange, interest on such Note received in exchange thereof will accrue from such Interest Payment Date.
5. [No] Limitation on Aggregate Principal Amount. The aggregate principal amount of [ ] Notes that may be authenticated and delivered and Outstanding under the Indenture is [not limited][limited to $[                ]].26 [The aggregate principal amount of the [                ] Notes shall initially be $[                ]27 million.]28 [The aggregate principal amount of the [                ] Notes issued pursuant to this Supplemental Indenture shall be $[                ] million.]29 Subject to Section 407 of the Indenture, the Issuer may from time to time, without the consent of the Holders, create and issue Additional Notes having the same terms and conditions as the [ ] Notes in all respects or in all respects except for issue date, issue price and, if applicable, the first date on which interest accrues and the first payment of interest thereon. Additional Notes issued in this manner will be consolidated with, and will form a single series with, the [                ] Notes (any such Additional Notes, “Additional [                ] Notes”), unless otherwise specified for Additional Notes in an applicable Notes Supplemental Indenture, or otherwise designated by the Issuer, as contemplated by Section 301 of the Indenture.

21 	Insert Maturity Date.	
22 	Insert interest rate.	
23 	Insert Interest Payment Dates.	
24 	Insert First Interest Payment Date.	
25 	Insert Record Dates.	
26 	Insert whether the applicable series of Notes will be limited or not.	
27 	Insert principal amount of issuance.	
28 	Insert for the initial Notes of any applicable series.	
29 	Insert for the Additional Notes of any applicable series.	
 
G-3

6. Redemption. (a) The [                ] Notes will be redeemable, at the Issuer’s option, in whole or in part, at any time and from time to time on and after [[                ], 20[    ]]30 and prior to maturity at the applicable redemption price set forth below. The [                ] Notes will be so redeemable at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to, but excluding, the relevant Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date pursuant to Section 307 of the Indenture), if redeemed during the 12-month period commencing on [                ]31 of the years set forth below:

	Redemption Period32	  	Price33	 	
20[         ]	  	 	[    	]% 		
20[         ]	  	 	[    	]% 		
20[         ]	  	 	[    	]% 		
20[         ] and thereafter	  	 	100.000	% 		
(b) In addition, at any time and from time to time [on or] prior to [                ], 20[    ],34 the Issuer at its option may redeem [                ] Notes in an aggregate principal amount equal to up to [    ]%35 of the original aggregate principal amount of the Notes (including the principal amount of any Additional [                ] Notes, or any other Additional Notes of the same series as the [                ] Notes), with funds in an equal aggregate amount (the “Redemption Amount”) not exceeding the aggregate proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount thereof) of [    ]%,36 plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date pursuant to Section 307 of the Indenture);37 provided, however, that an aggregate principal amount of [                ] Notes equal to at least [    ]% of the original aggregate principal amount of [                ] Notes (including the principal amount of any Additional [                ] Notes, or any other Additional Notes of the same series as the [                ] Notes) must remain outstanding immediately after each such redemption, unless all such Notes are redeemed substantially concurrently. Any amount payable pursuant to this Section 6(b) may be funded from any source (including amounts in excess of the Redemption Amount). Any notice of any such redemption may be given prior to the completion of the related Equity Offering, but in no event may be given more than 180 days after the completion of the related Equity Offering.

30 	Insert date upon which the Notes are callable.	
31 	Insert date upon which the Notes are callable.	
32 	Insert years, adding or deleting lines if applicable.	
33 	Insert prices.	
34 	Insert date until which equity clawback is applicable.	
35 	Insert maximum percentage for equity clawback.	
36 	Insert premium.	
37 	Insert minimum amount required to remain outstanding.	
 
G-4

(c) At any time prior to [[                ], 20[    ]],38 [                ] Notes may also be redeemed in whole or in part, at the Issuer’s option, at a price (the “Redemption Price”) equal to 100.0% of the principal amount thereof plus the Applicable Premium (as defined below) as of, and accrued but unpaid interest, if any, to, the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date pursuant to Section 307 of the Indenture).
“Applicable Premium” means, with respect to a [                ] Note at any Redemption Date, the greater of (i) 1.00% of the principal amount of such [                ] Note and (ii) the excess of (A) the present value at such Redemption Date, calculated as of the date of the applicable redemption notice, of (1) the redemption price of such [                ] Note on [[                ], 20[    ]]39 (such redemption price being that described in Section 6(a)), plus (2) all required remaining scheduled interest payments due on such [                ] Note through such date (excluding accrued and unpaid interest to the Redemption Date), computed by the Issuer using a discount rate equal to the Treasury Rate plus 50 basis points, over (B) the principal amount of such [                ] Note on such Redemption Date. Calculation of the Applicable Premium will be made by the Issuer or on behalf of the Issuer by such Person as the Issuer shall designate; provided that such calculation shall not be a duty or obligation of the Trustee.
“Treasury Rate” means, with respect to a Redemption Date, the weekly average yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Business Days prior to the date of the applicable redemption notice (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to [[                ], 20[    ]];40 provided, however, that if the period from the Redemption Date to such date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated by the Issuer to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the Redemption Date to such date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 6, in connection with any tender for the [                ] Notes, if Holders of not less than 90% in the aggregate principal amount of the outstanding [                ] Notes (including the principal amount of any Additional [                ] Notes, or any other Additional Notes of the same series as the [                ] Notes) validly tender and do not withdraw such Notes in such tender offer and the Issuer, or any other Person making such tender offer, purchases all of the [                ] Notes (including any Additional [                ]

38 	Insert date upon which the Notes are callable.	
39 	Insert date upon which the Notes are callable.	
40 	Insert date upon which the Notes are callable.	
 
G-5

Notes and any Additional Notes of the same series as the [                ] Notes) validly tendered and not withdrawn by such Holders, the Issuer will have the right, upon notice given not more than 30 days following such purchase pursuant to such tender offer, to redeem all of the [                ] Notes that remain outstanding following such purchase at a price in cash equal to the price offered to each Holder in such tender offer, plus, to the extent not included in the tender offer payment, accrued and unpaid interest to but excluding the Redemption Date.
(e) Any redemption of Notes pursuant to this Section 6 may be made upon notice sent electronically or, at the Issuer’s option, mailed by first-class mail to each Holder’s registered address in accordance with Section 1005 of the Indenture, and, if applicable, the Issuer should notify the Trustee of such redemption date, and the principal amount of Notes to be redeemed in accordance with Section 1003 of the Indenture. The Issuer may provide in any redemption notice that payment of the redemption price and the performance of the Issuer’s obligations with respect to such redemption may be performed by another Person.
(f) Any redemption of Notes pursuant to this Section 6 (including in connection with an Equity Offering) or notice thereof may, at the Issuer’s discretion, be subject to the satisfaction (or, waiver by the Issuer in its sole discretion) of one or more conditions precedent, which may include consummation of any related Equity Offering or the occurrence of a Change of Control. If such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice may state that, in the Issuer’s discretion, the Redemption Date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been (or, in the Issuer’s sole determination, may not be) satisfied (or waived by the Issuer in its sole discretion) by the Redemption Date, or by the Redemption Date so delayed.
7. [                ]41
8. Form. The [                ] Notes shall be issued substantially in the form set forth, or referenced, in Article II of the Indenture, and either Exhibit A or B attached to the Indenture, in each case as provided for in Section 201 of the Indenture (as such form may be modified in accordance with Section 301 of the Indenture).
9. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE ISSUER, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.

41 	Include appropriate provisions in accordance with Section 301(7), Section 301(8) and/or Section 301(9) of the Indenture.	
 
G-6

10. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or as to the accuracy of the recitals to this Supplemental Indenture.
11. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
12. Headings. The section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
 
G-7

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

[NAME OF ISSUER]	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[NAME OF COMPANY]	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[SUBSIDIARY GUARANTORS:	
	
[                                                                          ]	
		
By:	 	 	
	 	Name:	
	 	Title:]42	
	
[NAME], as Trustee	
		
By:	 	 	
	 	Authorized Officer	

42 	Include if applicable.	
 
G-8

Exhibit 4.2
Execution Version
UNIVAR SOLUTIONS USA INC.
as initial Issuer
UNIVAR SOLUTION INC.
as Company
the Subsidiary Guarantors from time to time party to the Indenture
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee

FIRST SUPPLEMENTAL INDENTURE
DATED AS OF November 22, 2019

5.125% Senior Notes Due 2027

FIRST SUPPLEMENTAL INDENTURE, dated as of November 22, 2019 (this “Supplemental Indenture”), among Univar Solutions USA Inc. (the “Issuer”), as issuer, Univar Solutions Inc., as parent guarantor (the “Company”), the Subsidiary Guarantors under the Indenture referred to below (the “Subsidiary Guarantors”), and U.S. Bank National Association, as Trustee under the `Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Issuer, the Company, the Subsidiary Guarantors and the Trustee, are party to an Indenture, dated as of November 22, 2019 (as amended, supplemented, waived or otherwise modified, the “Indenture”), relating to the issuance from time to time by the Issuer of Notes in series;
WHEREAS, Section 901(8) of the Indenture provides that the Issuer may provide for the issuance of Notes of any series as permitted by Section 301 therein;
WHEREAS, in connection with the issuance of the November 2019 Notes (as defined herein), the Issuer has duly authorized the execution and delivery of this Supplemental Indenture to establish the forms and terms of the November 2019 Notes as hereinafter described; and
WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, the Company, the Subsidiary Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as so defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Title of Notes. There shall be a series of Notes of the Issuer designated the “5.125% Senior Notes due 2027” (the “November 2019 Notes”).
3. Maturity Date. The final Stated Maturity of the November 2019 Notes shall be December 1, 2027.
4. Interest and Interest Rates. Interest on the Outstanding principal amount of November 2019 Notes will accrue at the rate of 5.125% per annum and will be payable semi- annually in arrears on June 1 and December 1 in each year, commencing on June 1, 2020, to holders of record on the immediately preceding May 15 and November 15, respectively (each such May 15 and November 15, a “Regular Record Date”). Interest on the November 2019 Notes will accrue from the most recent date to which interest has been paid or provided for or, if no interest has been paid, from November 22, 2019, except that interest on any Additional November 2019 Notes (as defined below) issued on or after the first Interest Payment Date will

accrue (or will be deemed to have accrued) from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid on such Additional November 2019 Notes, from the Interest Payment Date immediately preceding the date of issuance of such Additional November 2019 Notes (or if the date of issuance of such Additional November 2019 Notes is an Interest Payment Date, from such date of issuance); provided that if any November 2019 Note issued in exchange therefor are surrendered for exchange on or after a record date for an Interest Payment Date that will occur on or after the date of such exchange, interest on such Note received in exchange thereof will accrue from such Interest Payment Date.
5. No Limitation on Aggregate Principal Amount. The aggregate principal amount of the November 2019 Notes shall initially be $500.0 million. Subject to Section 407 of the Indenture, the Issuer may from time to time, without the consent of the Holders, create and issue Additional Notes having the same terms and conditions as the November 2019 Notes in all respects or in all respects except for issue date, issue price and, if applicable, the first date on which interest accrues and the first payment of interest thereon. Additional Notes issued in this manner will be consolidated with, and will form a single series with, the November 2019 Notes (any such Additional Notes, “Additional November 2019 Notes”), unless otherwise specified for Additional Notes in an applicable Notes Supplemental Indenture, or otherwise designated by the Issuer, as contemplated by Section 301 of the Indenture.
6. Redemption. (a) The November 2019 Notes will be redeemable, at the Issuer’s option, in whole or in part, at any time and from time to time on and after December 1, 2022 and prior to maturity at the applicable redemption price set forth below. The November 2019 Notes will be so redeemable at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to, but excluding, the relevant Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date pursuant to Section 307 of the Indenture), if redeemed during the 12-month period commencing on December 1, 2022 of the years set forth below:

	Redemption Period	  	Price	 	
2022	  	 	102.563	% 		
2023	  	 	101.281	% 		
2024 and thereafter	  	 	100.000	% 		
(b) In addition, at any time and from time to time prior to December 1, 2022, the Issuer at its option may redeem November 2019 Notes in an aggregate principal amount equal to up to 40.0% of the original aggregate principal amount of the Notes (including the principal amount of any Additional November 2019 Notes, or any other Additional Notes of the same series as the November 2019 Notes), with funds in an equal aggregate amount (the “Redemption Amount”) not exceeding the aggregate proceeds of one or more Equity Offerings, at a redemption price (expressed as a percentage of principal amount thereof) of 105.125%, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date pursuant to Section 307 of the Indenture); provided, however, that an aggregate principal amount of November 2019 Notes equal to at least 50.0% of the original aggregate principal amount of November 2019 Notes
 
3

(including the principal amount of any Additional November 2019 Notes, or any other Additional Notes of the same series as the November 2019 Notes) must remain outstanding immediately after each such redemption, unless all such November 2019 Notes are redeemed substantially concurrently. Any amount payable pursuant to this Section 6(b) may be funded from any source (including amounts in excess of the Redemption Amount). Any notice of any such redemption may be given prior to the completion of the related Equity Offering, but in no event may be given more than 180 days after the completion of the related Equity Offering.
(c) At any time prior to December 1, 2022, the November 2019 Notes may also be redeemed in whole or in part, at the Issuer’s option, at a price (the “Redemption Price”) equal to 100.0% of the principal amount thereof plus the Applicable Premium (as defined below) as of, and accrued but unpaid interest, if any, to, the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date pursuant to Section 307 of the Indenture).
“Applicable Premium” means, with respect to a November 2019 Note at any Redemption Date, the greater of (i) 1.00% of the principal amount of such November 2019 Note and (ii) the excess of (A) the present value at such Redemption Date, calculated as of the date of the applicable redemption notice, of (1) the redemption price of such November 2019 Note on December 1, 2022 (such redemption price being that described in Section 6(a)), plus (2) all required remaining scheduled interest payments due on such November 2019 Note through such date (excluding accrued and unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate plus 50 basis points, over (B) the principal amount of such November 2019 Note on such Redemption Date. Calculation of the Applicable Premium will be made by the Issuer or on behalf of the Issuer by such Person as the Issuer shall designate; provided that such calculation shall not be a duty or obligation of the Trustee.
“Treasury Rate” means, with respect to a Redemption Date, the weekly average yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Business Days prior to the date of the applicable redemption notice (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to December 1, 2022; provided, however, that if the period from the Redemption Date to such date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the Redemption Date to such date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 6, in connection with any tender for the November 2019 Notes, if Holders of not less than 90.0% in the aggregate principal amount of the outstanding November 2019 Notes (including the principal amount of any Additional November 2019 Notes, or any other Additional Notes of the same series as the November 2019 Notes) validly tender and do not withdraw such Notes in such tender offer and
 
4

the Issuer, or any other Person making such tender offer, purchases all of the November 2019 Notes (including any Additional November 2019 Notes and any Additional Notes of the same series as the November 2019 Notes) validly tendered and not withdrawn by such Holders, the Issuer will have the right, upon notice given not more than 30 days following such purchase pursuant to such tender offer, to redeem all of the November 2019 Notes that remain outstanding following such purchase at a price in cash equal to the price offered to each Holder in such tender offer, plus, to the extent not included in the tender offer payment, accrued and unpaid interest to but excluding the Redemption Date.
(e) Any redemption of Notes pursuant to this Section 6 may be made upon notice sent electronically or, at the Issuer’s option, mailed by first-class mail to each Holder’s registered address in accordance with Section 1005 of the Indenture, and, if applicable, the Issuer should notify the Trustee of such redemption date, and the principal amount of Notes to be redeemed in accordance with Section 1003 of the Indenture. The Issuer may provide in any redemption notice that payment of the redemption price and the performance of the Issuer’s obligations with respect to such redemption may be performed by another Person.
(f) Any redemption of Notes pursuant to this Section 6 (including in connection with an Equity Offering) or notice thereof may, at the Issuer’s discretion, be subject to the satisfaction (or, waiver by the Issuer in its sole discretion) of one or more conditions precedent, which may include consummation of any related Equity Offering or the occurrence of a Change of Control. If such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice may state that, in the Issuer’s discretion, the Redemption Date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been (or, in the Issuer’s sole determination, may not be) satisfied (or waived by the Issuer in its sole discretion) by the Redemption Date, or by the Redemption Date so delayed.
7. [RESERVED]
8. Form. The November 2019 Notes shall be issued substantially in the form set forth, or referenced, in Article II of the Indenture, and either Exhibit A or B attached to the Indenture, in each case as provided for in Section 201 of the Indenture (as such form may be modified in accordance with Section 301 of the Indenture).
9. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE ISSUER, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
 
5

10. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or as to the accuracy of the recitals to this Supplemental Indenture.
11. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
12. Headings. The section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
 
6

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.

UNIVAR SOLUTIONS USA INC.	
		
By:	 	/s/ Kerri Howard	
	 	Name: Kerri Howard	
	 	Title: Treasurer	
	
GUARANTORS:	
	
UNIVAR SOLUTIONS INC.	
		
By:	 	/s/ Carl J. Lukach	
	 	Name: Carl J. Lukach	
	 	Title: Executive Vice President and Chief Financial Officer	
	
UNIVAR HOLDCO LLC	
UNIVAR HOLDCO III LLC	
CHEMPOINT.COM INC.	
PILATES MERGER SUB II LLC	
UNIVAR USA DELAWARE INC.	
UNIVAR DELAWARE INC.	
TPG ACCOLADE DELAWARE LLC	
NEXEO SOLUTIONS HOLDINGS LLC	
NEXEO SOLUTIONS SUB HOLDINGS LLC	
NEXEO SOLUTIONS LLC	
ARCHWAY SALES, LLC	
CHEMICAL SPECIALIST AND DEVELOPMENT LLC	
NEXEO SOLUTIONS FINANCE CORPORATION	
STARTEX DISTRIBUTION WEST LLC	
STARTEX CHEMICAL LLC	
		
By:	 	/s/ Kerri Howard	
	 	Name: Kerri Howard	
	 	Title: Treasurer	
[Signature Page to Supplemental Indenture]

			
U.S. BANK NATIONAL	
ASSOCIATION, as Trustee	
		
By:	 	/s/ Patricia M. Trlak	
	 	Name: Patricia M. Trlak	
	 	Title: Vice President	
[Signature Page to Supplemental Indenture]

Exhibit 10.1
Execution Version
AMENDMENT NO. 5, dated as of November 22, 2019 (this “Amendment”), to the Credit Agreement dated as of July 1, 2015, among UNIVAR SOLUTIONS USA INC., a Washington corporation (the “U.S. Borrower”), after giving effect to Section 1 hereof, UNIVAR NETHERLANDS HOLDING B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its statutory seat (statutaire zetel) in Rotterdam, the Netherlands and its registered office at Schouwburgplein 30, 3012CL Rotterdam, the Netherlands, registered with the Chamber of Commerce (Kamer van Koophandel) under number 24128225 (the “Netherlands Borrower”), the Subsidiary Borrowers from time to time party to the Credit Agreement (the Subsidiary Borrowers, together with the U.S. Borrower and the Netherlands Borrower, the “Borrowers” and each individually, a “Borrower”), UNIVAR SOLUTIONS INC., a Delaware corporation (“Holdings”), the several banks and other financial institutions or entities from time to time party to the Credit Agreement (the “Lenders”), BANK OF AMERICA, N.A., as Administrative Agent (the “Administrative Agent”) and Collateral Agent and the other parties from time to time party thereto (as amended, restated, modified and supplemented from time to time prior to the effectiveness of this Amendment, the “Credit Agreement”), is entered into by and among the U.S. Borrower, the Netherlands Borrower, Holdings, the other Loan Parties, the Incremental Term Lender (as defined below) party hereto, the Lenders party hereto (which, prior to giving effect to the Transactions (as defined below), constitute the Required Lenders) and the Administrative Agent. Each of Goldman Sachs Bank USA (“Goldman Sachs”), BofA Securities, Inc., BMO Capital Markets Corp., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., U.S. Bank National Association and Wells Fargo Securities, LLC are acting as joint lead arrangers and joint bookrunners (collectively, the “Arrangers”), and Goldman Sachs is acting as the syndication agent, in connection with this Amendment. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement (as defined below).
WHEREAS, the U.S. Borrower desires to amend the Credit Agreement on the terms set forth herein;
WHEREAS, the U.S. Borrower and the Netherlands Borrower have notified the Administrative Agent that they are requesting the borrowing of $400 million (four hundred million) of Incremental Term Loans, which upon funding shall be in the form of a new Tranche of term loans under the Credit Agreement (such Tranche, the “Term B-5 Loans”), and the proceeds of which borrowing shall be used to refinance the Euro Term B-2 Loans and to pay fees and expenses in connection with the transactions contemplated by this Amendment (the funding of the Term B-5 Loans and the payment of all fees, costs and expenses incurred in connection therewith, collectively, the “Transactions”);
WHEREAS, (i) the Netherlands Borrower has agreed to become a joint and several co-borrower with the U.S. Borrower with respect to the Term B-3 Loans and the Term B-4 Loans and (ii) each of the U.S. Borrower and the other Loan Parties has agreed to guarantee and provide Collateral to secure the obligations of the Netherlands Borrower (and any other Subsidiary Borrower) under the Loan Documents;
WHEREAS, subject to the terms and conditions set forth herein, Goldman Sachs has agreed to make the full amount of the Term B-5 Loans to the U.S. Borrower and the Netherlands Borrower on the Amendment No. 5 Effective Date (as defined below) as an Incremental Term Lender (the “Incremental Term Lender”);
WHEREAS, the Lenders constituting Required Lenders are willing to (i) make the amendments set forth herein on the Amendment No. 5 Effective Date and (ii) authorize the Administrative Agent and the Collateral Agent to enter into amendments to the ABL Intercreditor Agreement and the Security Documents to implement the joinder and amendments set forth herein, in each case, on the terms and subject to the conditions set forth herein;

WHEREAS, (x) Subsections 2.8(d) and 11.1(d) of the Credit Agreement provide that the Borrowers, Holdings, the Administrative Agent and the Incremental Term Lender may amend the Credit Agreement and the other Loan Documents (without the consent of any other Lender) to provide for the incurrence of the Term B-5 Loans and to effect such amendments as may be necessary or appropriate to effect the provisions of Section 2.8 of the Credit Agreement with respect to the Term B-5 Loans and (y) Subsection 11.1(a) of the Credit Agreement provides that the Borrowers, Holdings, the Administrative Agent and the Required Lenders may amend the Credit Agreement and the other Loan Documents as provided therein (without the consent of any other Lender);
WHEREAS, the Loan Parties have requested the release of liens in favor of the Collateral Agent on the Mortgaged Fee Property set forth on Schedule C attached hereto, and the Lenders constituting the Required Lenders are willing to authorize such release on the terms and subject to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Release; Amendments; Joinder of the Netherlands Borrower.
(a) Pursuant to Section 10.8 of the Credit Agreement, the Required Lenders hereby (i) authorize the Collateral Agent to release the liens and security interests in favor of the Collateral Agent on the Mortgaged Fee Property described on Schedule C attached hereto and (ii) instruct the Collateral Agent to release the Collateral set forth in the foregoing clause (i). In reliance on the foregoing, effective immediately prior to the Transactions, the Collateral Agent hereby releases its liens and security interests on the Mortgaged Fee Property described on Schedule C attached hereto (it being understood and agreed that such release shall be effective on the Amendment No. 5 Effective Date but immediately prior to the amendments and joinder described in this Section 1).
(b) The Credit Agreement is, effective as of the Amendment No. 5 Effective Date, 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 pages of the Credit Agreement attached as Exhibit A hereto (the “Amended Credit Agreement”).
(c) Schedule A of the Credit Agreement is, effective as of the Amendment No. 5 Effective Date, hereby amended by amending and restating such Schedule to read in its entirety as Schedule A hereto.
(d) Schedule B of the Credit Agreement is, effective as of the Amendment No. 5 Effective Date, hereby deleted in its entirety.
(e) Schedule B attached to this Amendment is, effective as of the Amendment No. 5 Effective Date, hereby attached to the Amended Credit Agreement as Schedule 1.1(a) thereto.
 
-2-

(f) By its execution and delivery of this Amendment, upon effectiveness of this Amendment, the Netherlands Borrower shall be deemed to be and hereby agrees to be, a party to the Amended Credit Agreement as a Borrower in respect of all Loans outstanding under the Amended Credit Agreement and subject to the rights and obligations of a Borrower set forth in the Amended Credit Agreement as if the Netherlands Borrower had been an original signatory to the Amended Credit Agreement.
(g) Pursuant to Section 10.8 of the Credit Agreement, the Required Lenders hereby authorize each of the Administrative Agent and the Collateral Agent to enter into amendments to the ABL Intercreditor Agreement and to any Security Document, in each case, as are reasonably acceptable to the Administrative Agent and the Collateral Agent, in order to reflect (i) the joinder of the Netherlands Borrower (and any future Subsidiary Borrower in accordance with the Amended Credit Agreement) as a Borrower under the Amended Credit Agreement and (ii) the agreement by each of the U.S. Borrower and the other Loan Parties to guarantee and provide Collateral to secure the obligations of the Netherlands Borrower (and any future Subsidiary Borrower) under the Loan Documents.
Section 2. Representations and Warranties, No Default. Each Borrower hereby represents and warrants that on and as of the Amendment No. 5 Effective Date:
(a) prior to and after giving effect to the amendments set forth in this Amendment, no Event of Default exists and is continuing;
(b) after giving effect to the Transactions and the amendments set forth in this Amendment, Holdings, together with its Subsidiaries on a consolidated basis, is Solvent;
(c) each of the Loan Parties is duly organized, validly existing and (to the extent applicable in the relevant jurisdiction) in good standing under the laws of the jurisdiction of its incorporation or formation, except (other than with respect to the Borrowers), to the extent that the failure to be organized, existing and (to the extent applicable) in good standing would not reasonably be expected to have a Material Adverse Effect;
(d) each Loan Party has the corporate or other organizational power and authority, and the legal right, to make, deliver and perform this Amendment and each other Loan Document dated as of the date hereof to which such Loan Party is a party, and, in the case of the U.S. Borrower and the Netherlands Borrower, to obtain Extensions of Credit in the form of the Term B-5 Loans under the Amended Credit Agreement, and, in the case of the Netherlands Borrower, to become jointly and severally liable for the Term B-3 and Term B-4 Loans outstanding on the date hereof, and each such Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment and each other Loan Document dated as of the date hereof to which it is a party and, in the case of the U.S. Borrower and the Netherlands Borrower, to authorize the Extensions of Credit in the form of the Term B-5 Loans to it, if any, on the terms and conditions of this Amendment, the Amended Credit Agreement and any Notes;
(e) this Amendment has been duly executed and delivered by each Loan Party, and each other Loan Document to be entered into as of the date hereof to which any Loan Party is a party will be duly executed and delivered on behalf of such Loan Party;
(f) this Amendment and each other Loan Document dated as of the date hereof to which any Loan Party is a party each constitutes a legal, valid and binding obligation of the Loan Parties, enforceable against each such Loan Party in accordance with its terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);
 
-3-

(g) the execution, delivery and performance of this Amendment and each other Loan Document dated as of the date hereof to which any Loan Party is a party by each of the Loan Parties, the Extensions of Credit under the Amended Credit Agreement in the form of the Term B-5 Loans and the use of the proceeds from the Term B-5 Loans (x) will not violate any provision of the Organizational Documents of such Loan Party or any of the Restricted Subsidiaries, except (other than with respect to the Borrowers) as would not reasonably be expected to have a Material Adverse Effect and (y) will not violate any Requirement of Law under OFAC or the Foreign Corrupt Practices Act of 1977;
(h) no part of the proceeds of the Term B-5 Loans will be used for any purpose which violates the provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation X of the Board and, if requested by any Lender or the Administrative Agent, the Borrower Representative will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR form G-3 or FR Form U-1, referred to in said Regulation U;
(i) (x) each of the Security Documents in effect on the Amendment No. 5 Effective Date and the Dutch Security Documents (as defined below) are or will be effective to create (to the extent described therein) in favor of the Collateral Agent for the benefit of the Secured Parties, a valid and enforceable security interest in or liens on the Collateral described therein, except as to enforcement, as may be limited by applicable domestic or foreign bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing and (y) when (i) all Filings (as defined in the Guarantee and Collateral Agreement) have been completed, (ii) all applicable Instruments, Chattel Paper and Documents (each as described in the Guarantee and Collateral Agreement) constituting Collateral a security interest in which is perfected by possession have been delivered to, and/or are in the continued possession of, the Collateral Agent, the applicable Collateral Representative or any Additional Agent, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the applicable ABL Intercreditor Agreement, Intercreditor Agreement or Other Intercreditor Agreement, (iii) all Deposit Accounts and Pledged Stock (each as defined in the Guarantee and Collateral Agreement) a security interest in which is required by the Security Documents to be or is perfected by “control” (as described in the Uniform Commercial Code as in effect in each applicable jurisdiction (in the case of Deposit Accounts) and the State of New York (in the case of Pledged Stock) from time to time) are under the “control” of the Collateral Agent, the Administrative Agent, the applicable Collateral Representative or any Additional Agent, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the applicable ABL Intercreditor Agreement, Intercreditor Agreement or Other Intercreditor Agreement, (iv) the Mortgages (if any) have been duly recorded in the proper recorders’ offices or appropriate public records and the mortgage recording fees and taxes in respect thereof, if any, are paid and compliance is otherwise had with the formal requirements of state or local law applicable to the recording of real property mortgages generally have been complied with and (v) all filings or recordings are made in the appropriate offices of the applicable jurisdictions as may be required under the terms of the Dutch Security Documents, the security interests and liens granted pursuant to the Security Documents in effect on the Amendment No. 5 Effective Date and the Dutch Security Documents shall constitute (to the extent described therein and with respect to the Mortgages (if any) only as relates to the real property security interests and liens granted pursuant thereto) a perfected security interest in (to the extent intended to be created thereby and required to be perfected under the Loan Documents), all right, title and interest of each pledgor or mortgagor (as applicable) party thereto in the Collateral described therein (capitalized terms that are used in this clause (i) and not defined in the Amended Credit Agreement are so used as defined in the applicable Security Document);
 
-4-

(j) (x) no Borrower is an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act, and (y) no Borrower is subject to regulation under any federal or state statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness as contemplated hereby and by the Amended Credit Agreement;
(k) Holdings and its Restricted Subsidiaries are in compliance with the Patriot Act; and
(l) all representations and warranties contained in the Amended Credit Agreement are true and correct in all material respects on and as of the date hereof, as though made on and 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 in all material respects as of such earlier date.
Section 3. Effectiveness. Section 1 of this Amendment shall become effective on the date (such date, if any, the “Amendment No. 5 Effective Date”) that the following conditions have been satisfied or waived:
(a) Loan Documents. The Administrative Agent shall have received (i) this Amendment, executed and delivered by the Incremental Term Lender, the Administrative Agent, Lenders which, prior to giving effect to the Transactions, constitute the Required Lenders and each Loan Party and (ii) the Guaranty Agreement, executed and delivered by the Netherlands Borrower.
(b) Fees. The U.S. Borrower shall have paid, on or before the Amendment No. 5 Effective Date, (a) to the Arrangers all fees owing to the Arrangers and the Incremental Term Lender to the extent due and payable on the Amendment No. 5 Effective Date as separately agreed to in writing by Holdings, the U.S. Borrower and any Arranger under the Engagement Letter dated as of November 4, 2019, among Holdings, the U.S. Borrower and the Arrangers, and (b) to the Administrative Agent and the Arrangers, all costs, fees and expenses required to be paid or reimbursed for which invoices have been presented at least three (3) Business Days prior to the Amendment No. 5 Effective Date.
(c) Legal Opinions. The Administrative Agent, the Arrangers and the Incremental Term Lender shall have received customary written opinions of (w) Kirkland & Ellis LLP special counsel to the Loan Parties, (x) Perkins Coie LLP, special Washington counsel to the Loan Parties, (y) Brownstein Hyatt Farber Schreck, LLP, special Nevada counsel to the Loan Parties and (z) Eversheds Sutherland (Netherlands) B.V., special Netherlands counsel to the Loan Parties. The Loan Parties hereby request such counsel to deliver such opinions.
(d) Closing Certificate. The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower dated the Amendment No. 5 Effective Date certifying as to the satisfaction (or waiver) of the conditions set forth in Sections 2, 3(e) and 3(f) hereof.
(e) Representations. Each of the representations and warranties made by any Loan Party pursuant to the Amended Credit Agreement, and in any other Loan Document to which it is a party, shall be true and correct in all material respects on and as of the Amendment No. 5 Effective Date as if made on and as of such date, except to the extent that they relate to a particular date (in which case, they shall be true and correct in all material respects as of such specified date).
 
-5-

(f) No Default. No Default or Event of Default shall exist, or would result immediately, from the transactions contemplated hereby on the Amendment No. 5 Effective Date.
(g) Flood Determinations. The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Fee Property, and to the extent any Mortgaged Fee Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the U.S. Borrower and (ii) evidence of flood insurance as required by Section 7.5 of the Credit Agreement and otherwise in form and substance reasonably satisfactory to the Administrative Agent.
(h) Know Your Customer and Other Required Information; Beneficial Ownership Certification.
(1) The Administrative Agent shall have received at least three (3) Business Days prior to the Amendment No. 5 Effective Date all documentation and other information about the Loan Parties as has been reasonably requested by the Arrangers in writing at least ten (10) Business Days prior to the Amendment No. 5 Effective Date by the Arrangers that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act; and
(2) To the extent any Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”) and the Administrative Agent or the Incremental Term Lender has requested a Beneficial Ownership Certification (as defined below) in writing at least ten (10) Business Days prior to the Amendment No. 5 Effective Date, at least three (3) Business Days prior to the Amendment No. 5 Effective Date, the Administrative Agent or the Incremental Term Lender, as applicable, shall have received a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of the Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by The Loan Syndications and Trading Association and the Securities Industry and Financial Markets Association (such certification, a “Beneficial Ownership Certification”), in relation to such Borrower.
(i) Borrowing Request. The Administrative Agent shall have received a borrowing notice in accordance with the requirements of the Amended Credit Agreement.
(j) Solvency Certificate. The Administrative Agent shall have received a certification as to the solvency of Holdings and its Subsidiaries on a consolidated basis after giving effect to this Amendment and the borrowing of the Term B-5 Loans in form and substance reasonably satisfactory to the Administrative Agent.
(k) Secretary’s Certificate. The Administrative Agent shall have received a certificate from Holdings and each other Loan Party, dated the Amendment No. 5 Effective Date, in substance reasonably satisfactory to the Administrative Agent, with appropriate insertions and attachments of resolutions or other actions, evidence or incumbency and the signature of authorized signatories and Organizational Documents, executed by a Responsible Officer and the Secretary or any Assistant Secretary or other authorized representative of such Loan Party.
 
-6-

(l) Collateral of Netherlands Borrower. Except as provided on Schedule I hereto, (a) the Administrative Agent shall have received (i) the Netherlands Security Agreement (as defined below), and (ii) the Deeds of Pledge of Shares with respect to the shares of each of the subsidiaries of the Netherlands Borrower organized in the Netherlands, each executed by the Netherlands Borrower as pledgor, the Collateral Agent as pledgee and such subsidiary as company (collectively, the “Dutch Security Documents”) and (b) none of such Collateral shall be subject to any other pledges, security interests or mortgages except for Liens permitted by the Amended Credit Agreement (including Permitted Liens) or pledges, security interests or mortgages to be released on the Amendment No. 5 Effective Date.
(m) Certain Amendments. The Administrative Agent shall have received an amendment to each of the ABL Intercreditor Agreement and the Guarantee and Collateral Agreement, in each case, in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent in accordance with Section 1(g) of this Amendment.
(n) Euro Term B-2 Refinancing. Substantially simultaneously with the borrowing of the Term B-5 Loans, the entire principal amount of the Euro Term B-2 Loans, and accrued interest thereon through the Amendment No. 5 Effective Date, will be paid in full in cash.
Section 4. Post-Closing Agreements. The Borrowers shall comply with the post-closing covenants set forth on Schedule I.
Section 5. 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. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or any other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
Section 6. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
Section 7. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Section 8. Effect of Amendment. 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 any other 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. Each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement as amended hereby, or any other Loan Document as amended hereby, 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 the other Loan Documents and from and after the Amendment No. 5 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,
 
-7-

unless expressly provided otherwise, refer to the Credit Agreement as amended by this Amendment. Each of the Loan Parties hereby consents to this Amendment and confirms that all obligations of such Loan Party under the Loan Documents to which such Loan Party is a party shall continue to apply to the Credit Agreement as amended hereby.
Section 9. Reaffirmation. Each of the Loan Parties hereby consents to the amendment of the Credit Agreement described in Section 1 of this Amendment and hereby confirms its prior respective guarantees, pledges, grants of security interests, subordinations and other obligations, as applicable, under and subject to the terms of each of the Loan Documents to which it is party, and confirms, agrees and acknowledges that this Amendment shall not constitute a novation of the Credit Agreement or any of the other Loan Document and, notwithstanding the consummation of this Amendment, such guarantees, pledges, grants of security interests, subordinations and other obligations, and the terms of each of the Loan Documents to which it is a party, except as expressly modified by this Amendment, are not affected or impaired in any manner whatsoever and shall continue to be in full force and effect and shall also guarantee and secure all obligations as amended and reaffirmed pursuant to the Credit Agreement and this Amendment. Each of the Loan Parties confirms, acknowledges and agrees that the Incremental Term Lender providing the Term B-5 Loans is a “Lender” and “Secured Party” for all purposes under the Loan Documents. For the avoidance of doubt, each Loan Party hereby restates the provisions of Section 3.1 of the Guarantee and Collateral Agreement (as the same may be amended as of the Amendment No. 5 Effective Date in accordance with Section 1(g) of this Amendment) and agrees that all references in the Guarantee and Collateral Agreement to the “Obligations” shall include the Term B-5 Loans and all obligations of the Netherlands Borrower under the Loan Documents.
Section 10. Notice of Dutch Pledge. The Netherlands Borrower (as used in this Section 10, the “Pledgor”) hereby notifies each other Loan Party of the pledges created pursuant to a Dutch Security Agreement dated November 22, 2019, between the Collateral Agent, Bank of America, N.A., as ABL Agent (as defined in the ABL Intercreditor Agreement), and the Pledgor, as pledgor (the “Netherlands Security Agreement”) over all present and future rights of the Pledgor against any other Loan Party (“Intercompany Receivables”). Each Loan Party hereby acknowledges and confirms that (i) it has received notification of the pledges in favor of both the Collateral Agent and the ABL Agent over the Intercompany Receivables owed by it to the Pledgor and (ii) it consent to such pledges over the Intercompany Receivables.
Section 11. WAIVER OF RIGHT TO TRIAL BY JURY.
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.
[Remainder of page left intentionally blank]
 
-8-

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

UNIVAR SOLUTIONS USA INC.,
as U.S. Borrower	
		
By:	 	/s/ Kerri Howard	
	 	Name:	 	Kerri Howard	
	 	Title:	 	Vice President and Treasurer	
	
UNIVAR SOLUTIONS INC.,
as Holdings	
		
By:	 	/s/ Kerri Howard	
	 	Name:	 	Kerri Howard	
	 	Title:	 	Vice President and Treasurer	
	
UNIVAR NETHERLANDS HOLDING B.V.,
as a Term B-5 Borrower	
		
By:	 	/s/ Kerri Howard	
	 	Name:	 	Kerri Howard	
	 	Title:	 	Authorized Representative	
	
UNIVAR HOLDCO LLC	
UNIVAR HOLDCO III LLC	
CHEMPOINT.COM INC.	
UNIVAR USA DELAWARE INC.	
UNIVAR DELAWARE, INC.	
PILATES MERGER SUB II, LLC	
TPG ACCOLADE DELAWARE, LLC	
NEXEO SOLUTIONS HOLDINGS, LLC	
NEXEO SOLUTIONS SUB HOLDING LLC	
NEXEO SOLUTIONS, LLC	
ARCHWAY SALES, LLC	
CHEMICAL SPECIALISTS AND DEVELOPMENT, LLC	
NEXEO SOLUTIONS FINANCE CORPORATION	
STARTEX DISTRIBUTION WEST, LLC	
STARTEX CHEMICAL, LLC	
		
By:	 	/s/ Kerri Howard	
	 	Name:	 	Kerri Howard	
	 	Title:	 	Treasurer	
[Signature Page to Univar Amendment No. 5]

			
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent	
		
By:	 	/s/ Anthony W. Kell	
	 	Name: Anthony W. Kell	
	 	Title: Vice President	
[Signature Page to Univar Amendment No. 5]

			
Goldman Sachs Bank USA,
as Incremental Term Lender	
		
By:	 	/s/ Charles D. Johnston	
	 	Name: Charles D. Johnston	
	 	Title: Authorized Signatory	
[Signature Page to Univar Amendment No. 5]

[Required Lenders Signature Pages Not Restated]
[Signature Page to Univar Amendment No. 5]

Schedule I
[Redacted]

Schedule A
to Amendment No. 5
[Redacted]

Schedule B
to Amendment No. 5
[Redacted]

Schedule C
to Amendment No. 5
[Redacted]

Exhibit A
to Amendment No. 5

EXHIBIT A
CREDIT AGREEMENT
among
UNIVAR SOLUTIONS USA INC.
as U.S. Borrower,
UNIVAR NETHERLANDS HOLDING B.V.,
as the Netherlands Borrower,
THE LENDERS
FROM TIME TO TIME PARTIES HERETO,
BANK OF AMERICA, N.A.
as Administrative Agent and Collateral Agent,

 
BARCLAYS BANK PLC,
CITIGROUP GLOBAL MARKETS INC.,
CREDIT SUISSE SECURITIES (USA) LLC,
DEUTSCHE BANK SECURITIES INC.
and
GOLDMAN SACHS LENDING PARTNERS LLC,
as Co-Syndication Agents,
HSBC SECURITIES (USA) INC.,
J.P. MORGAN SECURITIES LLC,
MORGAN STANLEY SENIOR FUNDING, INC.,
SUNTRUST ROBINSON HUMPHREY, INC.
and
WELLS FARGO SECURITIES, LLC,
as Co-Documentation Agents
and
BANK OF AMERICA, N.A.,
GOLDMAN SACHS LENDING PARTNERS LLC,
DEUTSCHE BANK SECURITIES INC.,
JPMORGAN CHASE BANK, N.A.,
WELLS FARGO SECURITIES, LLC,
HSBC SECURITIES (USA) INC.,
SUNTRUST ROBINSON HUMPHREY, INC.,
MORGAN STANLEY SENIOR FUNDING, INC.,
BARCLAYS BANK PLC,
CITIGROUP GLOBAL MARKETS INC.,
BMO CAPITAL MARKETS CORP.,
U.S. BANK NATIONAL ASSOCIATION
and
CREDIT SUISSE SECURITIES (USA) LLC,
as Amendment No. 2 Joint Lead Arrangers and Joint Bookrunners
and
GOLDMAN SACHS BANK USA,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
DEUTSCHE BANK SECURITIES INC.,
JPMORGAN CHASE BANK, N.A.,
and
WELLS FARGO SECURITIES, LLC,
as Amendment No. 4 Joint Lead Arrangers and Joint Bookrunners
and
GOLDMAN SACHS BANK USA,
BOFA SECURITIES, INC.,
BMO CAPITAL MARKETS CORP.,
CITIGROUP GLOBAL MARKETS INC.,
DEUTSCHE BANK SECURITIES INC.,
HSBC SECURITIES (USA) INC.,
JPMORGAN CHASE BANK, N.A.,
MORGAN STANLEY SENIOR FUNDING, INC.,
U.S. BANK NATIONAL ASSOCIATION
and
WELLS FARGO SECURITIES, LLC
as Amendment No. 5 Joint Lead Arrangers and Joint Bookrunners
dated as of July 1, 2015
and as Amended by Amendment No. 1 on January 19, 2017, Amendment No. 2 on November 28 2017, Amendment No. 3 on February 23, 2019 and, Amendment No. 4 on February 28, 2019 and Amendment No. 5 on November 22, 2019

 

Table of Contents

 	 	 	  	Page	 	
		
SECTION 1 DEFINITIONS	  	 	1	 	
			
1.1	 	Defined Terms	  	 	1	 	
1.2	 	Other Definitional and Interpretive Provisions	  	 	5557	 	
1.3	 	Borrower Representative	  	 	59	 	
1.4	 	Foreign Subsidiary Documentation	  	 	59	 	
1.5	 	Dutch Terms	  	 	59	 	
		
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS	  	 	5760	 	
			
2.1	 	Euro Term B-2 Loans and Term B-45 Loans	  	 	5760	 	
2.2	 	Notes	  	 	5761	 	
2.3	 	Procedure for Euro Term B-2 Loan or Term B-45 Loan Borrowing	  	 	5862	 	
2.4	 	[Reserved]	  	 	5962	 	
2.5	 	Repayment of Loans	  	 	5962	 	
2.6	 	[Reserved]	  	 	5963	 	
2.7	 	[Reserved]	  	 	5963	 	
2.8	 	Incremental Facilities	  	 	5963	 	
2.9	 	Permitted Debt Exchanges	  	 	6266	 	
2.10	 	Extension of Term Loans	  	 	6367	 	
2.11	 	Specified Refinancing Term Loan Facilities	  	 	6570	 	
		
SECTION 3 [RESERVED]	  	 	6771	 	
		
SECTION 4 GENERAL PROVISIONS APPLICABLE TO LOANS	  	 	6771	 	
			
4.1	 	Interest Rates and Payment Dates	  	 	6771	 	
4.2	 	Conversion and Continuation Options	  	 	6771	 	
4.3	 	Minimum Amounts; Maximum Sets	  	 	6872	 	
4.4	 	Optional and Mandatory Prepayments	  	 	6872	 	
4.5	 	Administrative Agent’s Fee; Other Fees	  	 	7680	 	
4.6	 	Computation of Interest and Fees	  	 	7681	 	
4.7	 	Inability to Determine Interest Rate	  	 	7781	 	
4.8	 	Pro Rata Treatment and Payments	  	 	7882	 	
4.9	 	Illegality	  	 	7983	 	
4.10	 	Requirements of Law	  	 	7983	 	
4.11	 	Taxes	  	 	8085	 	
4.12	 	Indemnity	  	 	8488	 	
4.13	 	Certain Rules Relating to the Payment of Additional Amounts	  	 	8589	 	
		
SECTION 5 REPRESENTATIONS AND WARRANTIES	  	 	8690	 	
			
5.1	 	Financial Condition	  	 	8691	 	
5.2	 	No Change; Solvent	  	 	8691	 	
5.3	 	Corporate Existence; Compliance with Law	  	 	8691	 	
5.4	 	Corporate Power; Authorization; Enforceable Obligations	  	 	8791	 	
5.5	 	No Legal Bar	  	 	8792	 	
5.6	 	No Material Litigation	  	 	8792	 	
5.7	 	No Default	  	 	8792	 	
5.8	 	Ownership of Property; Liens	  	 	8792	 	
5.9	 	Intellectual Property	  	 	8892	 	
 
-i-

							
 	 	 	  	Page	 	
5.10	 	Taxes	  	 	8892	 	
5.11	 	Federal Regulations	  	 	8893	 	
5.12	 	ERISA	  	 	8893	 	
5.13	 	Collateral	  	 	8993	 	
5.14	 	Investment Company Act; Other Regulations	  	 	8994	 	
5.15	 	Subsidiaries	  	 	8994	 	
5.16	 	Purpose of Loans	  	 	8994	 	
5.17	 	Environmental Matters	  	 	8994	 	
5.18	 	No Material Misstatements	  	 	9095	 	
5.19	 	[Reserved]	  	 	9095	 	
5.20	 	Insurance	  	 	9095	 	
5.21	 	Anti-Terrorism	  	 	9195	 	
		
SECTION 6 CONDITIONS PRECEDENT	  	 	9196	 	
			
6.1	 	Conditions to Initial Extension of Credit	  	 	9196	 	
		
SECTION 7 AFFIRMATIVE COVENANTS	  	 	9397	 	
			
7.1	 	Financial Statements	  	 	9398	 	
7.2	 	Certificates; Other Information	  	 	9499	 	
7.3	 	Payment of Taxes	  	 	9499	 	
7.4	 	Conduct of Business and Maintenance of Existence; Compliance with Contractual Obligations and Requirements of Law	  	 	95100	 	
7.5	 	Maintenance of Property; Insurance	  	 	95100	 	
7.6	 	Inspection of Property; Books and Records; Discussions	  	 	96101	 	
7.7	 	Notices	  	 	96101	 	
7.8	 	Environmental Laws	  	 	97102	 	
7.9	 	After-Acquired Real Property and Fixtures; Subsidiaries	  	 	97102	 	
7.10	 	Use of Proceeds	  	 	99105	 	
7.11	 	Commercially Reasonable Efforts to Maintain Ratings	  	 	99105	 	
7.12	 	Accounting Changes	  	 	99105	 	
7.13	 	Post-Closing Security Perfection	  	 	99105	 	
7.14	 	Taxes	  	 	106	 	
		
SECTION 8 NEGATIVE COVENANTS	  	 	100106	 	
			
8.1	 	Limitation on Indebtedness	  	 	100106	 	
8.2	 	Limitation on Restricted Payments	  	 	104110	 	
8.3	 	Limitation on Restrictive Agreements	  	 	107113	 	
8.4	 	Limitation on Sales of Assets and Subsidiary Stock	  	 	108115	 	
8.5	 	Limitations on Transactions with Affiliates	  	 	110117	 	
8.6	 	Limitation on Liens	  	 	111118	 	
8.7	 	Limitation on Fundamental Changes	  	 	112119	 	
8.8	 	Change of Control; Limitation on Amendments	  	 	114121	 	
8.9	 	Limitation on Lines of Business	  	 	115122	 	
		
SECTION 9 EVENTS OF DEFAULT	  	 	115122	 	
			
9.1	 	Events of Default	  	 	115122	 	
9.2	 	Remedies Upon an Event of Default	  	 	117124	 	
		
SECTION 10 THE AGENTS AND THE OTHER REPRESENTATIVES	  	 	117124	 	
			
10.1	 	Appointment	  	 	117124	 	
 
-ii-

							
10.2	 	The Administrative Agent and Affiliates	  	 	118125	 	
10.3	 	Action by an Agent	  	 	118125	 	
10.4	 	Exculpatory Provisions	  	 	118125	 	
10.5	 	Acknowledgement and Representations by Lenders	  	 	119126	 	
10.6	 	Indemnity; Reimbursement by Lenders	  	 	121128	 	
10.7	 	Right to Request and Act on Instructions	  	 	121128	 	
10.8	 	Collateral Matters	  	 	122129	 	
10.9	 	Successor Agent	  	 	123130	 	
10.10	 	[Reserved]	  	 	124Parallel	 	
	 	Debt 131	  				
10.11	 	Withholding Tax	  	 	124131	 	
10.12	 	Other Representatives	  	 	124132	 	
10.13	 	Administrative Agent May File Proofs of Claim	  	 	124132	 	
10.14	 	Application of Proceeds	  	 	124132	 	
		
SECTION 11 MISCELLANEOUS	  	 	125133	 	
			
11.1	 	Amendments and Waivers	  	 	125133	 	
11.2	 	Notices	  	 	128135	 	
11.3	 	No Waiver; Cumulative Remedies	  	 	129137	 	
11.4	 	Survival of Representations and Warranties	  	 	129137	 	
11.5	 	Payment of Expenses and Taxes	  	 	129137	 	
11.6	 	Successors and Assigns; Participations and Assignments	  	 	131138	 	
11.7	 	Adjustments; Set-off; Calculations; Computations	  	 	139147	 	
11.8	 	Judgment	  	 	140148	 	
11.9	 	Counterparts	  	 	140148	 	
11.10	 	Severability	  	 	140148	 	
11.11	 	Integration	  	 	140148	 	
11.12	 	Governing Law	  	 	141149	 	
11.13	 	Submission to Jurisdiction; Waivers	  	 	141149	 	
11.14	 	Acknowledgements	  	 	141149	 	
11.15	 	Waiver of Jury Trial	  	 	142150	 	
11.16	 	Confidentiality	  	 	142150	 	
11.17	 	Incremental Indebtedness; Additional Indebtedness	  	 	143151	 	
11.18	 	USA PATRIOT Act Notice	  	 	143151	 	
11.19	 	Electronic Execution of Assignments and Certain Other Documents	  	 	143151	 	
11.20	 	Reinstatement	  	 	143151	 	
11.21	 	Acknowledgment and Consent to Bail-In of EEA Financial Institutions	  	 	143151	 	
11.22	 	Joint and Several Liability; Postponement of Subrogation	  	 	152	 	
11.23	 	Acknowledgment Regarding any Supported QFCs	  	 	152	 	
 
-iii-

					
SCHEDULES	
			
A	 	—	  	Euro Term B-2 Loan5 Commitments	
B	 	—	  	Term B-4 Commitments	
1.1(a)	 		  	Foreign Subsidiary Documentation Principles	
1.1(e)	 	—	  	Existing Liens	
1.1(f)	 	—	  	Existing Investments	
5.4	 	—	  	Consents Required	
5.6	 	—	  	Litigation	
5.8	 	—	  	Real Property	
5.9	 	—	  	Intellectual Property Claims	
5.15	 	—	  	Subsidiaries	
5.17	 	—	  	Environmental Matters	
5.20	 	—	  	Insurance	
7.2	 	—	  	Website Address for Electronic Financial Reporting	
7.13	 	—	  	Post-Closing Collateral Requirements	
8.1	 	—	  	Existing Indebtedness	
8.5	 	—	  	Affiliate Transactions	
EXHIBITS	
			
A	 	—	  	Form of Term Loan Note	
B	 	—	  	Form of Guarantee and Collateral Agreement	
C	 	—	  	Reserved	
D	 	—	  	Form of U.S. Tax Compliance Certificate	
E	 	—	  	Form of Assignment and Acceptance	
F	 	—	  	Reserved	
G	 	—	  	Reserved	
H	 	—	  	Form of Solvency Certificate	
I-1	 	—	  	Form of Increase Supplement	
I-2	 	—	  	Form of Lender Joinder Agreement	
J-1	 	—	  	Form of ABL Intercreditor Agreement	
J-2	 	—	  	Form of Intercreditor Agreement	
K	 	—	  	Form of Affiliated Lender Assignment and Assumption	
L	 	—	  	Reserved	
M	 	—	  	Reserved	
N	 	—	  	Form of Acceptance and Prepayment Notice	
O	 	—	  	Form of Discount Range Prepayment Notice	
P	 	—	  	Form of Discount Range Prepayment Offer	
Q	 	—	  	Form of Solicited Discounted Prepayment Notice	
R	 	—	  	Form of Solicited Discounted Prepayment Offer	
S	 	—	  	Form of Specified Discount Prepayment Notice	
T	 	—	  	Form of Specified Discount Prepayment Response	
U	 	—	  	Form of Compliance Certificate	
 
-iv-

CREDIT AGREEMENT, dated as of July 1, 2015 (as amended by Amendment No. 1 on January 19, 2017, Amendment No. 2 on November 28, 2017, Amendment No. 3 on February 23, 2019 and, Amendment No. 4 on February 28, 2019 and Amendment No. 5 on November 22, 2019), among UNIVAR SOLUTIONS USA INC. (formerly known as Univar USA Inc.), a Washington corporation (the “U.S. Borrower”), UNIVAR SOLUTIONS INC. (formerly known as Univar Inc.), a Delaware corporation (“Holdings”), UNIVAR NETHERLANDS HOLDING B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its statutory seat (statutaire zetel) in Rotterdam, the Netherlands and its registered office at Schouwburgplein 30, 3012CL Rotterdam, the Netherlands, registered with the Chamber of Commerce (Kamer van Koophandel) under number 24128225 (the “Netherlands Borrower”), the several banks and other financial institutions from time to time party hereto (as further defined in Subsection 1.1, the “Lenders”), and BANK OF AMERICA, N.A., as administrative agent (in such capacity and as further defined in Subsection 1.1, the “Administrative Agent”) for the Lenders hereunder and as collateral agent (in such capacity and as further defined in Subsection 1.1, the “Collateral Agent”) for the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, on the Amendment No. 45 Effective Date, this Agreement was amended (prior to giving effect to such amendments, the “Original Credit Agreement”) to, among other things, add the Netherlands Borrower as a borrower hereunder andpermit the borrowing of the Euro Term B-2 Loans and the Term B-45 Loans as described herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1
Definitions
1.1 Defined Terms . As used in this Agreement, the following terms shall have the following meanings:
“ABL Intercreditor Agreement”: initially, the ABL Intercreditor Agreement (as defined in the Existing Term Loan Agreement), as supplemented by the joinder agreement, dated the Closing Date, among the Collateral Agent and the ABL Representative, as amended, supplemented, waived or otherwise modified from time to time; provided that upon written notice from the Borrower Representative following the Closing Date, such existing ABL Intercreditor Agreement shall be terminated and the Collateral Agent shall enter into an ABL Intercreditor Agreement substantially in the form of Exhibit J-1 among the Collateral Agent, the ABL Representative and one or more Collateral Representatives for holders of Indebtedness permitted by this Agreement to be secured by the Collateral, with such modifications thereto as the Collateral Agent may reasonably agree.
“ABL Representative”: initially, Bank of America, N.A., in its capacity as collateral agent under the Senior ABL Agreement and the other Loan Documents (as defined therein) and any other collateral agent or representative of the holders of Senior ABL Obligations appointed as a representative for purposes related to the administration of the security documents pursuant to the Senior ABL Agreement, in such capacity as provided in the Senior ABL Agreement.
“ABR”: when used in reference to any Loan or Borrowing, is used when such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.
“ABR Loans”: Loans to which the rate of interest applicable is based upon the Alternate Base Rate.
“Accelerated”: as defined in Subsection 9.1(e).
“Acceleration”: as defined in Subsection 9.1(e).
 
-1-

“Acceptable Discount”: as defined in Subsection 4.4(l)(iv)(2).
“Acceptable Prepayment Amount”: as defined in Subsection 4.4(l)(iv)(3).
“Acceptance and Prepayment Notice”: a written notice from the Borrower Representative setting forth the Acceptable Discount pursuant to Subsection 4.4(l)(iv)(2) substantially in the form of Exhibit N or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of Holdings.
“Acceptance Date”: as defined in Subsection 4.4(l)(iv)(2).
“Acquired Indebtedness”: Indebtedness of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from such Person, in each case other than Indebtedness Incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be Incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.
“Acquisition Indebtedness”: Indebtedness of (A) Holdings or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of any assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into Holdings or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into Holdings or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation).
“Additional Agent”: as defined in the Intercreditor Agreement.
“Additional Assets”: (i) any property or assets that replace the property or assets that are the subject of an Asset Disposition; (ii) any property or assets (other than Indebtedness and Capital Stock) used or to be used by Holdings or a Restricted Subsidiary or otherwise useful in a Related Business, and any capital expenditures in respect of any property or assets already so used; (iii) the Capital Stock of a Person that is engaged in a Related Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by Holdings or another Restricted Subsidiary; or (iv) Capital Stock of any Person that at such time is a Restricted Subsidiary acquired from a third party.
“Additional Incremental Lender”: as defined in Subsection 2.8(b).
“Additional Indebtedness”: as defined in the Intercreditor Agreement or any Other Intercreditor Agreement, as applicable.
“Additional Obligations”: senior or subordinated Indebtedness (which Indebtedness may be (x) secured by a Lien ranking pari passu to the Lien securing the Term Loan Facilities Obligations, (y) secured by a Lien ranking junior to the Lien securing the Term Loan Facilities Obligations or (z) unsecured), including customary bridge financings, in each case issued or incurred by a Loan Party, the terms of which Indebtedness (i) do not provide for a maturity date or weighted average life to maturity earlier than the Term BB-5 Loan Maturity Date or shorter than the remaining weighted average life to maturity of the Term BB-5 Loans, as the case may be (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Term BB-5 Loan Maturity Date or the remaining weighted average life to maturity of the Term BB-5 Loans, as applicable), (ii) to the extent such Indebtedness is subordinated, provide for customary payment subordination to the Term Loan Facilities Obligations under the Loan Documents as reasonably determined by Holdings in good faith and (iii) do not provide for any mandatory repayment or redemption from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with such Additional Obligations and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Events or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Term B Loans
 
-2-

hereunder pursuant to Subsection 4.4(e), on more than a ratable basis with the Term B Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); provided that (a) such Indebtedness shall not be secured by any Lien on any asset of any Loan Party that does not also secure the Term Loan Facilities Obligations, or be guaranteed by any Person other than the Loan Parties, and (b) if secured by Collateral, such Indebtedness (and all related Obligations) shall be subject to the terms of the Intercreditor Agreement or an Other Intercreditor Agreement.
“Additional Obligations Documents”: any document or instrument (including any guarantee, security agreement or mortgage) issued or executed and delivered with respect to any Additional Obligations or Rollover Indebtedness by any Loan Party.
“Additional Specified Refinancing Lender”: as defined in Subsection 2.11(b).
“Adjustment Date”: each date on or after the last day of Holdings’ first full fiscal quarter ended at least three months after the Amendment No. 2 Effective Date that is the second Business Day following receipt by the Lenders of both (a) the financial statements required to be delivered pursuant to Subsection 7.1(a) or Subsection 7.1(b), as applicable, for the most recently completed fiscal period and (b) the related Compliance Certificate required to be delivered pursuant to Subsection 7.2(a) with respect to such fiscal period.
“Administrative Agent”: as defined in the Preamble hereto and shall include any successor to the Administrative Agent appointed pursuant to Subsection 10.9.
“Administrative Agent’s Office”: the Administrative Agent’s address and, as appropriate, account as set forth in Subsection 11.2(a), or such other address or account as the Administrative Agent may from time to time notify to the Borrower Representative and the Lenders.
“Affected Eurodollar Rate”: as defined in Subsection 4.7.
“Affected Loans”: as defined in Subsection 4.9.
“Affiliate”: as to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Affiliate Transaction”: as defined in Subsection 8.5(a).
“Affiliated Debt Fund”: any Affiliated Lender that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, notes, bonds and similar extensions of credit or securities in the ordinary course, so long as (i) any such Affiliated Lender is managed as to day-to-day matters (but excluding, for the avoidance of doubt, as to strategic direction and similar matters) independently from Sponsor and any Affiliate of Sponsor that is not primarily engaged in the investing activities described above, (ii) any such Affiliated Lender has in place customary information screens between it and Sponsor and any Affiliate of Sponsor that is not primarily engaged in the investing activities described above, and (iii) neither Holdings nor any of its Subsidiaries directs or causes the direction of the investment policies of such entity.
“Affiliated Lender”: any Lender that is (i) a Permitted Affiliated Assignee or (ii) to the extent such Lender is the “beneficial owner” of at least 10.0% of the total voting power of the Voting Stock of Holdings, any other Permitted Holder.
“Affiliated Lender Assignment and Assumption”: as defined in Subsection 11.6(h)(i)(1).
“Agents”: the collective reference to the Administrative Agent and the Collateral Agent and “Agent” shall mean any of them.
 
-3-

“Agreement”: this Credit Agreement, as amended, supplemented, waived or otherwise modified from time to time.
“Alternate Base Rate”: for any day, a fluctuating rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1.00%) equal to the greatest of (a) the Base Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 0.50%, (c) the LIBOR Rate plus 1.00% and (d) 1.00% per annum. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate or the LIBOR Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) or (c) above, as the case may be, of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate, the Federal Funds Rate or the LIBOR Rate shall be effective on the effective date of such change in the Base Rate, the Federal Funds Rate or the LIBOR Rate, respectively.
“Amendment”: as defined in Subsection 8.3(c).
“Amendment No. 1”: Amendment No. 1 to this Agreement, dated as of January 19, 2017, by and among the Loan Parties, the Administrative Agent and the Amendment No. 1 Consenting Lenders.
“Amendment No. 1 Consenting Lender”: each Lender that provided the Administrative Agent with a counterpart to Amendment No. 1 executed by such Lender prior to the Amendment No. 1 Effective Date.
“Amendment No. 1 Effective Date”: has the meaning specified in Amendment No. 1.
“Amendment No. 2”: Amendment No. 2 to this Agreement, dated as of November 28, 2017, by and among the Loan Parties, the Administrative Agent, Bank of America, N.A. and the Amendment No. 2 Consenting Lenders.
“Amendment No. 2 Consenting Lender”: each Lender that provided the Administrative Agent with a counterpart to Amendment No. 2 executed by such Lender prior to the Amendment No. 2 Effective Date.
“Amendment No. 2 Effective Date”: has the meaning specified in Amendment No. 2.
“Amendment No. 2 Lead Arrangers”: Bank of America, N.A., Goldman Sachs Lending Partners LLC, Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., Wells Fargo Securities, LLC, HSBC Securities (USA) Inc., SunTrust Robinson Humphrey, Inc., Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Citigroup Global Markets Inc., BMO Capital Markets Corp., U.S. Bank National Association and Credit Suisse Securities (USA) LLC, as Joint Lead Arrangers.
“Amendment No. 3”: Amendment No. 3 to this Agreement, dated as of February 23, 2019, by and between the U.S. Borrower and the Administrative Agent.
“Amendment No. 4”: Amendment No. 4 to this Agreement, dated as of February 28, 2019, by and among the Loan Parties, the Administrative Agent and the Lenders party thereto.
“Amendment No. 4 Acquisition”: the acquisition contemplated by that certain Agreement and Plan of Merger, dated as of September 17, 2018, by and among Nexeo Solutions, Inc., a Delaware corporation, the U.S. Borrower, Pilates Merger Sub I Corp, a Delaware corporation, and Pilates Merger Sub II LLC, a Delaware limited liability company.
“Amendment No. 4 Transactions”: the entry into Amendment No. 4 on the Amendment No. 4 Effective Date, the borrowing of the Euro Term B-2 Loans and the Term B-4 Loans, the consummation of the Amendment No. 4 Acquisition, the payment of fees and expenses in connection with each of the foregoing and the related transactions in connection therewith.
 
-4-

“Amendment No. 4 Effective Date”: has the meaning specified in Amendment No. 4.
“Amendment No. 4 Lead Arrangers”: Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A. and Wells Fargo Securities, LLC, as Joint Lead Arrangers.
“Amendment No. 5”: Amendment No. 5 to this Agreement, dated as of November 22, 2019, by and among the Loan Parties, the Administrative Agent and the Lenders party thereto.
“Amendment No. 5 Effective Date”: has the meaning specified in Amendment No. 5.
“Amendment No. 5 Lead Arrangers”: Goldman Sachs Bank USA, BofA Securities, Inc., BMO Capital Markets Corp. Citigroup Global Markets Inc., Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., U.S. Bank National Association and Wells Fargo Securities, LLC, as Joint Lead Arrangers.
“Amendment No. 5 Transactions”: the entry into Amendment No. 5 on the Amendment No. 5 Effective Date, the borrowing of the Term B-5 Loans, the repayment of the Euro Term B-2 Loans, the payment of fees and expenses in connection with each of the foregoing and the related transactions in connection therewith.
“Amendment Transactions”: the entry into Amendment No. 2 on the Amendment No. 2 Effective Date, the borrowings and/or conversions of the Term B-3 Loans and the prepayment of the Non-Converted Term B-2 Loans and the Euro Term B-1 Loans and the payment of fees and expenses in connection with each of the foregoing and the related transactions in connection therewith.
“Applicable Discount”: as defined in Subsection 4.4(l)(iii)(2).
“Applicable Margin”: in respect of (a) Term B-3 Loans during the period from the Amendment No. 2 Effective Date until the first Adjustment Date thereafter, (i) with respect to ABR Loans, 1.50% per annum, and (ii) with respect to Eurodollar Loans, 2.50% per annum, (b) Term B-4 Loans during the period from the Amendment No. 4 Effective Date until the first Adjustment Date thereafter, (i) with respect to ABR Loans, 1.50% per annum, and (ii) with respect to Eurodollar Loans, 2.50% per annum and (c) Euro Term B-25 Loans, 2.75(i) with respect to ABR Loans, 1.00% per annum, and (ii) with respect to Eurodollar Loans, 2.00% per annum. The Applicable Margins with respect to Term B-3 Loans and Term B-4 Loans will be adjusted on each Adjustment Date to the applicable rate per annum set forth under the heading “Applicable Margin for Term B-3 Loans” or “Applicable Margin for Term B-4 Loans”, as applicable, on the Pricing Grid which corresponds to the Consolidated Total Leverage Ratio determined from the financial statements and Compliance Certificate relating to the end of the fiscal quarter immediately preceding such Adjustment Date; provided that in the event that the financial statements required to be delivered pursuant to Subsection 7.1(a) or 7.1(b), as applicable, and the related Compliance Certificate required to be delivered pursuant to Subsection 7.2(a), are not delivered when due, then:
(1) if such financial statements and Compliance Certificate are delivered after the date such financial statements and Compliance Certificate were required to be delivered (without giving effect to any applicable cure period) and the Applicable Margin increases from that previously in effect as a result of the delivery of such financial statements, then the Applicable Margin in respect of Term B-3 Loans and, Term B-4 Loans and Term B-5 Loans during the period from the date upon which such financial statements were required to be delivered (without giving effect to any applicable cure period) until the date upon which they actually are delivered shall, except as otherwise provided in clause (3) below, be the Applicable Margin as so increased;
 
-5-

(2) if such financial statements and Compliance Certificate are delivered after the date such financial statements and Compliance Certificate were required to be delivered and the Applicable Margin decreases from that previously in effect as a result of the delivery of such financial statements, then such decrease in the Applicable Margin shall not become applicable until the date upon which the financial statements and Compliance Certificate actually are delivered, and
(3) if such financial statements and Compliance Certificate are not delivered prior to the expiration of the applicable cure period, then, effective upon such expiration, for the period from the date upon which such financial statements and Compliance Certificate were required to be delivered (after the expiration of the applicable cure period) until two Business Days following the date upon which they actually are delivered, the Applicable Margin with respect to the Term B-3 Loans and, Term B-4 Loans and Term B-5 Loans shall be those applicable prior to the first Adjustment Date (it being understood that the foregoing shall not limit the rights of the Administrative Agent and the Lenders set forth in Subsection 9).
“Apollo”: Apollo Investment Corporation, Apollo Global Management, LLC, AIE Eurolux S.àr.l. and any of their respective Affiliates.
“Approved Fund”: as defined in Subsection 11.6(b).
“Asset Disposition”: any sale, lease, transfer or other disposition of shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying shares, or (in the case of a Foreign Subsidiary) to the extent required by applicable law), property or other assets (each referred to for the purposes of this definition as a “disposition”) by Holdings or any of its Restricted Subsidiaries (including any disposition by means of a merger, consolidation or similar transaction) other than (i) a disposition to Holdings or a Restricted Subsidiary, (ii) a disposition in the ordinary course of business, (iii) a disposition of Cash Equivalents, Investment Grade Securities or Temporary Cash Investments, (iv) the sale or discount (with or without recourse, and on customary or commercially reasonable terms) of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable, (v) any Restricted Payment Transaction, (vi) a disposition that is governed by Subsection 8.7, (vii) any Financing Disposition, (viii) any “fee in lieu” or other disposition of assets to any Governmental Authority that continue in use by Holdings or any Restricted Subsidiary, so long as Holdings or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee, (ix) any exchange of property pursuant to or intended to qualify under Section 1031 (or any successor section) of the Code, or any exchange of equipment to be leased, rented or otherwise used in a Related Business, (x) any financing transaction with respect to property built or acquired by Holdings or any Restricted Subsidiary after the Closing Date, including any sale/leaseback transaction or asset securitization, (xi) any disposition arising from foreclosure, condemnation, eminent domain, or similar action with respect to any property or other assets, or exercise of termination rights under any lease, license, concession or other agreement, or necessary or advisable (as determined by Holdings in good faith) in order to consummate any acquisition of any Person, business or assets, or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement, (xii) any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary, (xiii) a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than Holdings or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition, (xiv) a disposition of not more than 5.0% of the outstanding Capital Stock of a Foreign Subsidiary that has been approved by the Board of Directors, (xv) any disposition or series of related dispositions for aggregate consideration not to exceed $50.0 million, (xvi) the abandonment or other disposition of patents, trademarks or other intellectual property that are, in the reasonable judgment of Holdings, no longer economically practicable to maintain or useful in the conduct of the business of Holdings and its Subsidiaries taken as a whole, (xvii) any license, sublicense or other grant of rights in or to any trademark, copyright, patent or other intellectual property or (xviii) any Exempt Sale and Leaseback Transaction.
“Assignee”: as defined in Subsection 11.6(b)(i).
“Assignment and Acceptance”: an Assignment and Acceptance, substantially in the form of Exhibit E hereto or any other form (including documentation generated by use of an electronic platform) approved by the Administrative Agent.
 
-6-

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank of America” means Bank of America, N.A. and its successors.
“Bank Products Agreement”: any agreement pursuant to which a bank or other financial institution agrees to provide (a) treasury services, (b) credit card, merchant card, purchasing card or stored value card services (including the processing of payments and other administrative services with respect thereto), (c) cash management services (including controlled disbursements, automated clearinghouse transactions, return items, netting, overdrafts, depository, lockbox, stop payment, electronic funds transfer, information reporting, wire transfer and interstate depository network services) and (d) other banking products or services as may be requested by Holdings or any Restricted Subsidiary (other than letters of credit and other than loans and advances. except indebtedness arising from services described in clauses (a) through (c) of this definition).
“Bank Products Obligations”: of any Person means the obligations of such Person pursuant to any Bank Products Agreement.
“Bankruptcy Proceeding”: as defined in Subsection 11.6(h)(iv).
“Base Rate”: means for any day a fluctuating rate per annum equal to the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“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”.
“Benefited Lender”: as defined in Subsection 11.7(a).
“Board”: the Board of Governors of the Federal Reserve System.
“Board of Directors”: for any Person, the board of directors or other governing body of such Person or, if such Person does not have such a board of directors or other governing body and is owned or managed by a single entity, the board of directors or other governing body of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such board of directors or other governing body. Unless otherwise provided, “Board of Directors” means the Board of Directors of Holdings.
“Borrower ”: as defined in the Preamble hereto. and “Borrowers”: the U.S. Borrower, the Netherlands Borrower and each Subsidiary Borrower from time to time party hereto; provided, that, as of the Amendment No. 5 Effective Date, the “Borrowers” with respect to the Term B-3 Loans, Term B-4 Loans and Term B-5 Loans are the U.S. Borrower and the Netherlands Borrower.
“Borrower Materials”: as defined in Subsection 11.2(e).
“Borrower Offer of Specified Discount Prepayment”: the offer by the Borrower Representative to make a voluntary prepayment of Term Loans at a specified discount to par pursuant to Subsection 4.4(l)(ii).
 
-7-

“Borrower Representative”: the U.S. Borrower or such other Borrower as may be designated as the “Borrower Representative” by the Borrowers from time to time, in each case in its capacity as Borrower Representative pursuant to the provisions of Subsection 1.3.
“Borrower Solicitation of Discount Range Prepayment Offers”: the solicitation by the Borrower Representative of offers for, and the corresponding acceptance, if any, by a Lender of, a voluntary prepayment of Term Loans at a specified range at a discount to par pursuant to Subsection 4.4(l)(iii).
“Borrower Solicitation of Discounted Prepayment Offers”: the solicitation by the Borrower Representative of offers for, and the subsequent acceptance, if any, by a Lender of a voluntary prepayment of Term Loans at a discount to par pursuant to Subsection 4.4(l)(iv).
“Borrowing”: the borrowing of one Type of Loan of a single Tranche from all the Lenders having Commitments or other commitments of the respective Tranche on a given date (or resulting from a conversion or conversions on such date) having, in the case of Eurodollar Loans or EURIBOR Loans, the same Interest Period.
“Borrowing Date”: any Business Day specified in a notice delivered pursuant to Subsection 2.3 as a date on which the Borrower Representative requests the Lenders to make Loans hereunder.
“Broad Street”: Broad Street Principal Investments, L.L.C. and any of its Affiliates.
“Business Day”: means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a Eurodollar Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurodollar Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurodollar Loan, means any such day that is also a London Banking Day; and
(b) if such day relates to any interest rate settings as to a EURIBOR Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such EURIBOR Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such EURIBOR Loan, means a TARGET Day.
“Canadian Subsidiary”: any Restricted Subsidiary of Holdings which is incorporated or otherwise organized under the laws of Canada or any province or territory thereof.
“Capital Expenditures”: for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under leases evidencing Capitalized Lease Obligations) by Holdings and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on a consolidated statement of cash flows of Holdings.
“Capital Stock”: as to any Person, any and all shares or units of, rights to purchase, warrants or options for, or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.
“Capitalized Lease Obligation”: an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP. The Stated Maturity of any Capitalized Lease Obligation shall be the date of the last payment of rent or any other amount due under the related lease.
“Captive Insurance Subsidiary”: any Subsidiary of Holdings that is subject to regulation as an insurance company (or any Subsidiary thereof).
 
-8-

“Cash Equivalents”: any of the following: (a) money, (b) securities issued or fully guaranteed or insured by the United States of America, Canada, the United Kingdom, Switzerland or a member state of the European Union or any agency or instrumentality of any thereof, (c) time deposits, certificates of deposit or bankers’ acceptances of (i) any bank or other institutional lender under this Agreement or any affiliate thereof or (ii) any commercial bank having capital and surplus in excess of $500,000,000 (or the foreign currency equivalent thereof as of the date of such investment) and the commercial paper of the holding company of which is rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c)(i) or (c)(ii) above, (e) money market instruments, commercial paper or other short-term obligations rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (f) investments in money market funds subject to the risk limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940, as amended, (g) investments similar to any of the foregoing denominated in foreign currencies approved by the Board of Directors, and (h) solely with respect to any Captive Insurance Subsidiary, any investment that person is permitted to make in accordance with applicable law.
“CD&R”: Clayton, Dubilier & Rice, LLC and any successor in interest thereto, and any successor to its investment management business.
“CD&R Fund VIII”: Clayton, Dubilier & Rice Fund VIII, L.P., a Cayman Islands exempted limited partnership, and any successor in interest thereto.
“CD&R Investors”: collectively, (i) CD&R Fund VIII, (ii) CD&R Friends & Family Fund VIII, L.P., a Cayman Islands exempted limited partnership, and any successor in interest thereto, and (iii) any Affiliate of any CD&R Investor identified in clauses (i) and (ii) of this definition.
“Change in Law”: as defined in Subsection 4.11(a).
“Change of Control”: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders or a Parent Entity, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50.0% of the total voting power of the Voting Stock of Holdings; provided that (x) so long as Holdings is a Subsidiary of any Parent Entity, no “person” shall be deemed to be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of Holdings unless such “person” shall be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such Parent Entity and (y) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the “beneficial owner”; (ii) Holdings sells or transfers, in one or a series of related transactions, all or substantially all of the assets of Holdings and its Restricted Subsidiaries to, another Person (other than one or more Permitted Holders) and any “person” (as defined in clause (i) above), other than one or more Permitted Holders or any Parent Entity, is or becomes the “beneficial owner” (as so defined), directly or indirectly, of more than 50.0% of the total voting power of the Voting Stock of the transferee Person in such sale or transfer of assets, as the case may be; provided that (x) so long as such transferee Person is a Subsidiary of a parent Person, no “person” shall be deemed to be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such transferee Person unless such “person” shall be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such parent Person and (y) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the beneficial owner; or (iii) Holdings shall cease to own, directly or indirectly, 100.0% of the Capital Stock of theany Borrower (or any Successor Borrower); or (iv) a “Change of Control” as defined in the Senior Notes Indenture (or any indenture or other agreement governing Refinancing Indebtedness in respect of the Senior Notes, and in each case in an aggregate principal amount equal to or greater than $150.0 million).
“Change of Control Offer”: as defined in Subsection 8.8(a).
“Claim”: as defined in Subsection 11.6(h)(iv).
 
-9-

“Closing Date”: the date on which all the conditions precedent set forth in Subsection 6.1 shall be satisfied or waivedJuly 1, 2015. 
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”: (i) with respect to Holdings, the U.S. Borrower and the other Loan Parties that are Domestic Subsidiaries (including any Subsidiary Borrower that is a Domestic Subsidiary), all assets of thesuch Loan Parties, now owned or hereafter acquired or in which such Loan Party has right, title or interest, upon which a Lien is purported to be created by any Security Document. and (ii) with respect to the Netherlands Borrower, any Subsidiary Borrower that is a Foreign Subsidiary and any other Foreign Subsidiaries that become Subsidiary Guarantors pursuant to the last sentence of Subsection 7.9(b), all assets of such Loan Parties, now owned or hereafter acquired or in which such Loan Party has right, title or interest, upon which a Lien is purported to be created by any Security Document, in the case of this clause (ii), limited by and subject in all respects to the Foreign Subsidiary Documentation Principles.
“Collateral Agent”: as defined in the Preamble hereto and shall include any successor to the Collateral Agent appointed pursuant to Subsection 10.9.
“Collateral Representative”: (i) if the Intercreditor Agreement is then in effect, the Senior Priority Representative (as defined therein), (ii) the ABL Collateral Representative or Term Loan Collateral Representative with respect to the ABL Intercreditor (each as defined therein), as applicable and (iii) if any Other Intercreditor Agreement is then in effect, the Person acting as representative for the Collateral Agent and the Secured Parties thereunder for the applicable purpose contemplated by this Agreement and the Guarantee and Collateral Agreement.
“Commitment”: as to any Lender, such Lender’s Term Loan Commitments or Incremental Commitments, as the context requires.
“Commodities Agreement”: in respect of a Person, any commodity futures contract, forward contract, option or similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or beneficiary.
“Commonly Controlled Entity”: an entity, whether or not incorporated, which is under common control with Holdings within the meaning of Section 4001 of ERISA or is part of a group which includes Holdings and which 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 Sections 414(m) and (o) of the Code.
“Compliance Certificate”: as defined in Subsection 7.2(a).
“Conduit Lender”: any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument delivered to the Administrative Agent (a copy of which shall be provided by the Administrative Agent to Holdings on request); provided that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations under this Agreement, including its obligation to fund a Loan if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to any provision of this Agreement, including Subsection 4.10, 4.11, 4.12 or 11.5, than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender if such designating Lender had not designated such Conduit Lender hereunder, (b) be deemed to have any Commitment or (c) be designated if such designation would otherwise increase the costs of any Facility to Holdings.
“Confidential Information Memorandum”: that certain Confidential Information Memorandum furnished to the Lenders on or about June 2015.
 
-10-

“Consolidated Coverage Ratio”: as of any date of determination, the ratio of (i) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available to (ii) Consolidated Interest Expense for such four fiscal quarters; provided that
(1) if, since the beginning of such period, Holdings or any Restricted Subsidiary has Incurred any Indebtedness or Holdings has issued any Designated Preferred Stock that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness or an issuance of Designated Preferred Stock of Holdings, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness or Designated Preferred Stock as if such Indebtedness or Designated Preferred Stock had been Incurred or issued, as applicable, on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B) if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation),
(2) if, since the beginning of such period, Holdings or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness, or any Designated Preferred Stock of Holdings, that is no longer outstanding on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been repaid with an equivalent permanent reduction in commitments thereunder) or a Discharge of Designated Preferred Stock of Holdings, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness or Designated Preferred Stock, including with the proceeds of such new Indebtedness or such new Designated Preferred Stock of Holdings, as if such Discharge had occurred on the first day of such period,
(3) if, since the beginning of such period, Holdings or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business or designated any Restricted Subsidiary as an Unrestricted Subsidiary (any such disposition or designation, a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to any Indebtedness of Holdings or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to Holdings and its continuing Restricted Subsidiaries in connection with such Sale for such period (including, but not limited to, through the assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is sold or any Restricted Subsidiary is designated as an Unrestricted Subsidiary, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent Holdings and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale,
(4) if, since the beginning of such period, Holdings or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder, or designated any Unrestricted Subsidiary as a Restricted Subsidiary (any such Investment, acquisition or designation, a “Purchase”), Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period, and
 
-11-

(5) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into Holdings or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (2), (3) or (4) above if made by Holdings or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period;
provided that (in the event that Holdings shall classify Indebtedness Incurred on the date of determination as Incurred in part under Subsection 8.1(a) and in part under Subsection 8.1(b), as provided in Subsection 8.1(c)(iii)) any such pro forma calculation of Consolidated Interest Expense shall not give effect to any such Incurrence of Indebtedness on the date of determination pursuant to Subsection 8.1(b) (other than, if Holdings at its option has elected to disregard Indebtedness being Incurred on the date of determination in part under Subsection 8.1(a) for purposes of calculating the Consolidated Total Leverage Ratio for Incurring Indebtedness on the date of determination in part under Subsection 8.1(b)(x), Subsection 8.1(b)(x)) or to any Discharge of Indebtedness from the proceeds of any such Incurrence pursuant to such Subsection 8.1(b) (other than Subsection 8.1(b)(x), if the Incurrence of Indebtedness under Subsection 8.1(b)(x) is being given effect to in the calculation of the Consolidated Coverage Ratio).
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or a Responsible Officer of Holdings; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by Holdings to be taken no later than 18 months after the date of determination. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness). If any Indebtedness bears, at the option of Holdings or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as Holdings or such Restricted Subsidiary may designate. If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or accounting officer of Holdings to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
“Consolidated EBITDA”: for any period, the Consolidated Net Income for such period, plus (x) the following to the extent deducted in calculating such Consolidated Net Income, without duplication: (i) provision for all taxes (whether or not paid, estimated or accrued) based on income, profits or capital (including penalties and interest, if any), (ii) Consolidated Interest Expense, all items excluded from the definition of Consolidated Interest Expense pursuant to clause (iii) thereof (other than Special Purpose Financing Expense), any Special Purpose Financing Fees, and to the extent not reflected in Consolidated Interest Expense, costs of surety bonds in connection with financing activities, (iii) depreciation, (iv) amortization (including but not limited to amortization of goodwill and intangibles and amortization and write-off of financing costs), (v) any non-cash charges or non-cash losses, (vi) any expenses or charges related to any equity offering, Investment or Indebtedness permitted by this Agreement (whether or not consummated or incurred, and including any offering or sale of Capital Stock to the extent the proceeds thereof were intended to be contributed to the equity capital of Holdings or its Restricted Subsidiaries), (vii) the amount of any loss attributable to non-controlling interests, (viii) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Hedging Obligations or other derivative instruments, (ix) any management, monitoring, consulting and advisory fees and related expenses paid to any of the Sponsors or any of their respective Affiliates, (x) interest and investment income, (xi) the amount of loss on any Financing Disposition, and (xii) any costs or expenses pursuant to any management or employee stock option or other equity-related plan, program or arrangement, or other benefit plan, program or arrangement, or any equity subscription or equityholder agreement, to the extent funded with cash proceeds contributed to the capital of Holdings or an issuance of Capital
 
-12-

Stock of Holdings (other than Disqualified Stock) and excluded from the calculation set forth in Subsection 8.2(a)(3)(B), plus (y) the amount of net cost savings projected by Holdings in good faith to be realized as the result of actions taken or to be taken on or prior to the date that is 18 months after the Closing Date, or 18 months after the consummation of any operational change, respectively (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions (which adjustments may be incremental to pro forma adjustments made pursuant to the proviso to the definition of “Consolidated Coverage Ratio,” “Consolidated Secured Leverage Ratio” or “Consolidated Total Leverage Ratio”).
“Consolidated Interest Expense”: for any period, (i) the total interest expense of Holdings and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of Holdings and its Restricted Subsidiaries, including any such interest expense consisting of (A) interest expense attributable to Capitalized Lease Obligations, (B) amortization of debt discount, (C) interest in respect of Indebtedness of any other Person that has been Guaranteed by Holdings or any Restricted Subsidiary, but only to the extent that such interest is actually paid by Holdings or any Restricted Subsidiary, (D) non-cash interest expense, (E) the interest portion of any deferred payment obligation, and (F) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, plus (ii) Preferred Stock dividends paid in cash in respect of Disqualified Stock of Holdings held by Persons other than Holdings or a Restricted Subsidiary or in respect of Designated Preferred Stock of Holdings pursuant to Subsections 8.2(b)(xi)(A), minus (iii) to the extent otherwise included in such interest expense referred to in clause (i) above, Special Purpose Financing Expense, accretion or accrual of discounted liabilities not constituting Indebtedness, expense resulting from discounting of Indebtedness in conjunction with recapitalization or purchase accounting, and any “additional interest” in respect of registration rights arrangements for any securities, amortization or write-off of financing costs, in each case under clauses (i) through (iii) above as determined on a Consolidated basis in accordance with GAAP; provided that gross interest expense shall be determined after giving effect to any net payments made or received by Holdings and its Restricted Subsidiaries with respect to Interest Rate Agreements.
“Consolidated Net Income”: for any period, the net income (loss) of Holdings and its Restricted Subsidiaries, determined on a Consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided that, without duplication, there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Unrestricted Subsidiary and (solely for purposes of determining the amount available for Restricted Payments under Section 8.2(a)(3)(A) and Excess Cash Flow), any net income (loss) of any Person if such Person is not Holdings or a Restricted Subsidiary, except that (A) Holdings’ or any Restricted Subsidiary’s net income of any such Person for such period shall be increased by the aggregate amount actually distributed by such Person during such period to Holdings or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (ii) below), to the extent not already included therein, and (B) Holdings’ or any Restricted Subsidiary’s equity in the net loss of such Person shall be included to the extent of the aggregate Investment of Holdings or any of its Restricted Subsidiaries in such Person,
(ii) solely for purposes of determining the amount available for Restricted Payments under Subsection 8.2(a)(3)(A) and Excess Cash Flow, any net income (loss) of any Restricted Subsidiary that is not a Subsidiary GuarantorLoan Party if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or indirectly, to Holdings by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than (x) restrictions that have been waived or otherwise released, (y) restrictions pursuant to this Agreement or the other Loan Documents, and (z) restrictions in effect on the Closing Date with respect to a Restricted Subsidiary and other restrictions with respect to such Restricted Subsidiary that taken as a whole are not materially less favorable to the Lenders than such restrictions in effect on the Closing Date as determined by Holdings in good faith), except that (A) Holdings’ equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that
 
-13-

could have been made by such Restricted Subsidiary during such period to Holdings or another Restricted Subsidiary (subject, in the case of a dividend that could have been made to another Restricted Subsidiary, to the limitation contained in this clause (ii)) and (B) the net loss of such Restricted Subsidiary shall be included to the extent of the aggregate Investment of Holdings or any of its other Restricted Subsidiaries in such Restricted Subsidiary,
(iii) (x) any gain or loss realized upon the sale, abandonment or other disposition of any asset of Holdings or any Restricted Subsidiary (including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise disposed of in the ordinary course of business (as determined in good faith by the Board of Directors) and (y) any gain or loss realized upon the disposal, abandonment or discontinuation of operations of Holdings or any Restricted Subsidiary,
(iv) any extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges (or any amortization thereof) associated with the Transactions, the Amendment Transactions or any acquisition, merger or consolidation, whether or not completed, after the date hereof or any accounting change), any severance, relocation, consolidation, closing, integration, facilities opening, business optimization, transition or restructuring costs, charges or expenses, any signing, retention or completion bonuses, and any costs associated with curtailments or modifications to pension and post-retirement employee benefit plans,
(v) the cumulative effect of a change in accounting principles,
(vi) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments,
(vii) any unrealized gains or losses in respect of Hedge Agreements,
(viii) any unrealized foreign currency translation gains or losses, including in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person,
(ix) any non-cash compensation charge arising from any grant of limited liability company interests, stock, stock options or other equity based awards,
(x) to the extent otherwise included in Consolidated Net Income, any unrealized foreign currency translation gains or losses, including in respect of Indebtedness or other obligations of Holdings or any Restricted Subsidiary owing to Holdings or any Restricted Subsidiary,
(xi) any non-cash charge, expense or other impact attributable to application of the purchase or recapitalization method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-up of assets to the extent resulting from such purchase or recapitalization accounting adjustments), non-cash charges for deferred tax valuation allowances and non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP,
(xii) expenses related to the conversion of various employee benefit programs in connection with the IPO and non-cash compensation related expenses, and
(xiii) to the extent covered by insurance and actually reimbursed (or Holdings has determined that there exists reasonable evidence that such amount will be reimbursed by the insurer and such amount is not denied by the applicable insurer in writing within 180 days and is reimbursed within 365 days of the date of such evidence (with a deduction in any future calculation of Consolidated Net Income for any amount so added back to the extent not so reimbursed within such 365-day period)), any expenses with respect to liability or casualty events or business interruption,
 
-14-

provided, further, that the exclusion of any item pursuant to the foregoing clauses (i) through (xiii) shall also exclude the tax impact of any such item, if applicable.
In the case of any unusual or nonrecurring gain, loss or charge not included in Consolidated Net Income pursuant to clause (iv) above in any determination thereof, Holdings will deliver a certificate of a Responsible Officer to the Administrative Agent promptly after the date on which Consolidated Net Income is so determined, setting forth the nature and amount of such unusual or nonrecurring gain, loss or charge. Notwithstanding the foregoing, for the purpose of Subsection 8.2(a)(3)(A) only, there shall be excluded from Consolidated Net Income, without duplication, any income consisting of dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries to Holdings or a Restricted Subsidiary, and any income consisting of return of capital, repayment or other proceeds from dispositions or repayments of Investments consisting of Restricted Payments, in each case to the extent such income would be included in Consolidated Net Income and such related dividends, repayments, transfers, return of capital or other proceeds are applied by Holdings to increase the amount of Restricted Payments permitted under Subsection 8.2(a)(3)(C) or (D).
“Consolidated Secured Indebtedness”: as of any date of determination, (i) an amount equal to the Consolidated Total Indebtedness (without regard to clause (ii) of the definition thereof) as of such date that in each case is then secured by Liens on property or assets of Holdings and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby), minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Subsection 8.1(b)(ix) and (B) Unrestricted Cash of Holdings and its Restricted Subsidiaries.
“Consolidated Secured Leverage Ratio”: as of any date of determination, the ratio of (i) Consolidated Secured Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available, provided that:
(1) if, since the beginning of such period, Holdings or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, Holdings or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into Holdings or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by Holdings or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
provided that, in the event that Holdings shall classify Indebtedness Incurred on the date of determination as secured in part pursuant to clause (k)(1) of the “Permitted Liens” definition in respect of Indebtedness Incurred pursuant to Subsection 8.1(b)(i)(II) and clause (ii) of the definition of Maximum Incremental Facilities Amount and in part pursuant to one or more other clauses of the definition of Permitted Liens, as provided in clause (y) of the final paragraph of such definition, any calculation of the Consolidated Secured Leverage Ratio, including in the definition of “Maximum Incremental Facilities Amount,” shall not include any such Indebtedness (and shall not give effect to any Discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of such definition.
 
-15-

For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of Holdings; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by Holdings to be taken no later than 18 months after the date of determination.
“Consolidated Total Assets”: as of any date of determination, the total assets, in each case reflected on the consolidated balance sheet of Holdings as at the end of the most recently ended fiscal quarter of Holdings for which a balance sheet is available, determined on a Consolidated basis in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or Liens or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
“Consolidated Total Indebtedness”: as of any date of determination, an amount equal to (i) the aggregate principal amount of outstanding Indebtedness of Holdings and its Restricted Subsidiaries as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts in respect of funded letters of credit); Capitalized Lease Obligations; debt obligations evidenced by bonds, debentures, notes or similar instruments; Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a Subsidiary GuarantorLoan Party) Preferred Stock, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Hedging Obligations) minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Subsection 8.1(b)(ix) and (B) Unrestricted Cash of Holdings and its Restricted Subsidiaries.
“Consolidated Total Leverage Ratio”: as of any date of determination, the ratio of (i) Consolidated Total Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available, provided that:
(1) if, since the beginning of such period, Holdings or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, Holdings or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into Holdings or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by Holdings or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
provided that, for purposes of the foregoing calculation, in the event that Holdings shall classify Indebtedness Incurred on the date of determination as Incurred in part pursuant to Subsection 8.1(b)(x) (other than by reason of subclause (2) of the proviso to such clause (x)) and in part pursuant to one or more other clauses of Subsection 8.1(b) and/or (unless Holdings at its option has elected to disregard Indebtedness being Incurred on the date of determination in part pursuant to subclause (2) of the proviso to Subsection 8.1(b)(x) for purposes of calculating the Consolidated Coverage Ratio for Incurring Indebtedness on the date of determination in part under Subsection 8.1(a)) pursuant to Subsection 8.1(a) (as provided in Subsections 8.1(c)(ii) and (iii)), Consolidated Total Indebtedness shall
 
-16-

not include any such Indebtedness Incurred pursuant to one or more such other clauses of Subsection 8.1(b) and/or pursuant to Subsection 8.1(a), and shall not give effect to any Discharge of any Indebtedness from the proceeds of any such Indebtedness being disregarded for purposes of the calculation of the Consolidated Total Leverage Ratio that otherwise would be included in Consolidated Total Indebtedness.
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of Holdings; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by Holdings to be taken no later than 18 months after the date of determination.
“Consolidated Working Capital”: at any date, the excess of (a) the sum of all amounts (other than cash, Cash Equivalents and Temporary Cash Investments) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of Holdings at such date excluding the current portion of current and deferred income taxes over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of Holdings on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii)all Indebtedness consisting of Loans to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income taxes.
“Consolidation”: the consolidation of the accounts of each of the Restricted Subsidiaries with those of Holdings in accordance with GAAP; provided that “Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of Holdings or any Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an investment. The term “Consolidated” has a correlative meaning.
“Contract Consideration”: as defined in the definition of “Excess Cash Flow.”
“Contractual Obligation”: as to any Person, any provision of any material security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Contribution Amounts”: the aggregate amount of capital contributions applied by Holdings to permit the Incurrence of Contribution Indebtedness pursuant to Subsection 8.1(b)(xi).
“Contribution Indebtedness”: Indebtedness of Holdings or any Restricted Subsidiary in an aggregate principal amount not greater than twice the aggregate amount of cash contributions (other than Excluded Contributions, the proceeds from the issuance of Disqualified Stock or contributions by Holdings or any Restricted Subsidiary) made to the capital of Holdings or such Restricted Subsidiary after the Closing Date (whether through the issuance or sale of Capital Stock or otherwise); provided that such Contribution Indebtedness (a) is Incurred within 180 days after the receipt of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to a certificate of a Responsible Officer of Holdings on the date of Incurrence thereof.
“Converted Term B-2 Loans”: with respect to any Amendment No. 2 Consenting Lender that has indicated on its counterpart to Amendment No. 2 that it is requesting to have its Term B-2 Loans converted to Term B-3 Loans, the entire aggregate outstanding amount of the Term B-2 Loan held by such Amendment No. 2 Consenting Lender immediately prior to the Amendment No. 2 Effective Date (or such lesser amount as notified to such Amendment No. 2 Consenting Lender by the Administrative Agent prior to the Amendment No. 2 Effective Date).
“Corresponding Obligations” means all Secured Obligations as they may exist from time to time, other than the Parallel Debt.
“Currency Agreement”: in respect of a Person, any foreign exchange contract, currency swap agreement or other similar agreement or arrangements (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
 
-17-

“CVC”: CVC Capital Partners Limited.
“CVC Investors”: any funds or limited partnerships managed or advised by CVC Capital Partners Limited or any of its Affiliates or direct or indirect Subsidiaries or any investors in such funds or limited partnerships (but excluding, in each case, any portfolio companies in which such funds or limited partnerships hold an investment and excluding, in each case, any funds or entities managed or advised by CVC Credit Partners Holdings Limited or any of its direct or indirect Subsidiaries engaged in the same or a similar business to CVC Credit Partners Holdings Limited) who are investors in such funds or limited partnerships as at the Closing Date, investing directly or indirectly in the Company.
“Debt Financing”: the debt financing transactions contemplated under (a) the Loan Documents, (b) the Senior ABL Facility and (c) the Senior Notes Documents, in each case including any Interest Rate Agreements related thereto.
“Declined Excess Proceeds”: as defined in Subsection 8.4(b)(iii).
“Default”: any of the events specified in Subsection 9.1, whether or not any requirement for the giving of notice (other than, in the case of Subsection 9.1(e), a Default Notice), the lapse of time, or both, or any other condition specified in Subsection 9.1, has been satisfied.
“Default Notice”: as defined in Subsection 9.1(e).
“Defaulting Lender”: any Lender or Agent whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of Lender Default.
“Deposit Account”: any deposit account (as such term is defined in Article 9 of the UCC).
“Designated Noncash Consideration”: the Fair Market Value of noncash consideration received by Holdings or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to a certificate of a Responsible Officer of Holdings, setting forth the basis of such valuation.
“Designated Preferred Stock”: Preferred Stock of Holdings (other than Disqualified Stock) or any Parent Entity that is issued after the Closing Date for cash (other than to Holdings or a Restricted Subsidiary) and is so designated as Designated Preferred Stock, pursuant to a certificate of a Responsible Officer of Holdings; provided that the cash proceeds of such issuance shall be excluded from the calculation set forth in Subsection 8.2(a)(3)(B).
“Designation Date”: as defined in Subsection 2.10(f).
“Discharge”: as defined in clause (2) of the definition of “Consolidated Coverage Ratio.”
“Discount Prepayment Accepting Lender”: as defined in Subsection 4.4(l)(ii)(2).
“Discount Range”: as defined in Subsection 4.4(l)(iii)(1).
“Discount Range Prepayment Amount”: as defined in Subsection 4.4(l)(iii)(1).
“Discount Range Prepayment Notice”: a written notice of Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Subsection 4.4(l) substantially in the form of Exhibit O.
“Discount Range Prepayment Offer”: the irrevocable written offer by a Lender, substantially in the form of Exhibit P, submitted in response to an invitation to submit offers following the Administrative Agent’s receipt of a Discount Range Prepayment Notice.
“Discount Range Prepayment Response Date”: as defined in Subsection 4.4(l)(iii)(1).
 
-18-

“Discount Range Proration”: as defined in Subsection 4.4(l)(iii)(3).
“Discounted Prepayment Determination Date”: as defined in Subsection 4.4(l)(iv)(3).
“Discounted Prepayment Effective Date”: in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers, or otherwise five Business Days following the receipt by each relevant Lender of notice from the Administrative Agent in accordance with Subsection 4.4(l)(ii), Subsection 4.4(l)(iii) or Subsection 4.4(l)(iv), as applicable unless a shorter period is agreed to between Holdings and the Administrative Agent.
“Discounted Term Loan Prepayment”: as defined in Subsection 4.4(l)(i).
“Disinterested Directors”: with respect to any Affiliate Transaction, one or more members of the Board of Directors of Holdings, or one or more members of the Board of Directors of a Parent Entity, having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of any such Board of Directors shall not be deemed to have such a financial interest by reason of such member’s holding Capital Stock of Holdings or any Parent Entity or any options, warrants or other rights in respect of such Capital Stock.
“Disposition”: as defined in the definition of the term “Asset Disposition” in this Subsection 1.1.
“Disqualified Lender”: (i) any competitor of Holdings and its Restricted Subsidiaries that is in the same or a similar line of business as Holdings and its Restricted Subsidiaries or any affiliate of such competitor and (ii) any Persons designated in writing by Holdings or the Sponsors to the Administrative Agent prior to the Closing Date.
“Disqualified Stock”: with respect to any Person, any Capital Stock (other than Management Stock) that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control” or an Asset Disposition or other disposition) (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control” or an Asset Disposition or other disposition), in whole or in part, in each case on or prior to the Term BB-5 Loan Maturity Date; provided that Capital Stock issued to any employee benefit plan, or by any such plan to any employees of Holdings or any Subsidiary, shall not constitute Disqualified Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.
“Dollar Equivalent”: means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in Euro, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Euro.
“Dollars” and “$”: dollars in lawful currency of the United States of America.
“Domestic Subsidiary”: any Restricted Subsidiary of Holdings other than a Foreign Subsidiary.
“Dutch Loan Party”: any Loan Party incorporated in the Netherlands.
“Dutch Security Documents”: as defined in Amendment No. 5.
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;
 
-19-

“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF Payment Date”: as defined in Subsection 4.4(e)(iii).
“ECF Prepayment Amount”: as defined in Subsection 4.4(e)(iii).
“EMU Legislation”: the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Costs”: any and all costs or expenses (including attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, fines, penalties, damages, settlement payments, judgments and awards), of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way relating to, any actual or alleged violation of, noncompliance with or liability under any Environmental Laws. Environmental Costs include any and all of the foregoing, without regard to whether they arise out of or are related to any past, pending or threatened proceeding of any kind.
“Environmental Laws”: any and all U.S. or foreign, federal, state, provincial, territorial, local or municipal laws, rules, orders, enforceable guidelines and orders-in-council, regulations, statutes, ordinances, codes, decrees, and such requirements of any Governmental Authority properly promulgated and having the force and effect of law or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health (as it relates to exposure to Materials of Environmental Concern) or the environment, as have been, or now or at any relevant time hereafter are, in effect.
“Environmental Permits”: any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any Environmental Law.
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Reorganization”: with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 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.
“EURIBOR Loans”: Loans the rate of interest applicable to which is based upon the EURIBOR Rate.
“EURIBOR Rate”: means, with respect to any EURIBOR Loan for any Interest Period, a rate per annum equal to the Euro interbank offered rate as administered by the European Money Markets Institute (or such other commercially available source providing quotations of that rate as may be designated by the Administrative Agent from time to time, including any Person that takes over the administration of such rate) for a deposit in Euros (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period as displayed on the Bloomberg screen page that displays such rate or on the appropriate page of such other information service which publishes that rate from time to time in place of Bloomberg or, in the event such page or service ceases to be available, on the appropriate page of such other information service that publishes such rate as the Administrative Agent, after consultation with the Borrower Representative, shall from time to time reasonably select, at approximately 11:00 a.m., Brussels time, two Business Days prior to the commencement of such Interest Period; provided that, notwithstanding the foregoing, if the EURIBOR Rate, as determined as provided above, would otherwise be less than zero, the EURIBOR Rate shall be deemed to be zero for all purposes.
 
-20-

“Euro”: the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
“Euro Term B-1 Loan”: all “Euro Term B-1 Loans” (as defined in the Original Credit Agreement) outstanding under this Agreement immediately prior to the Amendment No. 2 Effective Date.
“Euro Term B-2 Lender”: means a Lender with a Euro Term B-2 Loan Commitment or an outstanding Euro Term B-2 Loan.
“Euro Term B-2 Loan”: as defined in Subsection 2.1(a).
“Euro Term B-2 Loan Commitment”: as to any Lender, its obligation to make”: all “Euro Term B-2 Loans to the Borrower pursuant to Subsection 2.1(a) in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on Schedule A hereto under the heading “Euro Term B-2 Loan Commitment”; collectively, as to all the Lenders with a Euro Term B-2 Loan Commitment, the “Euro Term B-2 Loan Commitments.” The original aggregate amount of the Euro Term B-2 Loan Commitments on” (as defined in the Credit Agreement as of the Amendment No. 4 Effective Date is €425,000,000) outstanding under this Agreement immediately prior to the Amendment No. 5 Effective Date.
“European ABL Agreement”: the European ABL Facility Agreement, dated as of March 24, 2014, among Univar B.V., the other Subsidiaries of Holdings from time to time party thereto, the U.S. Borrower, as guarantor, J.P. Morgan Europe Limited, as administrative agent and collateral agent, and certain other parties thereto from time to time; as such agreement may bewas amended and restated pursuant to that certain Deed of Amendment and Restatement, dated as of December 19, 2018, and as may be further amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced. restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original European ABL Agreement or other credit agreements or otherwise, except to the extent that such agreement, instrument or document expressly provides that it is not intended to be and is not a European ABL Agreement). Any reference to the European ABL Agreement hereunder shall be deemed a reference to each European ABL Agreement then in existence.
“European ABL Facility”: the collective reference to the European ABL Agreement, any Credit Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original European ABL Agreement or one or more other credit agreements, indentures (including the Indenture) or financing agreements or otherwise), except to the extent that such agreement, instrument or document expressly provides that it is not intended to be and is not a European ABL Facility. Without limiting the generality of the foregoing, the term “European ABL Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of Holdings as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Eurodollar Loans”: Loans the rate of interest applicable to which is based upon the LIBOR Rate.
“Event of Default”: any of the events specified in Subsection 9.1, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
“Excess Cash Flow”: for any period, an amount equal to the excess of:
(a) the sum, without duplication, of
 
-21-

(i) Consolidated Net Income for such period,
(ii) an amount equal to the amount of all non-cash charges to the extent deducted in calculating such Consolidated Net Income and cash receipts to the extent excluded in calculating such Consolidated Net Income (except to the extent such cash receipts are attributable to revenue or other items that would be included in calculating Consolidated Net Income for any prior period),
(iii) decreases in Consolidated Working Capital for such period (other than any such decreases arising (x) from any acquisition or disposition of (a) any business unit, division, line of business or Person or (b) any assets other than in the ordinary course of business (each, an “ECF Acquisition” or “ECF Disposition,” respectively) by Holdings and the Restricted Subsidiaries completed during such period, (y) from the application of purchase accounting or (z) as a result of the reclassification of any item from short-term to long-term or vice versa),
(iv) an amount equal to the aggregate net non-cash loss on Asset Dispositions (or any Disposition specifically excluded from the definition of the term “Asset Disposition”) by Holdings and the Restricted Subsidiaries during such period (other than in the ordinary course of business) to the extent deducted in calculating such Consolidated Net Income,
(v) cash receipts in respect of Hedge Agreements during such period to the extent not otherwise included in calculating such Consolidated Net Income, and
(vi) any extraordinary, unusual or nonrecurring cash gain,
over
(b) the sum, without duplication, of
(i) an amount equal to the amount of all non-cash credits included in calculating such Consolidated Net Income and cash charges to the extent not deducted in calculating such Consolidated Net Income,
(ii) without duplication of amounts deducted pursuant to clause (xi) below in prior years, the amount of Capital Expenditures either made in cash or accrued during such period (provided that, whether any such Capital Expenditures shall be deducted for the period in which cash payments for such Capital Expenditures have been paid or the period in which such Capital Expenditures have been accrued shall be at Holdings’ election; provided, further, that, in no case shall any accrual of a Capital Expenditure which has previously been deducted give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent period), except to the extent that such Capital Expenditures were financed with the proceeds of long-term Indebtedness of Holdings or the Restricted Subsidiaries (unless such Indebtedness has been repaid),
(iii) the aggregate amount of all principal payments, purchases or other retirements of Indebtedness of Holdings and the Restricted Subsidiaries (including (A) the principal component of payments in respect of Capitalized Lease Obligations, (B) the amount of any repayment of Term Loans pursuant to Subsection 2.2(b) and 2.2(c) and (C) the amount of a mandatory prepayment of Term Loans pursuant to Subsection 4.4(e)(i) to the extent required due to an Asset Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, but excluding (x) all other prepayments of Loans and (y) all prepayments of revolving loans, to the extent there is not an equivalent permanent reduction in commitments thereunder) made during such period, except to the extent financed with the proceeds of long-term Indebtedness of Holdings or the Restricted Subsidiaries,
(iv) an amount equal to the aggregate net non-cash gain on Asset Dispositions (or any Disposition specifically excluded from the definition of the term “Asset Dispositions”) by Holdings and the Restricted Subsidiaries during such period (other than in the ordinary course of business) to the extent included in calculating such Consolidated Net Income,
 
-22-

(v) increases in Consolidated Working Capital for such period (other than any such increases arising (x) from any ECF Acquisition or ECF Disposition by Holdings and the Restricted Subsidiaries completed during such period, (y) from the application of purchase accounting or (z) as a result of the reclassification from short-term to long-term or vice versa),
(vi) payments by Holdings and the Restricted Subsidiaries during such period in respect of long-term liabilities of Holdings and the Restricted Subsidiaries other than Indebtedness, to the extent not already deducted in calculating Consolidated Net Income,
(vii) without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the aggregate amount of cash consideration paid by Holdings and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such period constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among Holdings and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 to the extent that such Investments were financed with internally generated cash flow of Holdings and the Restricted Subsidiaries,
(viii) the amount of Restricted Payments (other than Investments) made in cash during such period (on a consolidated basis) by Holdings and the Restricted Subsidiaries pursuant to Subsection 8.2(b) (other than Subsection 8.2(b)(vi)), to the extent such Restricted Payments were financed with internally generated cash flow of Holdings and the Restricted Subsidiaries,
(ix) the aggregate amount of expenditures actually made by Holdings and the Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period and are not deducted in calculating Consolidated Net Income,
(x) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Holdings and the 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,
(xi) at Holdings’ election, without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by Holdings or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among Holdings and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive fiscal quarters of Holdings following the end of such period, provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such Investments and Capital Expenditures 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,
(xii) 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 calculating such Consolidated Net Income for such period,
(xiii) cash expenditures in respect of Hedge Agreements during such period to the extent not deducted in calculating such Consolidated Net Income; and
 
-23-

(xiv) any extraordinary, unusual or nonrecurring cash loss or charge (including fees, expenses and charges associated with the Transactions and any acquisition, merger or consolidation after the Closing Date).
“Exchange Act”: the Securities Exchange Act of 1934, as amended from time to time.
“Excluded Assets”: as defined in the Guarantee and Collateral Agreement.
“Excluded Contribution”: Net Cash Proceeds, or the Fair Market Value of property or assets, received by Holdings as capital contributions to Holdings after the Closing Date or from the issuance or sale (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of Holdings, in each case to the extent designated as an Excluded Contribution pursuant to a certificate of a Responsible Officer of Holdings and not previously included in the calculation set forth in Subsection 8.2(a)(3)(B)(x) for purposes of determining whether a Restricted Payment may be made.
“Excluded Information”: as defined in Subsection 4.4(l)(i).
“Excluded Subsidiary”: at any date of determination, any Subsidiary of Holdings:
(a) that is an Immaterial Subsidiary;
(b) that is prohibited by Requirement of Law or 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, or granting Liens to secure, the Term Loan Facilities Obligations or if Guaranteeing, or granting Liens to secure, the Term Loan Facilities Obligations would require governmental (including regulatory) consent, approval, license or authorization unless such consent, approval, license or authorization has been received;
(c) with respect to which Holdings and the Administrative Agent reasonably agree that the burden or cost or other consequences of providing a guarantee of the Term Loan Facilities Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom;
(d) with respect to which the provision of such guarantee of the Term Loan Facilities Obligations would result in material adverse tax consequences to Holdings or one of its Subsidiaries (as reasonably determined by Holdings and notified in writing to the Administrative Agent);
(e) that is a Subsidiary of a Foreign Subsidiary;
(f) that is a joint venture or Non-Wholly Owned Subsidiary;
(g) that is an Unrestricted Subsidiary;
(h) that is a Captive Insurance Subsidiary;
(i) that is a Special Purpose Entity; or
(j) that is a Subsidiary formed solely for the purpose of (x) becoming a Parent Entity, or (y) merging with Holdings in connection with another Subsidiary becoming a Parent Entity, in each case to the extent such entity becomes a Parent Entity or is merged with Holdings within 60 days of the formation thereof, or otherwise creating or forming a Parent Entity;
provided that, notwithstanding the foregoing, any Subsidiary that Guarantees the payment of the Senior Notes shall not be an Excluded Subsidiary.
 
-24-

Subject to the proviso in the preceding sentence, any Subsidiary that fails to meet the foregoing requirements as of the last day of the period of the most recent four consecutive fiscal quarters for which consolidated financial statements of Holdings are available shall continue to be deemed an Excluded Subsidiary hereunder until the date that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant to Subsection 7.1 with respect to such period.
“Excluded Taxes”: (a) any Taxes measured by or imposed upon the net income of any Agent or Lender or its applicable lending office, or any branch or affiliate thereof, and all franchise Taxes, branch Taxes, Taxes on doing business or Taxes measured by or imposed upon the overall capital or net worth of any such Agent or Lender or its applicable lending office, or any branch or affiliate thereof, in each case imposed: (i) by the jurisdiction under the laws of which such Agent or Lender, applicable lending office, branch or affiliate is organized or is located, or in which its principal executive office is located, or any nation within which such jurisdiction is located or any political subdivision thereof; or (ii) by reason of any connection between the jurisdiction imposing such Tax and such Agent or Lender, applicable lending office, branch or affiliate other than a connection arising solely from such Agent or Lender having executed, delivered or performed its obligations under, or received payment under or enforced, this Agreement or any Notes, and (b) any Tax imposed by FATCA.
“Exempt Sale and Leaseback Transaction”: any Sale and Leaseback Transaction (a) in which the sale or transfer of property occurs within 180 days of the acquisition of such property by Holdings or any of its Subsidiaries or (b) that involves property with a book value of $100.0 million or less and is not part of a series of related Sale and Leaseback Transactions involving property with an aggregate value in excess of such amount and entered into with a single Person or group of Persons. For purposes of the foregoing, “Sale and Leaseback Transaction” means any arrangement with any Person providing for the leasing by Holdings or any of its Subsidiaries of real or personal property that has been or is to be sold or transferred by Holdings or any such 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 Holdings or such Subsidiary.
“Existing Capitalized Lease Obligations”: Capitalized Lease Obligations of Holdings and its Restricted Subsidiaries existing on the Closing Date.
“Existing Term Loan Agreement”: all obligations under the Fourth Amended and Restated Credit Agreement, dated as of February 22, 2013, among Holdings, as Borrower, the lending institutions from time to time parties thereto, Bank of America, N.A., as Administrative Agent, and the other institutions from time to time party thereto.
“Existing Term Loans”: as defined in Subsection 2.10(a).
“Existing Term Tranche”: as defined in Subsection 2.10(a).
“Extended Term Loans”: as defined in Subsection 2.10(a).
“Extended Term Tranche”: as defined in Subsection 2.10(a).
“Extending Lender”: as defined in Subsection 2.10(b).
“Extension”: as defined in Subsection 2.10(b).
“Extension”: as defined in Subsection 2.10(b).
“Extension Amendment”: as defined in Subsection 2.10(c).
“Extension Date”: as defined in Subsection 2.10(d).
“Extension Election”: as defined in Subsection 2.10(b).
 
-25-

“Extension of Credit”: as to any Lender, the making of a Loan.
“Extension Request”: as defined in Subsection 2.10(a).
“Extension Request Deadline”: as defined in Subsection 2.10(b).
“Extension Series”: all Extended Term Loans that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans provided for therein are intended to be part of any previously established Extension Series) and that provide for the same interest margins and amortization schedule.
“Facility”: each of (a) the Term B-45 Loans, (b) the Term B-34 Loans, (c) the Euro Term B-23 Loans, (d) the Incremental Term Loans of the same Tranche (which, for the avoidance of doubt, shall include any Incremental Dollar Term Loans and any Incremental Euro Term Loans), (e) any Extended Term Loans of the same Extension Series and (f) any Specified Refinancing Term Loans of the same Tranche, and collectively the “Facilities.”
“Fair Market Value”: with respect to any asset or property, the fair market value of such asset or property as determined in good faith by senior management of Holdings or the Board of Directors, whose determination shall be conclusive.
“FATCA”: Sections 1471 through 1474 of the Code as in effect on the Closing Date (and any amended or successor provisions that are substantively comparable), and any regulations or other administrative authority promulgated thereunder, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with any of the foregoing and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.
“Federal District Court”: as defined in Subsection 11.13(a).
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
“Fee Letter”: the Fee Letter, dated as of the Closing Date, between the U.S. Borrower and the Administrative Agent.
“Financing Disposition”: any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets (a) by Holdings or any Subsidiary thereof to or in favor of any Special Purpose Entity, or by any Special Purpose Subsidiary, in each case in connection with the Incurrence by a Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets or (b) by Holdings or any Subsidiary thereof to or in favor of any Special Purpose Entity that is not a Special Purpose Subsidiary.
“FIRREA”: the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time to time.
“first priority”: with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien is the most senior Lien to which such Collateral is subject (subject to Liens permitted hereunder (including Permitted Liens) applicable to such Collateral which have priority over the respective Liens on such Collateral created pursuant to the relevant Security Document (or, in the case of Collateral constituting Pledged Stock (as defined in the Guarantee and Collateral Agreement), Permitted Liens of the type
 
-26-

described in clauses (a), (k)(4) (other than subclause (z)), (l), (m), (n), (p)(1) and, solely with respect to Permitted Liens described in the foregoing clauses, (o) of the definition thereof)). For purposes of this definition, a Lien purported to be created in any Collateral pursuant to any Security Document will be construed as the “most senior Lien” to which such Collateral is subject, notwithstanding the existence of a Permitted Lien on the Collateral that is pari passu with the Lien on such Collateral, so long as such Permitted Lien is subject to the terms of the ABL Intercreditor Agreement and the Intercreditor Agreement or an Other Intercreditor Agreement.
“Fiscal Year”: any period of 12 consecutive months ending on December 31 of any calendar year.
“Fixed GAAP Date”: the Closing Date, provided that at any time after the Closing Date, Holdings may by written notice to the Administrative Agent elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.
“Fixed GAAP Terms”: (a) the definitions of the terms “Capital Expenditures,” “Capitalized Lease Obligation,” “Consolidated Coverage Ratio,” “Consolidated EBITDA,” “Consolidated Interest Expense,” “Consolidated Net Income,” “Consolidated Secured Indebtedness,” “Consolidated Secured Leverage Ratio,” “Consolidated Total Assets,” “Consolidated Total Indebtedness,” “Consolidated Total Leverage Ratio,” “Consolidated Working Capital,” “Consolidation,” “Excess Cash Flow,” “Foreign Borrowing Base,” “Foreign Consolidated Total Assets,” “Foreign Segment Consolidated Total Assets,” “Inventory,” “North American Borrowing Base” or “Receivables,” (b) all defined terms in this Agreement to the extent used in or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and (c) any other term or provision of this Agreement or the Loan Documents that, at Holdings’ election, may be specified by Holdings by written notice to the Administrative Agent from time to time.
“Foreign Borrowing Base”: the sum of (1) 85% of the book value of Inventory of Holdings’ Foreign Subsidiaries (other than Canadian Subsidiaries and any Foreign Subsidiaries that are Loan Parties), (2) 85% of the book value of Receivables of Holdings’ Foreign Subsidiaries (other than Canadian Subsidiaries and any Foreign Subsidiaries that are Loan Parties) and (3) cash, Cash Equivalents and Temporary Cash Investments of Holdings’ Foreign Subsidiaries (other than Canadian Subsidiaries and any Foreign Subsidiaries that are Loan Parties) (in each case, determined as of the end of the most recently ended fiscal month of Holdings for which internal consolidated financial statements of Holdings are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).
“Foreign Consolidated Total Assets”: as of any date of determination, the sum of the Foreign Segment Consolidated Total Assets of each Foreign Subsidiary Reporting Segment.
“Foreign Pension Plan”: a registered pension plan which is subject to applicable pension legislation other than ERISA or the Code, which a Restricted Subsidiary sponsors or maintains, or to which it makes or is obligated to make contributions.
“Foreign Plan”: each Foreign Pension Plan, deferred compensation or other retirement or superannuation plan, fund, program, agreement, commitment or arrangement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne, outside the United States of America, by Holdings or any of its Restricted Subsidiaries, other than any such plan, fund, program, agreement or arrangement sponsored by a Governmental Authority.
“Foreign Segment Consolidated Total Assets”: with respect to each Foreign Subsidiary Reporting Segment, as of any date of determination, total assets, in each case reflected on the consolidated balance sheet of such Foreign Subsidiary Reporting Segment as at the end of the most recently ended fiscal quarter of the BorrowerHoldings for which such a balance sheet is available, determined by consolidating the accounts of each of the Subsidiaries within such Foreign Subsidiary Reporting Segment in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
 
-27-

“Foreign Subsidiary”: any Subsidiary of Holdings (a) that is organized under the laws of any jurisdiction outside of the United States of America and any Subsidiary of such Foreign Subsidiary or (b) that is a Foreign Subsidiary Holdco. Any subsidiary of Holdings which is organized and existing under the laws of Puerto Rico or any other territory of the United States of America shall be a Foreign Subsidiary.
“Foreign Subsidiary Documentation Principles” shall mean the principles set forth in Schedule 1.1(a).
“Foreign Subsidiary Holdco”: any Restricted Subsidiary of Holdings, so long as such Restricted Subsidiary has no material assets other than securities or indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof), intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof), and/or other assets incidental to an ownership interest in any such securities, indebtedness, Contractual Obligations, intellectual property or Subsidiaries. Any Subsidiary which is a Foreign Subsidiary Holdco that fails to meet the foregoing requirements as of the last day of the period for which consolidated financial statements of Holdings are available shall continue to be deemed a “Foreign Subsidiary Holdco” hereunder until the date that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant to Subsection 7.1 with respect to such period.
“Foreign Subsidiary Reporting Segment”: a group of Foreign Subsidiaries of Holdings which Holdings treats as an operating segment in connection with its internal financial reporting.
“Funded Debt”: all Indebtedness of Holdings and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of Holdings or any Restricted Subsidiary, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all amounts of such debt required to be paid or prepaid within one year from the date of its creation and, in the case of Holdings, Indebtedness in respect of the Term Loans.
“GAAP”: generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement), including those 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 approved by a significant segment of the accounting profession, and subject to the following sentence. If at any time the SEC permits or requires U.S. domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes, Holdings may elect by written notice to the Administrative Agent to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the date specified in such notice, IFRS as in effect on the date specified in such notice (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement) and (b) for prior periods, GAAP as defined in the first sentence of this definition. All ratios and computations based on GAAP contained in this Agreement shall be computed in conformity with GAAP.
“GDPR” means the European Union General Data Protection Regulation, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 and the Dutch GDPR Implementation Act (Uitvoeringswet Algemene verordening gegevensbescherming).
“Goldman”: Goldman, Sachs & Co. LLC, GSMP V Onshore US. Ltd., GSMP V Offshore US. Ltd., GSMP V Institutional US, Ltd. and any of their respective Affiliates.
“Governmental Authority”: the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).
 
-28-

“GSO” means GSO Capital Partners LP, GSO COF Facility LLC and any of their respective Affiliates.
“Guarantee”: any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement delivered to the Collateral Agent as of the date hereof, substantially in the form of Exhibit B hereto, as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Guaranty Agreement”: (i) the Guaranty Agreement delivered by the Netherlands Borrower to the Collateral Agent as of the Amendment No. 5 Effective Date, as the same may be amended, supplemented, waived or otherwise modified from time to time and (ii) any other guaranty agreement, in form and substance reasonably satisfactory to the Collateral Agent, executed pursuant to Section 7.9.
“Guarantor Subordinated Obligations”: with respect to a Guarantor, any Indebtedness of such Guarantor (whether outstanding on the Closing Date or thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Subsidiary Guarantor under its Loan Party Guaranty pursuant to a written agreement.
“Guarantors”: the collective reference to Holdings, each Borrower (with respect to the obligations of the other Loan Parties) and each Subsidiary Guarantor; each individually, a “Guarantor.”
“Hedge Agreements”: collectively, Interest Rate Agreements, Currency Agreements and Commodities Agreements.
“Hedging Obligations”: as to any Person, the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodities Agreement.
“Holdings”: Univar Solutions Inc., a Delaware corporation (formerly known as Univar Inc.) and any successor in interest thereto.
“Identified Participating Lenders”: as defined in Subsection 4.4(l)(iii)(3).
“Identified Qualifying Lenders”: as defined in Subsection 4.4(l)(iv)(3).
“IFRS”: International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such board, or the SEC, as the case may be), as in effect from time to time.
“Immaterial Subsidiary”: any Subsidiary of Holdings (other than theany Borrower) designated as such in writing by Holdings to the Administrative Agent that (i) (x) contributed 5.00% or less of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available, and (y) had consolidated assets representing 5.00% or less of Consolidated Total Assets as of the end of the most recently ended financial period for which consolidated financial statements of Holdings are available; and (ii) together with all other Immaterial Subsidiaries designated pursuant to the preceding clause (i), (x) contributed 5.00% or less of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available, and (y) had consolidated assets representing 5.00% or less of Consolidated Total Assets as of the end of the most recently ended financial period for which consolidated financial statements of Holdings are available.
“Increase Supplement”: as defined in Subsection 2.8(c).
 
-29-

“Incremental Commitment Amendment”: as defined in Subsection 2.8(d).
“Incremental Commitments”: as defined in Subsection 2.8(a).
“Incremental Dollar Term Loan”: as defined in Subsection 2.8(d).
“Incremental Euro Term Loan”: as defined in Subsection 2.8(d).
“Incremental Indebtedness”: Indebtedness Incurred by Holdings or any of its Restricted Subsidiariespursuant to and in accordance with Subsection 2.8.
“Incremental Lenders”: as defined in Subsection 2.8(b).
“Incremental Term Loans”: as defined in Subsection 2.8(d).
“Incremental Term Loan Commitments”: as defined in Subsection 2.8(a).
“Incur”: issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock, will be deemed not to be an Incurrence of Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
“Indebtedness”: with respect to any Person on any date of determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed);
(iv) all obligations of such Person to pay the deferred and unpaid purchase price of property (except Trade Payables), which purchase price is due more than one year after the date of placing such property in final service or taking final delivery and title thereto;
(v) all Capitalized Lease Obligations of such Person;
(vi) the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such Person is a Subsidiary of Holdings other than a Subsidiary GuarantorLoan Party) any Preferred Stock of such Subsidiary, but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Capital Stock, or if less (or if such Capital Stock has no such fixed price), to the involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Capital Stock, such fair market value shall be as determined in good faith by senior management of Holdings, the Board of Directors of Holdings or the Board of Directors of the issuer of such Capital Stock);
 
-30-

(vii) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of Indebtedness of such Person shall be the lesser of (A) the fair market value of such asset at such date of determination (as determined in good faith by Holdings) and (B) the amount of such Indebtedness of such other Persons;
(viii) all Guarantees by such Person of Indebtedness of other Persons, to the extent so Guaranteed by such Person; and
(ix) to the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such time).;
The amount of Indebtedness of any Person at any date shall be determined as set forth above or as otherwise provided for in this Agreement, or otherwise shall equal the amount thereof that would appear as a liability on a balance sheet of such Person (excluding any notes thereto) prepared in accordance with GAAP.
“Indemnified Liabilities”: as defined in Subsection 11.5(d).
“Indemnitee”: as defined in Subsection 11.5(d).
“Individual Lender Exposure”: of any Lender, at any time, the sum of the aggregate principal amount of all Term Loans made by such Lender and then outstanding.
“Initial Agreement”: as defined in Subsection 8.3(c).
“Initial Lien”: as defined in Subsection 8.6.
“Initial Term Loan”: as defined in the Original Credit Agreement.
“Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“Insolvency Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
“Intellectual Property”: as defined in Subsection 5.9.
“Intercreditor Agreement”: an intercreditor agreement substantially in the form of Exhibit J-2 to be entered into as required by the terms hereof, as amended, supplemented, waived or otherwise modified from time to time.
“Intercreditor Agreement Supplement”: as defined in Subsection 10.8(a).
“Interest Payment Date”: (a) as to any ABR Loan, the last Business Day of each March, June, September and December to occur while such Loan is outstanding, and the final maturity date of such Loan, (b) as to any Eurodollar Loan or EURIBOR Loan having an Interest Period of three months or less, the last day of such Interest Period, and (c) as to any Eurodollar Loan or EURIBOR Loan having an Interest Period longer than three months, (i) each day which is three months, or a whole multiple thereof, after the first day of such Interest Period and (ii) the last day of such Interest Period.
“Interest Period”: with respect to any Eurodollar Loan or EURIBOR Loan:
(a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan or EURIBOR Loan, and ending one, two (solely in the case of Eurodollar Loans), three or six months (or if agreed to by each affected Lender, 12 months or a shorter period) thereafter, as selected by the Borrower Representative in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and
 
-31-

(b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan or EURIBOR Loan, and ending one, two, three or six months (or if agreed to by each affected Lender, 12 months or a shorter period) thereafter, as selected by the Borrower Representative by irrevocable notice to the Administrative Agent not less than three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) 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) any Interest Period that would otherwise extend beyond the applicable Maturity Date shall (for all purposes other than Subsection 4.12) end on the applicable Maturity Date; and
(iii) any Interest Period 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.
“Interest Rate Agreement”: with respect to any Person, any interest rate protection agreement, future agreement, option agreement, swap agreement, cap agreement, collar agreement, hedge agreement or other similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
“Inventory”: goods held for sale, lease or use by a Person in the ordinary course of business, net of any reserve for goods that have been segregated by such Person to be returned to the applicable vendor for credit, as determined in accordance with GAAP.
“Investment”: in any Person by any other Person, any direct or indirect advance, loan or other extension of credit (other than to customers, dealers, licensees, franchisees, suppliers, consultants, directors, officers or employees of any Person in the ordinary course of business) or capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person. For purposes of the definition of “Unrestricted Subsidiary” and Subsection 8.2 only, (i) “Investment” shall include the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of Holdings at the time that such Subsidiary is designated an Unrestricted Subsidiary, provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Holdings shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (x) Holdings’ “Investment” in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation, and (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value (as determined in good faith by Holdings) at the time of such transfer and (iii) for purposes of Subsection 8.2(a)(3)(C), the amount resulting from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary shall be the Fair Market Value of the Investment in such Unrestricted Subsidiary at the time of such redesignation. Guarantees shall not be deemed to be Investments. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at Holdings’ option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment; provided that to the extent that the amount of Restricted Payments outstanding at any time pursuant to Subsection 8.2(a) is so reduced by any portion of any such amount or value that would otherwise be included in the calculation of Consolidated Net Income, such portion of such amount or value shall not be so included for purposes of calculating the amount of Restricted Payments that may be made pursuant to Subsection 8.2(a).
 
-32-

“Investment Company Act”: the Investment Company Act of 1940, as amended from time to time.
“Investment Grade Rating”: a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or any equivalent rating by any other Rating Agency.
“Investment Grade Securities”: (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents); (ii) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among Holdings and its Subsidiaries; (iii) investments in any fund that invests exclusively in investments of the type described in clauses (i) and (ii) above, which fund may also hold immaterial amounts of cash pending investment or distribution; and (iv) corresponding instruments in countries other than the United States customarily utilized for high quality investments.
“Investors”: (i) the CD&R Investors, (ii) the CVC Investors, (iii) the Temasek Investors, (iv) Goldman and (v) Parcom.
“IPO”: the initial public offering of Holdings’ common stock which closed on June 23, 2015.
“Junior Capital”: collectively, any Indebtedness of any Parent Entity or Holdings that (i) is not secured by any asset of Holdings or any Restricted Subsidiary, (ii) is expressly subordinated to the prior payment in full of the Term Loan Facilities Obligations hereunder on terms consistent with those for senior subordinated high yield debt securities issued by U.S. companies sponsored by the Sponsors (as determined in good faith by Holdings, which determination shall be conclusive), (iii) has a final maturity date that is not earlier than, and provides for no scheduled payments of principal prior to, the date that is 91 days after the Term BB-5 Loan Maturity Date (other than through conversion or exchange of any such Indebtedness for Capital Stock (other than Disqualified Stock) of Holdings, Capital Stock of any Parent Entity or any other Junior Capital), (iv) has no mandatory redemption or prepayment obligations other than obligations that are subject to the prior payment in full in cash of the Term Loans and (v) does not require the payment of cash interest until the date that is 91 days after the Term BB-5 Loan Maturity Date.
“Junior Debt”: (i) the Senior Notes and Guarantees thereof (and Refinancing Indebtedness in respect thereof Incurred pursuant to Subsection 8.1(b)(iii)) and (ii) any Subordinated Obligations and Guarantor Subordinated Obligations.
“LCA Election”: as defined in Subsection 1.2(h).
“LCA Test Date”: as defined in Subsection 1.2(h).
“Lead Arrangers”: Amendment No. 2 Lead Arrangersand, Amendment No. 4 Lead Arrangers and Amendment No. 5 Lead Arrangers, as applicable.
“Lender Default”: (a) the refusal (which may be given verbally or in writing and has not been retracted) or failure of any Lender (including any Agent in its capacity as Lender) to make available its portion of any incurrence of Loans, which refusal or failure is not cured within two Business Days after the date of such refusal or failure, (b) the failure of any Lender (including any Agent in its capacity as Lender) to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, (c) a Lender (including any Agent in its capacity as Lender) has notified Holdings or the Administrative Agent that it does not intend to comply with its funding obligations hereunder, (d) a Lender (including any Agent in its capacity as Lender) has failed, within 10 Business Days after request by the Administrative Agent, to confirm that it will comply with its funding obligations hereunder (provided that such Lender Default pursuant to this clause (d) shall cease to be a Lender Default upon receipt of such confirmation by the Administrative Agent) or (e) an Agent or a Lender has admitted in writing that it is insolvent or such Agent or Lender becomes subject to a Lender-Related Distress Event.
“Lender Joinder Agreement”: as defined in Subsection 2.8(c).
 
-33-

“Lender-Related Distress Event”: with respect to any Agent or Lender (each, a “Distressed Person”), a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Agent or Lender or any person that directly or indirectly controls such Agent or Lender by a Governmental Authority or an instrumentality thereof; provided, further, that the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator with respect to an Agent or Lender or any person that directly or indirectly controls such Agent or Lender under the Dutch Financial Supervision Act 2007 (as amended from time to time and including any successor legislation) shall not be a “Lender-Related Distress Event” with respect to such Agent or Lender or any person that directly or indirectly controls such Agent or Lender.
“Lenders”: the several lenders from time to time parties to this Agreement together with, in the case of any such lender that is a bank or financial institution, any affiliate of any such bank or financial institution through which such bank or financial institution elects, by notice to the Administrative Agent and Holdings, to make any Loans available to the BorrowerBorrowers, provided that for all purposes of voting or consenting with respect to (a) any amendment, supplementationsupplement or modification of any Loan Document, (b) any waiver of any of the requirements of any Loan Document or any Default or Event of Default and its consequences or (c) any other matter as to which a Lender may vote or consent pursuant to Subsection 11.1, the bank or financial institution making such election shall be deemed the “Lender” rather than such affiliate, which shall not be entitled to so vote or consent.
“Liabilities”: collectively, any and all claims, obligations, liabilities, causes of action, actions, suits, proceedings, investigations, judgments, decrees, losses, damages, fees, costs and expenses (including interest, penalties and fees and disbursements of attorneys, accountants, investment bankers and other professional advisors), in each case whether incurred, arising or existing with respect to third parties or otherwise at any time or from time to time.
“LIBOR Rate”:
(a) the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time)(such applicable rate, the “LIBOR Screen Rate”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; or
(b) for any rate calculation with respect to an ABR Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that day;
provided that (i) in no event shall the LIBOR Rate be less than 0% and (ii) to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
“LIBOR Successor Notice”: as defined in Section 4.7.
“LIBOR Successor Rate”: as defined in Section 4.7.
“Lien”: any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).
 
-34-

“Limited Condition Acquisition”: any acquisition by one or more of Holdings and its Restricted Subsidiaries of any assets, business or Person permitted by this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan”: each Term B-35 Loan, Term B-4 Loan, Euro Term B-23 Loan, Incremental Term Loan, Extended Term Loan or a Specified Refinancing Term Loan, as the context shall require; collectively, the “Loans.”
“Loan Documents”: this Agreement, any Notes, the Guarantee and Collateral Agreement, the Dutch Security Documents, the Guaranty Agreement, theIntercreditor Agreement (on and after the execution thereof), the ABL Intercreditor Agreement, each Other Intercreditor Agreement (on and after the execution thereof) and any other Security Documents, each as amended, supplemented, waived or otherwise modified from time to time.
“Loan Parties”: Holdings, the BorrowerBorrowers and the Subsidiary Guarantors; each individually, a “Loan Party.”
“Loan Party Guaranty”: the guaranty of the Term Loan Facilities Obligations of the BorrowerBorrowers under the Loan Documents provided pursuant to the Guarantee and Collateral Agreement or any Guaranty Agreement, as applicable.
“London Banking Day”: any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“Management Advances”: (1) loans or advances made to directors, management members, officers, employees or consultants of any Parent Entity, Holdings or any Restricted Subsidiary (x) in respect of travel, entertainment or moving-related expenses incurred in the ordinary course of business, (y) in respect of moving-related expenses incurred in connection with any closing or consolidation of any facility, or (z) in the ordinary course of business and (in the case of this clause (z)) not exceeding $50.0 million in the aggregate outstanding at any time, (2) promissory notes of Management Investors acquired in connection with the issuance of Management Stock to such Management Investors, (3) Management Guarantees, or (4) other Guarantees of borrowings by Management Investors in connection with the purchase of Management Stock, which Guarantees are permitted under Subsection 8.1.
“Management Agreements”: collectively, (i) the Indemnification Agreement, dated as of November 30, 2010, among Holdings, the U.S. Borrower, CD&R and certain of its Affiliates, (ii) the Indemnification Agreement, dated as of November 30, 2010, among Holdings, the U.S. Borrower and certain Affiliates of CVC, (iii) the ThirdFourth Amended and Restated Stockholders Agreement, among Holdings, CD&R, certain Affiliates of CD&R and CVC, and certain other parties thereto, dated as of June 2723, 20122015 and (iv) any other agreement primarily providing for indemnification and/or contribution for the benefit of any Permitted Holder in respect of Liabilities resulting from, arising out of or in connection with, based upon or relating to (a) any management consulting, financial advisory, financing, underwriting or placement services or other investment banking activities, (b) any offering of securities or other financing activity or arrangement of or by any Parent Entity or any of its Subsidiaries or (c) any action or failure to act of or by any Parent Entity or any of its Subsidiaries (or any of their respective predecessors); in each case as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof and of this Agreement.
“Management Guarantees”: guarantees (x) of up to an aggregate principal amount outstanding at any time of $30.0 million of borrowings by Management Investors in connection with their purchase of Management Stock or (y) made on behalf of, or in respect of loans or advances made to, directors, officers, employees or consultants of any Parent Entity, Holdings or any Restricted Subsidiary (1) in respect of travel, entertainment and moving-related expenses incurred in the ordinary course of business, or (2) in the ordinary course of business and (in the case of this clause (2)) not exceeding $15.0 million in the aggregate outstanding at any time.
“Management Indebtedness”: Indebtedness Incurred to (a) any Person other than a Management Investor of up to an aggregate principal amount outstanding at any time of $15.0 million, and (b) any Management Investor, in each case, to finance the repurchase or other acquisition of Capital Stock of Holdings, any Restricted Subsidiary or any Parent Entity (including any options, warrants or other rights in respect thereof) from any Management Investor, which repurchase or other acquisition of Capital Stock is permitted by Subsection 8.2.
 
-35-

“Management Investors”: the management members, officers, directors, employees and other members of the management of any Parent Entity, Holdings or any of their respective Subsidiaries, or family members or relatives of any of the foregoing (provided that, solely for purposes of the definition of “Permitted Holders,” such relatives shall include only those Persons who are or become Management Investors in connection with estate planning for or inheritance from other Management Investors, as determined in good faith by Holdings, which determination shall be conclusive), or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of Holdings, any Restricted Subsidiary or any Parent Entity.
“Management Stock”: Capital Stock of Holdings, any Restricted Subsidiary or any Parent Entity (including any options, warrants or other rights in respect thereof) held by any of the Management Investors.
“Market Capitalization”: an amount equal to (i) the total number of issued and outstanding shares of capital stock of Holdings or any direct or indirect parent company on the date of declaration of the relevant dividend multiplied by (ii) the arithmetic mean of the closing prices per share of such capital stock on the New York Stock Exchange (or, if the primary listing of such capital stock is on another exchange, on such other exchange) for the 30 consecutive trading days immediately preceding the date of declaration of such dividend.
“Material Adverse Effect”: a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of Holdings and its Restricted Subsidiaries taken as a whole, (b) the validity or enforceability as to the Loan Parties (taken as a whole) party thereto of the Loan Documents taken as a whole or (c) the rights or remedies of the Agents and the Lenders under the Loan Documents, in each case taken as a whole.
“Material Subsidiaries”: Restricted Subsidiaries of Holdings constituting, individually or in the aggregate (as if such Restricted Subsidiaries constituted a single Subsidiary), a “significant subsidiary” in accordance with Rule 1-02 under Regulation S-X.
“Materials of Environmental Concern”: any pollutants, contaminants, hazardous or toxic substances or materials or wastes defined, listed, or regulated as such in or under, or which may give rise to liability under, any applicable Environmental Law, including gasoline, petroleum (including crude oil or any fraction thereof), petroleum products or by-products, asbestos and polychlorinated biphenyls.
“Maturity Date”: for the Term B-3 Loans, and Term B-4 Loans and Euro, the Term B-23 and B-4 Loan Maturity Date, for the Term B-5 Loans, the Term BB-5 Loan Maturity Date, for any Extended Term Tranche the “Maturity Date” set forth in the applicable Extension Amendment, for any Incremental Commitments the “Maturity Date” set forth in the applicable Incremental Commitment Amendment, as the context may require and for any Specified Refinancing Tranche the “Maturity Date” set forth in the applicable Specified Refinancing Amendment.
“Maximum Incremental Facilities Amount”: at any date of determination, the sum of (i) the greater of (x) $650,000,000 and (y) Consolidated EBITDA for the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available plus (ii) all voluntary prepayments of the Term Loans prior to such time (other than with the proceeds of long term indebtedness) plus (iii) an additional amount if, on a pro forma basis, after giving effect to the Incurrence of such additional amount and after giving effect to any acquisition consummated in connection therewith and all other appropriate pro forma adjustments (or on the date of the initial commitment to lend such additional amount after giving pro forma effect to the Incurrence of the entire committed amount of such additional amount), the Consolidated Secured Leverage Ratio shall not exceed 4.25 to 1.00 (as set forth in an officer’s certificate of a Responsible Officer of Holdings delivered to the Administrative Agent at the time of such Incurrence, together with calculations demonstrating compliance with such ratio (it being understood that for purposes of calculating the Consolidated Secured Leverage Ratio, any additional amount Incurred pursuant to this clause (iii) shall be treated as if such amount is Consolidated Secured Indebtedness, regardless of whether such amount is actually secured)).
 
-36-

“Minimum Exchange Tender Condition”: as defined in Subsection 2.9(b).
“Minimum Extension Condition”: as defined in Subsection 2.10(g).
“Moody’s”: Moody’s Investors Service, Inc., and its successors.
“Mortgaged Fee Properties”: the collective reference to each real property owned in fee simple by the Loan Parties listed on Schedule 5.8 or required to be mortgaged as Collateral pursuant to the requirements of Subsection 7.9, including the land and all buildings, improvements, structures and fixtures now or subsequently located thereon and owned by any such Loan Party., in each case, unless and until such time as the Mortgage on such real property is released in accordance with the terms and provisions hereof and thereof. Notwithstanding the foregoing, from and after the Amendment No. 5 Effective Date, unless otherwise agreed by the Borrower Representative, the Specified Excluded Real Property shall not constitute a Mortgaged Fee Property.
“Mortgages”: each of the mortgages and deeds of trust, or similar security instruments executed and delivered by any Loan Party to the Collateral Agent, as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Multiemployer Plan”: a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Available Cash”: from an Asset Disposition or Recovery Event means an amount equal to the cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or Recovery Event or received in any other non-cash form) therefrom, in each case net of (i) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or to be accrued as a liability under GAAP, in each case, as a consequence of, or in respect of, such Asset Disposition or Recovery Event (including as a consequence of any transfer of funds in connection with the application thereof in accordance with Subsection 8.4), (ii) all payments made, and all installment payments required to be made, on any Indebtedness (other than Indebtedness secured by Liens that are required by the express terms of this Agreement to be pari passu with or junior to the Liens on the Collateral securing the Term Loan Facilities Obligations) (x) that is secured by any assets subject to such Asset Disposition or involved in such Recovery Event, in accordance with the terms of any Lien upon such assets, or (y) that must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition or Recovery Event, including but not limited to any payments required to be made to increase borrowing availability under any revolving credit facility, (iii) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition or Recovery Event, or to any other Person (other than Holdings or a Restricted Subsidiary) owning a beneficial interest in the assets disposed of in such Asset Disposition or subject to such Recovery Event, (iv) any liabilities or obligations associated with the assets disposed of in such Asset Disposition or involved in such Recovery Event and retained, indemnified or insured by Holdings or any Restricted Subsidiary after such Asset Disposition or Recovery Event, including pension and other post-employment benefit liabilities, liabilities related to environmental matters, and liabilities relating to any indemnification obligations associated with such Asset Disposition or Recovery Event, (v) in the case of an Asset Disposition, the amount of any purchase price or similar adjustment (x) claimed by any Person to be owed by Holdings or any Restricted Subsidiary, until such time as such claim shall have been settled or otherwise finally resolved, or (y) paid or payable by Holdings or any Restricted Subsidiary, in each case in respect of such Asset Disposition or (vi) in the case of any Recovery Event, any amount thereof that constitutes or represents reimbursement or compensation for any amount previously paid or to be paid by Holdings or any of its Subsidiaries.
“Net Cash Proceeds”: with respect to any issuance or sale of any securities of Holdings or any Subsidiary by Holdings or any Subsidiary, or any capital contribution, or any Incurrence of Indebtedness, the cash proceeds of such issuance, sale, contribution or Incurrence net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance, sale, contribution or Incurrence and net of all taxes paid or payable as a result, or in respect, thereof.
 
-37-

“Netherlands Borrower”: as defined in the Preamble hereto.
“New York Courts”: as defined in Subsection 11.13(a).
“New York Supreme Court”: as defined in Subsection 11.13(a).
“Non-Converted Term B-2 Loan”: each Term B-2 Loan (or portion thereof) other than a Converted Term B-2 Loan.
“Non-Consenting Lender”: as defined in Subsection 11.1(g).
“Non-Excluded Taxes”: all Taxes other than Excluded Taxes.
“Non-Extending Lender”: as defined in Subsection 2.10(e).
“Non-Wholly Owned Subsidiary”: each Subsidiary that is not a Wholly Owned Subsidiary.
“North American Borrowing Base”: the sum of (1) 85.0% of the book value of Inventory of Holdings, its Domestic Subsidiaries and its Canadian Subsidiaries, (2) 85.0% of the book value of Receivables of Holdings, its Domestic Subsidiaries and its Canadian Subsidiaries, and (3) cash, Cash Equivalents and Temporary Cash Investments of Holdings, its Domestic Subsidiaries and its Canadian Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month of Holdings for which internal consolidated financial statements of Holdings are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).
“Note”: as defined in Subsection 2.2(a).
“Obligations”: with respect to any Indebtedness, any principal, premium (if any), interest (including interest and fees accruing on or after the filing of any petition in bankruptcy or for reorganization relating to Holdings or any Restricted Subsidiary whether or not a claim for post-filing interest or fees is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.
“OFAC”: as defined in Subsection 5.21(b).
“Offered Amount”: as defined in Subsection 4.4(l)(iv)(1).
“Offered Discount”: as defined in Subsection 4.4(l)(iv)(1).
“OID”: as defined in Subsection 2.8(d).
“Original Credit Agreement”: as defined in the Preamble hereto.
“Organizational Documents”: with respect to any Person, (a) the articles of incorporation, certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person and (b) the bylaws or operating agreement (or the equivalent governing documents) of such Person.
“Other Intercreditor Agreement”: an intercreditor agreement in form and substance reasonably satisfactory to Holdings and the Collateral Agent.
 
-38-

“Other Representatives”: Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Lending Partners LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Wells Fargo Securities, LLC, HSBC Securities (USA) Inc., SunTrust Robinson Humphrey, Inc., Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, in their capacities as Joint Lead Arrangers and Joint Bookrunners.
“Outstanding Amount”: with respect to the Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments thereof occurring on such date.
“Parallel Debt” has the meaning given to that term in paragraph (a) of Section 10.10.
“Parcom” means Parcom Buy Out Fund II B.V. and any of its Affiliates.
“Parent Entity”: any Other Parent and any other Person that is a Subsidiary of any Other Parent and of which Holdings is a Subsidiary. As used herein, “Other Parent” means a Person of which Holdings becomes a Subsidiary after the Closing Date that is designated by Holdings as an “Other Parent” and solely for so long as Holdings remains a Subsidiary of such Person, provided that either (x) immediately after Holdings first becomes a Subsidiary of such Person, more than 50.0% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50.0% of the Voting Stock of Holdings or a Parent Entity of Holdings immediately prior to Holdings first becoming such Subsidiary or (y) such Person shall be deemed not to be an Other Parent for the purpose of determining whether a Change of Control shall have occurred by reason of Holdings first becoming a Subsidiary of such Person. Holdings shall not in any event be deemed to be a “Parent Entity.”
“Parent Expenses”: (i) costs (including all professional fees and expenses) incurred by any Parent Entity in connection with maintaining its existence or in connection with its reporting obligations under, or in connection with compliance with, applicable laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement or any other agreement or instrument relating to Indebtedness of Holdings or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act, the Exchange Act or the respective rules and regulations promulgated thereunder, (ii) expenses incurred by any Parent Entity in connection with the acquisition, development, maintenance, ownership, prosecution, protection and defense of its intellectual property and associated rights (including but not limited to trademarks, service marks, trade names, trade dress, patents, copyrights and similar rights, including registrations and registration or renewal applications in respect thereof; inventions, processes, designs, formulae, trade secrets, know-how, confidential information, computer software, data and documentation, and any other intellectual property rights; and licenses of any of the foregoing) to the extent such intellectual property and associated rights relate to the business or businesses of Holdings or any Subsidiary thereof, (iii) indemnification obligations of any Parent Entity owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written agreements with or for the benefit of any such Person (including pursuant to certain Management Agreements), or obligations in respect of director and officer insurance (including premiums therefor), (iv) other administrative and operational expenses of any Parent Entity incurred in the ordinary course of business, and (v) fees and expenses incurred by any Parent Entity in connection with any offering of Capital Stock or Indebtedness, (w) which offering is not completed, or (x) where the net proceeds of such offering are intended to be received by or contributed or loaned to Holdings or a Restricted Subsidiary, or (y) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received, contributed or loaned, or (z) otherwise on an interim basis prior to completion of such offering so long as any Parent Entity shall cause the amount of such expenses to be repaid to Holdings or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed.
“Pari Passu Indebtedness”: Indebtedness with a Lien on the Collateral ranking pari passu with the Liens securing the Term Loan Facilities Obligations.
“Participant”: as defined in Subsection 11.6(c).
“Participant Register”: as defined in Subsection 11.6(b)(v).
 
-39-

“Participating Lender”: as defined in Subsection 4.4(l)(iii)(2).
“Participating Member State”: each state so described in any EMU Legislation.
“Patriot Act”: as defined in Subsection 11.18.
“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
“Permitted Affiliated Assignee”: the Sponsors, any investment fund managed or controlled by any Sponsor and any special purpose vehicle established by any Sponsor or by one or more of such investment funds.
“Permitted Debt Exchange”: as defined in Subsection 2.9(a).
“Permitted Debt Exchange Notes”: as defined in Subsection 2.9(a).
“Permitted Debt Exchange Offer”: as defined in Subsection 2.9(a).
“Permitted Holders”: any of the following: (i) any of the Investors; (ii) any of the Management Investors, CD&R, CVC and their respective Affiliates; (iii) any investment fund or vehicle managed, sponsored or advised by CD&R, CVC, or any Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle; (iv) any limited or general partners of, or other investors in, any CD&R Investor, CVC Investor or any Affiliate thereof, or any such investment fund or vehicle; and (v) any Person acting in the capacity of an underwriter (solely to the extent that and for so long as such Person is acting in such capacity) in connection with a public or private offering of Capital Stock of any Parent Entity or Holdings. In addition, any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date) whose status as a “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) constitutes or results in a Change of Control in respect of which Holdings makes a Change of Control Offer pursuant to Subsection 8.8(a) (whether or not in connection with any repayment or repurchase of Indebtedness outstanding pursuant to Junior Debt), together with its Affiliates, shall thereafter constitute Permitted Holders.
“Permitted Investment”: an Investment by Holdings or any Restricted Subsidiary in, or consisting of, any of the following:
(i) a Restricted Subsidiary, Holdings, or a Person that will, upon the making of such Investment, become a Restricted Subsidiary (and any Investment held by such Person that was not acquired by such Person in contemplation of so becoming a Restricted Subsidiary);
(ii) another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, or is liquidated into, Holdings or a Restricted Subsidiary (and, in each case, any Investment held by such other Person that was not acquired by such Person in contemplation of such merger, consolidation or transfer);
(iii) Temporary Cash Investments, Investment Grade Securities or Cash Equivalents;
(iv) receivables owing to Holdings or any Restricted Subsidiary, if created or acquired in the ordinary course of business;
(v) any securities or other Investments received as consideration in, or retained in connection with, sales or other dispositions of property or assets, including Asset Dispositions made in compliance with Subsection 8.4;
(vi) securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, Holdings or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;
 
-40-

(vii) Investments in existence or made pursuant to legally binding written commitments in existence on the Closing Date and set forth on Schedule 1.1(f), and in each case any extension, modification, replacement, reinvestment or renewal thereof; provided that the amount of any such Investment may be increased in such extension, modification, replacement, reinvestment or renewal only (x) as required by the terms of such Investment or binding commitment as in existence on the Closing Date or (y) as otherwise permitted by this Agreement;
(viii) Currency Agreements, Interest Rate Agreements, Commodities Agreements and related Hedging Obligations, which obligations are Incurred in compliance with Subsection 8.1;
(ix) pledges or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Subsection 8.6;
(x) (1) Investments in or by any Special Purpose Subsidiary, or in connection with a Financing Disposition by, to, in or in favor of any Special Purpose Entity, including Investments of funds held in accounts permitted or required by the arrangements governing such Financing Disposition or any related Indebtedness, or (2) any promissory note issued by Holdings or any Parent Entity, provided that if such Parent Entity receives cash from the relevant Special Purpose Entity in exchange for such note, an equal cash amount is contributed by any Parent Entity to Holdings;
(xi) bonds secured by assets leased to and operated by Holdings or any Restricted Subsidiary that were issued in connection with the financing of such assets so long as Holdings or any Restricted Subsidiary may obtain title to such assets at any time by paying a nominal fee, canceling such bonds and terminating the transaction;
(xii) [reserved];
(xiii) any Investment to the extent made using Capital Stock of Holdings (other than Disqualified Stock), Capital Stock of any Parent Entity or Junior Capital as consideration;
(xiv) Management Advances;
(xv) Investments in Related Businesses in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $500.0 million and 8.50% of Consolidated Total Assets;
(xvi) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Subsection 8.5(b) (except transactions described in clauses (i), (ii)(4), (iii), (v), (vi), (ix) and (x) therein), including any Investment pursuant to any transaction described in Subsection 8.5(b)(ii) (whether or not any Person party thereto is at any time an Affiliate of Holdings);
(xvii) any Investment by any Captive Insurance Subsidiary in connection with the provision of insurance to Holdings or any of its Subsidiaries, which Investment is made in the ordinary course of business of such Captive Insurance Subsidiary, or by reason of applicable law, rule, regulation or order, or that is required or approved by any regulatory authority having jurisdiction over such Captive Insurance Subsidiary or its business, as applicable; and
(xviii) other Investments in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $500.0 million and 8.50% of Consolidated Total Assets.
 
-41-

If any Investment pursuant to clause (xv) or (xviii) above, or Subsection 8.2(b)(vi), as applicable, is made in any Person that is not a Restricted Subsidiary and such Person thereafter (A) becomes a Restricted Subsidiary or (B) is merged or consolidated into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, Holdings or a Restricted Subsidiary, then such Investment shall thereafter be deemed to have been made pursuant to clause (i) or (ii) above, respectively, and not clause (xv) or (xviii) above, or Subsection 8.2(b)(vi), as applicable.
“Permitted Liens”:
(a) Liens for taxes, assessments or other governmental charges not yet delinquent or the nonpayment of which in the aggregate would not reasonably be expected to have a material adverse effect on Holdings and its Restricted Subsidiaries, taken as a whole, or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of Holdings or a Subsidiary thereof, as the case may be, in accordance with GAAP;
(b) Liens with respect to outstanding motor vehicle fines and carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations that are not overdue for a period of more than 60 days or that are bonded or that are being contested in good faith and by appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers’ compensation, professional liability insurance, insurance programs, unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business;
(e) (i) easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, charges, and other similar encumbrances or title defects incurred, or leases or subleases granted to others, in the ordinary course of business, which do not in the aggregate materially interfere with the ordinary conduct of the business of Holdings and its Restricted Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements existing on, the Closing Date and set forth on Schedule 1.1(e), or (in the case of any such Liens securing Indebtedness of Holdings or any of its Subsidiaries existing or arising under written arrangements existing on the Closing Date) securing any Refinancing Indebtedness in respect of such Indebtedness (other than Indebtedness Incurred under Subsection 8.1(b)(i) and secured under clause (k)(1) of this definition), so long as the Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which Holdings or any Restricted Subsidiary of Holdings has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
(h) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Hedging Obligations, Bank Products Obligations, Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with Subsection 8.1;
(i) Liens arising out of judgments, decrees, orders or awards in respect of which Holdings or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;
 
-42-

(j) leases, subleases, licenses or sublicenses to or from third parties;
(k) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of (1) Indebtedness Incurred in compliance with Subsection 8.1(b)(i); provided, that any Liens on Collateral securing Permitted Debt Exchange Notes, Rollover Indebtedness or Additional Obligation (or any Refinancing Indebtedness in respect of any of the foregoing) shall be subject to the Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, (2) Indebtedness Incurred in compliance with clauses (b)(iv), (b)(v), (b)(vii), (b)(viii), (b)(xv) or clauses (b)(iii)(B) and (C) of Subsection 8.1 (other than Refinancing Indebtedness Incurred in respect of Indebtedness described in Subsections 8.1(a)), (3) any Indebtedness Incurred in compliance with Subsection 8.1(b)(xiii), provided that any Liens securing such Indebtedness shall rank junior to the Liens securing the Term Loan Facilities Obligations and shall be subject to the Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, (4) (A) Acquisition Indebtedness Incurred in compliance with Subsection 8.1(b)(x) or (xi), provided that (x) such Liens are limited to all or part of the same property or assets, including Capital Stock (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof) acquired, or of any Person acquired or merged or consolidated with or into Holdings or any Restricted Subsidiary, in any transaction to which such Acquisition Indebtedness relates, (y) on the date of the Incurrence of such Indebtedness after giving effect to such Incurrence, the Consolidated Secured Leverage Ratio would equal or be less than the Consolidated Secured Leverage Ratio immediately prior to giving effect thereto or (z) such Liens rank junior to the Liens securing the Term Loan Facilities Obligations and shall be subject to the Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, or (B) any Refinancing Indebtedness Incurred in respect thereof, (5) Indebtedness of any Restricted Subsidiary that is not a Subsidiary GuarantorLoan Party (limited, in the case of this clause (k)(65), to Liens on any of the property and assets of any Restricted Subsidiary that is not a Subsidiary GuarantorLoan Party) and (6) obligations in respect of Management Advances or Management Guarantees, in each case under the foregoing clauses (1) through (76) including Liens securing any Guarantee of any thereof;
(l) Liens existing on property or assets of a Person at the time such Person becomes a Subsidiary of Holdings (or at the time Holdings or a Restricted Subsidiary acquires such property or assets, including any acquisition by means of a merger or consolidation with or into Holdings or any Restricted Subsidiary); provided, however, that such Liens are not created in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; provided, further, that for purposes of this clause (l), if a Person other than Holdings is the Successor Borrower with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of Holdings, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by Holdings or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Borrower;
(m) Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(n) any encumbrance or restriction (including, but not limited to, pursuant to put and call agreements or buy/sell arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(o) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness (other than any Indebtedness described in clause (k)(1) above of this definition) secured by, or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other obligation secured by, any other Permitted Liens, provided that any such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations to which such Liens relate;
(p) Liens (1) arising by operation of law (or by agreement to the same effect) in the ordinary course of business, including Liens arising under or by reason of the Perishable Agricultural Commodities Act of 1930, as amended from time to time, (2) on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets,
 
-43-

(3) on receivables (including related rights), (4) on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent that such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose, (5) securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities (including in connection with purchase orders and other agreements with customers), (6) in favor of Holdings or any Subsidiary (other than Liens on property or assets of Holdings or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary Guarantor), (7) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business, (8) on inventory or other goods and proceeds securing obligations in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or other goods, (9) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business, (10) attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business, or (11) arising in connection with repurchase agreements permitted under Subsection 8.1 on assets that are the subject of such repurchase agreements;
(q) other Liens securing Indebtedness or other obligations that in the aggregate do not exceed an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets at the time of Incurrence of such Indebtedness or other obligations; and
(r) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) or other obligations of, or in favor of, any Special Purpose Entity, or in connection with a Special Purpose Financing or otherwise, Incurred pursuant to clause (b)(ix) of Section 8.1.; and
(s) Liens created or arising under the general terms and conditions (algemene bankvoorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging van Banken), (in particular under any Liens arising under clause 24 or clause 25 thereof as amended or substituted from time to time) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and conditions.
For purposes of determining compliance with this definition, (w) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition 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), (x) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, Holdings shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition, (y) in the event that a portion of Indebtedness secured by a Lien could be classified as secured in part pursuant to clause (k)(1) above in respect of Indebtedness Incurred pursuant to Subsection 8.1(b)(i)(II) and clause (ii) of the definition of Maximum Incremental Facilities Amount (giving effect to the Incurrence of such portion of such Indebtedness), Holdings, in its sole discretion, may classify such portion of such Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (k)(1) above in respect of Indebtedness Incurred pursuant to Subsection 8.1(b)(i)(II) and clause (ii) of the definition of Maximum Incremental Facilities Amount and the remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition and (z) if any Liens securing Indebtedness are Incurred to refinance Liens securing Indebtedness initially Incurred in reliance on a basket measured by reference to a percentage of Consolidated Total Assets at the time of incurrence, and such refinancing would cause the percentage of Consolidated Total Assets restriction to be exceeded if calculated based on the Consolidated Total Assets on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such Indebtedness secured by such Liens does not exceed the principal amount of such Indebtedness secured by such Liens being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
“Permitted Payment”: as defined in Subsection 8.2(b).
“Person”: an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
 
-44-

“Plan”: at a particular time, any employee benefit plan which is covered by ERISA and in respect of which Holdings or a Commonly Controlled Entity is an “employer” as defined in Section 3(5) of ERISA.
“Platform”: Intralinks, SyndTrak Online or any other similar electronic distribution system.
“Preferred Stock”: as applied to the Capital Stock of any corporation or company, Capital Stock of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation or company, over Capital Stock of any other class of such corporation or company.
“Prepayment Date”: as defined in Subsection 4.4(h).
“Pricing Grid”: with respect to the Term B-3 Loans:

	Consolidated Total Leverage Ratio	  	Applicable Margin for Eurodollar
Term B-3 Loans	 	 	Applicable Margin for ABR
Term B-3 Loans	 	
Greater than 4.00 to 1.00	  	 	2.50	% 	 	 	1.50	% 		
Less than or equal to 4.00 to 1.00	  	 	2.25	% 	 	 	1.25	% 		
and with respect to the Term B-4 Loans:

	Consolidated Total Leverage Ratio	  	Applicable Margin for Eurodollar
Term B-4 Loans	 	 	Applicable Margin for ABR
Term B-4 Loans	 	
Greater than 4.00 to 1.00	  	 	2.75	% 	 	 	1.75	% 		
Less than or equal to 4.00 to 1.00	  	 	2.50	% 	 	 	1.50	% 		
“Projections”: those financial projections included in the confidential information memoranda and related material prepared in connection with the syndication of the Facility and provided to the Lenders on or about June 2015.
“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”: as defined in Subsection 11.2(e).
“Purchase”: as defined in clause (4) of the definition of “Consolidated Coverage Ratio.”
“Purchase Money Obligations”: any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets, and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
“Qualifying Lender”: as defined in Subsection 4.4(l)(iv)(3).
“Rating Agency”: Moody’s or S&P or, if Moody’s or S&P or both shall not make a rating on the Term Loans publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by Holdings which shall be substituted for Moody’s or S&P or both, as the case may be.
“Receivable”: a right to receive payment pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay, as determined in accordance with GAAP.
 
-45-

“Recovery Event”: any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of Holdings or any Restricted Subsidiary constituting Collateral giving rise to Net Available Cash to Holdings or such Restricted Subsidiary, as the case may be, in excess of $25.0 million, to the extent that such settlement or payment does not constitute reimbursement or compensation for amounts previously paid by Holdings or any Restricted Subsidiary in respect of such casualty or condemnation.
“refinance”: refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell or extend (including pursuant to any defeasance or discharge mechanism); and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this Agreement shall have a correlative meaning.
“Refinancing Agreement”: as defined in Subsection 8.3(c).
“Refinancing Indebtedness”: Indebtedness that is Incurred to refinance Indebtedness Incurred pursuant to this Agreement and the Loan Documents, the Senior Notes and any Indebtedness (or unutilized commitment in respect of Indebtedness) existing on the Closing Date and set forth on Schedule 8.1 or Incurred (or established) in compliance with this Agreement (including Indebtedness of Holdings that refinances Indebtedness of any Restricted Subsidiary (to the extent permitted in this Agreement) and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness Incurred pursuant to a commitment that refinances any Indebtedness or unutilized commitment; provided that (1) if the Indebtedness being refinanced is Subordinated Obligations or Guarantor Subordinated Obligations, the Refinancing Indebtedness (x) has a final Stated Maturity at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the final Stated Maturity of the Indebtedness being refinanced (or, if shorter, the Term BB-5 Loan Maturity Date), (y) has a weighted average life to maturity at the time such Refinancing Indebtedness is Incurred that is equal to or longer than the remaining weighted average life to maturity of the Indebtedness being refinanced (or, if shorter, the remaining weighted average life to maturity of the Term BB-5 Loans) and (z) if an Event of Default under Subsection 9.1(a) or (f) is continuing, is subordinated in right of payment to the Term Loan Facilities Obligations to the same extent as the Indebtedness being refinanced, (2) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of (x) the aggregate principal amount then outstanding of the Indebtedness being refinanced, plus (y) an amount equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise then outstanding under the financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be drawn in compliance with Subsection 8.1 immediately prior to such refinancing, plus (z) fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such Refinancing Indebtedness, (3) Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that is not a Subsidiary GuarantorLoan Party that refinances Indebtedness of Holdings or a Subsidiary Guarantoranother Loan Party that could not have been initially Incurred by such Restricted Subsidiary pursuant to Subsection 8.1 or (y) Indebtedness of Holdings or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary, and (4) if the Indebtedness being refinanced constitutes Additional Obligations, Rollover Indebtedness, Permitted Debt Exchange Notes or Term Loan Facilities Obligations incurred pursuant to Subsection 8.1(b)(i)(II)(a) (or Refinancing Indebtedness in respect of the foregoing Indebtedness), (w) the Refinancing Indebtedness complies with the requirements of the definition of “Additional Obligations” (other than clause (ii) thereof), (x) if the Indebtedness being refinanced is unsecured and an Event of Default under Subsection 9.1(a) or (f) is continuing, the Refinancing Indebtedness is unsecured and (y) if the Indebtedness being refinanced is secured by a Lien ranking junior to the Liens securing the Term Loan Facilities Obligations and an Event of Default under Subsection 9.1(a) or (f) is continuing, the Refinancing Indebtedness is unsecured or secured by a Lien ranking junior to the Liens securing the Term Loan Facilities Obligations.
“Refunding Capital Stock”: as defined in Subsection 8.2(b)(i).
“Register”: as defined in Subsection 11.6(b)(iv).
“Regulation D”: Regulation D of the Board as in effect from time to time.
“Regulation S-X”: Regulation S-X promulgated by the SEC, as in effect on the Closing Date.
“Regulation T”: Regulation T of the Board as in effect from time to time.
 
-46-

“Regulation U”: Regulation U of the Board as in effect from time to time.
“Regulation X”: Regulation X of the Board as in effect from time to time.
“Reinvestment Period”: as defined in Subsection 8.4(b)(i).
“Related Business”: those businesses in which Holdings or any of its Subsidiaries is engaged on the Closing Date, or that are similar, related, complementary, incidental or ancillary thereto or extensions, developments or expansions thereof.
“Related Parties”: with respect to any Person, such Person’s affiliates and the partners, officers, directors, trustees, employees, shareholders, members, attorneys and other advisors, agents and controlling persons of such person and of such person’s affiliates and “Related Party” shall mean any of them.
“Related Taxes”: (x) any taxes, charges or assessments, including but not limited to sales, use, transfer, rental, ad valorem, value added, stamp, property, consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges or assessments (other than federal, state or local taxes measured by income and federal, state or local withholding imposed by any government or other taxing authority on payments made by any Parent Entity other than to another Parent Entity), required to be paid by any Parent Entity by virtue of its being incorporated or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than Holdings, any of its Subsidiaries or, any Parent Entity), or being a holding company parent of Holdings, any of its Subsidiaries or, any Parent Entity or receiving dividends from or other distributions in respect of the Capital Stock of Holdings, any of its Subsidiaries, any Parent Entity, or having guaranteed any obligations of Holdings or any Subsidiary thereof, or having made any payment in respect of any of the items for which Holdings or any of its Subsidiaries is permitted to make payments to any Parent Entity pursuant to Subsection 8.2, or acquiring, developing, maintaining, owning, prosecuting, protecting or defending its intellectual property and associated rights (including but not limited to receiving or paying royalties for the use thereof) relating to the business or businesses of Holdings or any Subsidiary thereof, (y) any other federal, state or local taxes measured by income for which any Parent Entity is liable up to an amount not to exceed, with respect to federal taxes, the amount of any such taxes that Holdings and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated basis as if Holdings had filed a consolidated return on behalf of an affiliated group (as defined in Section 1504 of the Code) of which it were the common parent, or with respect to state and local taxes, the amount of any such taxes that Holdings and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated, combined, unitary or affiliated basis as if Holdings had filed a consolidated, combined, unitary or affiliated return on behalf of an affiliated group (as defined in the applicable state or local tax laws for filing such return) consisting only of Holdings and its Subsidiaries or (z) any other foreign taxes measured by income for which any Parent Entity is liable. Taxes include all interest, penalties and additions relating thereto.
“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the 30 day notice period is waived under Section 21, 22, 23, 24, 25, 27 or 28 of PBGC Regulation Section 4043 or any successor regulation thereto.
“Repricing Transaction”: the prepayment, refinancing, substitution or replacement of all or a portion of the Euro Term B-2 Loans or the Term B-45 Loans (including, without limitation, as may be effected through any amendment, waiver or modification to this Agreement relating to the interest rate for, or weighted average yield of, the Euro Term B-2 Loans or the Term B-45 Loans), (a) if the primary purpose of such prepayment, refinancing, substitution, replacement, amendment, waiver or modification is (as reasonably determined by Holdings in good faith) to refinance such Euro Term B-2 Loans or Term B-45 Loans at a lower “effective yield” (taking into account, among other factors, margin, upfront or similar fees or original issue discount shared with all providers of such financing, but excluding the effect of any arrangement, commitment, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all providers of such financing, and without taking into account any fluctuations in the LIBOR Rate, but including any LIBOR floor or similar floor that is higher than the then LIBOR Rate or other reference rate), (b) if the prepayment, refinancing, substitution, replacement, amendment, waiver or modification is effectuated by the incurrence by Holdings or any Subsidiary of new Indebtedness, such new Indebtedness is Pari Passu Indebtedness in the form of bank financing, and (c) if such prepayment, refinancing, substitution, replacement, amendment, waiver or modification results in such bank financing
 
-47-

having an “effective yield” (as reasonably determined by the Administrative Agent, in consultation with Holdings, consistent with generally accepted financial practices, after giving effect to, among other factors, margin, upfront or similar fees or original issue discount shared with all providers of such financing (calculated based on assumed four-year average life and without present value discount), but excluding the effect of any arrangement, commitment, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all providers of such financing, and without taking into account any fluctuations in the LIBOR Rate, but including any LIBOR floor or similar floor that is higher than the then applicable LIBOR Rate or other reference rate) that is less than the “effective yield” (as reasonably determined by the Administrative Agent, in consultation with Holdings, on the same basis) of the Euro Term B-2 Loans or the Term B-45 Loans prior to being so prepaid, refinanced, substituted or replaced or subject to such amendment, waiver or modification to this Agreement.
“Required Lenders”: Lenders the Total Credit Percentages of which aggregate greater than 50.0% of all Lenders; provided that the Commitments (or Individual Lender Exposures) held or deemed held by Defaulting Lenders shall be excluded for purposes of making a determination of Required Lenders.
“Requirement of Law”: as to any Person, the Organizational Documents of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation 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 material property or to which such Person or any of its material property is subject, including laws, ordinances and regulations pertaining to zoning, occupancy and subdivision of real properties and including GDPR; provided that the foregoing shall not apply to any non-binding recommendation of any Governmental Authority.
“Responsible Officer”: as to any Person, any of the following officers of such Person: (a) the chief executive officer or the president of such Person and, with respect to financial matters, the chief financial officer, the treasurer or the controller of such Person, (b) any vice president of such Person or, with respect to financial matters, any assistant treasurer or assistant controller of such Person, in each case who has been designated in writing to the Administrative Agent or the Collateral Agent as a Responsible Officer by such chief executive officer or president of such Person or, with respect to financial matters, by such chief financial officer of such Person, (c) solely for purposes of notices given to Section 2, Responsible Officer shall include any other officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent and (d) with respect to Subsection 7.7 and ERISA matters and without limiting the foregoing, the general counsel (or substantial equivalent) of such Person; and as to any Person incorporated in the Netherlands, any board member authorized to represent such Person.
“Restricted Payment”: as defined in Subsection 8.2(a).
“Restricted Payment Transaction”: any Restricted Payment permitted pursuant to Subsection 8.2, any Permitted Payment, any Permitted Investment, or any transaction specifically excluded from the definition of the term “Restricted Payment” (including pursuant to the exception contained in clause (i) of such definition and the parenthetical exclusions contained in clauses (ii) and (iii) of such definition).
“Restricted Subsidiary”: any Subsidiary of Holdings other than an Unrestricted Subsidiary.
“Revaluation Date”: with respect to any Loan, each of the following: (i) each date of a Borrowing of a EURIBOR Loan denominated in Euro, (ii) each date of a continuation of a EURIBOR Loan denominated in Euro pursuant to Subsection 4.2, and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require.
“Rollover Indebtedness”: Indebtedness of Holdings or a Guarantor issued to any Lender in lieu of such Lender’s pro rata portion of any repayment of Term Loans made pursuant to Subsection 4.4(a) or (e); so long as (other than in connection with a refinancing in full of the Facilities) such Indebtedness would not have a weighted average life to maturity earlier than the remaining weighted average life to maturity of the Term Loans being repaid.
 
-48-

“S&P”: Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and its successors.
“Sale”: as defined in clause (3) of the definition of “Consolidated Coverage Ratio.”
“Scheduled UnavailabityUnavailability Date” as defined in Section 4.7.
“SEC”: the United States Securities and Exchange Commission.
“Secured Obligations”: the collective reference to (i) the Term Loan Facilities Obligations and (ii) all obligations and liabilities, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Holdings and the other Loan Parties under any Hedging Agreement (as defined in the Guarantee and Collateral Agreement) entered into with any Hedging Provider (as defined in the Guarantee and Collateral Agreement), any Bank Products Agreement (as defined in the Guarantee and Collateral Agreement) entered into with any Bank Products Provider (as defined in the Guarantee and Collateral Agreement) or any Management Guarantee entered into with any Management Credit Provider or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, amounts payable in connection with any such Bank Products Agreement or a termination of any transaction entered into pursuant to any such Hedging Agreement, fees, indemnities, costs, expenses or otherwise (including, without limitation, all reasonable fees, expenses and disbursements of counsel to the Administrative Agent or any other Secured Party that are required to be paid by any Loan Party pursuant to the terms of the Credit Agreement or any other Loan Document); provided that the Secured Obligations shall not include any Excluded Swap Obligations (as defined in the Guarantee and Collateral Agreement).
“Secured Parties”: the “Secured Parties” as defined in the Guarantee and Collateral Agreement.
“Securities Act”: the Securities Act of 1933, as amended from time to time.
“Security Documents”: the collective reference to each Mortgage related to any Mortgaged Fee Property, the Guarantee and Collateral Agreement, each Dutch Security Document and all other security documents hereafter delivered to the Collateral Agent granting or perfecting a Lien on any asset or assets of any Person to secure the obligations and liabilities of the Loan Parties hereunder and/or under any of the other Loan Documents or to secure any guarantee of any such obligations and liabilities, including any security documents executed and delivered or caused to be delivered to the Collateral Agent pursuant to Subsection 7.9(a), 7.9(b), 7.9(c) or 7.9(d), in each case, as amended, supplemented, waived or otherwise modified from time to time.
“Senior ABL Agreement” means the ABL Credit Agreement, dated as of the Closing Date, among Holdings, the U.S. Borrower, Univar Canada Ltd., a company formed under the laws of the Province of British Alberta, the Domestic Subsidiaries of Holdings from time to time party thereto, the lenders party thereto from time to time, and Bank of America, N.A., as U.S. administrative agent and collateral agent and Bank of America, N.A. (acting through its Canadian branch), as Canadian administrative agent, as such agreement has been amended and restated through the Closing Date and as such agreement may be further amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise), except to the extent such agreement, instrument or other document expressly provides that it is not intended to be and is not a Senior ABL Agreement. Any reference to the Senior ABL Agreement hereunder shall be deemed a reference to each Senior ABL Agreement then in existence.
“Senior ABL Facility” means the collective reference to the Senior ABL Agreement, any Credit Documents (as defined therein), the ABL Intercreditor Agreement, any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other
 
-49-

instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior ABL Agreement or one or more other credit agreements, indentures or financing agreements or otherwise), except to the extent such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior ABL Facility. Without limiting the generality of the foregoing, the term “Senior ABL Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of Holdings as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Senior ABL Obligations” means all Obligations in respect of the Senior ABL Facility.
“Senior Notes”: 6.755.125% Senior Notes due 20232027 of the Borrower issued on the Amendment No. 5 Effective Date hereof, as the same may be exchanged for substantially similar senior notes that have been registered under the Securities Act, and as the same or such substantially similar notes may be amended, supplemented, waived or otherwise modified from time to time.
“Senior Notes Documents”: the Senior Notes Indenture and all other instruments, agreements and other documents evidencing or governing the Senior Notes or providing for any guarantee, obligation, security or other right in respect thereof.
“Senior Notes Indenture”: the Indenture dated as of the Amendment No. 5 Effective Date hereof, under which the Senior Notes are issued, as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Set”: the collective reference to Eurodollar Loans or EURIBOR Loans of a single Tranche, the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Eurodollar Loans or EURIBOR Loans shall originally have been made on the same day).
“Settlement Service”: as defined in Subsection 11.6(b).
“Single Employer Plan”: any Plan which is covered by Title IV or Section 302 of ERISA or Section 412 of the Code, but which is not a Multiemployer Plan.
“Solicited Discounted Prepayment Amount”: as defined in Subsection 4.4(l)(iv)(1).
“Solicited Discounted Prepayment Notice”: an irrevocable written notice of Borrower Solicitation of Discounted Prepayment Offers made pursuant to Subsection 4.4(l)(iv) substantially in the form of Exhibit Q.
“Solicited Discounted Prepayment Offer”: the irrevocable written offer by each Lender, substantially in the form of Exhibit R, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.
“Solicited Discounted Prepayment Response Date”: as defined in Subsection 4.4(l)(iv)(1).
“Solicited Discount Proration”: as defined in Subsection 4.4(l)(iv)(3).
“Solvent” and “Solvency”: with respect to Holdings and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date means (i) the Fair Value and Present Fair Salable Value of the assets of Holdings and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) Holdings and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iii) Holdings and its Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature (all capitalized terms used in this definition (other than “Borrower” and “Subsidiary” which have the meanings set forth in this Agreement) shall have the meaning assigned to such terms in the form of solvency certificate attached hereto as Exhibit H).
 
-50-

“Special Purpose Entity”: (x) any Special Purpose Subsidiary or (y) any other Person that is engaged in the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code or any analogous law, as in effect in any applicable jurisdiction from time to time), other accounts and/or other receivables, and/or related assets and/or (ii) financing or refinancing in respect of Capital Stock of any Special Purpose Subsidiary.
“Special Purpose Financing”: any financing or refinancing of assets consisting of or including Receivables of Holdings or any Restricted Subsidiary that have been transferred to a Special Purpose Entity or made subject to a Lien in a Financing Disposition (including any financing or refinancing in respect of Capital Stock of a Special Purpose Subsidiary held by another Special Purpose Subsidiary).
“Special Purpose Financing Expense”: for any period, (a) the aggregate interest expense for such period on any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary, which Indebtedness is not recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), and (b) Special Purpose Financing Fees.
“Special Purpose Financing Fees”: distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Special Purpose Financing.
“Special Purpose Financing Undertakings”: representations, warranties, covenants, indemnities, guarantees of performance and (subject to clause (y) of the proviso below) other agreements and undertakings entered into or provided by Holdings or any of its Restricted Subsidiaries that Holdings determines in good faith (which determination shall be conclusive) are customary or otherwise necessary or advisable in connection with a Special Purpose Financing or a Financing Disposition; provided that (x) it is understood that Special Purpose Financing Undertakings may consist of or include (i) reimbursement and other obligations in respect of notes, letters of credit, surety bonds and similar instruments provided for credit enhancement purposes, (ii) Hedging Obligations or other obligations relating to Interest Rate Agreements, Currency Agreements or Commodities Agreements entered into by Holdings or any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing Disposition, or (iii) any Guarantee in respect of customary recourse obligations (as determined in good faith by Holdings, which determination shall be conclusive) in connection with any Special Purpose Financing or Financing Disposition, including in respect of Liabilities in the event of any involuntary case commenced with the collusion of any Special Purpose Subsidiary or any Affiliate thereof, or any voluntary case commenced by any Special Purpose Subsidiary, under any applicable bankruptcy law, and (y) subject to the preceding clause (x), any such other agreements and undertakings shall not include any Guarantee of Indebtedness of a Special Purpose Subsidiary by Holdings or a Restricted Subsidiary that is not a Special Purpose Subsidiary.
“Special Purpose Subsidiary”: any Subsidiary of Holdings that (a) is engaged solely in (x) the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code or any analogous law, as in effect in any applicable jurisdiction from time to time) and other accounts and receivables (including any thereof constituting or evidenced by chattel paper, instruments or general intangibles), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and/or (ii) owning or holding Capital Stock of any Special Purpose Subsidiary and/or engaging in any financing or refinancing in respect thereof, and (y) any business or activities incidental or related to such business, and (b) is designated as a “Special Purpose Subsidiary” by Holdings.
“Specified Discount”: as defined in Subsection 4.4(l)(ii)(1).
“Specified Discount Prepayment Amount”: as defined in Subsection 4.4(l)(ii)(1).
“Specified Discount Prepayment Notice”: an irrevocable written notice of Borrower Offer of Specified Discount Prepayment made pursuant to Subsection 4.4(l)(ii) substantially in the form of Exhibit S.
 
-51-

“Specified Discount Prepayment Response”: the written response by each Lender, substantially in the form of Exhibit T, to a Specified Discount Prepayment Notice.
“Specified Discount Prepayment Response Date”: as defined in Subsection 4.4(l)(ii)(1).
“Specified Discount Proration”: as defined in Subsection 4.4(l)(ii)(3).
“Specified Excluded Real Property”: the real property described on Schedule C to Amendment No. 5.
“Specified Existing Tranche”: as defined in Subsection 2.10(a)(ii).
“Specified Refinancing Amendment”: an amendment to this Agreement effecting the incurrence of Specified Refinancing Term Loan Facilities in accordance with Subsection 2.11.
“Specified Refinancing Indebtedness”: Indebtedness incurred by theany Borrower pursuant to and in accordance with Subsection 2.11.
“Specified Refinancing Lenders”: as defined in Subsection 2.11(b).
“Specified Refinancing Term Loan Facilities”: as defined in Subsection 2.11(a).
“Specified Refinancing Term Loans”: as defined in Subsection 2.11(a).
“Specified Refinancing Tranche”: Specified Refinancing Term Loan Facilities with the same terms and conditions made on the same day and any Supplemental Term Loan added to such Tranche pursuant to Subsection 2.8.
“Sponsors”: collectively, CD&R and CVC.
“Spot Rate”: for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.
“Stated Maturity”: with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).
“Statutory Reserves”: for any day as applied to a Eurodollar Loan, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D by member banks of the United States Federal Reserve System in New York City with deposits exceeding $1,000,000,000 against “Eurocurrency liabilities” (as such term is used in Regulation D). Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under Regulation D.
“Submitted Amount”: as defined in Subsection 4.4(l)(iii)(1).
“Submitted Discount”: as defined in Subsection 4.4(l)(iii)(1).
 
-52-

“Subordinated Obligations”: any Indebtedness of Holdings (whether outstanding on the Closing Date or thereafter Incurred) that is expressly subordinated in right of payment to the Term Loan Facilities Obligations pursuant to a written agreement.
“Subsection 2.10 Additional Amendment”: as defined in Subsection 2.10(c).
“Subsidiary”: as to any Person, a corporation, partnership, limited liability company or other entity (a) of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned by such Person, or (b) the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person and, in the case of this clause (b), which is treated as a consolidated subsidiary for accounting purposes. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Holdings.
“Subsidiary Borrower”: each Restricted Subsidiary that is designated by the Borrower Representative as a borrower in respect of any Incremental Term Facility consisting of an additional term loan facility and which (x) is acceptable to the lenders providing such Incremental Term Facility and (y) if organized in a jurisdiction other than the United States, shall be organized in a jurisdiction that is reasonably acceptable to the Administrative Agent, which Restricted Subsidiary shall become a “Borrower” hereunder pursuant to a Subsidiary Borrower Joinder Agreement (which Subsidiary Borrower Joinder Agreement shall be accompanied by all documentation and other information about such Subsidiary Borrower as shall be mutually agreed to be required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act), together with their respective successors and assigns, unless and until such time as the respective Subsidiary Borrower is released from all of its obligations hereunder in accordance with terms and provisions hereof. Upon receipt of a Subsidiary Borrower Joinder Agreement, the Administrative Agent shall promptly transmit each such notice to each of the Lenders; provided that any failure to do so by the Administrative Agent shall not in any way affect the status of any such Subsidiary as a Subsidiary Borrower hereunder.
“Subsidiary Borrower Joinder Agreement”: a joinder in form and substance reasonably satisfactory to the Borrower Representative, the Administrative Agent and the applicable Incremental Lenders, to be executed by each Subsidiary Borrower designated as such after the Amendment No. 5 Effective Date.
“Subsidiary Guarantor”: (x) each Domestic Subsidiary (other than any Excluded Subsidiary) of Holdings which executes and delivers a Loan Party Guaranty pursuant to Subsection 7.9 or otherwise, in each case, unless and until such time as the respective Subsidiary Guarantor (a) ceases to constitute a Domestic Subsidiary of Holdings in accordance with the terms and provisions hereof, (b) is designated an Unrestricted Subsidiary pursuant to the terms of this Agreement or (c) is released from all of its obligations under the Loan Party Guaranty in accordance with the terms and provisions thereof and (y) each other Subsidiary of Holdings which Holdings causes to execute and deliver a Loan Party Guaranty pursuant to the last sentence of Subsection 7.9(b), in each case, unless and until such time as the respective Subsidiary Guarantor (a) ceases to constitute a Subsidiary of Holdings in accordance with the terms and provisions hereof, (b) is designated an Unrestricted Subsidiary pursuant to the terms of this Agreement or (c) is released from all of its obligations under the Loan Party Guaranty in accordance with the terms and provisions thereof.
“Successor Borrower”: as defined in Subsection 8.7(b)(i).
“Successor Holdings”: as defined in Subsection 8.7(a)(i).
“Supplemental Term Loan Commitments”: as defined in Subsection 2.8(a).
“Supplemental Term Loans”: Term Loans made in respect of Supplemental Term Loan Commitments.
 
-53-

“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Tax Sharing Agreement”: any tax sharing agreement among Holdings, a Parent Entity and any of their respective Affiliates, as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Taxes”: any and all present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority.
“Temasek Investors”: collectively, (i) Temasek Holdings (Private) Limited, and any successor in interest thereto, (ii) Dahlia Investments Pte. Ltd., and any successor in interest thereto, and (iii) any Affiliate of any Temasek Investor identified in clauses (i) and (ii) of this definition.
“Temporary Cash Investments”: any of the following: (i) any investment in (x) direct obligations of the United States of America, Canada, a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by Holdings or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any thereof, or obligations Guaranteed by the United States of America, Canada or a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by Holdings or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any of the foregoing, or obligations guaranteed by any of the foregoing or (y) direct obligations of any foreign country recognized by the United States of America rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (ii) overnight bank deposits, and investments in time deposit accounts, certificates of deposit, bankers’ acceptances and money market deposits (or, with respect to foreign banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by (x) any bank or other institutional lender under this Agreement or any affiliate thereof or (y) a bank or trust company that is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital and surplus aggregating in excess of $250,000,000 (or the foreign currency equivalent thereof) and whose long term debt is rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization) at the time such Investment is made, (iii) repurchase obligations with a term of not more than 30 days for underlying securities or instruments of the types described in clause (i) or (ii) above entered into with a bank meeting the qualifications described in clause (ii) above, (iv) Investments in commercial paper, maturing not more than 270 days after the date of acquisition, issued by a Person (other than that of Holdings or any of its Subsidiaries), with a rating at the time as of which any Investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (v) Investments in securities maturing not more than one year after the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vi) Indebtedness or Preferred Stock (other than of Holdings or any of its Subsidiaries) having a rating of “A” or higher by S&P or “A2” or higher by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vii) investment funds investing 95.0% of their assets in securities of the type described in clauses (i) through (vi) above (which funds may also hold reasonable amounts of cash pending investment and/or distribution), (viii) any money market deposit accounts issued or offered by a domestic commercial bank or a commercial bank organized and located in a country recognized by the United States of America, in each case, having capital and surplus in excess of $250,000,000 (or the foreign currency equivalent thereof), or investments in money market funds subject to the risk limiting conditions of Rule 2a-7 (or any successor rule) of the SEC under the Investment Company Act of 1940, as amended and (ix) similar investments approved by the Board of Directors in the ordinary course of business.
 
-54-

“Term B Loan Maturity Date”: July 1, 2024.
“Term B Loans”: collectively, the Term B-3 Loans, Term B-4 Loans and Euro Term B-25 Loans.
“Term B-2 Loans”: all “Term B-2 Loans” (as defined in the Original Credit Agreement) outstanding under this Agreement immediately prior to the Amendment No. 2 Effective Date.
“Term B-3 Loans”: all “Term B-3 Loans” (as defined in the Original Credit Agreement) outstanding under this Agreement immediately prior to the Amendment No. 4 Effective Date.
“Term B-3 and B-4 Loan Maturity Date”: July 1, 2024.
“Term B-4 Loans”: all “Term B-4 Loans” (as defined in Subsection 2.1(b)the Original Credit Agreement) outstanding under this Agreement immediately prior to the Amendment No. 5 Effective Date.
“Term B-4 Commitment”: as to any Lender, its obligation to make Term B-4 Loans to the U.S. Borrower pursuant to Subsection 2.1(b) in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on Schedule B hereto under the heading “Term B-4 Commitment”; collectively, as to all the Lenders with a Term B-4 Commitment, the “Term B-4 Commitments.” The original aggregate amount of the Term B-4 Commitments on the Amendment No. 4 Effective Date is $300,000,000.
“Term B-5 Commitment”: as to any Lender, its obligation to make Term B-5 Loans to the U.S. Borrower and the Netherlands Borrower pursuant to Subsection 2.1(b) in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule A hereto under the heading “Term B-5 Commitment”; collectively, as to all the Lenders with a Term B-5 Commitment, the “Term B-5 Commitments.” The original aggregate principal amount of the Term B-5 Commitments on the Amendment No. 5 Effective Date is $400,000,000.
“Term B-5 Loan Maturity Date”: July 1, 2026.
“Term B-5 Loans”: as defined in Subsection 2.1(b).
“Term Loan Commitment”: as to any Lender, the aggregate of its Term B-5 Commitments, Term B-4 Commitments, Euro Term B-2 Loan Commitments, Incremental Term Loan Commitment and Supplemental Term Loan Commitments; collectively as to all Lenders the “Term Loan Commitments.”
“Term Loan Facilities Obligations”: obligations of the BorrowerBorrowers and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest and fees, if any (including interest and fees accruing during (or that would accrue but for) the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Term Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Holdings and the other Loan Parties under this Agreement and the other Loan Documents.
“Term Loans”: the Term B-35 Loans, Term B-4 Loans, Euro Term B-23 Loans, Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, as the context shall require.
 
-55-

“Total Credit Percentage”: as to any Lender at any time, the percentage which (a) the Dollar Equivalent of such Lender’s then outstanding Term Loans (if any) and such Lender’s unused Term Loan Commitments (if any) then outstanding constitutes of (b) the Dollar Equivalent of aggregate outstanding Term Loans (if any) of all Lenders then outstanding and aggregate unused Term Loan Commitments of all Lenders (if any) then outstanding.
“Total Leverage Excess Proceeds”: as defined in Subsection 8.4(b).
“Trade Payables”: with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services.
“Tranche”: refers to whether Term Loans or commitments are (1) Euro Term B-23 Loans or Euro Term B-2 Loan Commitments, (2) Term B-3 Loans, (3) Term B-4 Loans or Term B-4 Commitments, (3) Term B-5 Loans or Term B-5 Loan Commitments, (4) Incremental Term Loans or Incremental Term Loan Commitments with the same terms and conditions made on the same day and any Supplemental Term Loans added to such Tranche pursuant to Subsection 2.8, (5) Extended Term Loans (of the same Extension Series) or (6) Specified Refinancing Term Loan Facilities with the same terms and conditions made on the same day and any Supplemental Term Loans added to such Tranche pursuant to Subsection 2.8.
“Transactions”: collectively, any or all of the following (whether taking place prior to, on or following the date hereof): (i) the entry into the Senior Notes Documents and the offering and issuance of the Senior Notes, (ii) the entry into the Term Loan Facilities on and after the Closing Date but prior to the Amendment No. 2 Effective Date and Incurrence of Indebtedness thereunder by one or more of Holdings and its Subsidiaries, (iii) the entry into the ABL Credit Facilities and the Incurrence of Indebtedness thereunder by one or more of Holdings and its Subsidiaries, (iv) the repayment of the Existing Term Loan Agreement, and (v) all other transactions relating to any of the foregoing (including payment of fees and expenses related to any of the foregoing).
“Transformative Acquisition”: means any acquisition by Holdings or any Restricted Subsidiary that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such acquisition, would not provide Holdings and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by Holdings acting in good faith.
“Transferee”: any Participant or Assignee.
“Treasury Capital Stock”: as defined in Subsection 8.2(b)(i).
“Type”: the type of Loan determined based on the interest option applicable thereto, with there being three Types of Loans hereunder, namely ABR Loans, Eurodollar Loans and EURIBOR Loans.
“UCC”: the Uniform Commercial Code as in effect in the State of New York from time to time.
“United States Person”: any United States person within the meaning of Section 7701(a)(30) of the Code.
“Unrestricted Cash”: at any date of determination, (a) the aggregate amount of cash, Cash Equivalents and Temporary Cash Investments included in the cash accounts that would be listed on the consolidated balance sheet of Holdings prepared in accordance with GAAP as of the end of the most recent four consecutive quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available to the extent such cash is not classified as “restricted” for financial statement purposes (unless so classified solely because of any provision under the Loan Documents or any other agreement or instrument governing other Indebtedness that is subject to the ABL Intercreditor Agreement, the Intercreditor Agreement or any Other Intercreditor Agreement governing the application thereof or because they are subject to a Lien securing the Term
 
-56-

Loan Facilities Obligations or other Indebtedness that is subject to the ABL Intercreditor Agreement, Intercreditor Agreement or any Other Intercreditor Agreement), plus (b) the proceeds from any Incurrence of Incremental Term Loans since the date of such consolidated balance sheet and on or prior to the date of determination that are (in the good faith judgment of Holdings) intended to be used for working capital purposes.
“Unrestricted Subsidiary”: (i) any Subsidiary of Holdings that at the time of determination is an Unrestricted Subsidiary, as designated by the Board of Directors in the manner provided below, and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of Holdings (including any newly acquired or newly formed Subsidiary of Holdings), other than the BorrowerBorrowers and any direct or indirect parent entity of the U.S. Borrower to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, Holdings or any other Restricted Subsidiary of Holdings that is not a Subsidiary of the Subsidiary to be so designated; provided, that (A) such designation was made at or prior to the Closing Date, or (B) the Subsidiary to be so designated has total consolidated assets of $1,000 or less, (C) if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Subsection 8.2 and (D) immediately after such designation, no Event of Default under Subsection 9.1(a) or (f) shall have occurred and be continuing. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that immediately after giving effect to such designation (1) (x) Holdings could Incur at least $1.00 of additional Indebtedness under Subsection 8.1(a) or (y) the Consolidated Coverage Ratio would be greater than it was immediately prior to giving effect to such designation or (z) such Subsidiary shall be a Special Purpose Subsidiary with no Indebtedness outstanding other than Indebtedness that can be Incurred (and upon such designation shall be deemed to be Incurred and outstanding) pursuant to Subsection 8.1(b) and (2) immediately after such designation, no Event of Default under Subsection 9.1(a) or (f) shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Administrative Agent by promptly filing with the Administrative Agent a copy of the resolution of Holdings’ Board of Directors giving effect to such designation and a certificate of a Responsible Officer of Holdings certifying that such designation complied with the foregoing provisions.
“U.S. Borrower”: as defined in the Preamble hereto.
“U.S. Tax Compliance Certificate”: as defined in Subsection 4.11(b)(ii)(2).
“Voting Stock”: as to any entity, all classes of Capital Stock of such entity then outstanding and normally entitled to vote in the election of directors or all interests in such entity with the ability to control the management or actions of such entity.
“Wholly Owned Subsidiary”: as to any Person, any Subsidiary of such Person of which such Person owns, directly or indirectly through one or more Wholly Owned Subsidiaries, all of the Capital Stock of such Subsidiary other than directors qualifying shares or shares held by nominees.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.2 Other Definitional and Interpretive Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(ab) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
 
-57-

(bc) The words “hereof,”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
(cd) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(de) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(ef) Any references in this Agreement to “cash and/or Cash Equivalents,”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(fg) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(gh) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(hi) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets);
in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with.For the avoidance of doubt, if
 
-58-

Holdings has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
(j) Any reference herein or in any other Loan Document to (i) a transfer, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (collectively, a “Division”), as if it were a transfer, assignment, sale or transfer, or similar term, as applicable, to a separate Person, and (ii) a merger, consolidation, amalgamation or consolidation, or similar term, shall be deemed to apply to the division of or by a limited liability company, or an allocation of assets to a series of a limited liability company, or the unwinding of such a division or allocation, as if it were a merger, consolidation, amalgamation or consolidation or similar term, as applicable, with a separate Person.
1.3 Borrower Representative. Each Borrower hereby designates the U.S. Borrower as the Borrower Representative. The Borrower Representative will be acting as agent on each of the Borrowers’ behalf for the purposes of issuing notices of Borrowing and notices of conversion/continuation of any Loans pursuant to Section 2 and Section 4 or similar notices, giving instructions with respect to the disbursement of the proceeds of the Loans, selecting interest rate options, giving and receiving all other notices and consents hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants) on behalf of any Borrower or the Borrowers under the Loan Documents. The Borrower Representative hereby accepts such appointment. Each Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by the Borrower Representative shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.
1.4 Foreign Subsidiary Documentation. Each guaranty and each collateral document entered into by a Foreign Subsidiary shall, in the case of such Foreign Subsidiary, be subject to the Foreign Subsidiary Documentation Principles in all respects.
1.5 Dutch Terms
In this Agreement, where it relates to a Person incorporated in the Netherlands, a reference to:
(a) “the Netherlands” means the European part of the Kingdom of the Netherlands and “Dutch” means in or of the Netherlands;
(b) “organizational documents” means the articles of association (statuten), the deed of incorporation (akte van oprichting) and an up-to-date extract of registration of the Dutch trade register;
(c) a “certificate of incorporation” means a deed of incorporation (akte van oprichting);
(d) a “security interest”, “security” or “lien” includes any mortgage (hypotheekrecht), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van rententie), right to reclaim goods (recht van reclame) and any right in rem (beperkt recht) created for the purpose of granting security (goederenrechtelijke zekerheid);
 
-59-

(e) a “winding-up”, “administration” or “dissolution” includes declared bankrupt (failliet verklaard) or dissolved (ontbonden);
(f) a “moratorium” includes surseance van betaling or voorlopige surseance van betaling and “moratorium is declared” includes surseance verleend or voorlopige surseance verleend;
(g) a “liquidator”, “receiver”, “administrative receiver”, “conservator”, “trustee”, “administrator”, “compulsory manager”, “custodian”, “assignee for the benefit of creditors” or similar Person includes a curator, a beoogd curator or a bewindvoerder;
(h) an “attachment” includes a executoriaal beslag or conservatoir beslag;
(i) “all necessary corporate or other organizational action to authorize” includes without limitation (i) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden) and (ii) obtaining an unconditional positive advice (advies) from the competent works council(s);
(j) to “commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors” includes a Person having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990); and
(k) a “proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors” includes any insolvency proceedings within the meaning of the Insolvency Regulation listed or to be listed in Annex A thereto.
SECTION 2
Amount and Terms of Commitments
2.1 Euro Term B-2 Loans and Term B-45 Loans.
(a) Euro Term B-2 Loans. Subject to the terms and conditions hereof, each Lender holding a Euro Term B-2 Loan Commitment severally agrees to make in Euros, in a single draw on the Amendment No. 4 Effective Date, one or more term loans (each, a “Euro Term B-2 Loan”) to the Borrower in an aggregate principal amount of its Euro Term B-2 Loan Commitment, which Euro Term B-2 Loan:
(i) shall be incurred and maintained as EURIBOR Loans; and
(ii) shall be made by each such Lender in an aggregate principal amount which does not exceed the Euro Term B-2 Loan Commitment of such Lender.
Once repaid, the Euro Term B-2 Loans outstanding hereunder may not be reborrowed. On the Amendment No. 4 Effective Date (after giving effect to the incurrence of Euro Term B-2 Loans on such date), the Euro Term B-2 Loan Commitments of the Euro Term B-2 Lenders shall terminate.
(ba) Term B-45 Loans.
 
-60-

(i) Subject to the terms and conditions hereof, each Lender holding a Term B-45 Commitment severally agrees to make, in Dollars, in a single draw on the Amendment No. 45 Effective Date, one or more term loans (each, a “Term B-45 Loan”) to the U.S. Borrower and the Netherlands Borrower in an aggregate principal amount of its Term B-45 Commitment, which Term B-45 Loan, except as hereinafter provided, shall, at the option of the Borrower Representative, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans.; and
(ii) shall be made by each such Lender in an aggregate principal amount which does not exceed theTerm B-5 Commitment of such Lender.
Once repaid, the Term B-45 Loans outstanding hereunder may not be reborrowed. On the Amendment No. 45 Effective Date (after giving effect to the incurrence of Term B-45 Loans on such date), the Term B-45 Commitments of each Lender shall terminate.
(cb) Subject to the terms and conditions hereof, all Term B-3 Loans and Term B-4 Loans outstanding immediately prior to the Amendment No. 45 Effective Date will continue to remain outstanding on the Amendment No. 45 Effective Date.
2.2 Notes.
(a) The Borrower agreesBorrowers agree that, upon the request to the Administrative Agent by any Lender made on or prior to the Closing Date or in connection with any assignment pursuant to Subsection 11.6(b), in order to evidence such Lender’s Loan, the Borrower willapplicable Borrower(s) shall execute and deliver to such Lender a promissory note substantially in the form of Exhibit A (as amended, supplemented, replaced or otherwise modified from time to time, a “Note”), in each case with appropriate insertions therein as to payee, date and principal amount, payable to such Lender and in a principal amount equal to the unpaid principal amount of the applicable Loans made (or acquired by assignment pursuant to Subsection 11.6(b)) by such Lender to the Borrowerapplicable Borrower(s). Each Note shall be payable as provided in Subsection 2.2(b) or 2.2(c), as applicable, and provide for the payment of interest in accordance with Subsection 4.1.
(b) The (i) Term B-3 Loans of all the Lenders shall be payable in consecutive quarterly installments beginning on December 31, 2017 up to and including the Term BB-3 and B-4 Loan Maturity Date (subject to reduction as provided in Subsection 4.4), on the dates and in the principal amounts, subject to adjustment as set forth below, equal to the respective amounts set forth below (together with all accrued interest thereon) opposite the applicable installment dates (or, if less, the aggregate amount of such Term B-3 Loans then outstanding); provided that if the applicable installment date is not a Business Day then the applicable payment shall be made on the immediately preceding Business Day:

	Date	  		Amount	
 Each March 31, June 30, September 30 and December 31 ending prior to the Term BB-3 and B-4 Loan Maturity Date	  	0.25% of the aggregate initial principal amount of the Term B-3 Loans on the Amendment No. 2 Effective Date		
			
Term BB-3 and B-4 Loan Maturity Date	  	all unpaid aggregate principal amounts of any outstanding Term B-3 Loans		
and (ii) Term B-4 Loans of all the Lenders shall be payable in consecutive quarterly installments beginning on June 30, 2019 up to and including the Term BB-3 and B-4 Loan Maturity Date (subject to reduction as provided in Subsection 4.4), on the dates and in the principal amounts, subject to adjustment as set forth below, equal to the respective amounts set forth below (together with all accrued interest thereon) opposite the applicable installment dates (or, if less, the aggregate amount of such Term B-4 Loans then outstanding); provided that if the applicable installment date is not a Business Day then the applicable payment shall be made on the immediately preceding Business Day:
 
-61-

				
	Date	  		Amount	
 Each March 31, June 30, September 30 and December 31 ending prior to the Term BB-3 and B-4 Loan Maturity Date	  	0.25% of the aggregate initial principal amount of the Term B-4 Loans on the Amendment No. 4 Effective Date		
			
Term BB-3 and B-4 Loan Maturity Date	  	all unpaid aggregate principal amounts of any outstanding Term B-4 Loans		
(c) The Euro Term B-25 Loans of all the Lenders shall be payable in consecutive quarterly installments beginning on June 30, 2019March 31, 2020 up to and including the Term BB-5 Loan Maturity Date (subject to reduction as provided in Subsection 4.4), on the dates and in the principal amounts, subject to adjustment as set forth below, equal to the respective amounts set forth below (together with all accrued interest thereon) opposite the applicable installment dates (or, if less, the aggregate amount of such Euro Term B-25 Loans then outstanding); provided that if the applicable installment date is not a Business Day then the applicable payment shall be made on the immediately preceding Business Day:

	Date	  		Amount	
 Each March 31, June 30, September 30 and December 31 ending prior to the Term BB-5 Loan Maturity Date	  	0.25% of the aggregate initial principal amount of the Euro Term B-25 Loans on the Amendment No. 45 Effective Date		
			
Term BB-5 Loan Maturity Date	  	all unpaid aggregate principal amounts of any outstanding Euro Term B-25 Loans		
2.3 Procedure for Euro Term B-2 Loan or Term B-45 Loan Borrowing. The Borrower Representative shall have given the Administrative Agent notice in a form approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative(which notice must have been received by the Administrative Agent prior to 9:00 A.M., New York City time (or such later time as may be agreed by the Administrative Agent in its reasonable discretion), and shall be irrevocable after funding) two Business Days prior to the Amendment No. 45 Effective Date specifying the amount of the Euro Term B-2 Loans or Term B-45 Loans to be borrowed. Upon receipt of such notice, the Administrative Agent shall promptly notify each applicable Lender thereof. Each Lender having a Euro Term B-2 Loan Commitment or Term B-45 Commitment will make the amount of its pro rata share of the Euro Term B-2 Loan Commitments or Term B-45 Commitments available to the Administrative Agent, in each case for the account of the U.S. Borrower and the Netherlands Borrower at the office of the Administrative Agent specified in Subsection 11.2 prior to 10:00 A.M., New York City time (or, if the time period for the Borrower’sBorrower Representative’s delivery of notice was extended, such later time as agreed to by the Borrower Representative and the Administrative Agent in its reasonable discretion, but in no event less than one hour following notice), on the Amendment No. 45 Effective Date in funds immediately available to the Administrative Agent. The Administrative Agent shall on such date credit the account of the Borrower Representative on the books of the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent.
2.4 [Reserved].
2.5 Repayment of Loans.
(a) The(i) Each of the U.S. Borrower and the Netherlands Borrower hereby, jointly and severally, unconditionally promises to pay to the Administrative Agent (ix) in Dollars for the account of each Lender the then unpaid principal amount of each Term B-3 Loan of such Lender on the Term BB-3 and B-4 Loan Maturity Date (or such earlier date on which the Term B-3 Loans become due and payable pursuant to Section 9), (iiy) in
 
-62-

Dollars for the account of each Lender the then unpaid principal amount of each Term B-4 Loan of such Lender on the Term BB-3 and B-4 Loan Maturity Date (or such earlier date on which the Term B-4 Loans become due and payable pursuant to Section 9) and (iii) in Euroii) each of the U.S. Borrower and the Netherlands Borrower hereby, jointly and severally, unconditionally promise to pay to the Administrative Agent in Dollars for the account of each Lender the then unpaid principal amount of each Euro Term B-25 Loan of such Lender on the Term BB-5 Loan Maturity Date (or such earlier date on which the Euro Term B-25 Loans become due and payable pursuant to Section 9). The Borrower herebyapplicable Borrower(s) hereby, jointly and severally, further agreesagree to pay interest on the unpaid principal amount of such Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in Subsection 4.1.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of each of the BorrowerBorrowers to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to Subsection 11.6(b), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder, the Type thereof, the currency of such Loan and each Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the BorrowerBorrowers to each applicable Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the BorrowerBorrowers and each applicable Lender’s share thereof.
(d) The entries made in the Register and the accounts of each Lender maintained pursuant to Subsection 2.5(c) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the BorrowerBorrowers therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the BorrowerBorrowers to repay (with applicable interest) the Loans made to the BorrowerBorrowers by such Lender in accordance with the terms of this Agreement.
2.6 [Reserved].
2.7 [Reserved].
2.8 Incremental Facilities.
(a) So long as no Event of Default under Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower Representative shall have the right, (on behalf of (x) the applicable Borrower(s) with respect to an increase to the Term Loans of an Existing Term Tranche or (y) a Borrower or a Restricted Subsidiary that shall become a Borrower in accordance with the terms hereof) at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Term Loans of any Existing Term Tranche by requesting new term loan commitments to be added to such Existing Term Tranche (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments established pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and, if applicable, the application of proceeds of any such Indebtedness to refinancing such other Indebtedness), an amount the Dollar Equivalent of which could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (iii) of the definition of “Maximum Incremental Facilities Amount,”, the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) or (ii) of the definition of “Maximum Incremental Facilities Amount,” the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment and, (iv) the applicable Borrower may elect to use clause (iii) of the “Maximum Incremental Facilities Amount” prior to clause (i) and/or (ii) thereof, and if both clause (i)
 
-63-

and/or clause (ii), on the one hand, and clause (iii) are available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected clause (iii) and (v) any portion of an Incremental Commitment incurred under the Maximum Incremental Facilities Amount may be reclassified as incurred under clause (iii) if Holdings meets the applicable leverage or coverage ratio under clause (iii) at any time subsequent to the incurrence of such Incremental Commitment). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $5,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower Representative pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, an “Additional Incremental Lender,” and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). The Borrower Representative may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower Representative shall have the right to allocate such commitments on whatever basis the Borrower Representative determines is appropriate.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrowerapplicable Borrower(s) and each increasing Lender substantially in the form attached hereto as Exhibit I-1 or in such other form as may be appropriate in the opinion of the Borrower Representative and the Administrative Agent (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 or in such other form as may be appropriate in the opinion of the Borrower Representative and the Administrative Agent (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowerapplicable Borrower(s) and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower Representative and the Administrative Agent, to effect the provisions of this Subsection 2.8; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of Holdings other than the Subsidiary Guarantorsa Loan Party, and will be secured on a pari passu or (at Holdings’ option) junior basis by the same Collateral securing the Term Loan Facilities Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Term Loans”) shall rank pari passu in right of payment with or (at Holdings’ option) junior to the Term Loan Facilities Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Term Loans to be secured by any collateral or other assets of any Loan Party that do not also secure the Term Loan Facilities Obligations and (II) so long as any Term B Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Term Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset
 
-64-

Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Term B Loans pursuant to Subsection 4.4(e), on more than a ratable basis with the Term B Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Term BB-5 Loan Maturity Date or the remaining weighted average life to maturity of the Term BB-5 Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Term BB-5 Loan Maturity Date or the remaining weighted average life to maturity of the Term BB-5 Loans, as applicable); (iv) the Incremental Term Loans shall be denominated in Dollars (any such Incremental Term Loans, “Incremental Dollar Term Loans”), Euro (any such Incremental Term Loans, “Incremental Euro Term Loans”) or other currencies as determined by the applicableBorrower and the lenders thereunder and reasonably satisfactory to the Administrative Agent,; (v) the interest rate provisions and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower Representative and the applicable Incremental Lenders; provided that with respect to any Incremental Term Loans Incurred by theany Borrower under any Incremental Term Loan Commitment, if the applicable interest rate relating to (x) any Incremental Dollar Term Loans is higher than the applicable interest rate for the Term B-3 Loansor, Term B-4 Loans or Term B-5 Loans by more than 50 basis points, then the Applicable Margin for the Term B-3 Loansor, Term B-4 Loans or Term B-5 Loans, as applicable, shall be increased to the extent necessary so that the applicable interest rate for the Term B-3 Loansor, Term B-4 Loans or Term B-5 Loans, as applicable, is equal to the applicable interest rate for such Incremental Dollar Term Loans minus 50 basis points and (y) any Incremental Euro Term Loans is higher than the applicable interest rate for the Euro Term B-2 Loans by more than 50 basis points, then the Applicable Margin for the Euro Term B-2 Loans shall be increased to the extent necessary so that the applicable interest rate for the Euro Term B-2 Loans is equal to the applicable interest rate for such Incremental Euro Term Loans minus 50 basis points; provided, further, that, in determining the applicable interest rate for the Term B Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrowerapplicable Borrower(s) to the Lenders under the Term B Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity) (provided that, if the Term B Loans are issued in a manner such that all Term B Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Term B Loans, the amount of OID and upfront fees attributable to the entire Tranche of Term B Loans shall be determined on a weighted average basis); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Term B Loans that became effective subsequent to the Closing Date but prior to the effective time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than any interest rate floor applicable to the Term B Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Term B Loans shall be required, to the extent an increase in the interest rate floor for the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Term B Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Obligations,” “Disqualified Stock,” “Junior Capital” and “Refinancing Indebtedness” and Subsection 8.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Term BB-5 Loan Maturity Date and remaining weighted average life to maturity of the Term BB-5 Loans to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as applicable, and (4) for the amendment of clause (iii) of the definition of “Additional Obligations” to provide for the applicable mandatory prepayment protections to apply to such Incremental Term Loans; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the BorrowerRepresentative; provided that to the extent such terms and documentation are not consistent with this Agreement, they shall be reasonably satisfactory to the Administrative Agent and the Borrower Representative (except for covenants or other provisions applicable only to the periods after the latest
 
-65-

maturity date of the Term Loans or any existing Incremental Term Loan existing at the time such Incremental Term Loan is incurred, as the case may be) (it being understood that if any financial maintenance covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of each existing Term Loan).
2.9 Permitted Debt Exchanges.
(a) Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted Debt Exchange Offer”) made from time to time by the Borrower Representative to all Lenders (other than any Lender that, if requested by the BorrowerRepresentative, is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act)) with outstanding Term Loans of a particular Tranche, as selected by the Borrower Representative, the Borrowerapplicable Borrower(s) may from time to time following the Closing Date consummate one or more exchanges of Term Loans of such Tranche for Additional Obligations in the form of notes (such notes, “Permitted Debt Exchange Notes,”, and each such exchange a “Permitted Debt Exchange”), so long as the following conditions are satisfied: (i) the aggregate principal amount (calculated on the face amount thereof) of Term Loans exchanged shall be equal to or more than the aggregate principal amount (calculated on the face amount thereof) of Permitted Debt Exchange Notes issued in exchange for such Term Loans, (ii) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans exchanged by the Borrowerapplicable Borrower(s) pursuant to any Permitted Debt Exchange shall automatically be cancelled and retired by the Borrowerapplicable Borrower(s) on the date of the settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrowerapplicable Borrower(s) for immediate cancellation), (iii) if the aggregate principal amount of all Term Loans (calculated on the face amount thereof) tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount of the applicable Tranche actually held by it) shall exceed the maximum aggregate principal amount of Term Loans offered to be exchanged by the Borrowerapplicable Borrower(s) pursuant to such Permitted Debt Exchange Offer, then the Borrowerapplicable Borrower(s) shall exchange Term Loans subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered, (iv) each such Permitted Debt Exchange Offer shall be made on a pro rata basis to the Lenders (other than any Lender that, if requested by the Borrowerapplicable Borrower(s), is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act)) based on their respective aggregate principal amounts of outstanding Term Loans of the applicable Tranche, (v) all documentation in respect of such Permitted Debt Exchange shall be consistent with the foregoing and all written communications generally directed to the Lenders in connection therewith shall be in form and substance consistent with the foregoing and made in consultation with the Administrative Agent and (vi) any applicable Minimum Exchange Tender Condition shall be satisfied. Notwithstanding anything to the contrary herein, no Lender shall have any obligation to agree to have any of its Loans exchanged pursuant to any Permitted Debt Exchange Offer.
(b) With respect to all Permitted Debt Exchanges effected by the Borrowerapplicable Borrower(s) pursuant to this Subsection 2.9, (i) such Permitted Debt Exchanges (and the cancellation of the exchanged Term Loans in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Subsection 4.4 and (ii) such Permitted Debt Exchange Offer shall be made for not less than $15,000,000 in aggregate principal amount of Term Loans (or, in each case, such lower principal amount as agreed to by the Administrative Agent in its reasonable discretion), provided that subject to the foregoing clause (ii), the Borrower Representative may at its election specify as a condition (a “Minimum Exchange Tender Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrower’sBorrower Representative’s discretion) of Term Loans be tendered.
 
-66-

(c) In connection with each Permitted Debt Exchange, the Borrower Representative shall provide the Administrative Agent at least ten Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower Representative and the Administrative Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this Subsection 2.9 and without conflict with Subsection 2.9(d); provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five Business Days following the date on which the Permitted Debt Exchange Offer is made (or such shorter period as may be agreed to by the Administrative Agent in its reasonable discretion).
(d) The BorrowerBorrowers shall be responsible for compliance with, and hereby agreesagree to comply with, all applicable securities and other laws in connection with each Permitted Debt Exchange, it being understood and agreed that (x) neither the Administrative Agent nor any Lender assumes any responsibility in connection with the Borrower’sBorrowers’ compliance with such laws in connection with any Permitted Debt Exchange (other than theany Borrower’s reliance on any certificate delivered by a Lender pursuant to Subsection 2.9(a) above for which such Lender shall bear sole responsibility) and (y) each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to which such Lender may be subject under the Securities Exchange Act of 1934, as amended.
2.10 Extension of Term Loans.
(a) The Borrower Representative may at any time and from time to time request that all or a portion of the Term Loans of one or more Tranches (including any Extended Term Loans) existing at the time of such request (each, an “Existing Term Tranche” and the Term Loans of such Tranche, the “Existing Term Loans”) be converted to extend the scheduled maturity date(s) of any payment of principal or scheduled termination date(s) of any commitments, as applicable, with respect to all or a portion of any principal or committed amount of any Existing Term Tranche (any such Existing Term Tranche which has been so extended, an “Extended Term Tranche,” and the Term Loans of such Extended Term Tranche, the “Extended Term Loans”) and to provide for other terms consistent with this Subsection 2.10; provided that (i) any such request shall be made by the Borrower Representative to all Lenders with Term Loans of such Existing Term Tranche on a pro rata basis (based on the aggregate outstanding principal amount of the applicable Term Loans), and (ii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower Representative. In order to establish any Extended Term Tranche, the Borrower Representativeshall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Tranche) (an “Extension Request”) setting forth the proposed terms of the Extended Term Tranche to be established, which terms shall be identical to those applicable to the Existing Term Tranche from which they are to be extended (the “Specified Existing Tranche”), except (x) all or any of the final maturity dates of such Extended Term Tranches may be delayed to later dates than the final maturity dates of the Specified Existing Tranche, (y) (A) the interest rate provisions with respect to the Extended Term Tranche may be higher or lower than the interest rate provisions for the Specified Existing Tranche and/or (B) additional fees may be payable to the Lenders providing such Extended Term Tranche in addition to or in lieu of any increased rate provisions contemplated by the preceding clause (A), in each case to the extent provided in the applicable Extension Amendment, and (z) amortization with respect to the Extended Term Tranche may be greater or lesser than amortization for the Specified Existing Tranche, so long as the Extended Term Tranche does not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Specified Existing Tranche; provided that, notwithstanding anything to the contrary in this Subsection 2.10 or otherwise, assignments and participations of Extended Term Tranches shall be governed by the same or, at the Borrower’sBorrower Representative’s discretion, more restrictive assignment and participation provisions than the assignment and participation provisions applicable to Term B Loans set forth in Subsection 11.6. No Lender shall have any obligation to agree to have any of its Existing Term Loans converted into an Extended Term Tranche pursuant to any Extension Request. Any Extended Term Tranche shall constitute a separate Tranche of Term Loans from the Specified Existing Tranches and from any other Existing Term Tranches (together with any other Extended Term Tranches so established on such date).
(b) The Borrower Representative shall provide the applicable Extension Request at least five Business Days (or such shorter period as the Administrative Agent may agree in its reasonable discretion) prior to the date on which Lenders under the applicable Existing Term Tranche(s) are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans of the Specified Existing Tranche converted into Term Loans of the Extended Term Tranche shall notify the Administrative Agent (each, an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans of the Specified Existing Tranche that it has elected to convert into Term Loans of the Extended Term Tranche. In the event that the aggregate
 
-67-

amount of the Term Loans of the Specified Existing Tranche subject to Extension Elections exceeds the amount of Term Loans of the Extended Term Tranche requested pursuant to the Extension Request, Term Loans of the Specified Existing Tranche subject to Extension Elections shall be converted to Term Loans of the Extended Term Tranche on a pro rata basis based on the amount of Term Loans of the Specified Existing Tranche included in each such Extension Election. In connection with any extension of Term Loans pursuant to this Subsection 2.10 (each, an “Extension”), the Borrower Representative shall agree to such procedures regarding timing, rounding and other administrative adjustments to ensure reasonable administrative management of the credit facilities hereunder after such Extension, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Subsection 2.10. The Borrower Representative may amend, revoke or replace an Extension Request pursuant to procedures reasonably acceptable to the Administrative Agent at any time prior to the date (the “Extension Request Deadline”) on which Lenders under the applicable Existing Term Tranche are requested to respond to the Extension Request. Any Lender may revoke an Extension Election at any time prior to 5:00 p.m. on the date that is two Business Days prior to the Extension Request Deadline, at which point the Extension Election becomes irrevocable (unless otherwise agreed by the BorrowerRepresentative). The revocation of an Extension Election prior to the Extension Request Deadline shall not prejudice any Lender’s right to submit a new Extension Election prior to the Extension Request Deadline.
(c) Extended Term Tranches shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which may include amendments to (i) provisions related to maturity, interest rates, fees or amortization referenced in clauses (x) through (z) of Subsection 2.10(a), (ii) the definitions of “Additional Obligations,” “Disqualified Stock,” “Junior Capital” and “Refinancing Indebtedness” and Subsection 8.8(b) to amend the maturity date and the weighted average life to maturity requirements, from the Term BB-5 Loan Maturity Date or the remaining weighted average life to maturity of the Term BB-5 Loans to the extended maturity date or the remaining weighted average life to maturity of such Extended Term Tranche, as applicable and (iii) clause (iii) of the definition of “Additional Obligations” to provide for the applicable mandatory prepayment protections to apply to such Extended Term Tranche, and which in each case, except to the extent expressly contemplated by the third to last sentence of this Subsection 2.10(c) and notwithstanding anything to the contrary set forth in Subsection 11.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Tranches established thereby) executed by the Loan Parties, the Administrative Agent, and the Extending Lenders. No Extension Amendment shall provide for any Extended Term Tranche in an aggregate principal amount that is less than $15,000,000 (or such lower principal amount as agreed to by the Administrative Agent in its reasonable discretion). Notwithstanding anything to the contrary in this Agreement and without limiting the generality or applicability of Subsection 11.1 to any Subsection 2.10 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Subsection 2.10 Additional Amendment”) to this Agreement and the other Loan Documents; provided that such Subsection 2.10 Additional Amendments do not become effective prior to the time that such Subsection 2.10 Additional Amendments have been consented to (including pursuant to consents applicable to holders of any Extended Term Tranches provided for in any Extension Amendment) by such of the Lenders, Loan Parties and other parties (if any) as may be required in order for such Subsection 2.10 Additional Amendments to become effective in accordance with Subsection 11.1; provided, further, that no Extension Amendment may provide for any Extended Term Tranche to be secured by any Collateral or other assets of any Loan Party that does not also secure the Specified Existing Tranche. It is understood and agreed that each Lender has consented for all purposes requiring its consent, and shall at the effective time thereof be deemed to consent to each amendment to this Agreement and the other Loan Documents authorized by this Subsection 2.10 and the arrangements described above in connection therewith except that the foregoing shall not constitute a consent on behalf of any Lender to the terms of any Subsection 2.10 Additional Amendment. In connection with any Extension Amendment, at the request of the Administrative Agent or the Extending Lenders, the applicable Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent as to the enforceability of this Agreement as amended by such Extension Amendment, and such of the other Loan Documents (if any) as may be amended thereby.
(d) Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Existing Term Tranche is converted to extend the related scheduled maturity date(s) in accordance with clause (a) above (an “Extension Date”), in the case of the Term Loans of a Specified Existing Tranche of each Extending Lender, the aggregate principal amount of Term Loans of such Specified Existing Tranche of such Extending Lender shall be deemed reduced by an amount equal to the aggregate principal amount of Term Loans of the Extended Term Tranche so converted by such Lender on such date, and such Extended Term Tranche shall be established as a separate Tranche from the Specified Existing Tranche and from any other Existing Term Tranches (together with any other Extended Term Tranches so established on such date).
 
-68-

(e) If, in connection with any proposed Extension Amendment, any Lender declines to consent to the applicable extension on the terms and by the deadline set forth in the applicable Extension Request (each such other Lender, a “Non-Extending Lender”) then the Borrower Representative may, on notice to the Administrative Agent and the Non-Extending Lender, (i) replace such Non-Extending Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Subsection 11.6 (with the assignment fee and any other costs and expenses to be paid by the BorrowerBorrowers in such instance) all of its rights and obligations under this Agreement to one or more assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower Representative to find a replacement Lender; provided, further, that the applicable assignee shall have agreed to provide Extended Term Loans on the terms set forth in such Extension Amendment; and provided, further, that all obligations of the BorrowerBorrowers owing to the Non-Extending Lender relating to the Existing Term Loans so assigned shall be paid in full by the assignee Lender (or, at its option, Holdings) to such Non-Extending Lender concurrently with such Assignment and Acceptance or (ii) if no Event of Default exists under Subsection 9.1(a) or (f), upon notice to the Administrative Agent, prepay the Existing Term Loans in whole or in part, subject to Subsection 4.12, without premium or penalty. In connection with any such replacement under this Subsection 2.10, if the Non-Extending Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (A) the date on which the replacement Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (B) the date as of which all obligations of the BorrowerBorrowers owing to the Non-Extending Lender relating to the Existing Term Loans so assigned shall be paid in full by the assignee Lender (or, at its option, Holdings) to such Non-Extending Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date, the Administrative Agent shall record such assignment in the Register and the Borrower Representative shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Non-Extending Lender.
(f) Following any Extension Date, with the written consent of the Borrower Representative, any Non-Extending Lender may elect to have all or a portion of its Existing Term Loans converted to an Extended Term Loan under the applicable Extended Term Tranche on any date (each date a “Designation Date”) prior to the maturity date of such Extended Term Tranche; provided that such Lender shall have provided written notice to the Borrower Representative and the Administrative Agent at least 10 Business Days prior to such Designation Date (or such shorter period as the Administrative Agent may agree in its reasonable discretion). Following a Designation Date, the Existing Term Loans held by such Lender so elected to be extended will be deemed to be Extended Term Loans of the applicable Extended Term Tranche, and any Existing Term Loans held by such Lender not elected to be extended, if any, shall continue to be “Existing Term Loans” of the applicable Tranche.
(g) With respect to all Extensions consummated by the BorrowerBorrowers pursuant to this Subsection 2.10, (i) such Extensions shall not constitute optional or mandatory payments or prepayments for purposes of Subsection 4.4 and (ii) except as provided above, no Extension Request is required to be in any minimum amount or any minimum increment, provided that the Borrower Representative may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Request in the Borrower’sBorrower Representative’s sole discretion and which may be waived by the Borrower Representative) of Existing Term Loans of any or all applicable Tranches be extended. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Subsection 2.10 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans on such terms as may be set forth in the relevant Extension Request) and hereby waive the requirements of any provision of this Agreement (including Subsections 4.4 and 4.8) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Subsection 2.10.
 
-69-

2.11 Specified Refinancing Term Loan Facilities.
(a) The BorrowerBorrowers may, from time to time, add one or more new term loan facilities (the “Specified Refinancing Term Loan Facilities”) to the Facilities to refinance all or any portion of any Tranche of Term Loans then outstanding under this Agreement; provided that (i) the Specified Refinancing Term Loan Facilities will not be guaranteed by any Subsidiary of Holdings other than the Subsidiary Guarantors, and will be secured on a pari passu or (at Holdings’ option) junior basis by the same Collateral securing the Term Loan Facilities Obligations (so long as any such Specified Refinancing Amendments (and related Obligations) are subject to the Intercreditor Agreement or an Other Intercreditor Agreement), (ii) the Specified Refinancing Term Loan Facilities and any term loans drawn thereunder (the “Specified Refinancing Term Loans”) shall rank pari passu in right of payment with or (at Holdings’ option) junior to the Term Loan Facilities Obligations, (iii) no Specified Refinancing Amendment may provide for any Specified Refinancing Term Loan Facility or any Specified Refinancing Term Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loan Facilities Obligations, (iv) the Specified Refinancing Term Loan Facilities will have such pricing, amortization (subject to clause (v) below) and optional and mandatory prepayment terms as may be agreed by the Borrower Representative and the applicable Lenders thereof, (v) the maturity date and the weighted average life to maturity of the Specified Refinancing Term Loan Facilities shall be no earlier than or shorter than, as the case may be, the Maturity Date of the Tranche of Term Loans being refinanced or the remaining weighted average life to maturity of the Term Loans being refinanced, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Maturity Date of the Tranche of Term Loans being refinanced or the remaining weighted average life to maturity of the Term Loans being refinanced, as applicable), (vi) the Net Cash Proceeds of such Specified Refinancing Term Loan Facility shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Loans of the applicable Tranche being so refinanced, in each case pursuant to Section 4.4; and (vii) the Specified Refinancing Term Loan Facilities shall not have a principal or commitment amount greater than the Loans being refinanced plus the aggregate amount of all fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.
(b) Each request from the Borrower Representative pursuant to this Subsection 2.11 shall set forth the requested amount and proposed terms of the relevant Specified Refinancing Term Loan Facility. The Specified Refinancing Term Loan Facilities (or any portion thereof) may be made by any existing Lender (it being understood that no existing Lender shall be obligated to provide any Specified Refinancing Term Loan Facilities) or by any other bank or financial institution (any such bank or other financial institution, an “Additional Specified Refinancing Lender,” and the Additional Specified Refinancing Lenders together with any existing Lender providing Specified Refinancing Term Loan Facilities, the “Specified Refinancing Lenders”); provided that if such Additional Specified Refinancing Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (in each case, such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Specified Refinancing Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Specified Refinancing Term Loan Facilities and related Obligations had been obtained by such Lender by way of assignment).
(c) Specified Refinancing Term Loan Facilities shall become facilities under this Agreement pursuant to a Specified Refinancing Amendment to this Agreement and, as appropriate, the other Loan Documents, executed by Holdingsthe applicable Borrower(s) and each applicable Specified Refinancing Lender. Any Specified Refinancing Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower Representative and the Administrative Agent, to effect the provisions of this Subsection 2.11, in each case on terms consistent with this Section 2.11.
(d) Any loans made in respect of any such Specified Refinancing Term Loan Facility shall be made by creating a new Tranche. Each Specified Refinancing Term Loan Facility made available pursuant to this Subsection 2.11 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $5,000,000 in excess thereof (or, in each case, such lower minimum amounts or multiples as may be agreed to by the Administrative Agent in its reasonable discretion).
(e) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Specified Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Specified Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary or appropriate to reflect the existence and terms of the Specified Refinancing Term Loan Facilities incurred pursuant thereto (including the addition of such Specified Refinancing Term Loan Facilities as separate
 
-70-

“Facilities” and “Tranches” hereunder and treated in a manner consistent with the Facilities being refinanced, including for purposes of prepayments and voting). Any Specified Refinancing Amendment may, without the consent of any Person other than the Borrowerapplicable Borrower(s), the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) and the Lenders providing such Specified Refinancing Term Loan Facilities, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Representative, to effect the provisions of this Section 2.11.
SECTION 3
[Reserved]
SECTION 4
General Provisions Applicable to Loans
4.1 Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the LIBOR Rate determined for such day plus the Applicable Margin in effect for such day. Each EURIBOR Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the EURIBOR Rate determined for such day plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is outstanding at a rate per annum equal to the Alternate Base Rate in effect for such day plus the Applicable Margin in effect for such day.
(c) If all or a portion of (i) the principal amount of any Loan, (ii) any interest payable thereon or (iii) any other amount payable hereunder shall not be paid when due (whether at the Stated Maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum which is (x) in the case of overdue principal, the rate that would otherwise be applicable thereto pursuant to the relevant foregoing provisions of this Subsection 4.1, plus 2.00% and (y) in the case of other amounts (including overdue interest), the rate described in clause (b) of this Subsection 4.1 for ABR Loans accruing interest at the Alternate Base Rate plus 2.00%, in each case from the date of such nonpayment until such amount is paid in full (as well after as before judgment); provided that (1) no amount shall be payable pursuant to this Subsection 4.1(c) to a Defaulting Lender so long as such Lender shall be a Defaulting Lender and (2) no amounts shall accrue pursuant to this Subsection 4.1(c) on any overdue amount or other amount payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(d) Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to clause (c) of this Subsection 4.1 shall be payable from time to time on demand.
(e) It is the intention of the parties hereto to comply strictly with applicable usury laws; accordingly, it is stipulated and agreed that the aggregate of all amounts which constitute interest under applicable usury laws, whether contracted for, charged, taken, reserved, or received, in connection with the indebtedness evidenced by this Agreement or any Notes, or any other document relating or referring hereto or thereto, now or hereafter existing, shall never exceed under any circumstance whatsoever the maximum amount of interest allowed by applicable usury laws.
4.2 Conversion and Continuation Options.
(a) Subject to its obligations pursuant to Subsection 4.12(c), the Borrower Representative may elect from time to time to convert outstanding Loans of a given Tranche denominated in Dollars from Eurodollar Loans to ABR Loans by the Borrower giving the Administrative Agent irrevocable notice of such election prior to 1:00 P.M., New York City time two Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to such election. The Borrower Representative may elect from time to time
 
-71-

to convert outstanding Loans of a given Tranche from ABR Loans to Eurodollar Loans, by the Borrower giving the Administrative Agent irrevocable notice of such election prior to 1:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to such election. Any such notice of conversion to Eurodollar Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. All or any part of outstanding Eurodollar Loans or ABR Loans may be converted as provided herein, provided that (i) (unless the Required Lenders otherwise consent) no Loan may be converted into a Eurodollar Loan when any Default or Event of Default has occurred and is continuing and, in the case of any Default (other than a Default under Subsection 9.1(f)), the Administrative Agent has given notice to Holdingsthe Borrower Representative that no such conversions may be made, (ii) no Loan may be converted into a Eurodollar Loan after the date that is one month prior to the applicable Maturity Date and (iii) no Loan denominated in Euro may be converted to ABR Loans.
(b) Any Eurodollar Loan or EURIBOR Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower Representative giving notice to the Administrative Agent of the length of the next Interest Period to be applicable to such Eurodollar Loan or EURIBOR Loan, determined in accordance with the applicable provisions of the term “Interest Period” set forth in Subsection 1.1, provided that no Eurodollar Loan denominated in Dollars may be continued as such (i) (unless the Required Lenders otherwise consent) when any Default or Event of Default has occurred and is continuing and, in the case of any Default (other than a Default under Subsection 9.1(f)), the Administrative Agent has given notice to Holdingsthe Borrower Representative that no such continuations may be made or (ii) after the date that is one month prior to the applicable Maturity Date, and provided, further, that if the Borrower Representative shall fail to give any required notice as described above in this clause (b) or if such continuation is not permitted pursuant to the preceding proviso any such Eurodollar Loans denominated in Dollars shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period and any such EURIBOR Loans denominated in Euro shall be continued as EURIBOR Loans for an additional one month Interest Period. Upon receipt of any such notice of continuation pursuant to this Subsection 4.2(b), the Administrative Agent shall promptly notify each affected Lender thereof.
4.3 Minimum Amounts; Maximum Sets. All borrowings, conversions and continuations of Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of the Eurodollar Loans or EURIBOR Loans, as applicable, comprising each Set shall be equal to $1,000,000 or a whole multiple of $250,000 in excess thereof (or, in the case of Loans denominated in Euros, €1,000,000 or an integral multiple of €250,000 in excess thereof) (provided that notwithstanding the foregoing, any Loan may be converted or continued in its entirety) and so that there shall not be more than 20 Sets at any one time outstanding.
4.4 Optional and Mandatory Prepayments.
(a) Optional Prepayment of Term Loans. The applicable Borrower may at any time and from time to time prepay the Term Loans of any Class, in whole or in part, subject to Subsection 4.12, without premium or penalty (except as provided in Subsection 4.5(b)), upon notice by the Borrower Representative to the Administrative Agent prior to 1:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans or EURIBOR Loans), or prior to 12:00 P.M., New York City time on the date of prepayment (in the case of ABR Loans) (or such later time as may be agreed by the Administrative Agent in its reasonable discretion). Such notice shall specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurodollar Loans, EURIBOR Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower Representative (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or EURIBOR Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12. Partial prepayments pursuant to this Subsection 4.4(a)
 
-72-

shall be in multiples of $1,000,000; provided that, notwithstanding the foregoing, any Term Loan may be prepaid in its entirety. EachThe prepayment of Term B-4 Loans or Euro Term B-25 Loans pursuant to this Subsection 4.4(a) made on or prior to the six-month anniversary of the Amendment No. 45 Effective Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b).
(b) [Reserved].
(c) [Reserved].
(d) [Reserved].
(e) (i) Mandatory Prepayment of Term Loans. (i) The Borrowerapplicable Borrower(s) shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, Holdings or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrowerapplicable Borrower(s) shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in a Dollar Equivalent amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent BorrowerHoldings or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h) and (iii) the applicable Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about December 31, 2016) (each, an “ECF Payment Date”), in a Dollar Equivalent amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of Holdings’ Excess Cash Flow for such Fiscal Year minus (2) the sum of (x) the aggregate Dollar Equivalent principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) prepaid pursuant to Subsection 4.4(a) and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(l) (by Holdings or its Restricted Subsidiaries) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) (by Holdings or its Restricted Subsidiaries) shall be limited to the actual cash amount of such prepayment) or any Pari Passu Indebtedness (including revolving loans to the extent any commitments with respect thereto are permanently reduced), in each case during such Fiscal Year and (y) the aggregate amount in respect of clause (x) from previous fiscal years to the extent the amount of such prepayment exceeded the amount of prepayments required to be made from Holdings’ Excess Cash Flow in such fiscal year, in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent a Borrower, the Borrowers or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 3.40:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Subsection 9.
(f) [Reserved].
(g) Subject to the last sentence of Subsection 4.4(h) and Subsection 4.4(k), each prepayment of Term Loans pursuant to Subsection 4.4(e) (other than a prepayment with the proceeds of Specified Refinancing Term Loans) shall be allocated pro rata among the Term B Loans, the Incremental Term Loans, the Extended Term Loans and the Specified Refinancing Term Loans; provided, that at the request of the Borrower Representative, in lieu of such application on a pro rata basis among all Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event more than one Tranche of Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, to such Tranches on a pro rata basis. Each prepayment of Term Loans pursuant to Subsection 4.4(a) shall be applied within each applicable Tranche of Term Loans to the respective installments of principal thereof in the manner directed by the Borrower Representative (or, if no such direction is given, in direct order of maturity). Each prepayment of
 
-73-

Term Loans pursuant to Subsection 4.4(e) shall be applied within each applicable Tranche of Term Loans, first, to the accrued interest on the principal amount of Term Loans being prepaid and, second, to the respective installments of principal thereof in the manner directed by the Borrower Representative (or, if no such direction is given in direct order of maturity). Notwithstanding any other provision of this Subsection 4.4, a Lender may, at its option, and if agreed by the Borrower Representative, in connection with any prepayment of Term Loans pursuant to Subsection 4.4(a) or (e), exchange such Lender’s portion of the Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents).
(h) The Borrower Representative shall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans (x) pursuant to Subsection 4.4(e)(iii), three Business Days prior to the date on which such payment is due and (y) pursuant to any other provision of Subsection 4.4(e), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that thea Borrower isor the Borrowers are offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Subsection 4.4(e)(i), on or before the date specified in Subsection 8.4(b) and (ii) in the case of mandatory prepayments pursuant to any other clause of Subsection 4.4(e), on or before the date specified in such clause, as the case may be (each, a “Prepayment Date”). Subject to the following sentence, once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Subsection 4.4(h)). Any such notice of prepayment pursuant to Subsection 4.4(e) may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower Representative (by written notice to the Administrative Agent, on or prior to the specified effective date) if such condition is not satisfied. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall promptly give notice to each Lender of the prepayment and the Prepayment Date. The Borrower Representative (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment (other than a prepayment pursuant to Subsection 4.4(e)(ii), except as otherwise provided for in the last sentence of Subsection 4.4(g)) by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall promptly notify the Borrower Representative of such election. Any amount so declined by any Lender may, at the option of the Borrower Representative, be applied to the payment or prepayment of Indebtedness, including any Junior Debt, or otherwise be retained by Holdings and its Restricted Subsidiaries and/or applied by Holdings or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement.
(i) Amounts prepaid on account of Term Loans pursuant to Subsection 4.4(a), (e) or (l) may not be reborrowed.
(j) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of Loans pursuant to Subsection 4.4(a) or (e) would result, after giving effect to the procedures set forth in this Agreement, in the BorrowerBorrowers incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or EURIBOR Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the BorrowerBorrowers may, so long as no Default or Event of Default shall have occurred and be continuing, in itstheir sole discretion, initially (i) deposit a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or EURIBOR Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or EURIBOR Loans not immediately prepaid), to be held as security for the obligations of the BorrowerBorrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or EURIBOR Loans (or such earlier date or dates as shall be requested by the Borrower Representative) or (ii) make a prepayment of Loans in accordance with Subsection 4.4(a) or (b) with an amount equal to a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or EURIBOR Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or EURIBOR Loans not immediately prepaid); provided that, in the case of either clause (i) or (ii) above, such unpaid Eurodollar Loans or EURIBOR Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or EURIBOR Loans
 
-74-

or the related portion of such Eurodollar Loans or EURIBOR Loans, as the case may be, have or has been prepaid. In addition, if Holdings reasonably determines in good faith that repatriating any amounts attributable to Foreign Subsidiaries (other than Loan Parties) that are required to be applied to prepay Term Loans pursuant to Subsection 4.4(e)(i), (ii) or (iii) would result in material adverse tax consequences to Holdings or any of its Restricted Subsidiaries or is prohibited or delayed by applicable local law, then the BorrowerBorrowers shall not be required to prepay such amounts as required thereunder; provided that the BorrowerBorrowers shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in order to effect such prepayments without incurring material adverse tax consequences or violating applicable local law.
(k) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of Term Loans added pursuant to Subsections 2.8, 2.10 and 2.11, as applicable, or pursuant to any other credit facility added pursuant to Subsection 2.8 or 11.1(e).
(l) Notwithstanding anything in any Loan Document to the contrary, so long as no Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing, the applicable Borrower may prepay the outstanding Term Loans on the following basis:
(i) The applicable Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment, a Borrower Solicitation of Discount Range Prepayment Offers, or a Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Subsection 4.4(l); provided that the Borrower Representative shall not initiate any action under this Subsection 4.4(l) in order to make a Discounted Term Loan Prepayment unless (1) at least ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by the applicable Borrower on the applicable Discounted Prepayment Effective Date (or such shorter period as may be agreed to by the Administrative Agent in its reasonable discretion) or (2) at least three Business Days shall have passed since the date the Borrower Representative was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’sBorrower Representative’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender (or such shorter period as may be agreed to by the Administrative Agent in its reasonable discretion). Each Lender participating in any Discounted Term Loan Prepayment acknowledges and agrees that in connection with such Discounted Term Loan Prepayment, (1) the applicable Borrower then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Term Loan Prepayment (“Excluded Information”), (2) such Lender has independently, and without reliance on Holdings, theany Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to participate in such Discounted Term Loan Prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of Holdings, theany Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against Holdings, Holdingsany Borrower, its Subsidiaries, the Administrative Agent, and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender participating in any Discounted Term Loan Prepayment further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders. Any Term Loans prepaid pursuant to this Subsection 4.4(l) shall be immediately and automatically cancelled.
(ii) Borrower Offer of Specified Discount Prepayment. (1) (1) The Borrower Representative may from time to time offer to make a Discounted Term Loan Prepayment by providing the Administrative Agent with three Business Days’ (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) notice in the form of a Specified Discount Prepayment Notice; provided that (I) any such offer shall be made available, at the sole discretion of the Borrower Representative, to each Lender or to each Lender with respect to any Tranche on an individual Tranche
 
-75-

basis, (II) any such offer shall specify the aggregate Outstanding Amount offered to be prepaid (the “Specified Discount Prepayment Amount”), the Tranches of Term Loans subject to such offer and the specific percentage discount to par value (the “Specified Discount”) of the Outstanding Amount of such Term Loans to be prepaid, (III) the Specified Discount Prepayment Amount shall be in an aggregate principal amount not less than $5,000,000 and whole increments of $500,000 (or in the case of Term Loans denominated in Euros, €5,000,000 and whole increments of €500,000 in excess thereof) (or such lower minimum amounts or multiples as may be agreed to by the Administrative Agent in its reasonable discretion), and (IV) each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Administrative Agent will promptly provide each relevant Lender with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Lender to the Administrative Agent (or its delegate) by no later than 5:00 P.M., New York City time, on the third Business Day after the date of delivery of such notice to the relevant Lenders (or such later date designated by the Administrative Agent and approved by the Borrower Representative) (the “Specified Discount Prepayment Response Date”).
(2) Each relevant Lender receiving such offer shall notify the Administrative Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its relevant then outstanding Term Loans at the Specified Discount and, if so (such accepting Lender, a “Discount Prepayment Accepting Lender”), the amount of such Lender’s Outstanding Amount and Tranches of Term Loans to be prepaid at such offered discount. Each acceptance of a Discounted Term Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Lender whose Specified Discount Prepayment Response is not received by the Administrative Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined to accept such Borrower Offer of Specified Discount Prepayment.
(3) If there is at least one Discount Prepayment Accepting Lender, the applicable Borrower will make prepayment of outstanding Term Loans pursuant to this Subsection 4.4(l)(ii) to each Discount Prepayment Accepting Lender in accordance with the respective Outstanding Amount and Tranches of Term Loans specified in such Lender’s Specified Discount Prepayment Response given pursuant to the foregoing clause (2); provided that, if the aggregate Outstanding Amount of Term Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective Outstanding Amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Administrative Agent (in consultation with the Borrower Representative and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount Proration”). The Administrative Agent shall promptly, and in any case within three Business Days following the Specified Discount Prepayment Response Date, notify (I) the Borrower Representative of the respective Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate Outstanding Amount of the Discounted Term Loan Prepayment and the Tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, and the aggregate Outstanding Amount and the Tranches of all Term Loans to be prepaid at the Specified Discount on such date, and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the Outstanding Amount, Tranche and Type of Term Loans of such Lender to be prepaid at the Specified Discount on such date. Each determination by the Administrative Agent of the amounts stated in the foregoing notices to the Borrower Representative and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the applicable Borrower shall be due and payable by Holdingsthe Borrower Representative on the Discounted Prepayment Effective Date in accordance with Subsection 4.4(l)(vi) below (subject to Subsection 4.4(l)(x) below).
(iii) Borrower Solicitation of Discount Range Prepayment Offers. (1) (1) The Borrower Representative may from time to time solicit Discount Range Prepayment Offers by providing the Administrative Agent with three Business Days’ (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) notice in the form of a Discount Range Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of the Borrower Representative, to each Lender or to each Lender with respect to any Tranche on an individual Tranche
 
-76-

basis, (II) any such notice shall specify the maximum aggregate Outstanding Amount of the relevant Term Loans that the applicable Borrower is willing to prepay at a discount (the “Discount Range Prepayment Amount”), the Tranches of Term Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the Outstanding Amount of such Term Loans willing to be prepaid by the BorrowerRepresentative, (III) the Discount Range Prepayment Amount shall be in an aggregate principal amount not less than $5,000,000 (or in the case of Term Loans denominated in Euros, €5,000,000 and whole increments of €500,000 in excess thereof) and whole increments of $500,000, (or such lower minimum amounts or multiples as may be agreed to by the Administrative Agent in its reasonable discretion), and (IV) each such solicitation by the Borrower Representative shall remain outstanding through the Discount Range Prepayment Response Date. The Administrative Agent will promptly provide each relevant Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding relevant Lender to the Administrative Agent (or its delegate) by no later than 5:00 P.M., New York City time, on the third Business Day after the date of delivery of such notice to the relevant Lenders (or such later date as may be designated by the Administrative Agent and approved by the Borrower Representative) (the “Discount Range Prepayment Response Date”). Each relevant Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the “Submitted Discount”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Term Loans and the maximum aggregate Outstanding Amount and Tranches of such Term Loans such Lender is willing to have prepaid at the Submitted Discount (the “Submitted Amount”). Any Lender whose Discount Range Prepayment Offer is not received by the Administrative Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Term Loan Prepayment of any of its Term Loans at any discount to their par value within the Discount Range.
(2) The Administrative Agent shall review all Discount Range Prepayment Offers received by it by the Discount Range Prepayment Response Date and will determine (in consultation with the Borrower Representative and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) the Applicable Discount and Term Loans to be prepaid at such Applicable Discount in accordance with this Subsection 4.4(l)(iii). The Borrower Representative agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by the Administrative Agent by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par being referred to as the “Applicable Discount”) which yields a Discounted Term Loan Prepayment in an aggregate Outstanding Amount equal to the lesser of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Submitted Amount (subject to any required proration pursuant to the following Subsection 4.4(l)(iii)(3)) at the Applicable Discount (each such Lender, a “Participating Lender”).
(3) If there is at least one Participating Lender, the applicable Borrower will prepay the respective outstanding Term Loans of each Participating Lender in the aggregate Outstanding Amount and of the Tranches specified in such Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the Outstanding Amount of the relevant Term Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “Identified Participating Lenders”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Administrative Agent (in consultation with the Borrower Representative and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) will calculate such proration (the “Discount Range Proration”). The Administrative Agent shall promptly, and in any case within three Business Days following the Discount Range Prepayment Response Date, notify (w) the Borrower Representative of the respective Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate Outstanding Amount of the Discounted Term Loan Prepayment and the Tranches to be prepaid, (x) each Lender of the Discounted
 
-77-

Prepayment Effective Date, the Applicable Discount, and the aggregate Outstanding Amount and Tranches of all Term Loans to be prepaid at the Applicable Discount on such date, (y) each Participating Lender of the aggregate Outstanding Amount and Tranches of such Lender to be prepaid at the Applicable Discount on such date, and (z) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Administrative Agent of the amounts stated in the foregoing notices to the Borrower Representative and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower Representative shall be due and payable by the applicable Borrower on the Discounted Prepayment Effective Date in accordance with Subsection 4.4(l)(vi) below (subject to Subsection 4.4(l)(x) below).
(iv) Borrower Solicitation of Discounted Prepayment Offers. (1) (1) The Borrower Representative may from time to time solicit Solicited Discounted Prepayment Offers by providing the Administrative Agent with three Business Days’ (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) notice in the form of a Solicited Discounted Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of the Borrower Representative, to each Lender or to each Lender with respect to any Tranche on an individual Tranche basis, (II) any such notice shall specify the maximum aggregate Outstanding Amount of the Term Loans and the Tranches of Term Loans the applicable Borrower is willing to prepay at a discount (the “Solicited Discounted Prepayment Amount”), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate principal amount not less than $5,000,000 and whole increments of $500,000 (or in the case of Term Loans denominated in Euros, €5,000,000 and whole increments of €500,000 in excess thereof) (or such lower minimum amounts or multiples as may be agreed to by the Administrative Agent in its reasonable discretion), and (IV) each such solicitation by the Borrower Representative shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Administrative Agent will promptly provide each relevant Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding Lender to the Administrative Agent (or its delegate) by no later than 5:00 P.M., New York City time on the third Business Day after the date of delivery of such notice to the relevant Lenders (or such later date as may be designated by the Administrative Agent and approved by the Borrower Representative) (the “Solicited Discounted Prepayment Response Date”). Each Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both a discount to par (the “Offered Discount”) at which such Lender is willing to allow prepayment of its then outstanding Term Loans and the maximum aggregate Outstanding Amount and Tranches of such Term Loans (the “Offered Amount”) such Lender is willing to have prepaid at the Offered Discount. Any Lender whose Solicited Discounted Prepayment Offer is not received by the Administrative Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Term Loans at any discount to their par value.
(2) The Administrative Agent shall promptly provide the Borrower Representative with a copy of all Solicited Discounted Prepayment Offers received by it by the Solicited Discounted Prepayment Response Date. The Borrower Representative shall review all such Solicited Discounted Prepayment Offers and select, at its sole discretion, the smallest of the Offered Discounts specified by the relevant responding Lenders in the Solicited Discounted Prepayment Offers that the applicable Borrower is willing to accept (the “Acceptable Discount”), if any; provided that the Acceptable Discount shall not be an Offered Discount that is larger than the smallest Offered Discount for which the sum of all Offered Amounts affiliated with Offered Discounts that are larger than or equal to such smallest Offered Discount would, if purchased at such smallest Offered Discount, yield an amount at least equal to the Solicited Discounted Prepayment Amount. If the Borrower Representative elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by the Borrower Representative from the Administrative Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this clause (2) (the “Acceptance Date”), the Borrower Representative shall submit an Acceptance and Prepayment Notice to the Administrative Agent setting forth the Acceptable Discount. If the Administrative Agent shall fail to receive an Acceptance and Prepayment Notice from the Borrower Representative by the Acceptance Date, Holdingsthe Borrower Representative shall be deemed to have rejected all Solicited Discounted Prepayment Offers.
 
-78-

(3) Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by the Administrative Agent by the Solicited Discounted Prepayment Response Date, within three Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment Determination Date”), the Administrative Agent will determine (in consultation with the Borrower Representative and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) the aggregate Outstanding Amount and the Tranches of Term Loans (the “Acceptable Prepayment Amount”) to be prepaid by the applicable Borrower at the Acceptable Discount in accordance with this Subsection 4.4(l)(iv). If the Borrower Representative elects to accept any Acceptable Discount, then the applicable Borrower agrees to accept all Solicited Discounted Prepayment Offers received by the Administrative Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Lender that has submitted a Solicited Discounted Prepayment Offer to accept prepayment at an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Offered Amount (subject to any required proration pursuant to the following sentence) at the Acceptable Discount (each such Lender, a “Qualifying Lender”). The applicable Borrower willshall prepay outstanding Term Loans pursuant to this Subsection 4.4(l)(iv) to each Qualifying Lender in the aggregate Outstanding Amount and of the Tranches specified in such Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the Outstanding Amount of the Term Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Administrative Agent (in consultation with the Borrower Representative and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) will calculate such proration (the “Solicited Discount Proration”). On or prior to the Discounted Prepayment Determination Date, the Administrative Agent shall promptly notify (w) the Borrower Representativeof the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Term Loan Prepayment and the Tranches to be prepaid, (x) each Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Term Loans and the Tranches to be prepaid at the Applicable Discount on such date, (y) each Qualifying Lender of the aggregate Outstanding Amount and the Tranches of such Lender to be prepaid at the Acceptable Discount on such date, and (z) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Administrative Agent of the amounts stated in the foregoing notices to the Borrower Representative and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower Representative shall be due and payable by the applicable Borrower on the Discounted Prepayment Effective Date in accordance with Subsection 4.4(l)(vi) below (subject to Subsection 4.4(l)(x) below).
(v) Expenses. In connection with any Discounted Term Loan Prepayment, the BorrowerBorrowers and the Lenders acknowledge and agree that the Administrative Agent may require as a condition to any Discounted Term Loan Prepayment, the payment of reasonable out-of-pocket costs and expenses from the applicable Borrower in connection therewith.
(vi) Payment. If any Term Loan is prepaid in accordance with Subsections 4.4(l)(ii) through (iv) above, the applicable Borrower shall prepay such Term Loans on the Discounted Prepayment Effective Date. The applicable Borrower shall make such prepayment to the Administrative Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s Office in immediately available funds not later than 11:00 A.M., New York City time, on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments of the Term Loans in inverse order of maturity. The Term Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Term Loans pursuant to this Subsection 4.4(l) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable. The aggregate Outstanding Amount of the Tranches of the Term Loans outstanding shall be deemed reduced by the full par value of the aggregate Outstanding Amount of the Tranches of Term Loans prepaid on the Discounted Prepayment Effective Date
 
-79-

in any Discounted Term Loan Prepayment. The Lenders hereby agree that, in connection with a prepayment of Term Loans pursuant to this Subsection 4.4(l) and notwithstanding anything to the contrary contained in this Agreement, (i) interest in respect of the Term Loans may be made on a non-pro rata basis among the Lenders holding such Term Loans to reflect the payment of accrued interest to certain Lenders as provided in this Subsection 4.4(l)(vi) and (ii) all subsequent prepayments and repayments of the Term Loans (except as otherwise contemplated by this Agreement) shall be made on a pro rata basis among the respective Lenders based upon the then outstanding principal amounts of the Term Loans then held by the respective Lenders after giving effect to any prepayment pursuant to this Subsection 4.4(l) as if made at par. It is also understood and agreed that prepayments pursuant to this Subsection 4.4(l) shall not be subject to Subsection 4.4(a), or, for the avoidance of doubt, Subsection 11.7(a) or the pro rata allocation requirements of Subsection 4.8(a).
(vii) Other Procedures. To the extent not expressly provided for herein, each Discounted Term Loan Prepayment shall be consummated pursuant to procedures consistent with the provisions in this Subsection 4.4(l), established by the Administrative Agent acting in its reasonable discretion and as reasonably agreed by the Borrower Representative.
(viii) Notice. Notwithstanding anything in any Loan Document to the contrary, for purposes of this Subsection 4.4(l), each notice or other communication required to be delivered or otherwise provided to the Administrative Agent (or its delegate) shall be deemed to have been given upon the Administrative Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.
(ix) Actions of Administrative Agent. Each of the BorrowerBorrowers and the Lenders acknowledges and agrees that the Administrative Agent may perform any and all of its duties under this Subsection 4.4(l) by itself or through any Affiliate of the Administrative Agent and expressly consents to any such delegation of duties by the Administrative Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions in this Agreement shall apply to each Affiliate of the Administrative Agent and its respective activities in connection with any Discounted Term Loan Prepayment provided for in this Subsection 4.4(l) as well as to activities of the Administrative Agent in connection with any Discounted Term Loan Prepayment provided for in this Subsection 4.4(l).
(x) Revocation. The Borrower Representative shall have the right, by written notice to the Administrative Agent, to revoke in full (but not in part) its offer to make a Discounted Term Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date (and if such offer is so revoked, any failure by the applicable Borrower to make any prepayment to a Lender pursuant to this Subsection 4.4(l) shall not constitute a Default or Event of Default under Subsection 9.1 or otherwise).
(xi) No Obligation. This Subsection 4.4(l) shall not (i) require the BorrowerBorrowers to undertake any prepayment pursuant to this Subsection 4.4(l) or (ii) limit or restrict the BorrowerBorrowers from making voluntary prepayments of the Term Loans in accordance with the other provisions of this Agreement.
4.5 Administrative Agent’s Fee; Other Fees.
(a) The applicable Borrower agrees to pay to the Administrative Agent the fees set forth in the Fee Letter on the payment dates set forth therein.
(b) If on or prior to the six-month anniversary of the Amendment No. 45 Effective Date theany Borrower makes an optional prepayment in full of the Term B-4 Loans or Euro Term B-25 Loans (other than in connection with a Change of Control or a prepayment in full of the Term B-4 Loans or Euro Term B-25 Loans in connection with a Transformative Acquisition) in an amount equal to the Net Cash Proceeds received by Holdings or any Restricted Subsidiary from its incurrence of new Indebtedness under bank financing constituting Pari Passu Indebtedness in a Repricing Transaction, the BorrowerBorrowers shall pay to the Administrative Agent, for the
 
-80-

ratable account of each applicable Lender, a prepayment premium of 1.0% of the aggregate principal amount of the Term B-4 Loans or Euro Term B-25 Loans being prepaid. If, on or prior to the six-month anniversary of the Amendment No. 45 Effective Date, any Lender with a Term B-4 Loan or Euro Term B-25 Loan is replaced pursuant to Subsection 11.1(g) in connection with any amendment of this Agreement (including in connection with any refinancing transaction permitted under Subsection 11.6(g) to replace the Term B-4 Loans or Euro Term B-25 Loans but not in connection with a Change of Control or Transformative Acquisition) that results in a Repricing Transaction, such Lender (and not any Person who replaces such Lender pursuant to Subsection 2.10(e) or 11.1(g)) shall receive a fee equal to 1.0% of the principal amount of the Term B-4 Loans or Euro Term B-25 Loans of such Lender assigned to a replacement Lender pursuant to Subsection 2.10(e) or 11.1(g).
4.6 Computation of Interest and Fees.
(a) Interest (other than interest based on the Base Rate) shall be calculated on the basis of a 360-day year for the actual days elapsed; and interest based on the Base Rate shall be calculated on the basis of a 365-day year (or 366-day year, as the case may be) for the actual days elapsed; provided that interest on Loans denominated in currencies other than Dollars shall be calculated in accordance with market convention. The Administrative Agent shall as soon as practicable notify the Borrower Representative and the affected Lenders of each determination of an LIBOR Rate. Any change in the interest rate on a Loan resulting from a change in the Alternate Base Rate or the Statutory Reserves shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower Representative and the affected Lenders of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on each of the BorrowerBorrowers and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower Representative or any Lender, deliver to the Borrower Representative or such Lender a statement showing in reasonable detail the calculations used by the Administrative Agent in determining any interest rate pursuant to Subsection 4.1, excluding any LIBOR Rate which is based upon the Bloomberg page and any ABR Loan which is based upon the Alternate Base Rate.
4.7 Inability to Determine Interest Rate. Subject to the following paragraph, if, prior to the first day of any Interest Period, the Administrative Agent shall have determined (which determination shall be conclusive and binding upon each of the BorrowerBorrowers) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBOR Rate with respect to any Eurodollar Loan for such Interest Period (the “Affected Eurodollar Rate”), the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower Representative and the Lenders as soon as practicable thereafter. If such notice is given (a) any Eurodollar Loans the rate of interest applicable to which is based on the Affected Eurodollar Rate requested to be made on the first day of such Interest Period shall be made as ABR Loans and (b) any Term Loans that were to have been converted on the first day of such Interest Period to or continued as Eurodollar Loans the rate of interest applicable to which is based upon the Affected Eurodollar Rate shall be converted to or continued as ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans the rate of interest applicable to which is based upon the Affected Eurodollar Rate shall be made or continued as such, nor shall the Borrower Representative have the right to convert ABR Loans to Eurodollar Loans, the rate of interest applicable to which is based upon the Affected Eurodollar Rate.
Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error) that:
(i) adequate and reasonable means do not exist for ascertaining the LIBOR Rate for any requested Interest Period, including, without limitation, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBOR Rate or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”),
 
-81-

then, promptly after such determination (or if later, in the case of clause (ii), not later than 90 days prior to the Scheduled Unavailability Date), the Administrative Agent shall notify the Borrower Representative and the Lenders (a “LIBOR Successor Notice”); or
(iii) new syndicated loans have started to adopt a new benchmark interest rate,
then the Administrative Agent may, but shall not be obligated to, provide a LIBOR Successor Notice to the Borrower Representative and the Lenders, and in each of the cases described in the foregoing clauses (i)-(iii), this Agreement may, with the consent of the BorrowerBorrowers, be amended to replace the LIBO Rate with an alternate rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) by the Administrative Agent and the BorrowerBorrowers with the consent of the Required Lenders (which shall be deemed to be granted if the Administrative Agent posts a copy of such proposed amendment to Lenders and does not receive, within five Business Days thereafter, written notice from Lenders comprising the Required Lenders stating that such Required Lenders object to such amendment). Any rate adopted as provided above is referred to as the “LIBOR Successor Rate”. Any such amendment pursuant to this Section 4.7 shall include such conforming changes to the definition of Alternate Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate to reflect the adoption of the LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice, provided that to the extent that the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, the Administrative Agent shall administer such LIBOR Successor Rate in a manner determined by the Administrative Agent in consultation with the Borrower Representative. If a LIBOR Successor Notice has been given and no LIBOR Successor Rate has been determined, the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the first paragraph of this Section 4.7 shall apply, without regard to clause (c) of the definition of “Alternate Base Rate.” Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.
4.8 Pro Rata Treatment and Payments.
(a) Except as expressly otherwise provided herein, each payment (including each prepayment, but excluding payments made pursuant to Subsections 2.8, 2.9, 2.10, 2.11, 4.5(b), 4.9, 4.10, 4.11, 4.12, 4.13(d), 11.1(g) or 11.6) by thea Borrower on account of principal of and interest on account of any Loans of a given Tranche (other than (v) payments in respect of any difference in the Applicable Margin, LIBOR Rate, Alternate Base Rate or EURIBOR Rate, as applicable, in respect of any Tranche, (w) any payments pursuant to Subsection 4.4(e) to the extent declined by any Lender in accordance with Subsection 4.4(h), (x) any payments pursuant to Subsection 4.4(l) which shall be allocated as set forth in Subsection 4.4(l) and (y) any prepayments pursuant to Subsection 11.6(h)(i)(2)) shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Loans of such Tranche then held by the respective Lenders; provided that a Lender may, at its option, and if agreed by the Borrower Representative, exchange such Lender’s portion of a Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment, pursuant to the last sentence of Subsection 4.4(g). All payments (including prepayments) to be made by thea Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made on or prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 P.M., New York City time), on the due date thereof to the Administrative Agent for the account of the Lenders holding the relevant Loans, the Lenders or the Administrative Agent, as the case may be, at the Administrative Agent’s office specified in Subsection 11.2, in the applicable currency in immediately available funds. Payments received by the Administrative Agent after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders if any such payment is received prior to 2:00 P.M., New York City time, on a Business Day, in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders or Other Representatives, as the case may be, on the next succeeding Business Day. If any payment hereunder (other than payments on the Eurodollar Loans or EURIBOR Loans) becomes due and payable on a day other than a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurodollar Loan or EURIBOR Loan becomes due and payable on a day other than a Business Day, the
 
-82-

maturity of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. This Subsection 4.8(a) may be amended in accordance with Subsection 11.1(d) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new Tranches added pursuant to Subsections 2.8, 2.10 and 2.11, as applicable.
(b) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower in respect of such borrowing a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Rate for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Subsection 4.8(b) shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall notify the Borrower Representative of the failure of such Lender to make such amount available to the Administrative Agent and the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans hereunder on demand from the BorrowerBorrowers; provided that the foregoing notice and recovery provisions shall not apply to the funding of Term B-4 Loans or Euro Term B-25 Loans on the Amendment No. 45 Effective Date.
4.9 Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof in each case occurring after the Closing Date shall make it unlawful for any Lender to make or maintain any Eurodollar Loans as contemplated by this Agreement (“Affected Loans”), (a) such Lender shall promptly give written notice of such circumstances to the Borrower Representative and the Administrative Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (b) the commitment of such Lender hereunder to make Affected Loans, continue Affected Loans as such and convert an ABR Loan to an Affected Loan shall forthwith be cancelled and, until such time as it shall no longer be unlawful for such Lender to make or maintain such Affected Loans, such Lender shall then have a commitment only to make an ABR Loan when an Affected Loan is requested and (c) such Lender’s Loans then outstanding as Affected Loans, if any, shall be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such Affected Loans or within such earlier period as required by law. If any such conversion or prepayment of an Affected Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the BorrowerBorrowers shall pay to such Lender such amounts, if any, as may be required pursuant to Subsection 4.12.
4.10 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender, or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority, in each case made subsequent to the Closing Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any Tax of any kind whatsoever with respect to any Eurodollar Loans or EURIBOR Loans made or maintained by it or its obligation to make or maintain Eurodollar Loans or EURIBOR Loans, or change the basis of taxation of payments to such Lender in respect thereof, in each case, except for Non-Excluded Taxes, Taxes imposed by FATCA and Taxes measured by or imposed upon net income, or franchise Taxes, or Taxes measured by or imposed upon overall capital or net worth, or branch Taxes (in the case of such capital, net worth or branch Taxes, imposed in lieu of such net income Tax), of such Lender or its applicable lending office, branch, or any affiliate thereof;
 
-83-

(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender which is not otherwise included in the determination of the LIBOR Rate or EURIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition (excluding any Tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans or EURIBOR Loans or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower Representative from such Lender, through the Administrative Agent in accordance herewith, the BorrowerBorrowers shall promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable with respect to such Eurodollar Loans or EURIBOR Loans; provided that, in any such case, the Borrower Representative may elect to convert the Eurodollar Loans made by such Lender hereunder to ABR Loans by giving the Administrative Agent at least one Business Day’s (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) notice of such election, in which case the BorrowerBorrowers shall promptly pay to such Lender, upon demand, without duplication, amounts theretofore required to be paid to such Lender pursuant to this Subsection 4.10(a) and such amounts, if any, as may be required pursuant to Subsection 4.12. If any Lender becomes entitled to claim any additional amounts pursuant to this Subsection 4.10(a), it shall provide prompt notice thereof to the BorrowerRepresentative, through the Administrative Agent, certifying (x) that one of the events described in this clause (a) has occurred and describing in reasonable detail the nature of such event, (y) as to the increased cost or reduced amount resulting from such event and (z) as to the additional amount demanded by such Lender and a reasonably detailed explanation of the calculation thereof. Such a certificate as to any additional amounts payable pursuant to this Subsection 4.10(a) submitted by such Lender, through the Administrative Agent, to the Borrower Representative shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Subsection 4.10(a), the BorrowerBorrowers shall not be required to compensate a Lender pursuant to this Subsection 4.10(a) (i) for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower Representative of such Lender’s intention to claim compensation therefor or (ii) for any amounts, if such Lender is applying this provision to the BorrowerBorrowers in a manner that is inconsistent with its application of “increased cost” or other similar provisions under other syndicated credit agreements to similarly situated borrowers. The BorrowerBorrowers shall not be required to compensate any Lender for any claim of increased costs to such Lender of agreeing to make or making, funding or maintaining any Loans from the adoption of an alternate rate of interest pursuant to Section 4.7 solely as a result of such alternate rate of interest being based on a lower rate of interest than LIBOR. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or liquidity or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) from any Governmental Authority, in each case, made subsequent to the Closing Date, does or shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of such Lender’s obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, within ten Business Days after submission by such Lender to the Borrower (through the Administrative Agent) of a written request therefor certifying (x) that one of the events described in this clause (b) has occurred and describing in reasonable detail the nature of such event, (y) as to the reduction of the rate of return on capital resulting from such event and (z) as to the additional amount or amounts demanded by such Lender or corporation and a reasonably detailed explanation of the calculation thereof, the BorrowerBorrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or corporation for such reduction. Such a certificate as to any additional amounts payable pursuant to this Subsection 4.10(b) submitted by such Lender, through the Administrative Agent, to the Borrower Representative shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Subsection 4.10(b), the BorrowerBorrowers shall not be required to compensate a Lender pursuant to this Subsection 4.10(b) (i) for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower Representative of such Lender’s intention to claim compensation therefor or (ii)
 
-84-

for any amounts, if such Lender is applying this provision to the BorrowerBorrowers in a manner that is inconsistent with its application of “increased cost” or other similar provisions under other syndicated credit agreements to similarly situated borrowers. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(c) Notwithstanding anything herein to the contrary, the Dodd Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, regulations, guidelines and directives promulgated thereunder or issued in connection therewith, and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall be deemed to have been enacted, adopted or issued, as applicable, subsequent to the Closing Date for all purposes herein.
4.11 Taxes.
(a) Except as provided below in this Subsection 4.11 or as required by law (which, for purposes of this Subsection 4.11 shall include FATCA), all payments made by the BorrowerBorrowers or the Agents under this Agreement and any Notes shall be made free and clear of, and without deduction or withholding for or on account of any Taxes; provided that if any Non-Excluded Taxes are required to be withheld from any amounts payable by theany Borrower to any Agent or any Lender hereunder or under any Notes, the amounts so payable by thesuch Borrower shall be increased to the extent necessary to yield to such Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the BorrowerBorrowers shall be entitled to deduct and withhold, and the BorrowerBorrowers shall not be required to indemnify for, any Non-Excluded Taxes, and any such amounts payable by theany Borrower to or for the account of any Agent or Lender shall not be increased (x) if such Agent or Lender fails to comply with the requirements of clause (b), (c), or (d) of this Subsection 4.11 or with the requirements of Subsection 4.13, or (y) with respect to any Non-Excluded Taxes imposed in connection with the payment of any fees paid under this Agreement unless such Non-Excluded Taxes are imposed as a result of a Change in Law, or (z) with respect to any Non-Excluded Taxes imposed by the United States or any state or political subdivision thereof, unless such Non-Excluded Taxes are imposed as a result of a change in treaty, law or regulation that occurred after such Agent became an Agent hereunder or such Lender became a Lender hereunder (or, if such Agent or Lender is a non-U.S. intermediary or flow-through entity for U.S. federal income tax purposes, after the relevant beneficiary or member of such Agent or Lender became such a beneficiary or member, if later) (any such change, at such time, a “Change in Law”). Whenever any Non-Excluded Taxes are payable by theany Borrower, as promptly as possible thereafter the Borrower Representativeshall send to the Administrative Agent for its own account or for the account of the respective Lender or Agent, as the case may be, a certified copy of an original official receipt received by thesuch Borrower showing payment thereof. If theany Borrower fails to pay any Non-Excluded Taxes when due to the appropriate Governmental Authority in accordance with applicable law or the Borrower Representative fails to remit to the Administrative Agent the required receipts or other required documentary evidence, such Borrower or the Borrower Representative, as applicable, shall indemnify the Administrative Agent, the Lenders and the Agents for any incremental Taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Subsection 4.11 shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.
(b) Each Agent and each Lender that is not a United States Person shall:
(i) (1) (1) on or before the date of any payment by theany Borrower under this Agreement or any Notes to, or for the account of, such Agent or Lender, deliver to the Borrower Representative and the Administrative Agent (A) two accurate and complete original signed Internal Revenue Service Forms W-8BEN or W-8BEN-E (certifying that it is a resident of the applicable country within the meaning of the income tax treaty between the United States and that country) or Forms W-8ECI, or successor applicable form, as the case may be, in each case certifying that it is entitled to receive all payments under this Agreement and any Notes without deduction or withholding of any United States federal income taxes, and (B) such other forms, documentation or certifications, as the case may be, certifying that it is entitled to an exemption from United States backup withholding tax with respect to payments under this Agreement and any Notes;
 
-85-

(2) deliver to the Borrower Representative and the Administrative Agent two further accurate and complete original signed forms or certifications provided in Subsection 4.11(b)(i)(1) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form or certificate previously delivered by it to the Borrower Representative;
(3) obtain such extensions of time for filing and completing such forms or certifications as may reasonably be requested by the Borrower Representative or the Administrative Agent; and
(4) deliver, to the extent legally entitled to do so, upon reasonable request by the Borrower Representative, to the Borrower Representative and the Administrative Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Lender to an exemption from, or reduction of, withholding with respect to payments under this Agreement and any Notes, provided that, in determining the reasonableness of a request under this clause (4), such Lender shall be entitled to consider the cost (to the extent unreimbursed by any Loan Party) which would be imposed on such Lender of complying with such request; or
(ii) in the case of any such Lender that is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and is claiming the so-called “portfolio interest exemption,”
(1) represent to the BorrowerBorrowers and the Administrative Agent that it is not (A) a bank within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of theany 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;
(2) deliver to the Borrower Representative on or before the date of any payment by theany Borrower with a copy to the Administrative Agent, (A) two certificates substantially in the form of Exhibit D hereto (any such certificate a “U.S. Tax Compliance Certificate”) and (B) two accurate and complete original signed Internal Revenue Service Forms W-8BEN or W-8BEN-E, or successor applicable form, certifying to such Lender’s legal entitlement at the date of such form to an exemption from U.S. withholding tax under the provisions of Section 871(h) or Section 881(c) of the Code with respect to payments to be made under this Agreement and any Notes and (C) such other forms, documentation or certifications, as the case may be certifying that it is entitled to an exemption from United States backup withholding tax with respect to payments under this Agreement and any Notes (and shall also deliver to the Borrower Representative and the Administrative Agent two further accurate and complete original signed forms or certificates on or before the date it expires or becomes obsolete and after the occurrence of any event requiring a change in the most recently provided form or certificate and, if necessary, obtain any extensions of time reasonably requested by the Borrower Representative or the Administrative Agent for filing and completing such forms or certificates); and
(3) deliver, to the extent legally entitled to do so, upon reasonable request by the Borrower Representative, to the Borrower Representative and the Administrative Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Lender to an exemption from, or reduction of, withholding with respect to payments under this Agreement and any Notes, provided that, in determining the reasonableness of a request under this clause (3), such Lender shall be entitled to consider the cost (to the extent unreimbursed by the BorrowerBorrowers) which would be imposed on such Lender of complying with such request; or
(iii) in the case of any such Agent or Lender that is a non-U.S. intermediary or flow-through entity for U.S. federal income tax purposes,
(1) on or before the date of any payment by theany Borrower under this Agreement or any Notes to, or for the account of, such Agent or Lender, deliver to the Borrower Representative and the Administrative Agent two accurate and complete original signed Internal Revenue Service Forms W-8IMY, or successor applicable form, and, if any beneficiary or member of such Lender
 
-86-

is claiming the so-called “portfolio interest exemption,”,(I) represent to the BorrowerBorrowers and the Administrative Agent that such Agent or such Lender is not (A) a bank within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of theany 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 (II) also deliver to the Borrower Representative and the Administrative Agent two U.S. Tax Compliance Certificates certifying to such Lender’s legal entitlement at the date of such certificate to an exemption from U.S. withholding tax under the provisions of Section 881(c) of the Code with respect to payments to be made under this Agreement and any Notes; and
(A) with respect to each beneficiary or member of such Agent or Lender that is not claiming the so-called “portfolio interest exemption,”, also deliver to the Borrower Representative and the Administrative Agent (I) two accurate and complete original signed Internal Revenue Service Forms W-8BEN or W-8BEN-E (certifying that such beneficiary or member is a resident of the applicable country within the meaning of the income tax treaty between the United States and that country), Forms W-8ECI or Forms W-9, or successor applicable form, as the case may be, in each case so that each such beneficiary or member is entitled to receive all payments under this Agreement and any Notes without deduction or withholding of any United States federal income taxes and (II) such other forms, documentation or certifications, as the case may be, certifying that each such beneficiary or member is entitled to an exemption from United States backup withholding tax with respect to all payments under this Agreement and any Notes; and
(B) with respect to each beneficiary or member of such Lender that is claiming the so-called “portfolio interest exemption,”, (I) represent to the BorrowerBorrowers and the Administrative Agent that such beneficiary or member is not (1) a bank within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrower or any Parent Entity within the meaning of Section 881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (II) also deliver to the Borrower Representative and the Administrative Agent two U.S. Tax Compliance Certificates from each beneficiary or member and two accurate and complete original signed Internal Revenue Service Forms W-8BEN or W-8BEN-E, or successor applicable form, certifying to such beneficiary’s or member’s legal entitlement at the date of such certificate to an exemption from U.S. withholding tax under the provisions of Section 871(h) or Section 881(c) of the Code with respect to payments to be made under this Agreement and any Notes, and (III) also deliver to the Borrower Representative and the Administrative Agent such other forms, documentation or certifications, as the case may be, certifying that it is entitled to an exemption from United States backup withholding tax with respect to payments under this Agreement and any Notes;
(2) deliver to the Borrower Representative and the Administrative Agent two further accurate and complete original signed forms, certificates or certifications referred to above on or before the date any such form, certificate or certification expires or becomes obsolete, or any beneficiary or member changes, and after the occurrence of any event requiring a change in the most recently provided form, certificate or certification and obtain such extensions of time reasonably requested by the Borrower Representative or the Administrative Agent for filing and completing such forms, certificates or certifications; and
(3) deliver, to the extent legally entitled to do so, upon reasonable request by the Borrower Representative, to the Borrower Representative and the Administrative Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Agent or Lender (or beneficiary or member) to an exemption from, or reduction of, withholding with respect to payments under this Agreement and any Notes, provided that in determining the reasonableness of a request under this clause (3) such Agent or Lender shall be entitled to consider the cost (to the extent unreimbursed by the BorrowerBorrowers) which would be imposed on such Agent or Lender (or beneficiary or member) of complying with such request;
unless, in any such case (other than with respect to United States backup withholding tax), there has been a Change in Law which renders all such forms inapplicable or which would prevent such Agent or such Lender (or such beneficiary or member) from duly completing and delivering any such form with respect to it and such Agent or such Lender so advises the Borrower Representative and the Administrative Agent.
 
-87-

(c) Each Lender and each Agent, in each case that is a United States Person, shall, on or before the date of any payment by theany Borrower under this Agreement or any Notes to such Lender or Agent, deliver to the Borrower Representative and the Administrative Agent two accurate and complete original signed Internal Revenue Service Forms W-9, or successor applicable form, certifying that such Lender or Agent is a United States Person and that such Lender or Agent is entitled to complete exemption from United States backup withholding tax.
(d) Notwithstanding the foregoing, if the Administrative Agent is not a United States Person, on or before the date of any payment by theany Borrower under this Agreement or any Notes to the Administrative Agent, the Administrative Agent shall:
(i) deliver to the Borrower Representative (A) two accurate and complete original signed Internal Revenue Service Forms W-8ECI, or successor applicable form, with respect to any amounts payable to the Administrative Agent for its own account, (B) two accurate and complete original signed Internal Revenue Service Forms W-8IMY, or successor applicable form, with respect to any amounts payable to the Administrative Agent for the account of others, certifying that it is a “U.S. branch” and that the payments it receives for the account of others are not effectively connected with the conduct of its trade or business in the United States and that it is using such form as evidence of its agreement with the BorrowerBorrowers to be treated as a U.S. person with respect to such payments (and the BorrowerBorrowers and the Administrative Agent agree to so treat the Administrative Agent as a U.S. person with respect to such payments as contemplated by U.S. Treasury Regulation § 1.1441-1(b)(2)(iv)) or (C) such other forms or certifications as may be sufficient under applicable law to establish that the Administrative Agent is entitled to receive any payment by theany Borrower under this Agreement or any Notes (whether for its own account or for the account of others) without deduction or withholding of any United States federal income taxes;
(ii) deliver to the Borrower Representative two further accurate and complete original signed forms or certifications provided in Subsection 4.11(d)(i) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form or certificate previously delivered by it to the Borrower Representative; and
(iii) obtain such extensions of time for filing and completing such forms or certifications as may reasonably be requested by the Borrower Representative or the Administrative Agent;
unless in any such case (other than with respect to United States backup withholding tax) there has been a Change in Law which renders all such forms inapplicable or which would prevent the Administrative Agent from duly completing and delivering any such form with respect to it and the Administrative Agent so advises the Borrower Representative.
(e) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA, such Lender shall deliver to the Administrative Agent and the Borrower Representative, at the time or times prescribed by law and at such time or times reasonably requested by the Administrative Agent or the BorrowerRepresentative, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Administrative Agent or the Borrower Representative as may be necessary for the Administrative Agent and the BorrowerBorrowers to comply with their respective obligations (including any applicable reporting requirements) under FATCA, to determine whether such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. For the avoidance of doubt, the BorrowerBorrowers and the Administrative Agent shall be permitted to withhold any Taxes imposed by FATCA.
4.12 Indemnity. The Borrower agreesBorrowers, jointly and severally, agree to indemnify each Lender in respect of Extensions of Credit made, or requested to be made, to the BorrowerBorrowers, and to hold each such Lender harmless from any loss or expense which such Lender may sustain or incur (other than through such Lender’s bad faith, gross negligence or willful misconduct as determined by a court of competent jurisdiction in a
 
-88-

final and nonappealable decision) as a consequence of (a) default by the BorrowerBorrowers in making a borrowing of, conversion into or continuation of Eurodollar Loans or EURIBOR Loans after the Borrower Representative has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the BorrowerBorrowers in making any prepayment or conversion of Eurodollar Loans or EURIBOR Loans after the Borrower Representative has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a payment or prepayment of Eurodollar Loans or EURIBOR Loans or the conversion of Eurodollar Loans on a day which is not the last day of an Interest Period with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest which would have accrued on the amount so prepaid, or converted, or not so borrowed, converted or continued, for the period from the date of such prepayment or conversion or of such failure to borrow, convert or continue to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Loans or EURIBOR Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) which would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. If any Lender becomes entitled to claim any amounts under the indemnity contained in this Subsection 4.12, it shall provide prompt notice thereof to the Borrower Representative, through the Administrative Agent, certifying (x) that one of the events described in clause (a), (b) or (c) has occurred and describing in reasonable detail the nature of such event, (y) as to the loss or expense sustained or incurred by such Lender as a consequence thereof and (z) as to the amount for which such Lender seeks indemnification hereunder and a reasonably detailed explanation of the calculation thereof. Such a certificate as to any indemnification pursuant to this Subsection 4.12 submitted by such Lender, through the Administrative Agent, to the Borrower Representative shall be conclusive in the absence of manifest error. The BorrowerBorrowers shall pay such Lender the amount shown as due on any such certificate within five Business Days after receipt thereof. This covenant shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.
4.13 Certain Rules Relating to the Payment of Additional Amounts.
(a) Upon the request, and at the expense of theeach applicable Borrower, each Lender and Agent to which theany Borrower is required to pay any additional amount pursuant to Subsection 4.10 or 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford theany Borrower the opportunity to contest, and reasonably cooperate with thesuch Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender or Agent shall not be required to afford theany Borrower the opportunity to so contest unless thesuch Borrower shall have confirmed in writing to such Lender or Agent its obligation to pay such amounts pursuant to this Agreement and (ii) the BorrowerBorrowers shall reimburse such Lender or Agent for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with theany Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender or Agent shall be required to afford theany Borrower the opportunity to contest, or cooperate with theany Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender or Agent in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than (i) pursuant to clause (c) below or (ii) after an Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing) and the effect of such change, as of the date of such change, would be to cause theany Borrower to become obligated to pay any additional amount under Subsection 4.10 or 4.11, thesuch Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender or Agent by theany Borrower pursuant to Subsection 4.10 or 4.11 or result in Affected Loans or commitments to make Affected Loans being automatically converted to ABR Loans or commitments to make ABR Loans, as the case may be, pursuant to Subsection 4.9, such Lender or Agent shall promptly notify the Borrower Representativeand the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Loans and Commitments held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender or Agent shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agreesBorrowers agree to reimburse such Lender or Agent for the reasonable incremental out-of-pocket costs thereof).
 
-89-

(d) If theany Borrower shall become obligated to pay additional amounts pursuant to Subsection 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under Subsection 4.10 or 4.11 or if Affected Loans or commitments to make Affected Loans are automatically converted to ABR Loans or commitments to make ABR Loans, as the case may be, under Subsection 4.9 and any affected Lender shall not have promptly taken steps necessary to avoid the need for such conversion under Subsection 4.9, the Borrower Representative shall have the right, for so long as such obligation remains, (i) with the assistance of the Administrative Agent to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower Representative to purchase the affected Loan or Commitment, in whole or in part, at an aggregate price no less than such Loan’s or Commitment’s principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (ii) so long as no Event of Default under Subsection 9.1(a) or (f) then exists or will exist immediately after giving effect to the respective prepayment, upon notice to the Administrative Agent to prepay the affected Loan, in whole or in part, subject to Subsection 4.12, without premium or penalty. In the case of the substitution of a Lender, then, the Borrower Representative, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to Subsection 11.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by Subsection 11.6(b) in connection with such assignment shall be paid by the BorrowerBorrowers or the substitute Lender. In the case of a prepayment of an affected Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Loan, the BorrowerBorrowers shall first pay the affected Lender any additional amounts owing under Subsections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including any amounts under this Subsection 4.13) prior to such substitution or prepayment. In the case of the substitution of a Lender pursuant to this Subsection 4.13(d), if the Lender being replaced does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the assignee Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of which all obligations of the BorrowerBorrowers owing to such replaced Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender and/or the Borrower toBorrowers to such Lender being replaced, then the Lender being replaced shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and the Borrower Representative shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Lender.
(e) If any Agent or any Lender receives a refund directly attributable to Taxes for which theany Borrower has made additional payments pursuant to Subsection 4.10(a) or 4.11(a), such Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority, but net of any reasonable cost incurred in connection therewith) to thesuch Borrower; provided, however, that thesuch Borrower agrees promptly to return such refund (together with any interest with respect thereto due to the relevant taxing authority) (free of all Taxes indemnifiable under Section 4.11(a)) to such Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority.
(f) The obligations of any Agent, Lender or Participant under this Subsection 4.13 shall survive the termination of this Agreement and the payment of the Term Loans and all amounts payable hereunder.
SECTION 5
Representations and Warranties
To induce the Administrative Agent and each Lender to make the Extensions of Credit requested to be made by it on the Closing Date, Holdings with respect to itself and its Restricted Subsidiaries, hereby represents and warrants, on the Closing Date, in each case after giving effect to the Transactions, to the Administrative Agent and each Lender that (subject, in the case of Foreign Subsidiaries, to the applicable Foreign Subsidiary Documentation Principles (to the extent set forth therein)):
 
-90-

5.1 Financial Condition.
(a) (i) The audited consolidated balance sheets of Holdings as of December 31, 2014 and December 31, 2013 and the related consolidated statements of operations, equity and cash flows of Holdings for the Fiscal Years ended December 31, 2014, December 31, 2013 and December 31, 2012, reported on by and accompanied by unqualified reports from Ernst & Young LLP, and (ii) the unaudited consolidated balance sheets of Holdings and the related consolidated statements of operations and cash flows of Holdings for the quarter ended March 31, 2015, present fairly, in all material respects, the consolidated financial condition as at such dates, and the consolidated statements of operations and consolidated cash flows for the respective periods then ended, of Holdings. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP consistently applied throughout the periods covered thereby (except as approved by a Responsible Officer, and disclosed in any such schedules and notes).
(b) [Reserved].
(c) The Projections have been prepared by management of Holdings in good faith based upon assumptions believed by management to be reasonable at the time of preparation thereof (it being understood that such Projections, and the assumptions on which they were based, may or may not prove to be correct).
5.2 No Change; Solvent. Since December 31, 20142018, there has been no development or event relating to or affecting any Loan Party which has had or would be reasonably expected to have a Material Adverse Effect. As of the Closing Date, after giving effect to the consummation of the Transactions to be consummated on the Closing Date, Holdings, together with its Subsidiaries on a consolidated basis, is Solvent.
5.3 Corporate Existence; Compliance with Law. Each of the Loan Parties (a) is duly organized, validly existing and (to the extent applicable in the relevant jurisdiction) in good standing under the laws of the jurisdiction of its incorporation or formation, except (other than with respect to the BorrowerBorrowers), to the extent that the failure to be (to the extent applicable) in good standing would not reasonably be expected to have a Material Adverse Effect, (b) has the legal right to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, except to the extent that the failure to have such legal right would not be reasonably expected to have a Material Adverse Effect, (c) is duly qualified as a foreign corporation or limited liability company and (to the extent applicable in the relevant jurisdiction) in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, other than in such jurisdictions where the failure to be so qualified and (to the extent applicable) in good standing would not be reasonably expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law, except to the extent that the failure to comply therewith would not, in the aggregate, be reasonably expected to have a Material Adverse Effect. For the purposes of the Insolvency Regulation, the centre of main interests of any Person incorporated in the Netherlands, is situated in its jurisdiction of incorporation and it has no “establishment” (as that term is used in Article 2(10) of the Insolvency Regulation) in any other jurisdiction.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each Loan Party has the corporate or other organizational power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the BorrowerBorrowers, to obtain Extensions of Credit hereunder, and each such Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of theeach Borrower, to authorize the Extensions of Credit to it, if any, on the terms and conditions of this Agreement and any Notes. No consent or authorization of, filing with, notice to or other similar act by or in respect of, any Governmental Authority or any other Person is required to be obtained or made by or on behalf of any Loan Party in connection with the execution, delivery, performance, validity or enforceability of the Loan Documents to which it is a party or, in the case of theeach Borrower, with the Extensions of Credit to it, if any, hereunder, except for (a) consents, authorizations, notices and filings described in Schedule 5.4, all of which have been obtained or made prior to the Closing Date, (b) filings to perfect the Liens created by the Security Documents, and (c) consents, authorizations, notices and filings which the failure to obtain or make would not reasonably be expected to have a Material Adverse Effect. This Agreement has been duly executed and delivered by Holdings and the BorrowerBorrowers, and each other Loan Document to which any Loan Party is a party will be duly executed and delivered on behalf of such Loan Party. This Agreement constitutes
 
-91-

a legal, valid and binding obligation of Holdings and the BorrowerBorrowers and each other Loan Document to which any Loan Party is a party when executed and delivered will constitute a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of the Loan Documents by any of the Loan Parties, the Extensions of Credit hereunder and the use of the proceeds thereof (a) will not violate any Requirement of Law or Contractual Obligation of such Loan Party in any respect that would reasonably be expected to have a Material Adverse Effect, (b) will not result in, or require the creation or imposition of any Lien (other than Liens securing the Term Loan Facility Obligations or otherwise permitted hereby) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation and (c) will not violate any provision of the Organizational Documents of such Loan Party or any of the Restricted Subsidiaries, except (other than with respect to the Borrower) as would not reasonably be expected to have a Material Adverse Effect.
5.6 No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of Holdings, threatened by or against Holdings or any of its Restricted Subsidiaries or against any of their respective properties or revenues, (a) except as described on Schedule 5.6, which is so pending or threatened at any time on or prior to the Closing Date and relates to any of the Loan Documents or any of the transactions contemplated hereby or thereby or (b) which would be reasonably expected to have a Material Adverse Effect.
5.7 No Default. No Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of Holdings and its Restricted Subsidiaries has good title in fee simple to, or a valid leasehold interest in, all its material real property located in the United States of America, and good title to, or a valid leasehold interest in, all its other material property located in the United States of America, except those for which the failure to have such good title or such leasehold interest would not be reasonably expected to have a Material Adverse Effect, and none of such real or other property is subject to any Lien, except for Liens permitted hereby (including Permitted Liens). Schedule 5.8 sets forth all real property owned in fee by any Loan Party with a Fair Market Value equal to or in excess of $10 million as of the Closing Date.
5.9 Intellectual Property. Holdings and each of its Restricted Subsidiaries owns beneficially, or has the legal right to use, all United States and foreign patents, patent applications, trademarks, trademark applications, trade names, copyrights, and rights in know-how and trade secrets necessary for each of them to conduct its business as currently conducted (the “Intellectual Property”) except for those the failure to own or have such legal right to use would not be reasonably expected to have a Material Adverse Effect. Except as provided on Schedule 5.9, no claim has been asserted and is pending by any Person against Holdings or any of its Restricted Subsidiaries challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does Holdings know of any such claim, and, to the knowledge of Holdings, the use of such Intellectual Property by Holdings and its Restricted Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements which in the aggregate, would not be reasonably expected to have a Material Adverse Effect.
5.10 Taxes.
. (a) To the knowledge of Holdings, (1) Holdings and each of its Restricted Subsidiaries has filed or caused to be filed all material tax returns which are required to be filed by it and has paid (ax) all Taxes shown to be due and payable on such returns and (by) all Taxes shown to be due and payable on any assessments of which it has received notice made against it or any of its property (including the Mortgaged Fee Properties) and all other Taxes imposed on it or any of its property by any Governmental Authority; and (2) no Tax Liens have been filed (except for Liens for Taxes not yet due and payable), and no claim is being asserted in writing, with respect to any such Taxes (in each case other than in respect of any such (i) Taxes with respect to which the failure to pay, in the aggregate, would not have a Material Adverse Effect or (ii) Taxes the amount or validity of which are currently being contested in good faith by appropriate proceedings diligently conducted and with respect to which reserves in conformity with GAAP have been provided on the books of Holdings or its Restricted Subsidiaries, as the case may be).
 
-92-

(b) As of the Amendment No. 5 Effective Date, the Netherlands Borrower is not required to make any deduction or withholding for or on account of any Taxes from any payment it may make under any Loan Document to a Lender.
(c) As of the Amendment No. 5 Effective Date, the Netherlands Borrower is resident for tax purposes in the Netherlands only and does not have a permanent establishment or other taxable presence outside the Netherlands.
5.11 Federal Regulations. No part of the proceeds of any Extensions of Credit will be used for any purpose which violates the provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation X of the Board. If requested by any Lender or the Administrative Agent, the Borrower Representative will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, referred to in said Regulation U.
5.12 ERISA.
(a) During the five year period prior to each date as of which this representation is made, or deemed made, with respect to any Plan, none of the following events or conditions, either individually or in the aggregate, has resulted or is reasonably likely to result in a Material Adverse Effect: (i) a Reportable Event, (ii) a failure to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA), (iii) any noncompliance with the applicable provisions of ERISA or the Code, (iv) a termination of a Single Employer Plan (other than a standard termination pursuant to Section 4041(b) of ERISA), (v) a Lien on the property of Holdings or its Restricted Subsidiaries in favor of the PBGC or a Plan, (vi) a complete or partial withdrawal from any Multiemployer Plan by Holdings or any Commonly Controlled Entity, (vii) the ERISA Reorganization or Insolvency of any Multiemployer Plan; or (viii) any transactions that resulted or could reasonably be expected to result in any liability to Holdings or any Commonly Controlled Entity under Section 4069 of ERISA or Section 4212(c) of ERISA.
(b) With respect to any Foreign Plan, none of the following events or conditions exists and is continuing that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect: (i) substantial non-compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders, (ii) failure to be maintained, where required, in good standing with applicable regulatory authorities, (iii) any obligation of Holdings or its Restricted Subsidiaries in connection with the termination or partial termination of, or withdrawal from, any Foreign Plan, (iv) any Lien on the property of Holdings or its Restricted Subsidiaries in favor of a Governmental Authority as a result of any action or inaction regarding a Foreign Plan, (v) for each Foreign Plan which is a funded or insured plan, failure to be funded or insured on an ongoing basis to the extent required by applicable non-U.S. law (using actuarial methods and assumptions which are consistent with the valuations last filed with the applicable Governmental Authorities), (vi) any facts that, to the best knowledge of Holdings or any of its Restricted Subsidiaries, exist that would reasonably be expected to give rise to a dispute and any pending or threatened disputes that, to the best knowledge of Holdings or any of its Restricted Subsidiaries, would reasonably be expected to result in a material liability to Holdings or any of its Restricted Subsidiaries concerning the assets of any Foreign Plan (other than individual claims for the payment of benefits); and (vii) failure to make all contributions in a timely manner to the extent required by applicable non-U.S. law.
5.13 Collateral. Upon execution and delivery thereof by the parties thereto, the Guarantee and Collateral Agreement and the Mortgages (if any)Security Documents will be effective to create (to the extent described therein) in favor of the Collateral Agent for the benefit of the Secured Parties, a valid and enforceable security interest in or liens on the Collateral described therein, except as to enforcement, as may be limited by applicable domestic or foreign bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. When (a) all Filings (as defined in the Guarantee and Collateral Agreement) have been completed, (b) all applicable Instruments, Chattel Paper and Documents (each as described therein)in the Guarantee and Collateral Agreement) constituting Collateral a security interest in which is perfected by possession have been delivered to, and/or are in the continued possession of, the Collateral Agent, the applicable Collateral Representative or any Additional Agent, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the applicable ABL Intercreditor
 
-93-

Agreement, Intercreditor Agreement or Other Intercreditor Agreement, (c) all Deposit Accounts and Pledged Stock (each as defined in the Guarantee and Collateral Agreement) a security interest in which is required by the Security Documents to be or is perfected by “control” (as described in the Uniform Commercial Code as in effect in each applicable jurisdiction (in the case of Deposit Accounts) and the State of New York (in the case of Pledged Stock) from time to time) are under the “control” of the Collateral Agent, the Administrative Agent, the applicable Collateral Representative or any Additional Agent, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the applicable ABL Intercreditor Agreement, Intercreditor Agreement or Other Intercreditor Agreement, and (d) the Mortgages (if any) have been duly recorded in the proper recorders’ offices or appropriate public records and the mortgage recording fees and taxes in respect thereof, if any, are paid and compliance is otherwise had with the formal requirements of state or local law applicable to the recording of real property mortgages generally have been complied with and (e) all filings or recordings are made in the appropriate offices of the applicable jurisdictions as may be required under the terms of the applicable Security Documents, the security interests and liens granted pursuant to the Guarantee and Collateral Agreement and the MortgagesSecurity Documents shall constitute (to the extent described therein and with respect to the Mortgages, only as relates to the real property security interests and liens granted pursuant thereto) a perfected security interest in (to the extent intended to be created thereby and required to be perfected under the Loan Documents), all right, title and interest of each pledgor or mortgagor (as applicable) party thereto in the Collateral described therein (excluding Commercial Tort Claims, as defined in the Guarantee and Collateral Agreement, other than such Commercial Tort Claims set forth on Schedule 6 thereto (if any)) with respect to such pledgor or mortgagor (as applicable). Notwithstanding any other provision of this Agreement, (i) capitalized terms that are used in this Subsection 5.13 and not defined in this Agreement are so used as defined in the applicable Security Document and (ii) the provisions of this Subsection 5.13 are subject, in the case of Foreign Subsidiaries, to the Foreign Subsidiary Documentation Principles.
5.14 Investment Company Act; Other Regulations.The No Borrower is notrequired to be registered as an “investment company,” or a company “controlled” by an “investment company,”, within the meaning of the Investment Company Act. The U.S. Borrower is not subject to regulation under any federal or state statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness as contemplated hereby.
5.15 Subsidiaries. Schedule 5.15 sets forth all the Subsidiaries of Holdings at the Closing Date (after giving effect to the Transactions), the jurisdiction of their organization and the direct or indirect ownership interest of Holdings therein.
5.16 Purpose of Loans. The proceeds of Term Loans shall be used by the Borrower (i) in the case of the Term B-3 Loans, to refinance the Term B-2 Loans and Euro Term B-1 Loans in full, (ii) in the case of the Term B-4 Loans and Euro Term B-2 Loans, to finance the Amendment No. 4 Transactions and (iii) in the case of the Term B-5 Loans, to finance the Amendment No. 5 Transactions and (iv) in the case of all other Term Loans, to finance the working capital, capital expenditures, business requirements and for other purposes of Holdings and its Subsidiaries not prohibited by this Agreement.
5.17 Environmental Matters. Except as disclosed on Schedule 5.17 or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:
(a) Holdings and its Restricted Subsidiaries: (i) are, and within the period of all applicable statutes of limitation have been, in compliance with all applicable Environmental Laws; (ii) hold all Environmental Permits (each of which is in full force and effect) required for any of their current operations or for any property owned, leased, or otherwise operated by any of them and reasonably expect to timely obtain without material expense all such Environmental Permits required for planned operations; (iii) are, and within the period of all applicable statutes of limitation have been, in compliance with all of their Environmental Permits; and (iv) believe they will be able to maintain compliance with Environmental Laws and Environmental Permits, including any reasonably foreseeable future requirements thereof.
(b) Materials of Environmental Concern have not been transported, disposed of, emitted, discharged, or otherwise released or threatened to be released, to, at or from any real property presently or formerly owned, leased or operated by Holdings or any of its Restricted Subsidiaries or at any other location, which would reasonably be expected to (i) give rise to liability or other Environmental Costs of Holdings or any of its Restricted Subsidiaries under any applicable Environmental Law, or (ii) interfere with the planned or continued operations of Holdings and its Restricted Subsidiaries, or (iii) impair the fair saleable value of any real property owned by Holdings or any of its Restricted Subsidiaries that is part of the Collateral.
 
-94-

(c) There is no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under any Environmental Law to which Holdings or any of its Restricted Subsidiaries is, or to the knowledge of Holdings or any of its Restricted Subsidiaries is reasonably likely to be, named as a party that is pending or, to the knowledge of Holdings or any of its Restricted Subsidiaries, threatened.
(d) Neither Holdings nor any of its Restricted Subsidiaries has received any written request for information, or been notified that it is a potentially responsible party, under the federal Comprehensive Environmental Response, Compensation, and Liability Act or any similar Environmental Law, or received any other written request for information from any Governmental Authority with respect to any Materials of Environmental Concern.
(e) Neither Holdings nor any of its Restricted Subsidiaries has entered into or agreed to any consent decree, order, or settlement or other agreement, nor is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral, or other forum, relating to compliance with or liability under any Environmental Law.
5.18 No Material Misstatements. The written information (including the Confidential Information Memorandum), reports, financial statements, exhibits and schedules furnished by or on behalf of Holdings to the Administrative Agent, the Other Representatives and the Lenders on or prior to the Closing Date in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto, taken as a whole, did not contain as of the Closing Date any material misstatement of fact and did not omit to state as of the Closing Date any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading in their presentation of Holdings and its Restricted Subsidiaries taken as a whole. It is understood that (a) no representation or warranty is made concerning the forecasts, estimates, pro forma information, projections and statements as to anticipated future performance or conditions, and the assumptions on which they were based or concerning any information of a general economic nature or general information about Borrower’s and itsthe Borrowers’ and their Subsidiaries’ industry, contained in any such information, reports, financial statements, exhibits or schedules, except that, in the case of such forecasts, estimates, pro forma information, projections and statements, as of the date such forecasts, estimates, pro forma information, projections and statements were generated, (i) such forecasts, estimates, pro forma information, projections and statements were based on the good faith assumptions of the management of Holdings and (ii) such assumptions were believed by such management to be reasonable and (b) such forecasts, estimates, pro forma information and statements, and the assumptions on which they were based, may or may not prove to be correct.
5.19 [Reserved].
5.20 Insurance. As of the Closing Date, the Loan Parties (other than Holdings) have all insurance required by Section 7.5 of this Agreement.
5.21 Anti-Terrorism. As of the Closing Date, (a) Holdings and its Restricted Subsidiaries are in compliance with the Patriot Act and (b) none of Holdings and its Restricted Subsidiaries is a person on the list of “Specially Designated Nationals and Blocked Persons” or subject to the limitations and prohibitions under any other U.S. Department of Treasury’s Office of Foreign Asset Control regulation or executive order (“OFAC”), in each case, except as would not reasonably be expected to have a Material Adverse Effect.
 
-95-

SECTION 6
Conditions Precedent
6.1 Conditions to Initial Extension of Credit. This Agreement, including the agreement of each Lender to make the Initial Term Loans requested to be made by it, shall become effective on the date on which the following conditions precedent shall have been satisfied or waived:
(a) Loan Documents. The Administrative Agent shall have received the following Loan Documents, executed and delivered as required below:
(i) this Agreement, executed and delivered by a duly authorized officer of Holdings and the U.S. Borrower;
(ii) a joinder to the ABL Intercreditor Agreement; and
(iii) the Guarantee and Collateral Agreement, executed and delivered by a duly authorized officer of each Loan Party required to be a signatory thereto;
(b) [Reserved].
(c) Existing Term Loan Agreement. The Administrative Agent shall have received reasonably satisfactory evidence that, substantially concurrently with the funding of the Initial Term Loans hereunder, the Existing Term Loan Agreement shall be repaid in full and all Liens securing such Indebtedness shall have been released.
(d) [Reserved].
(e) Financial Information. The Lead Arrangers shall have received the financial statements described in Subsection 5.1(a).
(f) Legal Opinions. The Administrative Agent shall have received the following executed legal opinions, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed legal opinion of Kirkland & Ellis LLP, counsel to Holdings and the other Loan Parties;
(ii) executed legal opinion of K&L Gates LLP, special Washington counsel to certain of the Loan Parties; and
(iii) executed legal opinion of Brownstein Hyatt Farber Schreck, LLP, special Nevada counsel to certain of the Loan Parties.
(g) Perfected Liens. The Collateral Agent shall have obtained a valid security interest in the Collateral covered by the Guarantee and Collateral Agreement (to the extent and with the priority contemplated therein and in the ABL Intercreditor Agreement); and all documents, instruments, filings and recordations reasonably necessary in connection with the perfection and, in the case of the filings with the United States Patent and Trademark Office and the United States Copyright Office, protection of such security interests shall have been executed and delivered or made, or shall be delivered or made substantially concurrently with the initial funding under the Loan Documents pursuant to arrangements reasonably satisfactory to the Administrative Agent and none of such Collateral shall be subject to any other pledges, security interests or mortgages except for Permitted Liens or pledges, security interests or mortgages to be released on the Closing Date.
 
-96-

(h) Pledged Stock; Stock Powers. The Collateral Agent shall have received the certificates, if any, representing the Pledged Stock under (and as defined in) the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof.
(i) Lien Searches. The Collateral Agent shall have received customary lien and judgment searches requested by it at least 30 calendar days prior to the Closing Date.
(j) Fees. The Administrative Agent, for the ratable benefit of each Lender as of the Closing Date, shall have received an initial yield payment equal to 0.50% of the aggregate principal amount of the Initial Term Loans held by such Lender as of the Closing Date, which payment shall be earned by, and payable to, each such Lender on the Closing Date (which may be offset against the proceeds of the Initial Term Loans).
(k) Secretary’s Certificate. The Administrative Agent shall have received a certificate from Holdings and each other Loan Party, dated the Closing Date, in substance reasonably satisfactory to the Administrative Agent, with appropriate insertions and attachments of resolutions or other actions, evidence or incumbency and the signature of authorized signatories and Organizational Documents, executed by a Responsible Officer and the Secretary or any Assistant Secretary or other authorized representative of such Loan Party.
(l) [Reserved].
(m) No Material Adverse Effect. Since December 31, 2014, there shall not have been any change, effect, event, development or occurrence that individually or in the aggregate has had or would be reasonably expected to have a Material Adverse Effect.
(n) Solvency. The Administrative Agent shall have received a certificate of the chief financial officer (or other comparable officer) of Holdings certifying the Solvency, after giving effect to the Transactions, of Holdings and its Subsidiaries on a consolidated basis in substantially the form of Exhibit H hereto.
(o) Patriot Act. The Administrative Agent and the Lead Arrangers shall have received at least three days prior to the Closing Date all documentation and other information about the Loan Parties mutually agreed in good faith is required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that has been reasonably requested in writing at least ten days prior to the Closing Date.
(p) Representations. Each of the representations and warranties made by any Loan Party pursuant to this Agreement and in any other Loan Document to which it is a party, shall, except to the extent that they relate to a particular date (in which case, they shall be true and correct as of such specified date), be true and correct in all material respects on and as of such date as if made on and as of such date.
(q) Borrowing Notice. With respect to the initial Extensions of Credit, the Administrative Agent shall have received a notice of such Borrowing as required by Subsection 2.3.
The making of the initial Extensions of Credit by the Lenders hereunder shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and each Lender that each of the conditions precedent set forth in this Subsection 6.1 shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person.
SECTION 7
Affirmative Covenants
Holdings hereby agrees that, from and after the Closing Date and thereafter until payment in full of the Loans and all other Term Loan Facilities Obligations then due and owing to any Lender or any Agent hereunder, Holdings shall and shall (except in the case of delivery of financial information, reports and notices) cause each of its respective Restricted Subsidiaries to(subject, in the case of Foreign Subsidiaries, to the applicable Foreign Subsidiary Documentation principles (to the extent set forth therein)):
 
-97-

7.1 Financial Statements. Furnish to the Administrative Agent for delivery to each Lender (and the Administrative Agent agrees to make and so deliver such copies):
(a) not later than 90 days following the end of each Fiscal Year of Holdings ending after the Closing Date (or such longer period as may be permitted by the SEC if Holdings were then subject to SEC reporting requirements as a non-accelerated filer), a copy of the consolidated balance sheet of Holdings as at the end of such year and the related consolidated statements of operations, changes in equity and cash flows for such year, setting forth, in each case, in comparative form the figures for and as of the end of the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit (provided that such report may contain a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, if such qualification or exception is related to (i) an upcoming Maturity Date under the Facilities or the ABL Facility or (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of Holdings or its Subsidiaries on a future date in a future period), by Holdings’ independent auditor (it being agreed that the furnishing of Holdings’ or any Parent Entity’s annual report on Form 10-K for such year, as filed with the SEC, will satisfy Holdings’ obligation under this Subsection 7.1(a) with respect to such year, including with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, so long as the report included in such Form 10-K does not contain any “going concern” or like qualification or exception (other than a “going concern” or like qualification or exception with respect to (i) an upcoming Maturity Date under the Facilities or the ABL Facility or (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of Holdings or its Subsidiaries on a future date or in a future period);
(b) not later than 45 days following the end of the first three quarterly periods of each Fiscal Year of Holdings commencing with the fiscal quarter ending June 30, 2015 (or such longer period as may be permitted by the SEC if Holdings were then subject to SEC reporting requirements as a non-accelerated filer), the unaudited consolidated balance sheet of Holdings as at the end of such quarter and the related unaudited consolidated statements of operations and changes in cash flows of Holdings for such quarter and the portion of the Fiscal Year through the end of such quarter, setting forth (solely with respect to the reports delivered pursuant to clause (ii) above) in comparative form the figures for and as of the corresponding periods of the previous year in each case certified by a Responsible Officer of Holdings as being fairly stated in all material respects (subject to normal year end audit and other adjustments) (it being agreed that the furnishing of Holdings’ or any Parent Entity’s quarterly report on Form 10-Q for such quarter, as filed with the SEC, will satisfy Holdings’ obligations under this Subsection 7.1(b) with respect to such quarter);
(c) to the extent applicable, concurrently with any delivery of consolidated financial statements referred to in Subsections 7.1(a) and (b) above, related unaudited condensed consolidating financial statements and appropriate reconciliations reflecting the material adjustments necessary (as determined by Holdings in good faith) to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements; and
(d) all such financial statements delivered pursuant to Subsection 7.1(a) or (b) to (and, in the case of any financial statements delivered pursuant to Subsection 7.1(b) shall be certified by a Responsible Officer of Holdings to) fairly present in all material respects the financial condition of Holdings and its Subsidiaries in conformity with GAAP and to be (and, in the case of any financial statements delivered pursuant to Subsection 7.1(b) shall be certified by a Responsible Officer of Holdings as being) in reasonable detail and prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods that began on or after the Closing Date (except as disclosed therein, and except, in the case of any financial statements delivered pursuant to Subsection 7.1(b), for the absence of certain notes and subject to normal year-end audit and other adjustments).
 
-98-

7.2 Certificates; Other Information. Furnish to the Administrative Agent for delivery to each Lender (and the Administrative Agent agrees to make and so deliver such copies):
(a) concurrently with the delivery of the financial statements and reports referred to in Subsections 7.1(a) and (b), a certificate signed by a Responsible Officer of Holdings in substantially the Form of Exhibit U or such other form as may be agreed between Holdingsthe Borrower Representative and the Administrative Agent (a “Compliance Certificate”) (i) stating that such Responsible Officer has obtained no knowledge of any Default or Event of Default, except, in each case, as specified in such certificate, (ii) commencing with the Compliance Certificate for the Fiscal Year ended December 31, 2016, if (A) delivered with the financial statements required by Subsection 7.1(a) and (B) the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was greater than or equal to 3.40:1.00, setting forth in reasonable detail the amount of (and the calculations required to establish the amount of) Excess Cash Flow for the respective Fiscal Year covered by such financial statements and (iii) setting forth in reasonable detail (and the calculations required to establish) the Consolidated Secured Leverage Ratio as of the last day of the applicable Fiscal Year or fiscal quarter then-ended;
(b) within five Business Days after the same are filed, copies of all financial statements and periodic reports which Holdings may file with the SEC or any successor or analogous Governmental Authority;
(c) within five Business Days after the same are filed, copies of all registration statements and any amendments and exhibits thereto, which Holdings may file with the SEC or any successor or analogous Governmental Authority;
(d) promptly, such additional financial and other information as any Agent or the Required Lenders through the Administrative Agent may from time to time reasonably request; and
(e) promptly upon reasonable request from the Administrative Agent calculations of Consolidated EBITDA and other Fixed GAAP Terms as reasonably requested by the Administrative Agent promptly following receipt of a written notice from Holdings electing to change the Fixed GAAP Date, which calculations shall show the calculations of the respective Fixed GAAP Terms both before and after giving effect to the change in the Fixed GAAP Date and identify the material change(s) in GAAP giving rise to the change in such calculations.
Documents required to be delivered pursuant to Subsection 7.1(a), 7.1(b), 7.1(c), 7.2(a), 7.2(b), 7.2(c), 7.2(d) or 7.2(e) may at Holdings’the Borrower Representative’s option be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings or the Borrower Representative posts such documents, or provides a link thereto on Holdings’or the Borrower Representative’s (or any Parent Entity’s) website on the Internet at the website address listed on Schedule 7.2 (or such other website address as Holdings or the Borrower Representative may specify by written notice to the Administrative Agent from time to time); or (ii) on which such documents are posted on Holdings’ or the Borrower Representative’s (or any Parent Entity’s) behalf on an Internet or intranet website to which each Lender and the Administrative Agent have access (whether a commercial, third-party website (including any website maintained by the SEC) or whether sponsored by the Administrative Agent). Following the electronic delivery of any such documents by posting such documents to a website in accordance with the preceding sentence (other than the posting by Holdings or the Borrower Representative of any such documents on any website maintained for or sponsored by the Administrative Agent), Holdings shall promptly provide the Administrative Agent notice of such delivery (which notice may be by facsimile or electronic mail) and the electronic location at which such documents may be accessed; provided that, in the absence of bad faith, the failure to provide such prompt notice shall not constitute a Default hereunder.
7.3 Payment of Taxes. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all taxes except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings diligently conducted and reserves in conformity with GAAP with respect thereto have been provided on the books of Holdings or any of its Restricted Subsidiaries, as the case may be, or except to the extent that failure to do so, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
 
-99-

7.4 Conduct of Business and Maintenance of Existence; Compliance with Contractual Obligations and Requirements of Law. Preserve, renew and keep in full force and effect its existence and take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of the business of Holdings and its Restricted Subsidiaries, taken as a whole, except as otherwise permitted pursuant to Subsection 8.4 or 8.7, provided that Holdings and its Restricted Subsidiaries shall not be required to maintain any such rights, privileges or franchises and Holdings’ and its Restricted Subsidiaries shall not be required to maintain such existence, if the failure to do so would not reasonably be expected to have a Material Adverse Effect; and comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.Each Person incorporated in the Netherlands shall maintain its centre of main interest in the Netherlands for the purposes of the Insolvency Regulation.
7.5 Maintenance of Property; Insurance.
(a) (i) Keep all property necessary in the business of Holdings and its Restricted Subsidiaries, taken as a whole, in good working order and condition, except where failure to do so would not reasonably be expected to have a Material Adverse Effect; (ii) use commercially reasonable efforts to maintain with financially sound and reputable insurance companies (or any Captive Insurance Subsidiary) insurance on, or self-insure, all property material to the business of Holdings and its Restricted Subsidiaries, taken as a whole, in at least such amounts and against at least such risks (but including in any event public liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business; (iii) furnish to the Administrative Agent, upon written request, information in reasonable detail as to the insurance carried; (iv) use commercially reasonable efforts to maintain property and liability policies that provide that in the event of any cancellation thereof during the term of the policy, either by the insured or by the insurance company, the insurance company shall provide to the secured party at least 30 days prior written notice thereof, or in the case of cancellation for non-payment of premium, ten days prior written notice thereof; (v) in the event of any material change in any of the property or liability policies referenced in the preceding clause (iv), use commercially reasonable efforts to provide the Administrative Agent with at least 30 days prior written notice thereof; and (vi) use commercially reasonable efforts to ensure,that, subject to the ABL Intercreditor Agreement, the Intercreditor Agreement or any Other Intercreditor Agreement and the Foreign Subsidiary Documentation Principles, at all times the Collateral Agent for the benefit of the Secured Parties, shall be named as an additional insured with respect to liability policies maintained by Holdings and each Subsidiary Guarantor and the Collateral Agent for the benefit of the Secured Parties, shall be named as loss payee with respect to the property insurance maintained by Holdings and each Subsidiary Guarantor; provided that, unless an Event of Default shall have occurred and be continuing, (A) the Collateral Agent shall turn over to Holdings any amounts received by it as an additional insured or loss payee under any property insurance maintained by Holdings and its Subsidiaries, (B) the Collateral Agent agrees that Holdings and/or its applicable Subsidiary shall have the sole right to adjust or settle any claims under such insurance and (C) all proceeds from a Recovery Event shall be paid to Holdings.
(b) With respect to each property of the Loan Parties subject to a Mortgage:
(i) If any portion of any such property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, such Loan Party shall maintain or cause to be maintained, flood insurance to the extent required by, and in compliance with, applicable laws and deliver to the Administrative Agent evidence of such insurance.
(ii) The applicable Loan Party promptly shall comply with and conform to (i) all provisions of each such insurance policy, and (ii) all requirements of the insurers applicable to such party or to such property or to the use, manner of use, occupancy, possession, operation, maintenance, alteration or repair of such property, except for such non-compliance or non-conformity as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(iii) If Holdings is in default of its obligations to insure or deliver any such prepaid policy or policies, the result of which would reasonably be expected to have a Material Adverse Effect, then the Administrative Agent, at its option upon ten days’ written notice to Holdingsthe Borrower Representative, may effect such insurance from year to year at rates substantially similar to the rate at which Holdings or any Restricted Subsidiary had insured such property, and pay the premium or premiums therefor, and Holdingsthe Borrowers shall pay to the Administrative Agent on demand such premium or premiums so paid by the Administrative Agent with interest from the time of payment at a rate per annum equal to 2.00%.
 
-100-

(iv) If such property, or any part thereof, shall be destroyed or damaged and the reasonably estimated cost thereof would exceed $25.0 million, the Borrower Representative shall give prompt notice thereof to the Administrative Agent. All insurance proceeds paid or payable in connection with any damage or casualty to any property shall be applied in the manner specified in the proviso to Subsection 7.5(a).
7.6 Inspection of Property; Books and Records; Discussions. In the case of Holdings, keep proper books and records in a manner to allow financial statements to be prepared in conformity with GAAP consistently applied in respect of all material financial transactions and matters involving the material assets and business of Holdings and its Restricted Subsidiaries, taken as a whole; and permit representatives of the Administrative Agent to visit and inspect any of its properties and examine and, to the extent reasonable, make abstracts from any of its books and records and to discuss the business, operations, properties and financial and other condition of Holdings and its Restricted Subsidiaries with officers of Holdings and its Restricted Subsidiaries and with its independent certified public accountants, in each case at any reasonable time, upon reasonable notice, and as often as may reasonably be desired; provided that representatives of Holdings may be present during any such visits, discussions and inspections. Notwithstanding anything to the contrary in Subsection 7.2(d) or in this Subsection 7.6, none of Holdings or any Restricted Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or the Lenders (or their respective representatives) is prohibited by Law or any binding agreement or (iii) that is subject to attorney client or similar privilege or constitutes attorney work product.
7.7 Notices. Promptly give notice to the Administrative Agent and each Lender of:
(a) as soon as possible after a Responsible Officer of Holdings knows thereof, the occurrence of any Default or Event of Default;
(b) as soon as possible after a Responsible Officer of Holdings knows thereof, any default or event of default under any Contractual Obligation of Holdings or any of its Restricted Subsidiaries, other than as previously disclosed in writing to the Lenders, which would reasonably be expected to have a Material Adverse Effect;
(c) as soon as possible after a Responsible Officer of Holdings knows thereof, the occurrence of (i) any default or event of default under the Senior Notes Indenture, (ii) any default or event of default under the Senior ABL Facility or (iii) any payment default under any Additional Obligations Documents or under any agreement or document governing other Indebtedness, in each case relating to Indebtedness in an aggregate principal amount equal to or greater than $150.0 million;
(d) as soon as possible after a Responsible Officer of Holdings knows thereof, any litigation, investigation or proceeding affecting Holdings or any of its Restricted Subsidiaries that would reasonably be expected to have a Material Adverse Effect;
(e) the following events, as soon as possible and in any event within 30 days after a Responsible Officer of Holdings or any of its Restricted Subsidiaries knows thereof: (i) the occurrence or expected occurrence of any Reportable Event (or similar event) with respect to any Single Employer Plan (or Foreign Plan), a failure to make any required contribution to a Single Employer Plan, Multiemployer Plan or Foreign Plan, the creation of any Lien on the property of Holdings or its Restricted Subsidiaries in favor of the PBGC, a Plan or a Foreign Plan or any withdrawal from, or the full or partial termination, ERISA Reorganization or Insolvency of, any Multiemployer Plan or Foreign Plan; or (ii) the institution of proceedings or the taking of any other formal action by the PBGC or Holdings or any of its Restricted Subsidiaries or any Commonly Controlled Entity or any Multiemployer Plan which would reasonably be expected to result in the withdrawal from, or the termination, ERISA Reorganization or Insolvency of, any Single Employer Plan, Multiemployer Plan or Foreign Plan; provided, however, that no such notice will be required under clause (i) or (ii) above unless the event giving rise to such notice, when aggregated with all other such events under clause (i) or (ii) above, would be reasonably expected to result in a Material Adverse Effect;
 
-101-

(f) as soon as possible after a Responsible Officer of Holdings knows thereof, (i) any release or discharge by Holdings or any of its Restricted Subsidiaries of any Materials of Environmental Concern required to be reported under applicable Environmental Laws to any Governmental Authority, unless Holdings reasonably determines that the total Environmental Costs arising out of such release or discharge would not reasonably be expected to have a Material Adverse Effect, (ii) any condition, circumstance, occurrence or event not previously disclosed in writing to the Administrative Agent that would reasonably be expected to result in liability or expense under applicable Environmental Laws, unless Holdings reasonably determines that the total Environmental Costs arising out of such condition, circumstance, occurrence or event would not reasonably be expected to have a Material Adverse Effect, or would not reasonably be expected to result in the imposition of any lien or other material restriction on the title, ownership or transferability of any facilities and properties owned, leased or operated by Holdings or any of its Restricted Subsidiaries that would reasonably be expected to result in a Material Adverse Effect; and (iii) any proposed action to be taken by Holdings or any of its Restricted Subsidiaries that would reasonably be expected to subject Holdings or any of its Restricted Subsidiaries to any material additional or different requirements or liabilities under Environmental Laws, unless Holdings reasonably determines that the total Environmental Costs arising out of such proposed action would not reasonably be expected to have a Material Adverse Effect; and
(g) as soon as possible after a Responsible Officer of theany Borrower knows thereof, any loss, damage, or destruction to a significant portion of the Collateral, whether or not covered by insurance.
Each notice pursuant to this Subsection 7.7 shall be accompanied by a statement of a Responsible Officer of Holdingsthe Borrower Representative (and, if applicable, the relevant Commonly Controlled Entity or Restricted Subsidiary) setting forth details of the occurrence referred to therein and stating what action Holdingsthe Borrower Representative (or, if applicable, the relevant Commonly Controlled Entity or Restricted Subsidiary) proposes to take with respect thereto.
7.8 Environmental Laws.
(a) (i) Comply substantially with, and require substantial compliance by all tenants, subtenants, contractors, and invitees with, all applicable Environmental Laws; (ii) obtain, comply substantially with and maintain any and all Environmental Permits necessary for its operations as conducted and as planned; and (iii) require that all tenants, subtenants, contractors, and invitees to obtain, comply substantially with and maintain any and all Environmental Permits necessary for their operations as conducted and as planned, with respect to any property leased or subleased from, or operated by Holdings or its Restricted Subsidiaries. For purposes of this Subsection 7.8(a), noncompliance shall not constitute a breach of this covenant, provided that, upon learning of any actual or suspected noncompliance, Holdings and any such affected Restricted Subsidiary shall promptly undertake and diligently pursue reasonable efforts, if any, to achieve compliance, and provided, further, that in any case such noncompliance would not reasonably be expected to have a Material Adverse Effect.
(b) Promptly comply, in all material respects, with all orders and directives of all Governmental Authorities regarding Environmental Laws, other than such orders or directives (i) as to which the failure to comply would not reasonably be expected to result in a Material Adverse Effect or (ii) as to which: (x) appropriate reserves have been established in accordance with GAAP; (y) an appeal or other appropriate contest is or has been timely and properly taken and is being diligently pursued in good faith; and (z) if the effectiveness of such order or directive has not been stayed, the failure to comply with such order or directive during the pendency of such appeal or contest would not reasonably be expected to have a Material Adverse Effect.
7.9 After-Acquired Real Property and Fixtures; Subsidiaries.
(a) With respect to any owned real property or fixtures thereon located in the United States of America, in each case with a purchase price or a fair market value at the time of acquisition of at least $10.0 million, in which any Loan Party acquires ownership rights at any time after the Closing Date (or owned by any Subsidiary that becomes a Loan Party after the Closing Date), within 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) of such acquisition, or such Subsidiary becoming a Loan Party, grant to the Collateral Agent for the benefit of the Secured Parties, a Lien of record on all such owned real property and fixtures pursuant to a Mortgage or otherwise, upon terms reasonably satisfactory in form and substance to the Collateral Agent and in accordance with any applicable requirements of any Governmental Authority (including any required appraisals of such property under FIRREA and life-of-loan flood determinations under Regulation H of the Board); provided that (i) nothing in this Subsection 7.9 shall defer or impair the attachment or perfection of any security interest in any
 
-102-

Collateral covered by any of the Security Documents which would attach or be perfected pursuant to the terms thereof without action by Holdings, any of its Restricted Subsidiaries or any other Person and (ii) no such Lien shall be required to be granted as contemplated by this Subsection 7.9 on any owned real property or fixtures the acquisition of which is, or is to be, within 180 days of such acquisition, financed or refinanced, in whole or in part through the incurrence of Indebtedness, until such Indebtedness is repaid in full (and not refinanced) or, as the case may be, Holdings determines not to proceed with such financing or refinancing. In connection with any such grant to the Collateral Agent, for the benefit of the Secured Parties, of a Lien of record on any such real property pursuant to a Mortgage or otherwise in accordance with this Subsection 7.9, Holdings or such Restricted Subsidiary shall deliver or cause to be delivered to the Collateral Agent corresponding UCC fixture filings and any surveys, appraisals (including any required appraisals of such property under FIRREA), title insurance policies, local law enforceability legal opinions and other documents in connection with such grant of such Lien obtained by it in connection with the acquisition of such ownership rights in such real property or as the Collateral Agent shall reasonably request (in light of the value of such real property and the cost and availability of such UCC fixture filings, surveys, appraisals, title insurance policies, local law enforceability legal opinions and other documents and whether the delivery of such UCC fixture filings, surveys, appraisals, title insurance policies, legal opinions and other documents would be customary in connection with such grant of such Lien in similar circumstances) and Phase I environmental assessment reports, if available.
(b) With respect to any Domestic Subsidiary that is a Wholly Owned Subsidiary (other than an Excluded Subsidiary) (iw) created or acquired subsequent to the Closing Date by Holdings or any of its Domestic Subsidiaries that are Wholly Owned Subsidiaries (other than an Excluded Subsidiary)any Loan Party, (iix) being designated as a Restricted Subsidiary, (iiiy) ceasing to be an Immaterial Subsidiary, a Foreign Subsidiary Holdco or other Excluded Subsidiary as provided in the applicable definition thereof after the expiry of any applicable period referred to in such definition or (ivz) that becomes a Domestic Subsidiary as a result of a transaction pursuant to, and permitted by, Subsection 8.2 or 8.7 (other than an Excluded Subsidiary), promptly notify the Administrative Agent of such occurrence and, if the Administrative Agent or the Required Lenders so request, promptly (i) cause the Loan Party that is requiredowns the Capital Stock of such new Domestic Subsidiary to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Domestic Subsidiary owned directly by such Loan Party by executing and delivering (x) if such Loan Party is organized in a jurisdiction in the United States (as and to the extent provided in the Guarantee and Collateral Agreement) in the Capital Stock of such new Domestic Subsidiary owned directly by Holdings or any of its Domestic Subsidiaries that are Wholly Owned Subsidiaries (other than Excluded Subsidiaries) to execute and deliver,a Supplemental Agreement (as defined in the Guarantee and Collateral Agreement) pursuant to Section 9.15 of the Guarantee and Collateral Agreement or (y) if such Loan Party is a Foreign Subsidiary, a new security document reasonably satisfactory to the Collateral Agent, subject to the Foreign Subsidiary Documentation Principles, (ii) deliver to the Collateral Agent, the applicable Collateral Representative or any Additional Agent, in accordance with the applicable ABL Intercreditor Agreement, Intercreditor Agreement or Other Intercreditor Agreement, the certificates (if any) representing such Capital Stock, together with undated stock powers, executed and delivered in blank by a duly authorized officer of the parent of such new Domestic Subsidiary, and (iii) cause such new Domestic Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take all actions reasonably deemed by the Collateral Agent to be necessary or advisable to cause the Lien created by the Guarantee and Collateral Agreement in such new Domestic Subsidiary’s Collateral to be duly perfected in accordance with all applicable Requirements of Law (as and to the extent provided in the Guarantee and Collateral Agreement), including the filing of financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent. In addition, Holdings may elect to cause any Restricted Subsidiary (including any Excluded Subsidiary) that is not required to become a Subsidiary Guarantor to become a Subsidiary Guarantor and, if applicable, to cease to be an Excluded Subsidiary, by executing and delivering a Loan Party Guaranty (or a supplement or joinder contemplated thereby); provided that (x) the Borrower Representative shall cause to be delivered all documentation and other information about such Subsidiary Guarantor as shall be mutually agreed to be required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and (y) the jurisdiction of organization of such Subsidiary Guarantor, if not the United States, shall be a jurisdiction that is reasonably acceptable to the Administrative Agent; provided further that at the time of such election (x) if such Subsidiary is a Domestic Subsidiary, all documents to be executed and all actions of the type contemplated by the first sentence of this clause (b) shall have been delivered or taken by such Domestic Subsidiary and the Loan Party that owns the Capital Stock of such Domestic Subsidiary and (y) if such Subsidiary is a Foreign Subsidiary, all documents to be executed and all actions of the type contemplated by clause (c) below shall have been delivered or taken by such Foreign Subsidiary and the Loan Party that owns the Capital Stock of such Foreign Subsidiary.
 
-103-

(c) Subject in all cases to the Foreign Subsidiary Documentation Principles, with respect to any Foreign Subsidiary that is a Subsidiary Borrower or Subsidiary Guarantor, promptly (and, solely in the case of a Subsidiary Borrower, in any event within 60 days following designation of such Subsidiary Borrower as a Borrower hereunder (or such other period as the Incremental Lenders providing Incremental Commitments or Incremental Term Loans to such Subsidiary Borrower may agree)), (i) cause (to the extent required under the Foreign Subsidiary Documentation Principles) the Loan Party that owns the Capital Stock of such Foreign Subsidiary to execute and deliver the applicable Security Documents to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (as and to the extent provided in the applicable Security Documents) in the Capital Stock of such new Foreign Subsidiary owned by any Loan Party, (ii) cause such Foreign Subsidiary to execute and deliver the applicable Security Documents governed by the laws of the jurisdiction of organization of such Foreign Subsidiary, (iii) take all actions reasonably deemed by the Collateral Agent to be necessary or advisable to cause the Lien created by the applicable Security Documents in such new Foreign Subsidiary’s Collateral and in the Capital Stock of such Foreign Subsidiary to be duly perfected in accordance with the Foreign Subsidiary Documentation Principles and (iv) if requested by the Collateral Agent, cause to be delivered to the Collateral Agent, customary legal opinions.
(cd) Subject in all cases of a Foreign Subsidiary to the Foreign Subsidiary Documentation Principles, with respect to any Foreign Subsidiary or Domestic Subsidiary that is a Non-Wholly Owned Subsidiary created or acquired subsequent to the Closing Date by Holdings or any of its Domestic Subsidiaries that are Wholly Owned Subsidiaries (in each case, other than any Excluded Subsidiary)a Loan Party, the Capital Stock of which is owned directly by Holdings or a Domestic Subsidiary that is a Wholly Owned Subsidiary (other than an Excluded Subsidiary)a Loan Party, promptly notify the Administrative Agent of such occurrence and if the Administrative Agent or the Required Lenders so request, promptly (i) cause the Loan Party that is required to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (as and to the extent provided in the Guarantee and Collateral Agreement or the applicable other Security Document) in the Capital Stock of such new Subsidiary that is directly owned by Holdings or any Domestic Subsidiary that is a Wholly Owned Subsidiary (other than an Excluded Subsidiary) to execute and deliver a Supplemental Agreement (as defined in the Guarantee and Collateral Agreement) pursuant to Section 9.15 of the Guarantee and Collateral Agreement or such other supplement or additional agreement as may be required pursuant to the other Security Documents and (ii) to the extent reasonably deemed advisable by the Collateral Agent, deliver to the Collateral Agent, the applicable Collateral Representative or any Additional Agent, in accordance with the applicable ABL Intercreditor Agreement, Intercreditor Agreement or Other Intercreditor Agreement, the certificates, if any, representing such Capital Stock, together with undated stock powers, executed and delivered in blank by a duly authorized officer of the relevant parent of such new Subsidiary and take such other action as may be reasonably deemed by the Collateral Agent to be necessary or desirable to perfect the Collateral Agent’s security interest therein (in each case as and to the extent required by the Guarantee and Collateral Agreement or the applicable other Security Document); provided that in either case in no event shall more than 65.0% of each series of Capital Stock of any new Foreign Subsidiary of any Loan Party organized in the United States be required to be so pledged. Subject in all cases of a Foreign Subsidiary to the Foreign Subsidiary Documentation Principles, promptly following the acquisition of any property by any Loan Party that is not automatically subject to a valid and perfected (or equivalent under foreign law) Lien in favor of the Collateral Agent for the benefit of the Secured Party under the then existing Security Documents (in the case of (x) a Loan Party organized in the United States other than Excluded Assets and (y) in the case of any Loan Party organized outside of the United States, other than property that is not required to be Collateral pursuant to the exclusions set forth in the Foreign Subsidiary Documentation Principles), promptly notify the Collateral Agent, and deliver such security documents and take such actions reasonably requested by the Collateral Agent to cause such assets to be subject to a valid and perfected (or equivalent under foreign law) Lien in favor of the Collateral Agent for the benefit of the Secured Parties, and to the extent possible under applicable law, such security documents and actions will be consistent with the existing Security Documents.
 
-104-

(ae) At its own expense, execute, acknowledge and deliver, or cause the execution, acknowledgement and delivery of, and thereafter register, file or record in an appropriate governmental office, any document or instrument reasonably deemed by the Collateral Agent to be necessary or desirable for the creation, perfection and priority and the continuation of the validity, perfection and priority of the foregoing Liens or any other Liens created pursuant to the Security Documents (to the extent the Collateral Agent determines, in its reasonable discretion, that such action is required to ensure the perfection or the enforceability as against third parties of its security interest in such Collateral) in each case in accordance with, and to the extent required by, the Guarantee and Collateral Agreement.
(bf) Notwithstanding anything to the contrary in this Agreement, (A) the foregoing requirements shall be subject to the terms of the ABL Intercreditor Agreement, the Intercreditor Agreement or any Other Intercreditor Agreement and, in the event of any conflict with such terms, the terms of the ABL Intercreditor Agreement, the Intercreditor Agreement or any Other Intercreditor Agreement, as applicable, shall control, (B) no security interest or lien is or will be granted pursuant to any Loan Document or otherwise in any right, title or interest of any of Holdings, Holdings or any of its Domestic Subsidiaries in, and “Collateral” shall not include, any Excluded Asset, (C) other than in respect of Capital Stock of Loan Parties, no Loan Party organized in the United States or any Affiliate thereof organized in the United States shall be required to take any action in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction in order to create any security interests in assets located or titled outside of the U.S. or to perfect any security interests (it being understood that, with respect to any Loan Party organized in the United States, there shall be no security agreements or, pledge agreements or other Security Documents governed under the laws of any non-U.S. jurisdiction), other than in respect of Capital Stock of Loan Parties), in each case in respect of such Loan Party, (D) to the extent not automatically perfected by filings under the Uniform Commercial Code of each applicable jurisdiction, no Loan Party organized in the United States shall be required to take any actions in order to perfect any security interests granted with respect to any assets specifically requiring perfection through control (including cash, cash equivalents, deposit accounts, securities accounts, but excluding Capital Stock required to be delivered pursuant to Subsections 7.9(b) and (c) above) except to the extent required by the ABL Facility, and (E) nothing in this Subsection 7.9 or any Security Document shall require that any Subsidiary grant a Lien with respect to any property or assets in which such Subsidiary acquires ownership rights to the extent that Holdings and the Administrative Agent reasonably determine in writing that the costs or other consequences to Holdings or any of its Subsidiaries of the granting of such a Lien is excessive in view of the benefits that would be obtained by the Secured Parties.and (F) the security interests and Liens to be granted by Loan Parties that are not Domestic Subsidiaries shall be subject to the Foreign Subsidiary Documentation Principles. For further certainty (and the Foreign Subsidiary Documentation Principles will be deemed to require), (x) in the event that a Foreign Subsidiary that is a Loan Party is incorporated in the United States, any state thereof or the District of Columbia, such Foreign Subsidiary shall be required to provide guarantees and security on substantially the same terms as the Loan Parties that are Domestic Subsidiaries and (y) in the event that a Loan Party that is incorporated in the United States, any state thereof or the District of Columbia owns Capital Stock in a Loan Party that is not incorporated in the United States, any state thereof or the District of Columbia, the Capital Stock of such Loan Party will be pledged pursuant to security documents governed by the laws of the place of organization of the Loan Party whose shares are being pledged.
7.10 Use of Proceeds. Use the proceeds of Loans only for the purposes set forth in Subsection 5.16.
7.11 Commercially Reasonable Efforts to Maintain Ratings. At all times, Holdings shall use commercially reasonable efforts to maintain ratings of the Term B Loans and a corporate rating and corporate family rating, as applicable, for Holdings by each of S&P and Moody’s.
7.12 Accounting Changes. Holdings will, for financial reporting purposes, cause Holdings’ and each of its Subsidiaries’ Fiscal Years to end on December 31st of each calendar year; provided that Holdingsthe Borrower Representative may, upon written notice to the Administrative Agent, change the financial reporting convention specified above to any other financial reporting convention reasonably acceptable to the Administrative Agent, in which case Holdingsthe Borrower Representative and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change in financial reporting.
7.13 Post-Closing Security Perfection. Holdings agrees to deliver or cause to be delivered such documents and instruments, and take or cause to be taken such other actions as set forth on Schedule 7.13 within the applicable time periods set forth on Schedule 7.13, as such time periods may be extended by the Administrative Agent, in its sole discretion.
 
-105-

7.14 Taxes.
(a) Any fiscal unity (fiscale eenheid) for Dutch tax purposes in which a Loan Party is included shall consist of Loan Parties and/or Restricted Subsidiaries only.
(b) If, at any time, a Loan Party is a member of a fiscal unity (fiscale eenheid) for Dutch corporate income tax (vennootschapsbelasting) purposes and such fiscal unity is, in respect of that Loan Party, terminated (verbroken) or disrupted (beëindigd) as a result of or in connection with any Agent enforcing its rights under any Loan Document, such Loan Party shall, at the request of the Administrative Agent and together with the parent company (moedermaatschappij) or deemed parent company (aangewezen moedermaatschappij) of that fiscal unity, for no consideration and as soon as reasonably practicable, lodge a request with the relevant Governmental Authority to allocate and surrender any tax losses (within the meaning of Article 20 of the Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969)) to the Loan Party leaving that fiscal unity insofar such tax losses are attributable (toerekenbaar) to the Loan Party leaving that fiscal unity (within the meaning of Article 15af of the Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969)).
SECTION 8
Negative Covenants
Holdings hereby agrees that, from and after the Closing Date, and until payment in full of the Loans and all Term Loan Facilities Obligations then due and owing to any Lender or any Agent hereunder:
8.1 Limitation on Indebtedness.
(a) Holdings will not, and will not permit any Restricted Subsidiary to, Incur any Indebtedness; provided, however, that Holdings or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00.
(b) Notwithstanding the foregoing Subsection 8.1(a), Holdings and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) (I) Indebtedness Incurred by the Loan Parties (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (c) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof), (d) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and any Refinancing Indebtedness in respect thereof and (e) pursuant to the Senior ABL Facility, in a maximum principal amount for all such Indebtedness at any time outstanding under this clause (b)(i)(I) not exceeding in the aggregate the amount equal to the sum of (A) $2,330.0 million plus (B) the greater of (x) $1,900.0 million and (y) an amount equal to (1) the North American Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(ix), plus (C) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness,” in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (II) Indebtedness Incurred by the Loan Parties (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations, (c) constituting Rollover Indebtedness and (d) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9, in an aggregate principal amount for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to clause (i) of the definition of “Maximum Incremental
 
-106-

Facilities Amount,” treating Additional Obligations, Refinancing Indebtedness, Rollover Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect of Indebtedness Incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount” (and Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect of such Additional Obligations, Refinancing Indebtedness, Rollover Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), together with Refinancing Indebtedness in respect of the Indebtedness described in subclauses (a), (b) (c) and (d) of this clause (II), plus, without duplication of incremental amounts included in the definition of “Refinancing Indebtedness,” the aggregate amount of all fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such Refinancing Indebtedness;
(ii) Indebtedness (A) of any Restricted Subsidiary to Holdings, or (B) of Holdings or any Restricted Subsidiary to any Restricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to Holdings or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) (A) Indebtedness represented by the Senior Notes, (B) any Indebtedness (other than the Indebtedness pursuant to this Agreement and the other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Indebtedness (or unutilized commitments) described in this Subsection 8.1(b)(iii) or Subsection 8.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the acquisition of Capital Stock of any Person, at any time outstanding pursuant to this clause shall not exceed an amount equal to the greater of $300.0 million and 5.0% of Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of Holdings or any of its Restricted Subsidiaries;
(vi) (A) Guarantees by Holdings or any Restricted Subsidiary of Indebtedness or any other obligation or liability of Holdings or any Restricted Subsidiary (other than any Indebtedness Incurred by Holdings or such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) without limiting Subsection 8.6, Indebtedness of Holdings or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of Holdings or any Restricted Subsidiary (other than any Indebtedness Incurred by Holdings or such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1);
(vii) Indebtedness of Holdings or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business (provided that such Indebtedness is extinguished in the ordinary course of business), or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of Holdings or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided,
 
-107-

or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which Holdings or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an aggregate principal amount at any time outstanding not to exceed the greater of $250.0 million and 4.50% of Consolidated Total Assets or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by Holdings as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), Holdings may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) Holdings or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into Holdings or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into Holdings or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) Holdings would have a Consolidated Total Leverage Ratio equal to or less than 5.00:1.00 or (2) the Consolidated Total Leverage Ratio of Holdings would equal or be less than the Consolidated Total Leverage Ratio of Holdings immediately prior to giving effect thereto; provided, further, that if, at Holdings’ option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Subsection 8.1(a), and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of Holdings or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets;
(xiv) Indebtedness of Holdings or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into Holdings or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets; and
 
-108-

(xv) Indebtedness of any Foreign Subsidiary (other than a Loan Party) in an aggregate principal amount at any time outstanding not exceeding an amount equal to (I) the greater of (x) $400.0 million and (y) 7.0% of Foreign Consolidated Total Assets plus (II) an amount equal (but not less than zero) to (A) the Foreign Borrowing Base less the Foreign Borrowing Base as calculated on March 31, 2015 less (B) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) in excess of the amount set forth in the immediately preceding clause (A) plus (III) in the event of any refinancing of any Indebtedness Incurred under this clause (xv), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.;
(xvi) Indebtedness arising under a declaration of joint and several liability used for the purpose of article 2:403 of the Dutch Civil Code (Burgerlijk Wetboek, “DCC”) in respect of Dutch Loan Parties (and any residual liability under such declaration arising pursuant to article 2:404(2) DCC); and
(xvii) with due observance of Subsection 7.14, Indebtedness arising as a result of a fiscal unity (fiscale eenheid) for Dutch Tax purposes to the extent permitted by law.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Subsection 8.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Subsection 8.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness Incurred pursuant to Subsection 8.1(b) meets the criteria of more than one of the types of Indebtedness described in Subsection 8.1(b), Holdings, in its sole discretion, shall classify and reclassify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Subsection 8.1(b) (including in part under one such clause and in part under another such clause); provided that (if Holdings shall so determine) any Indebtedness Incurred pursuant to Subsections 8.1(b)(iv), 8.1(b)(vii), 8.1(b)(xiii), 8.1(b)(xiv) or 8.1(b)(xv) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Subsection 8.1(a) from and after the first date on which Holdings or any Restricted Subsidiary could have Incurred such Indebtedness under Subsection 8.1(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under Subsection 8.1(a), Holdings, in its sole discretion, may classify and reclassify a portion of such Indebtedness as having been Incurred under Subsection 8.1(a) and the remainder of such Indebtedness as having been Incurred under Subsection 8.1(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of Indebtedness outstanding under any subclause of Subsection 8.1(b), including for purposes of any determination of the “Maximum Incremental Facilities Amount,” shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness, (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on a basket measured by reference to a percentage of Consolidated Total Assets at the time of Incurrence or Foreign Consolidated Total Assets at the time of Incurrence, and such refinancing would cause the percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, restriction to be exceeded if calculated based on the Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (vii) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on a basket measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the extent the principal amount of such newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing. Notwithstanding anything herein to the contrary, Indebtedness Incurred by Holdings on the Closing Date under this Agreement shall be classified as Incurred under Subsection 8.1(b), and not under Subsection 8.1(a).
 
-109-

(d) For purposes of determining compliance with any provision of Section 8.1(b) (or any category of Permitted Liens described in the definition thereof) measured by a dollar amount or by reference to a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, in each case, for the Incurrence of Indebtedness or Liens securing Indebtedness denominated in a foreign currency, the dollar equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness, provided that (x) the dollar equivalent principal amount of any such Indebtedness outstanding on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable provision of Section 8.1(b) (or category of Permitted Liens) measured by a dollar amount or be reference to a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such provision of Section 8.1(b) (or category of Permitted Liens) measured by a dollar amount or by reference to a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (z) the dollar equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to this Agreement, the Senior ABL Facility or the European ABL Facility shall be calculated based on the relevant currency exchange rate in effect on, at Holdings’ option, (A) the Closing Date, (B) any date on which any of the respective commitments under this Agreement shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (C) the date of such Incurrence. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
8.2 Limitation on Restricted Payments.
(a) Holdings shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which Holdings is a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to Holdings or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of Holdings held by Persons other than Holdings or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time Holdings or such Restricted Subsidiary makes such Restricted Payment and after giving effect thereto:
(1) an Event of Default shall have occurred and be continuing (or would result therefrom);
(2) Holdings could not Incur at least an additional $1.00 of Indebtedness pursuant to Subsection 8.1(a); or
 
-110-

(3) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount so expended, if other than in cash, to be as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board of Directors) declared or made subsequent to the Closing Date and then outstanding would exceed, without duplication, the sum of:
(A) (x) $100.0 million plus (y) 50.0% of the Consolidated Net Income accrued during the period (treated as one accounting period) beginning on the first day of the fiscal quarter of Holdings in which the Closing Date occurs to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements of Holdings are available (or, in case such Consolidated Net Income shall be a negative number, 100.0% of such negative number);
(B) the aggregate Net Cash Proceeds and the fair value (as determined in good faith by Holdings) of property or assets received (x) by Holdings as capital contributions to Holdings after the Closing Date or from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock) after the Closing Date (other than Excluded Contributions and Contribution Amounts) or (y) by Holdings or any Restricted Subsidiary from the Incurrence by Holdings or any Restricted Subsidiary after the Closing Date of Indebtedness that shall have been converted into or exchanged for Capital Stock of Holdings (other than Disqualified Stock) or Capital Stock of any Parent Entity, plus the amount of any cash and the fair value (as determined in good faith by Holdings) of any property or assets, received by Holdings or any Restricted Subsidiary upon such conversion or exchange;
(C) (i) the aggregate amount of cash and the fair value (as determined in good faith by Holdings) of any property or assets received from dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of assets to Holdings or any Restricted Subsidiary from any Unrestricted Subsidiary, including dividends or other distributions related to dividends or other distributions made pursuant to Subsection 8.2(b)(ix), plus (ii) the aggregate amount resulting from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary (valued in each case as provided in the definition of “Investment”); and
(D) in the case of any disposition or repayment of any Investment constituting a Restricted Payment (without duplication of any amount deducted in calculating the amount of Investments at any time outstanding included in the amount of Restricted Payments), the aggregate amount of cash and the fair value (as determined in good faith by Holdings) of any property or assets received by Holdings or a Restricted Subsidiary with respect to all such dispositions and repayments.
(b) The provisions of Subsection 8.2(a) do not prohibit any of the following (each, a “Permitted Payment”):
(i) (x) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Capital Stock of Holdings (“Treasury Capital Stock”) or any Junior Debt made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the issuance or sale of, Capital Stock of Holdings (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary) (“Refunding Capital Stock”) or a capital contribution to Holdings, in each case other than Excluded Contribution and Contribution Amounts; provided, that the Net Cash Proceeds from such issuance, sale or capital contribution shall be excluded in subsequent calculations under Subsection 8.2(a)(3)(B); and (y) if immediately prior to such acquisition or retirement of such Treasury Capital Stock, dividends thereon were permitted pursuant to Subsection 8.2(b)(xi), dividends on such Refunding Capital Stock in an aggregate amount per annum not exceeding the aggregate amount per annum of dividends so permitted on such Treasury Capital Stock;
 
-111-

(ii) any dividend paid or redemption made within 60 days after the date of declaration thereof or of the giving of notice thereof, as applicable, if at such date of declaration or the giving of such notice, such dividend or redemption would have complied with this Subsection 8.2;
(iii) Investments or other Restricted Payments in an aggregate amount outstanding at any time not to exceed the amount of Excluded Contributions;
(iv) loans, advances, dividends or distributions by Holdings to any Parent Entity to permit any Parent Entity to repurchase or otherwise acquire its Capital Stock (including any options, warrants or other rights in respect thereof), or payments by Holdings to repurchase or otherwise acquire Capital Stock of any Parent Entity or Holdings (including any options, warrants or other rights in respect thereof), in each case from Management Investors (including any repurchase or acquisition by reason of Holdings or any Parent Entity retaining any Capital Stock, option, warrant or other right in respect of tax withholding obligations, and any related payment in respect of any such obligation), such payments, loans, advances, dividends or distributions not to exceed an amount (net of repayments of any such loans or advances) equal to (x)(1) $50.0 million, plus (2) $25.0 million multiplied by the number of calendar years that have commenced since the Closing Date, plus (y) the Net Cash Proceeds received by Holdings since the Closing Date from, or as a capital contribution from, the issuance or sale to Management Investors of Capital Stock (including any options, warrants or other rights in respect thereof), to the extent such Net Cash Proceeds are not included in any calculation under Subsection 8.2(a)(3)(B)(x), plus (z) the cash proceeds of key man life insurance policies received by Holdings or any Restricted Subsidiary (or by any Parent Entity and contributed to Holdings) since the Closing Date to the extent such cash proceeds are not included in any calculation under Subsection 8.2(a)(3)(A); provided that any cancellation of Indebtedness owing to Holdings or any Restricted Subsidiary by any Management Investor in connection with any repurchase or other acquisition of Capital Stock (including any options, warrants or other rights in respect thereof) from any Management Investor shall not constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(v) the payment by Holdings of, or loans, advances, dividends or distributions by Holdings to any Parent Entity to pay, dividends on the common stock, units or equity of Holdings or any Parent Entity in an amount not to exceed in any Fiscal Year of Holdings the greater of (x) 6.0% of the aggregate gross proceeds received by Holdings (whether directly, or indirectly through a contribution to common equity capital) in or from a public offering (including from the IPO) and (y) 6.0% of Market Capitalization;
(vi) Restricted Payments (including loans or advances) in an aggregate amount outstanding at any time not to exceed an amount (net of repayments of any such loans or advances) equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets;
(vii) loans, advances, dividends or distributions to any Parent Entity or other payments by Holdings or any Restricted Subsidiary (A) to satisfy or permit any Parent Entity to satisfy obligations under the Management Agreements, (B) pursuant to any Tax Sharing Agreement or (C) to pay or permit any Parent Entity to pay (but without duplication) any Parent Expenses or any Related Taxes;
(viii) payments by Holdings, or loans, advances, dividends or distributions by Holdings to any Parent Entity to make payments, to holders of Capital Stock of Holdings or any Parent Entity in lieu of issuance of fractional shares of such Capital Stock;
(ix) dividends or other distributions of, or Investments paid for or made with, Capital Stock, Indebtedness or other securities of Unrestricted Subsidiaries;
(x) [reserved];
 
-112-

(xi) (A) dividends on any Designated Preferred Stock of Holdings issued after the date hereof; provided that at the time of such issuance and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio would be at least 2.00:1.00; (B) loans, advances, dividends or distributions to any Parent Entity to permit dividends on any Designated Preferred Stock of any Parent Entity issued after the date hereof if the net proceeds of the issuance of such Designated Preferred Stock have been contributed to Holdings or any of its Restricted Subsidiaries in cash; provided that the aggregate amount of all loans, advances, dividends or distributions paid pursuant to this subclause (B) shall not exceed the net proceeds of such issuance of Designated Preferred Stock received by or contributed to Holdings or any of its Restricted Subsidiaries; or (C) any dividend on Refunding Capital Stock of Holdings that is Preferred Stock, provided that at the time of the declaration of such dividend and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio would be at least 2.00:1.00;
(xii) distributions or payments of Special Purpose Financing Fees;
(xiii) the declaration and payment of dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted Subsidiary, Incurred in accordance with the terms of Subsection 8.1;
(xiv) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Junior Debt (v) made by exchange for, or out of the proceeds of the Incurrence of, (1) Refinancing Indebtedness Incurred in compliance with Subsection 8.1 or (2) new Indebtedness of Holdings, or a Restricted Subsidiary, as the case may be, Incurred in compliance with Subsection 8.1, so long as such new Indebtedness satisfies all requirements for “Refinancing Indebtedness” set forth in the definition thereof applicable to a refinancing of such Junior Debt, (w) from Net Available Cash or an equivalent amount to the extent permitted by Subsection 8.4, (x) from declined amounts as contemplated by Subsection 4.4(h), (y) following the occurrence of a Change of Control (or other similar event described therein as a “change of control”), but only if Holdings shall have complied with Subsection 8.8(a) prior to purchasing, redeeming, repurchasing, defeasing, acquiring or retiring such Junior Debt or (z) constituting Acquired Indebtedness;
(xv) Investments or other Restricted Payments in an aggregate amount outstanding at any time not to exceed an amount equal to Declined Excess Proceeds;
(xvi) [reserved]; and
(xvii) any Restricted Payment; provided that on a pro forma basis after giving effect to such Restricted Payment the Consolidated Total Leverage Ratio would be equal to or less than 4.00:1.00;
provided that (A) in the case of Subsections 8.2(b)(ii), (v) and (viii), the net amount of any such Permitted Payment shall be included in subsequent calculations of the amount of Restricted Payments, (B) in all cases other than pursuant to clause (A) immediately above, the net amount of any such Permitted Payment shall be excluded in subsequent calculations of the amount of Restricted Payments and (C) solely with respect to Subsection 8.2(b)(vi) and (xvii), no Default or Event of Default shall have occurred and be continuing at the time of any such Permitted Payment after giving effect thereto. Holdings, in its sole discretion, may divide or classify any Investment or other Restricted Payment (or later divide, classify or reclassify in whole or in part in its sole discretion) as being made in part under one of the clauses or subclauses of this Subsection 8.2(b) (or, in the case of any Investment, one or more of the clauses or subclauses of the definition of “Permitted Investments”) and in part under one or more other such clauses or subclauses (or, as applicable, clauses or subclauses).
8.3 Limitation on Restrictive Agreements. Holdings will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on (i) the ability of Holdings or any of its Restricted Subsidiaries (other than any Foreign Subsidiaries or any Excluded Subsidiaries) to create, incur, assume or suffer to exist any Lien in favor of the Lenders in respect of obligations and liabilities under this Agreement or any other Loan Documents upon any of its property, assets or revenues constituting Collateral as and to the extent contemplated by this Agreement and the other Loan Documents, whether now owned or hereafter acquired or (ii) the ability of any Restricted Subsidiary to (x) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to Holdings, (y) make any loans or advances to Holdings or (z) transfer any of its property or assets to Holdings (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will be deemed not to constitute such an encumbrance or restriction), except any encumbrance or restriction:
 
-113-

(a) pursuant to an agreement or instrument in effect at or entered into on the Closing Date, this Agreement and the other Loan Documents, the ABL Facility, the Senior Notes Documents and, on and after the execution and delivery thereof, the Intercreditor Agreement, any Other Intercreditor Agreement, any Permitted Debt Exchange Notes (and any related documents) and any Additional Obligations Documents;
(b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into Holdings or any Restricted Subsidiary, or which agreement or instrument is assumed by Holdings or any Restricted Subsidiary in connection with an acquisition of assets from such Person or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that for purposes of this Subsection 8.3(b), if a Person other than Holdings is the Successor Borrower with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by Holdings or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Borrower;
(c) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in Subsection 8.3(a) or (b) or this Subsection 8.3(c) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by Holdings);
(d) (i) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset subject thereto, (ii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of Holdings or any Restricted Subsidiary not otherwise prohibited by this Agreement, (iii) contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of Holdings or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of Holdings or any Restricted Subsidiary, (v) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (vi) on cash or other deposits or net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (vii) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (viii) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of Holdings or any Restricted Subsidiary in any manner material to Holdings or such Restricted Subsidiary, or (ix) pursuant to Hedging Obligations or Bank Products Obligations;
(e) with respect to any agreement for the direct or indirect disposition of Capital Stock of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such disposition;
(f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over Holdings or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
 
-114-

(g) pursuant to an agreement or instrument (i) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to Subsection 8.1 (x) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by Holdings), or (y) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by Holdings) and either (1) Holdings determines in good faith that such encumbrance or restriction will not materially affect the Borrower’sBorrowers’ ability to create and maintain the Liens on the Collateral pursuant to the Security Documents and make principal or interest payments on the Loans or (2) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (ii) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary (other than a Loan Party) or (iii) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity;
(h) any agreement relating to intercreditor arrangements and related rights and obligations, to or by which the Lenders and/or the Administrative Agent, the Collateral Agent or any other agent, trustee or representative on their behalf may be party or bound at any time or from time to time, and any agreement providing that in the event that a Lien is granted for the benefit of the Lenders another Person shall also receive a Lien, which Lien is permitted by Subsection 8.6; or
(i) any agreement governing or relating to Indebtedness and/or other obligations and liabilities secured by a Lien permitted by Subsection 8.6 (in which case any restriction shall only be effective against the assets subject to such Lien, except as may be otherwise permitted under this Subsection 8.3).
8.4 Limitation on Sales of Assets and Subsidiary Stock.
(a) Holdings will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition unless:
(i) Holdings or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value of the shares and assets subject to such Asset Disposition as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by Holdings, whose determination shall be conclusive (including as to the value of all noncash consideration);
(ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value of $100.0 million or more, at least 75.0% of the consideration (excluding, in the case of each Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) for such Asset Disposition, together with all other Asset Dispositions since the Closing Date (on a cumulative basis) received by Holdings or such Restricted Subsidiary is in the form of cash; and
(iii) to the extent required by Subsection 8.4(b), an amount equal to 100% (as may be adjusted pursuant to clause (3) of the proviso to Subsection 8.4(b)) of the Net Available Cash from such Asset Disposition is applied by Holdings (or any Restricted Subsidiary (including theeach Borrower), as the case may be) as provided therein.
(b) In the event that on or after the Closing Date Holdings or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.0% of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by Holdings (or any Restricted Subsidiary, as the case may be) as follows:
 
-115-

(i) first, to the extent Holdings or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with an amount equal to Net Available Cash received by Holdings or another Restricted Subsidiary) within 450 days after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period, the “Reinvestment Period”) or, if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 450 days to complete, the period of time necessary to complete such project;
(ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay or prepay, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below, as applicable, (A) the Term Loans and (B) to the extent Holdings or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay or prepay, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness permitted under Subsection 8.1, as applicable, (A) the Term Loans and (B) to the extent Holdings or any Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the Term Loan Facilities Obligations) on a pro rata basis with the Term Loans; and
(iii) third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above (the amount of such balance, “Declined Excess Proceeds”), to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt);
provided, however, that (1) in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (ii) above, Holdings or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (2) Holdings (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition; and (3) the foregoing percentage in this clause (iii) shall be reduced to 50.0% if the Consolidated Total Leverage Ratio would be equal to or less than 4.00:1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (iii) as a result of the application of this clause (3) of this proviso shall collectively constitute “Total Leverage Excess Proceeds.”)
(c) Notwithstanding the foregoing provisions of this Subsection 8.4, Holdings and the Restricted Subsidiaries shall not be required to apply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that (x) the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral or equivalent amount that is not applied in accordance with this Subsection 8.4 (excluding all Total Leverage Excess Proceeds) exceeds $100.0 million, in which case Holdings and its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount in accordance with Subsection 8.4(b) or (y) the terms of any Pari Passu Indebtedness would require Net Available Cash or the equivalent amount from such Recovery Events to be applied to purchase, redeem, repay or prepay such Indebtedness prior to reaching such $100.0 million threshold.
(d) For the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of Holdings (other than Disqualified Stock of Holdings) or any Restricted Subsidiary and the release of Holdings or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition,
 
-116-

(3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that Holdings and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by Holdings or any Restricted Subsidiary from the transferee that are converted by Holdings or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of Holdings or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by Holdings or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value , taken together with all other Designated Noncash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any time outstanding equal to the greater of $150.0 million and 2.50% of Consolidated Total Assets (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).
(e) To the extent that any portion of the Net Proceeds payable in respect of the Term Loan Facilities Obligations is denominated in a currency other than U.S. Dollars, the amount thereof payable in respect of the Term Loan Facilities Obligations shall not exceed the net amount of funds in U.S. Dollars that is actually received by Holdings or any Restricted Subsidiary, upon converting such portion into U.S. Dollars.
8.5 Limitations on Transactions with Affiliates.
(a) Holdings will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of Holdings (an “Affiliate Transaction”) involving aggregate consideration in excess of $50.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to Holdings or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $100.0 million the terms of such Affiliate Transaction have been approved by a majority of the Board of Directors. For purposes of this Subsection 8.5(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Subsection 8.5(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Subsection 8.5(a) will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer or director or consultant of or to Holdings, any Restricted Subsidiary or any Parent Entity heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans in the ordinary course of business to any such management members, employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity related interests or other securities, to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of Holdings or any of its Subsidiaries or any Parent Entity (as determined in good faith by Holdings, such Subsidiary or such Parent Entity), or (5) Management Advances and payments in respect thereof (or in reimbursement of any expenses referred to in the definition of such term),
(iii) any transaction between or among any of Holdings, one or more Restricted Subsidiaries, or one or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Closing Date and set forth on Schedule 8.5 (other than any Management Agreements referred to in Subsection 8.5(b)(vii)), and any payments made pursuant thereto,
 
-117-

(v) any transaction in the ordinary course of business on terms that are fair to Holdings and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of Holdings, or are not materially less favorable to Holdings or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of Holdings,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between Holdings or any Restricted Subsidiary and any Affiliate of Holdings controlled by Holdings that is a joint venture or similar entity,
(vii) (1) the execution, delivery and performance of any Tax Sharing Agreement and Management Agreements, and (2) payments to the Sponsors or any of their respective Affiliates (x) for any management, consulting, or advisory services or, in respect of financing, underwriting or placement services or other investment banking activities (if any), as may be approved by a majority of the Disinterested Directors, (y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are made pursuant to the Management Agreements or are approved by a majority of the Board of Directors in good faith, and (z) of all out-of-pocket expenses incurred in connection with such services or activities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, including the fees and out-of-pocket expenses of the Sponsors and their Affiliates,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of Holdings or Junior Capital or any capital contribution to Holdings, and
(x) any investment by any Investor in securities of Holdings or any of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any Investor in connection therewith) so long as such securities are being offered generally to other investors (other than Investors) on the same or more favorable terms.
8.6 Limitation on Liens.
(a) Holdings shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Lien (other than Permitted Liens) on any of its property or assets (including Capital Stock of any other Person), whether owned on the Closing Date or thereafter acquired, securing any Indebtedness (the “Initial Lien”) unless, in the case of Initial Liens on any asset or property other than Collateral, the Term Loan Facilities Obligations are equally and ratably secured with (or on a senior basis to, in the case such Initial Lien secures any Junior Debt) the obligations secured by such Initial Lien for so long as such obligations are so secured. Any such Lien created in favor of the Term Loan Facilities Obligations pursuant to the subclause in the preceding sentence requiring an equal and ratable (or senior, as applicable) Lien for the benefit of the Term Loan Facilities Obligations will be automatically and unconditionally released and discharged upon (i) the release and discharge of the Initial Lien to which it relates, (ii) in the case of any such Lien in favor of any Loan Party Guaranty, upon the termination and discharge of such Loan Party Guaranty in accordance with the terms thereof, hereof and of the ABL Intercreditor Agreement, the Intercreditor Agreement and any Other Intercreditor Agreement, in each case, to the extent applicable, or (iii) any sale, exchange or transfer (other than a transfer constituting a transfer of all or substantially all of the assets of Holdings that is governed by the provisions of Subsection 8.7) to any Person not an Affiliate of Holdings of the property or assets secured by such Initial Lien, or of all of the Capital Stock held by Holdings or any Restricted Subsidiary in, or all or substantially all the assets of, any Restricted Subsidiary creating such Initial Lien. In addition, Holdings shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Lien upon the Specified Excluded Real Property (other than in favor of the Collateral Agent for the benefit of the Secured Parties).
 
-118-

8.7 Limitation on Fundamental Changes.
(a) Holdings will not consolidate with or merge with or into, or convey, lease or otherwise transfer all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the “Successor Holdings”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Holdings (if not Holdings) will expressly assume all the obligations of Holdings under this Agreement and the Loan Documents to which it is a party by executing and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Holdings or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Holdings or such Restricted Subsidiary at the time of such transaction), no Default will have occurred and be continuing;
(iii) immediately after giving effect to such transaction, either (A) Holdings (or, if applicable, the Successor Holdings with respect thereto) could Incur at least $1.00 of additional Indebtedness pursuant to Subsection 8.1(a) or (B) the Consolidated Coverage Ratio of Holdings (or, if applicable, the Successor Holdings with respect thereto) would equal or exceed the Consolidated Coverage Ratio of Holdings immediately prior to giving effect to such transaction;
(iv) the BorrowerBorrowers and each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Loan Party Guaranty in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming, with regard to the Borrower, itsBorrowers, their obligations under this Agreement, and with regard to a Subsidiary Guarantor, its Loan Party Guaranty (other than any Loan Party Guaranty that will be discharged or terminated in connection with such transaction);
(v) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have by a supplement to the Guarantee and Collateral Agreement or another document or instrument affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (iv) above;
(vi) each mortgagor of a Mortgaged Fee Property (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (iv); and
(vii) Holdings will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Subsection 8.7(a), provided that (x) in giving such opinion such counsel may rely on such certificate of a Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this Subsection 8.7(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, merger or transfer described in Subsection 8.7(e).
(b) TheEach Borrower will not consolidate with or merge with or into any Person, unless:
 
-119-

(i) the resulting, surviving or transferee Person (the “Successor Borrower”) (if not the applicable Borrower) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (or, in the case of a Subsidiary Borrower, the jurisdiction of organization of such Subsidiary Borrower) and the Successor Borrower (if not the Borrower) will expressly assume all the obligations of the applicable Borrower under this Agreement and the Loan Documents to which it is a party by executing and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Borrower or such Restricted Subsidiary at the time of such transaction), no Default will have occurred and be continuing;
(iii) theeach Borrower and each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Loan Party Guaranty in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming, with regard to the applicable Borrower, its obligations under this Agreement, and with regard to a Subsidiary Guarantor, its Loan Party Guaranty (other than any Loan Party Guaranty that will be discharged or terminated in connection with such transaction);
(iv) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have by a supplement to the Guarantee and Collateral Agreement or another document or instrument affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (iii) above;
(v) each mortgagor of a Mortgaged Fee Property (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Guarantee and Collateral Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (iv); and
(vi) Holdingsthe Borrower Representative will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Subsection 8.7(b), provided that (x) in giving such opinion such counsel may rely on such certificate of a Responsible Officer as to compliance with the foregoing clauses (ii) and (iii) of this Subsection 8.7(b) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, merger or transfer described in Subsection 8.7(e).;
(c) Any Indebtedness that becomes an obligation of Holdings (or, if applicable, any Successor Borrower with respect thereto) or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Subsection 8.7, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Subsection 8.1.
(d) The Successor Holdings or the Successor Borrower, as applicable, will succeed to, and be substituted for, and may exercise every right and power of, the applicable Borrower or Holdings, as applicable, under the Loan Documents, and thereafter the predecessor Borrower or predecessor Holdings, as applicable, shall be relieved of all obligations and covenants under the Loan Documents, except that the predecessor Borrower or the predecessor Holdings, as applicable, in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Term Loans.
 
-120-

(e) Clauses (ii) and (iii) of Subsection 8.7(a) and clause (ii) of Subsection 8.7(b) will not apply to any transaction in which Holdings or thea Borrower, as applicable, consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing Holdings or thea Borrower, as applicable, in another jurisdiction or changing its legal structure to a corporation, limited liability company or other entity or (y) a Restricted Subsidiary of Holdings so long as all assets of Holdings and the Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 8.7(a) will not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to Holdings. Subsection 8.7(b) will not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to thea Borrower.
8.8 Change of Control; Limitation on Amendments. Holdings shall not and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(a) In the event of the occurrence of a Change of Control, repurchase or repay any Indebtedness then outstanding pursuant to any Junior Debt or any portion thereof, unless Holdings shall have, at its option, (i) made payment in full of the Loans and any other amounts then due and owing to any Lender or the Administrative Agent hereunder and under any Note or (ii) made an offer (a “Change of Control Offer”) to pay the Term Loans and any amounts then due and owing to each Lender and the Administrative Agent hereunder and under any Note and shall have made payment in full thereof to (and terminated any related applicable commitment of) each such Lender or the Administrative Agent which has accepted such offer. Upon Holdings making payment in full of the Loans as provided in clause (i) of this Subsection 8.8(a), or making a Change of Control Offer in accordance with clause (ii) of this Subsection 8.8(a) (whether or not in connection with any repayment or repurchase of Indebtedness outstanding pursuant to Junior Debt), any Event of Default arising under Subsection 9.1(k) by reason of such Change of Control shall be deemed not to have occurred or be continuing.
(b) (1) Amend, supplement, waive or otherwise modify any of the provisions of any Senior Notes Documents in a manner that shortens the maturity date of such Indebtedness to a date prior to the Term BB-3 and B-4 Loan Maturity Date provides for a shorter weighted average life to maturity than the weighted average life to maturity of theany Term B Loans at such time and (2) if an Event of Default under Subsection 9.1(a) or (f) is continuing, amend, supplement, waive or otherwise modify any of the provisions of any indenture, instrument or agreement evidencing Subordinated Obligations or Guarantor Subordinated Obligations in a manner that (i) changes the subordination provisions of such Indebtedness or (ii) shortens the maturity date of such Indebtedness to a date prior to the Term B Loan Maturity Date or provides for a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Term B Loans; provided that, notwithstanding the foregoing, the provisions of this Subsection 8.8(b) shall not restrict or prohibit any refinancing of Indebtedness (in whole or in part) permitted pursuant to Subsection 8.1.
(c) Amend, supplement, waive or otherwise modify the terms of any Permitted Debt Exchange Notes, any Additional Obligations or any Refinancing Indebtedness in respect of the foregoing or any indenture or agreement pursuant to which such Permitted Debt Exchange Notes, Additional Obligations or Refinancing Indebtedness have been issued or incurred in any manner inconsistent with the requirements of the definition of “Refinancing Indebtedness,” assuming for purposes of this Subsection 8.8(c) that such amendment, supplement, waiver or modification, mutatis mutandis, is a refinancing of such Additional Obligations, Permitted Debt Exchange Notes or Refinancing Indebtedness, as applicable.
 
-121-

8.9 Limitation on Lines of Business. Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any business, either directly or through any Restricted Subsidiary, except for those businesses of the same general type as those in which Holdings and its Restricted Subsidiaries are engaged in on the Closing Date or which are reasonably related thereto and any business related thereto.
SECTION 9
Events of Default
9.1 Events of Default. Any of the following from and after the Closing Date shall constitute an “Event of Default”:
(a) The BorrowerBorrowers shall fail to pay any principal of any Loan when due in accordance with the terms hereof (whether at stated maturity, by mandatory prepayment or otherwise); or the BorrowerBorrowers shall fail to pay any interest on any Loan, or any other amount payable hereunder, within five Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document (or in any amendment, modification or supplement hereto or thereto) or which is contained in any certificate furnished at any time by or on behalf of any Loan Party pursuant to this Agreement or any such other Loan Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or
(c) Any Loan Party shall default in the payment, observance or performance of any term, covenant or agreement contained in Section 8; or
(d) Any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in clauses (a) through (c) of this Subsection 9.1), and such default shall continue unremedied for a period of 30 days after the earlier of (A) the date on which a Responsible Officer of Holdings becomes aware of such failure and (B) the date on which written notice thereof shall have been given to Holdingsthe Borrower Representative by the Administrative Agent or the Required Lenders; or
(e) Any Loan Party or any of its Restricted Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (excluding Indebtedness hereunder) in excess of $150.0 million, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness (excluding Indebtedness hereunder) referred to in clause (i) above or contained in any instrument or agreement evidencing, securing or relating thereto (other than a failure to provide notice of a default or an event of default under such instrument or agreement or default in the observance of or compliance with any financial maintenance covenant), or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice or lapse of time if required, such Indebtedness to become due prior to its stated maturity (an “Acceleration”; and the term “Accelerated” shall have a correlative meaning), and such time shall have lapsed and, if any notice (a “Default Notice”) shall be required to commence a grace period or declare the occurrence of an event of default before notice of Acceleration may be delivered, such Default Notice shall have been given and (in the case of the preceding clause (i) or (ii)) such default, event or condition shall not have been remedied or waived by or on behalf of the holder or holders of such Indebtedness (provided that the preceding clause (ii) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder or (y) any termination event or similar event pursuant to the terms of any Hedge Agreement); or (iii) in the case of any Indebtedness referred to in clause (i) above containing or otherwise requiring observance or compliance with any financial maintenance covenant, default in the observance of or compliance with such financial maintenance covenant such that such Indebtedness shall have been Accelerated and such Acceleration shall not have been rescinded; provided that a breach or default by any Loan Party with respect to the Senior ABL Agreement will not constitute an Event of Default unless the agent and/or lenders thereunder have demanded repayment of, or otherwise accelerated, any of the Indebtedness or other obligations thereunder (and such amount remains unpaid); or
 
-122-

(f) If (i) Holdings, theany Borrower or any Material Subsidiary of Holdings shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts (excluding, in each case, the solvent liquidation or reorganization of any Foreign Subsidiary of Holdings), or (B) seeking appointment of a receiver, interim receiver, receivers, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Holdings, theany Borrower or any Material Subsidiary of Holdings shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Holdings, theany Borrower or any Material Subsidiary of Holdings any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a period of 60 days; or (iii) there shall be commenced against Holdings, theany Borrower or any Material Subsidiary of Holdings any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) Holdings, theany Borrower or any Material Subsidiary of Holdings shall take any corporate or other similar organizational action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Holdings, theany Borrower or any Material Subsidiary of Holdings shall be generally unable to, or shall admit in writing its general inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any failure to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of either of Holdings or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is in the reasonable opinion of the Administrative Agent likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA other than a standard termination pursuant to Section 4041(b) of ERISA, (v) either of Holdings or any Commonly Controlled Entity shall, or in the reasonable opinion of the Administrative Agent is reasonably likely to, incur any liability in connection with a withdrawal from, or the Insolvency or ERISA Reorganization of, a Multiemployer Plan, or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would be reasonably expected to result in a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against Holdings or any of its Restricted Subsidiaries involving in the aggregate at any time a liability (net of any insurance or indemnity payments actually received in respect thereof prior to or within 60 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) of $150.0 million or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) (i) The Guarantee and Collateral Agreement shall, or any other Security Document covering a significant portion of the Collateral shall (at any time after its execution, delivery and effectiveness) cease for any reason to be in full force and effect (other than pursuant to the terms hereof or thereof), or any Loan Party which is a party to any such Security Document shall so assert in writing or (ii) the Lien created by any of the Security Documents shall cease to be perfected and enforceable in accordance with its terms or of the same effect as to perfection and priority purported to be created thereby with respect to any significant portion of the Collateral (other than in connection with any termination of such Lien in respect of any Collateral as permitted hereby or by any Security Document) and such failure of such Lien to be perfected and enforceable with such priority shall have continued unremedied for a period of 20 days; or
(j) Any Loan Party shall assert in writing that the ABL Intercreditor Agreement, the Intercreditor Agreement (after execution and delivery thereof) or any Other Intercreditor Agreement (after execution and delivery thereof) shall have ceased for any reason to be in full force and effect (other than pursuant to the terms hereof or thereof) or shall knowingly contest, or knowingly support any other Person in any action that seeks to contest, the validity or effectiveness of any such intercreditor agreement (other than pursuant to the terms hereof or thereof); or
 
-123-

(k) Subject to Holdings’ option to make a payment in full of all of the Loans, or to make a Change of Control Offer, each in accordance with Subsection 8.8(a) (whether or not in connection with any repayment or repurchase of Indebtedness outstanding pursuant to any Junior Debt), a Change of Control shall have occurred.
9.2 Remedies Upon an Event of Default.
(a) If any Event of Default occurs and is continuing, then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of Subsection 9.1(f) with respect to theany Borrower, automatically the Commitments, if any, shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement shall immediately become due and payable, and (B) if such event is any other Event of Default, with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to Holdingsthe Borrower Representative, declare the Commitments to be terminated forthwith, whereupon the Commitments, if any, shall immediately terminate, and/or declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement to be due and payable forthwith, whereupon the same shall immediately become due and payable.
(b) Except as expressly provided above in this Section 9, to the maximum extent permitted by applicable law, presentment, demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 10
The Agents and the Other Representatives
10.1 Appointment.
(a) Each Lender hereby irrevocably designates and appoints the Agents as the agents of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes each Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to or required of such Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Agents and the Other Representatives shall not have any duties or responsibilities, except, in the case of the Administrative Agent and the Collateral Agent, those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent or the Other Representatives.
(b) Each of the Agents may perform any of their respective duties under this Agreement, the other Loan Documents and any other instruments and agreements referred to herein or therein by or through its respective officers, directors, agents, employees or affiliates, or delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent (it being understood and agreed, for avoidance of doubt and without limiting the generality of the foregoing, that the Administrative Agent and the Collateral Agent may perform any of their respective duties under the Security Documents by or through one or more of their respective affiliates). Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Section 10 shall apply to any such sub-agent and to the Related Parties of each 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 Agent.
(c) Except for Subsections 10.5, 10.8(a), (b), (c) and (e) and (to the extent of the Borrower’sBorrowers’ rights thereunder and the conditions included therein) 10.9, the provisions of this Section 10 are solely for the benefit of the Agents and the Lenders, and neithernone of the BorrowerBorrowers nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.
 
-124-

10.2 The Administrative Agent and Affiliates. Each person serving as an 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 an Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each person serving as an Agent hereunder in its individual capacity. Such person and its affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, theany Borrower or any Subsidiary or other Affiliate thereof as if such person were not an Agent hereunder and without any duty to account therefor to the Lenders.
10.3 Action by an Agent. In performing its functions and duties under this Agreement, (a) each Agent shall act solely as an agent for the Lenders and, as applicable, the other Secured Parties, and (b) no Agent assumes any (and shall not be deemed to have assumed any) relationship of agency or trust with or for Holdings or any of its Subsidiaries. Each Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact (including the Collateral Agent in the case of the Administrative Agent), and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact or counsel selected by it with reasonable care.
10.4 Exculpatory Provisions.
(a) No Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, no Agent:
(i) shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its judgment or the judgment of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable Requirement of Law; and
(iii) shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or any of its Affiliates that is communicated to or obtained by the person serving as such Agent or any of its affiliates in any capacity.
(b) No Agent shall be liable for any action taken or not taken by it (x) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Subsection 9.2 or Subsection 11.1, as applicable) or (y) in the absence of its own bad faith, gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice describing such Default is given to such Agent by Holdings or the Borrower Representative or a Lender.
(c) No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the creation, perfection or priority of any Lien purported to be created by the Security Documents or (v) the satisfaction of any condition set forth in Subsection 6 or elsewhere herein, other than to confirm receipt of items expressly required to be
 
-125-

delivered to such Agent. Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Administrative Agent or the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term as used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.
(d) Each party to this Agreement acknowledges and agrees that the Administrative Agent may use an outside service provider for the tracking of all UCC financing statements required to be filed pursuant to the Loan Documents and notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof, and that any such service provider will be deemed to be acting at the request and on behalf of the BorrowerBorrowers and the other Loan Parties. No Agent shall be liable for any action taken or not taken by any such service provider.
10.5 Acknowledgement and Representations by Lenders.
(a) Each Lender expressly acknowledges that none of the Agents or the Other Representatives nor any of their officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by any Agent or any Other Representative hereafter taken, including any review of the affairs of theany Borrower or any other Loan Party, shall be deemed to constitute any representation or warranty by such Agent or such Other Representative to any Lender. Each Lender further represents and warrants to the Agents, the Other Representatives and each of the Loan Parties that it has had the opportunity to review the Confidential Information Memorandum and each other document made available to it on the Platform in connection with this Agreement and has acknowledged and accepted the terms and conditions applicable to the recipients thereof. Each Lender represents to the Agents, the Other Representatives and each of the Loan Parties that, independently and without reliance upon any Agent, the Other Representatives or any other Lender, and based on such documents and information as it has deemed appropriate, it has made and will make, its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of Holdings and the BorrowerBorrowers and the other Loan Parties, it has made its own decision to make its Loans hereunder and enter into this Agreement and it will make its own decisions in taking or not taking any action under this Agreement and the other Loan Documents and, except as expressly provided in this Agreement, neither the Agents nor any Other Representative shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter. Each Lender (other than, in the case of clause (i), an Affiliated Lender, any Parent Entity (other than Holdings) or any Unrestricted Subsidiary) represents to each other party hereto that (i) it is a bank, savings and loan association or other similar savings institution, insurance company, investment fund or company or other financial institution which makes or acquires commercial loans in the ordinary course of its business and that it is participating hereunder as a Lender for such commercial purposes and (ii) it has the knowledge and experience to be and is capable of evaluating the merits and risks of being a Lender hereunder. Each Lender acknowledges and agrees to comply with the provisions of Subsection 11.6 applicable to the Lenders hereunder.
(b) 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, the Joint Lead Arrangers, and each other Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of theany 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 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
 
-126-

(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(c) In addition, unless sub-clause (i) in the immediately preceding clause (b) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (b), 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, the Joint Lead Arrangers, and each other Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that:
(i) none of the Administrative Agent, the Joint Lead Arrangers, or any other Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (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),
(ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),
(iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative Agent, the Joint Lead Arrangers or any other Lead Arranger or any of their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.
 
-127-

(d) The Administrative Agent, the Joint Lead Arrangers and each other Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
10.6 Indemnity; Reimbursement by Lenders.
(a) To the extent that theany Borrower or any other Loan Party for any reason fails to indefeasibly pay any amount required under Subsection 11.5 to be paid by it to the Administrative Agent (or any sub-agent thereof), or the Collateral Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay ratably according to their respective Total Credit Percentages, on the date on which the applicable unreimbursed expense or indemnity payment is sought under this Subsection 10.6 such unpaid amount (such indemnity shall be effective whether or not the related losses, claims, damages, liabilities and related expenses are incurred or asserted by any party hereto or any third party); 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 (or any such sub-agent) or the Collateral Agent (or any sub-agent thereof), or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or the Collateral Agent (or any sub-agent thereof) in connection with such capacity. The obligations of the Lenders under this Subsection 10.6 are subject to the provisions of Subsection 4.8.
(b) Any Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document (except actions expressly required to be taken by it hereunder or under the Loan Documents) unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action.
(c) All amounts due under this Subsection 10.6 shall be payable not later than three Business Days after demand therefor. The agreements in this Subsection 10.6 shall survive the payment of the Loans and all other amounts payable hereunder.
10.7 Right to Request and Act on Instructions.
(a) Each Agent may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Loan Documents an Agent is permitted or desires to take or to grant, and if such instructions are promptly requested, the requesting Agent shall be absolutely entitled as between itself and the Lenders to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Lender for refraining from any action or withholding any approval under any of the Loan Documents until it shall have received such instructions from Required Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of an Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Required Lenders (or all or such other portion of the Lenders as shall be prescribed by this Agreement) and, notwithstanding the instructions of the Required Lenders (or such other applicable portion of the Lenders), an Agent shall have no obligation to any Lender to take any action if it believes, in good faith, that such action would violate applicable law or exposes an Agent to any liability for which it has not received satisfactory indemnification in accordance with the provisions of Subsection 10.6.
 
-128-

(b) Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Each Agent may consult with legal counsel (who may be counsel for the BorrowerBorrowers), independent accountants and other experts selected by it, and shall be entitled to rely upon the advice of any such counsel, accountants or experts and shall not be liable for any action taken or not taken by it in accordance with such advice.
10.8 Collateral Matters .
(a) Each Lender authorizes and directs the Administrative Agent and the Collateral Agent to enter into (x) the Security Documents, the ABL Intercreditor Agreement, the Intercreditor Agreement and any Other Intercreditor Agreement for the benefit of the Lenders and the other Secured Parties, (y) any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to the Security Documents, the ABL Intercreditor Agreement, the Intercreditor Agreement and any Other Intercreditor Agreement or other intercreditor agreements in connection with the incurrence by any Loan Party or any Subsidiary thereof of Additional Indebtedness (each, an “Intercreditor Agreement Supplement”) to permit such Additional Indebtedness to be secured by a valid, perfected lien (with such priority as may be designated by Holdings or relevant Subsidiary, to the extent such priority is permitted by the Loan Documents) and (z) any Incremental Commitment Amendment as provided in Subsection 2.8, any Increase Supplement as provided in Subsection 2.8, any Lender Joinder Agreement as provided in Subsection 2.8, any agreement required in connection with a Permitted Debt Exchange Offer pursuant to Subsection 2.9, any Extension Amendment as provided in Subsection 2.10 and any Specified Refinancing Amendment as provided in Subsection 2.11. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Administrative Agent, Collateral Agent or the Required Lenders in accordance with the provisions of this Agreement, the Security Documents, the ABL Intercreditor Agreement, the Intercreditor Agreement, any Other Intercreditor Agreement, any Intercreditor Agreement Supplement, any Incremental Commitment Amendment, any Increase Supplement, any Lender Joinder Agreement or any agreement required in connection with a Permitted Debt Exchange Offer or any Extension Amendment or any Specified Refinancing Amendment and the exercise by the Agents or the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time, to take any action with respect to any applicable Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Security Documents. Each Lender agrees that it will not have any right individually to enforce or seek to enforce any Security Document or to realize upon any Collateral for the Loans unless instructed to do so by the Collateral Agent, it being understood and agreed that such rights and remedies may be exercised only by the Collateral Agent. The Collateral Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
(b) The Lenders hereby authorize each Agent, in each case at its option and in its discretion, (A) to release any Lien granted to or held by such Agent upon any Collateral (i) upon termination of the Commitments and payment and satisfaction of all of the Term Loan Facilities Obligations under the Loan Documents, (ii) constituting property being sold or otherwise disposed of (to Persons other than a Loan Party) upon the sale or other disposition thereof to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (iii) owned by any Subsidiary Guarantor which becomes an Excluded Subsidiary or ceases to be a Restricted Subsidiary of Holdings or constituting Equity Interests of an Excluded Subsidiary (other than the Equity Interests of Foreign Subsidiaries), (iv) if approved, authorized or ratified in writing
 
-129-

by the Required Lenders (or such greater amount, to the extent required by Subsection 11.1) or (v) as otherwise may be expressly provided in the relevant Security Documents, (B) at the written request of the Borrower Representative to subordinate any Lien on any Excluded Assets or any other property granted to or held by such Agent, as the case may be under any Loan Document to the holder of any Permitted Lien (other than Permitted Liens securing the Obligations under the Loan Documents or that are required by the express terms of this Agreement to be pari passu with or junior to the Liens on the Collateral securing the Term Loan Facilities Obligations pursuant to the Intercreditor Agreement or an Other Intercreditor Agreement) and (C) to release any Subsidiary Guarantor from its Obligations under any Loan Documents to which it is a party if such Person ceases to be a Restricted Subsidiary of Holdings or becomes an Excluded Subsidiary. Upon request by any Agent, at any time, the Required Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement will confirm in writing any Agent’s authority to release particular types or items of Collateral pursuant to this Subsection 10.8.
(c) The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as the case may be, in each case at its option and in its discretion, to enter into any amendment, amendment and restatement, restatement, waiver, supplement or modification, and to make or consent to any filings or to take any other actions, in each case as contemplated by Subsection 11.17. Upon request by any Agent, at any time, the Required Lenders will confirm in writing the Administrative Agent’s and the Collateral Agent’s authority under this Subsection 10.8(c).
(d) No Agent shall have any obligation whatsoever to the Lenders to assure that the Collateral exists or is owned by Holdings, theany Borrower or any of its Restricted Subsidiaries or is cared for, protected or insured or that the Liens granted to any Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Agents in this Subsection 10.8 or in any of the Security Documents, it being understood and agreed by the Lenders that in respect of the Collateral, or any act, omission or event related thereto, each Agent may act in any manner it may deem appropriate, in its sole discretion, given such Agent’s own interest in the Collateral as a Lender and that no Agent shall have any duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct.
(e) Notwithstanding any provision herein to the contrary, any Security Document may be amended (or amended and restated), restated, waived, supplemented or modified as contemplated by and in accordance with either Subsection 11.1 or 11.17, as applicable, with the written consent of the Agent party thereto and the Loan Party party thereto.
(f) The Collateral Agent may, and hereby does, appoint the Administrative Agent as its agent for the purposes of holding any Collateral and/or perfecting the Collateral Agent’s security interest therein and for the purpose of taking such other action with respect to the collateral as such Agents may from time to time agree.
10.9 Successor Agent. Subject to the appointment of a successor as set forth herein, (i) the Administrative Agent or the Collateral Agent may be removed by the Borrower Representative or the Required Lenders if the Administrative Agent, the Collateral Agent, or a controlling affiliate of the Administrative Agent or the Collateral Agent is a Defaulting Lender and (ii) the Administrative Agent and the Collateral Agent may resign as Administrative Agent or Collateral Agent, respectively, in each case upon ten days’ notice to the Administrative Agent, the Lenders and the Borrower Representative, as applicable. If the Administrative Agent or the Collateral Agent shall be removed by the Borrower Representative or the Required Lenders pursuant to clause (i) above or if the Administrative Agent or the Collateral Agent shall resign as Administrative Agent or Collateral Agent, as applicable, under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which such successor agent shall be subject to approval by the Borrower Representative; provided that such approval by the Borrower Representative in connection with the appointment of any successor Administrative Agent shall only be required so long as no Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing; provided, further, that the Borrower Representative shall not unreasonably withhold its approval of any successor Administrative Agent if such successor is a commercial bank with a consolidated combined capital and surplus of at least $5,000,000,000. Upon the successful appointment of a successor agent, such successor agent shall succeed to the rights, powers and duties of the Administrative Agent or the Collateral Agent (including the rights, powers and duties of the Collateral Agent under the Parallel Debt), as applicable, and the term “Administrative Agent” or “Collateral Agent,” as applicable, shall mean such successor agent effective
 
-130-

upon such appointment and approval, and the former Agent’s rights, powers and duties as Administrative Agent or Collateral Agent, as applicable, shall be terminated, without any other or further act or deed on the part of such former Agent or any of the parties to this Agreement or any holders of the Loans. In connection with the appointment of a successor agent, the retiring Collateral Agent will reasonably cooperate in assigning its rights under the Parallel Debt to any such new Collateral Agent and will reasonably cooperate in transferring all rights under any Dutch Security Document to such successor Collateral Agent (it being understood that any indemnities and other protections provided to the Collateral Agent under the Dutch Security Documents will continue to inure to the benefit of the retiring Collateral Agents as to any actions taken or omitted to be taken by it while it was Collateral Agent). After any retiring Agent’s resignation or removal as Agent, the provisions of this Section 10 (including this Section 10.9) shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement and the other Loan Documents. The fees payable by thea Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Representative and such successor.
10.10 [Reserved]Parallel Debt.
(a) Each Loan Party irrevocably and unconditionally undertakes to pay to the Collateral Agent amounts equal to its Corresponding Obligations as they may exist from time to time (each a “Parallel Debt”).
(b) Each Parallel Debt will be payable in the currency or currencies of the Corresponding Obligation and will become due and payable at the same time as the Corresponding Obligation becomes due and payable. An Event of Default in respect of the payment of the Corresponding Obligations shall constitute a default within the meaning of section 3:248 of the Dutch Civil Code with respect to the payment of the Parallel Debts without any notice being required.
(c) The rights of the Collateral Agent under each Parallel Debt are its own claims to receive payment from the Loan Parties, several and independent from the rights of the Secured Parties to receive payment of the Corresponding Obligations of the relevant Loan Party.
(d) An amount received by the Collateral Agent in discharge of a Parallel Debt will discharge the Corresponding Obligation in an equal amount.
(e) The aggregate amount outstanding under the Parallel Debts will never exceed the aggregate amount outstanding under the Corresponding Obligations.
(f) For the purpose of this Subsection 10.10, the Collateral Agent acts as the creditor of the Parallel Debts.
10.11 Withholding Tax. To the extent required by any applicable law, each Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax, and in no event shall such Agent be required to be responsible for or pay any additional amount with respect to any such withholding. If the Internal Revenue Service or any other Governmental Authority asserts a claim that any Agent did not properly withhold tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify such Agent of a change in circumstances which rendered the exemption from or reduction of withholding tax ineffective or for any other reason, without limiting the provisions of Subsection 4.11(a) or 4.12, such Lender shall indemnify such Agent fully for all amounts paid, directly or indirectly, by such Agent as tax or otherwise, including any penalties or interest and together with any expenses incurred and shall make payable in respect thereof within 30 days after demand therefor. 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 against any amount due the Administrative Agent under this Subsection 10.11. The agreements in this Subsection 10.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all other Term Loan Facilities Obligations.
 
-131-

10.12 Other Representatives. None of the entities identified as joint bookrunners and joint lead arrangers pursuant to the definition of Other Representative contained herein, shall have any duties or responsibilities hereunder or under any other Loan Document in its capacity as such. Without limiting the foregoing, no Other Representative shall have nor be deemed to have a fiduciary relationship with any Lender. At any time that any Lender serving as an Other Representative shall have transferred to any other Person (other than any of its affiliates) all of its interests in the Loans and in the Commitments, such Lender shall be deemed to have concurrently resigned as such Other Representative.
10.13 Administrative Agent May File Proofs of Claim. In case of the pendency of any Bankruptcy Proceeding or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the BorrowerBorrowers) is hereby authorized by the Lenders, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 4.5 and 11.5) allowed in such judicial proceeding;
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 4.5 and 11.5.
10.14 Application of Proceeds. The Lenders, the Administrative Agent and the Collateral Agent agree, as among such parties, as follows: subject to the terms of the ABL Intercreditor Agreement, the Intercreditor Agreement, any Other Intercreditor Agreement or any Intercreditor Agreement Supplement, after the occurrence and during the continuance of an Event of Default, all amounts collected or received by the Administrative Agent, the Collateral Agent or any Lender on account of amounts then due and outstanding under any of the Loan Documents (the “Collection Amounts”) shall, except as otherwise expressly provided herein, be applied as follows: first, to pay all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees to the extent provided herein) due and owing hereunder of the Administrative Agent and the Collateral Agent in connection with enforcing the rights of the Agents and the Lenders under the Loan Documents (including all expenses of sale or other realization of or in respect of the Collateral and any sums advanced to the Collateral Agent or to preserve its security interest in the Collateral), second, to pay all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees to the extent provided herein) due and owing hereunder of each of the Lenders in connection with enforcing such Lender’s rights under the Loan Documents, third, to pay interest on Loans then outstanding; fourth, to pay the Dollar Equivalent of principal of Loans then outstanding and obligations under Interest Rate Agreements, Currency Agreements, Commodities Agreements and Bank Products Agreements permitted hereunder and secured by the Guarantee and Collateral Agreement, ratably among the applicable Secured Parties in proportion to the respective amounts described in this clause “fourth” payable to them, and fifth, to pay the Dollar Equivalent of all other Term Loan Facility Obligations then owing to the Secured Parties, sixth, to pay the surplus, if any, to whomever may be lawfully entitled to receive such surplus. To the extent any amounts available for distribution pursuant to clause “third, “fourth” or “fifth” above are insufficient to pay all obligations described therein in full, such moneys shall be allocated pro rata among the applicable Secured Parties in proportion to the respective amounts described in the applicable clause at such time. This Subsection 10.14 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendment) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.8, 2.10 and 2.11, as applicable.
 
-132-

Notwithstanding the foregoing, Excluded Obligations (as defined in the Guarantee and Collateral Agreement) with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets and such Excluded Obligations shall be disregarded in any application of Collection Amounts from such Guarantor pursuant to the preceding paragraph.
SECTION 11
Miscellaneous
11.1 Amendments and Waivers.
(a) Neither this Agreement nor any other Loan Document, nor any terms hereof or thereof, may be amended, supplemented, modified or waived except in accordance with the provisions of this Subsection 11.1. The Required Lenders may (provided that no such written amendment, supplement, modification or waiver referred to below that is not signed by the Administrative Agent shall become effective until delivered to the Administrative Agent), or, with the written consent of the Required Lenders, the Administrative Agent may, from time to time, (x) enter into with the respective Loan Parties hereto or thereto, as the case may be, written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or to the other Loan Documents or changing, in any manner the rights or obligations of the Lenders or the Loan Parties hereunder or thereunder or (y) waive at any Loan Party’s request, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that amendments pursuant to Subsections 11.1(d) and (f) may be effected without the consent of the Required Lenders to the extent provided therein; provided, further, that no such waiver and no such amendment, supplement or modification shall:
(i) (A) reduce or forgive the amount or extend the scheduled date of maturity of any Loan hereunder or of any scheduled installment thereof (including extending any Maturity Date), (B) reduce the stated rate of any interest, commission or fee payable hereunder (other than as a result of any waiver of the applicability of any post-default increase in interest rates), (C) extend the scheduled date of any payment of any Lenders’ Loans hereunder, (D) increase the Commitment of such Lender (other than with respect to any Incremental Commitment pursuant to Subsection 2.8 in respect of which such Lender has agreed to be an Incremental Lender); it being understood that no amendment, modification or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall constitute an increase of any Commitment of such Lender; (E) change the currency in which any Loan is payable; or (F) amend or modify any provisions of Subsections 4.8(a) or 10.14, in each case without the consent of each Lender directly and adversely affected thereby (it being understood that amendments to, or waivers or modifications of any conditions precedent, representations, warranties, covenants, Defaults or Events of Default or of a mandatory repayment of the Loans of all Lenders shall not constitute an extension of the scheduled date of maturity, any scheduled installment, or the scheduled date of payment of the Loans of any Lender);
(ii) amend, modify or waive any provision of this Subsection 11.1(a) or reduce the percentage specified in the definition of “Required Lenders,”, or consent to the assignment or transfer by the BorrowerBorrowers of any of itstheir rights and obligations under this Agreement and the other Loan Documents (other than pursuant to Subsection 8.7 or 11.6(a)), in each case without the written consent of all the Lenders;
(iii) release Guarantors accounting for all or substantially all of the value of the Guarantee of the Term Loan Facilities Obligations pursuant to the Guarantee and Collateral Agreement, or, in the aggregate (in a single transaction or a series of related transactions), all or substantially all of the Collateral without the consent of all of the Lenders, except as expressly permitted hereby or by any Security Document (as such documents are in effect on the date hereof or, if later, the date of execution and delivery thereof in accordance with the terms hereof);
 
-133-

(iv) require any Lender to make Loans having an Interest Period of longer than six (6) months or shorter than one month without the consent of such Lender;
(v) amend, modify or waive any provision of Section 10 without the written consent of the then Agents; or
(vi) amend, modify or waive any provision of Subsection 10.1(a), 10.4 or 10.12 without the written consent of any Other Representative directly and adversely affected thereby;
provided, further, that, notwithstanding and in addition to the foregoing, and in addition to Liens on the Collateral that the Collateral Agent is authorized to release pursuant to Subsection 10.8(b), the Collateral Agent may, in its discretion, release the Lien on Collateral valued in the aggregate not in excess of $25,000,000 in any Fiscal Year without the consent of any Lender.
(b) Any waiver and any amendment, supplement or modification pursuant to this Subsection 11.1 shall apply to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Agents and all future holders of the Loans. In the case of any waiver, each of the Loan Parties, the Lenders and the Agents shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
(c) Notwithstanding any provision herein to the contrary, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except to the extent the consent of such Lender would be required under clause (i) in the further proviso to the second sentence of Subsection 11.1(a).
(d) Notwithstanding any provision herein to the contrary, this Agreement and the other Loan Documents may be amended (i) to cure any ambiguity, mistake, omission, defect, or inconsistency with the consent of the Borrower Representative and the Administrative Agent, (ii) in accordance with Subsection 2.8 to incorporate the terms of any Incremental Commitments (including to add a new revolving facility or letter of credit facility under this Agreement) with the written consent of Holdingsthe applicable Borrower(s) and Lenders providing such Incremental Commitments, (iii) in accordance with Subsection 2.10 to effectuate an Extension with the written consent of the Borrower Representative and the Extending Lenders, (iv) in accordance with Subsection 2.11 to incorporate the terms of any Specified Refinancing Term Loan Facilities with the consent of the Borrowerapplicable Borrower(s) and the applicable Specified Refinancing Lenders, (v) in accordance with Subsection 7.12, to change the financial reporting convention and, (vi) with the consent of the Borrowerapplicable Borrower(s) and the Administrative Agent (in each case such consent not to be unreasonably withheld, conditioned or delayed), in the event any mandatory prepayment or redemption provision in respect of the Net Available Cash Proceeds of Asset Dispositions or Recovery Events or from Excess Cash Flow included or to be included in any Incremental Commitment Amendment or any Indebtedness constituting Additional Obligations or that would constitute Additional Obligations would result in Incremental Term Loans or Additional Obligations, as applicable, being prepaid or redeemed on a more than ratable basis with the Term Loans in respect of the Net Cash Proceeds from any such Asset Disposition or Recovery Event or Excess Cash Flow prepayment to the extent such Net Cash Proceeds or Excess Cash Flow are required to be applied to repay Term Loans hereunder pursuant to Subsection 4.4(e), to provide for mandatory prepayments of the Term B Loans such that, after giving effect thereto, the prepayments made in respect of such Incremental Term Loans or Additional Obligations, as applicable, are not on more than a ratable basis. Without limiting the generality of the foregoing, any provision of this Agreement and the other Loan Documents, including Subsection 4.4, 4.8 or 10.14 hereof, may be amended, supplemented, modified or waived as set forth in the immediately preceding sentence pursuant to any Incremental Commitment Amendment, any Extension Amendment or any Specified Refinancing Amendment, as the case may be, to provide for non-pro rata borrowings and payments of any amounts hereunder as between any Tranches, including the Term Loans, any Incremental Commitments or Incremental Term Loans, any Extended Term Tranche and any Specified Refinancing Tranche, or to provide for the inclusion, as appropriate, of the Lenders of any Extended Term Tranche, Specified Refinancing Tranche, Incremental Commitments or Incremental Term Loans in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder. The Administrative Agent hereby agrees (if requested by the Borrower Representative) to execute any amendment, supplement, modification or waiverreferred to in this clause (d) or an acknowledgement thereof.
 
-134-

(e) Notwithstanding any provision herein to the contrary, this Agreement may be amended (or deemed amended) or amended and restated with the written consent of the Required Lenders, the Administrative Agent and the Borrower Representative (x) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the existing Facilities and the accrued interest and fees in respect thereof, (y) to include, as appropriate, the Lenders holding such credit facilities in any required vote or action of the Required Lenders or of the Lenders of each Facility hereunder and (z) to provide class protection for any additional credit facilities.
(f) Notwithstanding any provision herein to the contrary, any Security Document may be amended (or amended and restated), restated, waived, supplemented or modified as contemplated by Subsection 11.17 with the written consent of the Agent party thereto and the Loan Party party thereto.
(g) If, in connection with any proposed change, waiver, discharge or termination of or to any of the provisions of this Agreement and/or any other Loan Document as contemplated by Subsection 11.1(a), the consent of each Lender or each affected Lender, as applicable, is required and the consent of the Required Lenders at such time is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained (each such Lender, a “Non-Consenting Lender”) then the Borrower Representative may, on notice to the Administrative Agent and the Non-Consenting Lender, (A) replace such Non-Consenting Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Subsection 11.6 (with the assignment fee and any other costs and expenses to be paid by the BorrowerBorrowers in such instance) all of its rights and obligations under this Agreement to one or more assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to Holdingsthe Borrowers to find a replacement Lender; provided, further, that the applicable assignee shall have agreed to the applicable change, waiver, discharge or termination of this Agreement and/or the other Loan Documents; and provided, further, that all obligations of the BorrowerBorrowers owing to the Non-Consenting Lender relating to the Loans, Commitments and participations so assigned shall be paid in full by the assignee Lender (or, at its option, by the Borrower Representative) to such Non-Consenting Lender concurrently with such Assignment and Acceptance or (B) so long as no Event of Default under Subsection 9.1(a) or (f) then exists or will exist immediately after giving effect to the respective prepayment, prepay the Loans, in whole or in part, subject to Subsections 4.5(b) and 4.12, without premium or penalty. In connection with any such replacement under this Subsection 11.1(g), if the Non-Consenting Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the replacement Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of which all obligations of the applicable Borrower owing to the Non-Consenting Lender relating to the Loans, Commitments and participations so assigned shall be paid in full by the assignee Lender to such Non-Consenting Lender, then such Non-Consenting Lender shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and the Borrower Representative shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Non-Consenting Lender, and the Administrative Agent shall record such assignment in the Register.
11.2 Notices .
(a) All notices, requests, and demands to or upon the respective parties hereto to be effective shall be in writing (including telecopy or electronic mail), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand, or three days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice or electronic mail, when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day), or, in the case of delivery by a nationally recognized overnight courier, when received, addressed as follows in the case of Holdings, the BorrowerBorrowers, the Administrative Agent and the Collateral Agent, or to such other address as may be hereafter notified by the respective parties hereto and any future holders of the Loans:
 
-135-

			
Holdings or thea Borrower:	 	Univar Solutions Inc.	
	 	3075 Highland Parkway, Suite 200	
	 	Downers Grove, IL 60515	
	 	Attention: Kerri Howard, Vice President—Treasurer	
	 	Facsimile: (331) 777-6291	
	 	Telephone: (331) 777-6061	
	 	Email: kerri.howard@univarcorp.comkerri.howard@univarcorp.com and	
	 	Treasury@univarcorp.comTreasury@univarcorp.com	
		
With copies (which shall not constitute notice) to:	 	Kirkland & Ellis LLP	
	 	601 Lexington Avenue	
	 	New York, New York 10022	
	 	Attention: Jason Kanner	
	 	Facsimile: (212) 446-6460	
	 	Telephone: (212) 446-4902	
	 	Email: Jason.Kanner@kirkland.com	
		
The Administrative Agent/the Collateral Agent:	 	Bank of America, N.A.	
	 	553 California Street, 4th Floor	
	 	Mail Code: CA5-705-04-09	
	 	San Francisco, California 94104	
	 	Attention: Liliana B. Claar	
	 	Facsimile: (415) 503-5003	
	 	Telephone: (415) 436-2770	
	 	Email: liliana.claar@baml.com	
provided that any notice, request or demand to or upon the Administrative Agent or the Lenders pursuant to Subsection 4.2, 4.4 or 4.8 shall not be effective until received.
(b) Without in any way limiting the obligation of any Loan Party and its Subsidiaries to confirm in writing any telephonic notice permitted to be given hereunder, the Administrative Agent may prior to receipt of written confirmation act without liability upon the basis of such telephonic notice, believed by the Administrative Agent in good faith to be from a Responsible Officer of a Loan Party.
(c) Loan Documents may be transmitted and/or signed by facsimile or other electronic means (i.e., a “pdf” or “tiff”). The effectiveness of any such documents and signatures shall, subject to applicable law, have the same force and effect as manually signed originals and shall be binding on each Loan Party, each Agent and each Lender. The Administrative Agent may also require that any such documents and signatures be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile or other electronic document or signature.
(d) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including electronic mail and Internet or intranet websites). Notices or communications posted to an Internet or intranet website shall be deemed received upon the posting thereof.
(e) TheEach Borrower hereby acknowledges that (a) the Administrative Agent and/or the other Agents will make available to the Lenders materials and/or information provided by or on behalf of theeach Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on 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 applicable Borrower or its securities) (each, a “Public Lender”). The Borrower
 
-136-

Representative hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that do not contain any material non-public information and that may be distributed to the Public Lenders and that (x) 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 and (y) by marking Borrower Materials “PUBLIC,” the BorrowerBorrowers shall be deemed to have authorized the Administrative Agent and the other Agents to make such Borrower Materials available through a portion of the Platform designated “Public Investor.” Notwithstanding the foregoing or any other provision of this Agreement to the contrary, neither the Borrower nor any of itstheir Related Parties shall be liable, or responsible in any manner, for the use by any Agent, any Lender, any Participant or any of their Related Parties of the Borrower Materials. In addition, it is agreed that (i) to the extent any Borrower Materials constitute confidential information, they shall be subject to the confidentiality provisions of Subsection 11.16 and (ii) the BorrowerBorrowers shall be under no obligation to designate any Borrower Materials as “PUBLIC.”
(f) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANT THE ACCURACY OR COMPLETENESS OF THE 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 ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.
(g) Each Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower Representative and the Administrative Agent.
(h) All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any Agent, any Lender or any Loan Party, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations and warranties made hereunder and in the other Loan Documents (or in any amendment, modification or supplement hereto or thereto) and in any certificate delivered pursuant hereto or such other Loan Documents shall survive the execution and delivery of this Agreement and the making of the Loans hereunder.
11.5 Payment of Expenses and Taxes. The Borrower agreesBorrowers agree (a) to pay or reimburse the Agents and the Other Representatives for (1) all their reasonable and documented out-of-pocket costs and expenses incurred in connection with (i) the syndication of the Facilities and the development, preparation, execution and delivery of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, (ii) the consummation and administration of the transactions (including the syndication of the Initial Term Loan Commitments (as defined in the Original Credit Agreement)) contemplated hereby and thereby and (iii) efforts to monitor the Loans and verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose of any of the Collateral, and (2) the reasonable and documented fees and disbursements of one firm of counsel solely in its capacity as counsel to the Administrative Agent, and such other special or local counsel, consultants, advisors, appraisers and auditors whose retention (other than during the continuance of an Event of Default) is approved by the Borrower Representative, (b) to pay or reimburse each Lender, each Lead Arranger and the Agents for all their reasonable costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, including the fees and disbursements of counsel to the Agents and the Lenders, (c) to pay, indemnify, or reimburse each Lender, each Lead Arranger and the Agents for, and hold each Lender, each Lead Arranger and the Agents harmless from, any and all recording and filing fees
 
-137-

and any and all liabilities with respect to, or resulting from any delay in paying, any stamp, documentary, excise and other similar taxes, if any, which may be payable or determined to be payable in connection with the execution, delivery or enforcement of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify or reimburse each Lender, each Lead Arranger, each Agent (and any sub-agent thereof) and each Related Party of any of the foregoing Persons (each, an “Indemnitee”) for, and hold each Indemnitee harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (in the case of fees and disbursements of counsel, limited to one firm of counsel for all Indemnities and, if necessary, one firm of local counsel in each appropriate jurisdiction, in each case for all Indemnities (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Borrower Representative of such conflict and thereafter, after receipt of the Borrower’s consent (which shall not be unreasonably withheld), retains its own counsel, of another firm of counsel for such affected Indemnitee) arising out of or relating to any actual or prospective claim, litigation, investigation or proceeding, whether based on contract, tort or any other theory, brought by a third party or by any Borrower or any other Loan Party and regardless of whether any Indemnitee is a party thereto, with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans, the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of Holdings or any of its Restricted Subsidiaries or any of the property of Holdings or any of its Restricted Subsidiaries, (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided that the BorrowerBorrowers shall not have any obligation hereunder to any Lead Arranger, any Other Representative, any Agent (or any sub-agent thereof) or any Lender (or any Related Party of any such Lead Arranger, Other Representative, Agent (or any sub-agent thereof) or Lender) with respect to Indemnified Liabilities arising from (i) the gross negligence, bad faith or willful misconduct of such Lead Arranger, Other Representative, Agent (or any sub-agent thereof) or Lender (or any Related Party of such Lead Arranger, Other Representative, Agent (or any sub-agent thereof) or Lender), as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision, (ii) a material breach of the Loan Documents by such Lead Arranger, Other Representative, Agent (or any sub-agent thereof) or Lender (or any Related Party of such Lead Arranger, Other Representative, Agent (or any sub-agent thereof) or Lender), as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision or (iii) claims against such Indemnitee or any Related Party brought by any other Indemnitee that do not involve claims against any Lead Arranger or Agent in its capacity as such. Neither the Borrower nor any Indemnitee shall be liable for any indirect, special, punitive or consequential damages hereunder; provided that nothing contained in this sentence shall limit the Borrower’s indemnity or reimbursement obligations under this Subsection 11.5 to the extent such indirect, special, punitive or consequential damages are included in any third party claim in connection with which such Indemnitee is entitled to indemnification hereunder. All amounts due under this Subsection 11.5 shall be payable not later than 30 days after written demand therefor. Statements reflecting amounts payable by the Loan Parties pursuant to this Subsection 11.5 shall be submitted to the address of the Borrower Representative set forth in Subsection 11.2, or to such other Person or address as may be hereafter designated by the Borrower Representative in a notice to the Administrative Agent. Notwithstanding the foregoing, except as provided in Subsections 11.5(b) and (c) above, the BorrowerBorrowers shall have no obligation under this Subsection 11.5 to any Indemnitee with respect to any tax, levy, impost, duty, charge, fee, deduction or withholding imposed, levied, collected, withheld or assessed by any Governmental Authority. The agreements in this Subsection 11.5 shall survive repayment of the Loans and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) other than in accordance with Subsection 8.7, theno Borrower shall 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 theany 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 Subsection 2.10(e), Subsection 4.13(d), Subsection 11.1(g) or this Subsection 11.6.
 
-138-

(b) (i) (i) Subject to the conditions set forth in Subsection 11.6(b)(ii) below, any Lender other than a Conduit Lender may, in the ordinary course of business and in accordance with applicable law, assign (other than to a Disqualified Lender or any natural person) to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including its Commitments and/or Loans, pursuant to an Assignment and Acceptance) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower Representative, provided that no consent of the Borrower Representative shall be required for an assignment (x) of Term Loans to a Lender, an Affiliate of a Lender, or an Approved Fund (as defined below); provided, that if any Lender assigns all or a portion of its rights and obligations with respect to the Term Loans under this Agreement to one of its Affiliates in connection with or in contemplation of the sale or other disposition of its interest in such Affiliate, the Borrower’s prior written consent shall be required for such assignment, and, (y) if an Event of Default under Subsection 9.1(a) or (f) with respect to theany Borrower has occurred and is continuing, to any other Person; and
(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 to a Lender or an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Loans under any Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall be in an amount of an integral multiple of not less than $1,000,000 (or, in the case of Loans or Commitments denominated in Euros, €1,000,000), unless the Borrower Representative and the Administrative Agent otherwise consent, provided that (1) no such consent of the Borrower Representative shall be required if an Event of Default under Subsection 9.1(a) or (f) with respect to theany Borrower has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (unless waived by the Administrative Agent in any given case); provided that for concurrent assignments to two or more Approved Funds such assignment fee shall only be required to be paid once in respect of and at the time of such assignments;
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire;
(D) any assignment of Incremental Commitments or Loans to an Affiliated Lender shall also be subject to the requirements of Subsections 11.6(h) and (i); and
(E) any Term Loans acquired by Holdings, theany Borrower or any Restricted Subsidiary shall be retired and cancelled promptly upon acquisition thereof.
For the purposes of this Subsection 11.6, the term “Approved Fund” has the following meaning: “Approved Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. Notwithstanding the foregoing, no Lender shall be permitted to make assignments under this Agreement to any Disqualified Lender, except to the extent the Borrower Representative has consented to such assignment in writing and any such assignment and Disqualified Lender shall be subject to the provisions of Subsection 11.6(m), except to the extent the Borrower Representative has otherwise expressly consented to in writing (in which case such Lender will not be considered a Disqualified Lender solely for that particular assignment).
 
-139-

(iii) Subject to acceptance and recording thereof pursuant to clause (b)(iv) below, from and after the effective date specified in each Assignment and Acceptance the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and bound by any related obligations under) Subsections 4.10, 4.11, 4.12, 4.13 and 11.5, and bound by its continuing obligations under Subsection 11.6(k) and Subsection 11.16). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with Subsection 2.10(e), Subsection 4.13(d), Subsection 11.1(g) or this Subsection 11.6 shall, to the extent it would comply with Subsection 11.6(c), be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (c) of this Subsection 11.6 (and any attempted assignment, transfer or participation which does not comply with this Subsection 11.6 shall be null and void).
(iv) The Borrower Representative hereby designates the Administrative Agent, and the Administrative Agent agrees, to serve as theany Borrower’s agent, solely for purposes of this Subsection 11.6, to maintain at one of its offices in New York, New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and interest and principal amount 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 BorrowerBorrowers, 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, solely with respect to entries applicable to such Lender, any Lender), at any reasonable time and from time to time upon reasonable prior notice. In no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any prospective assignee is a Disqualified Lender, or have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Lender. Notwithstanding the foregoing, in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender nor shall the Administrative Agent be obligated to monitor the aggregate amount of Term Loans or Incremental Term Loans held by Affiliated Lenders. Upon request by the Administrative Agent, the Borrower Representative shall use commercially reasonable efforts to (i) promptly (and in any case, not less than 5 Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Subsection 11.1) provide to the Administrative Agent, a list of, to theeach Borrower’s knowledge, all Affiliated Lenders holding Loans or Commitments at the time of such notice and (ii) not less than five Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Subsection 11.1, provide to the Administrative Agent, a list of, to theeach Borrower’s knowledge, all Affiliated Debt Funds holding Loans or Commitments at the time of such notice.
(v) Each Lender that sells a participation shall, acting for itself and, solely for this purpose, as a non-fiduciary agent of theeach Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans, Commitments 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 to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary (x) 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 or (y) for theany Borrower to enforce its rights hereunder. The entries in the Participant Register shall be conclusive absent manifest error, and a Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
 
-140-

(vi) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender (unless such assignment is being made in accordance with Subsection 2.10(d), Subsection 4.12(d), Subsection 11.1(g) or Subsection 11.6(k)(iv), in which case the effectiveness of such Assignment and Acceptance shall not require execution by 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 this Subsection 11.6(b) and any written consent to such assignment required by this Subsection 11.6(b), the Administrative Agent shall accept such Assignment and Acceptance, record the information contained therein in the Register and give prompt notice of such assignment and recordation to the Borrower. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this clause (vi).
(vii) On or prior to the effective date of any assignment pursuant to this Subsection 11.6(b), the assigning Lender shall surrender to the Administrative Agent any outstanding Notes held by it evidencing the Loans or Commitments, as applicable, which are being assigned. Any Notes surrendered by the assigning Lender shall be returned by the Administrative Agent to the Borrower Representative marked “cancelled.”
Notwithstanding the foregoing provisions of this Subsection 11.6(b) or any other provision of this Agreement, if the Borrower Representative shall have consented thereto in writing in its sole discretion, the Administrative Agent shall have the right, but not the obligation, to effectuate assignments of Loans, Incremental Commitments and Term Loan Commitments via an electronic settlement system acceptable to Administrative Agent and the Borrower Representativeas designated in writing from time to time to the Lenders by Administrative Agent (the “Settlement Service”). At any time when the Administrative Agent elects, in its sole discretion, to implement such Settlement Service, each such assignment shall be effected by the assigning Lender and proposed Assignee pursuant to the procedures then in effect under the Settlement Service, which procedures shall be subject to the prior written approval of the Borrower Representative and shall be consistent with the other provisions of this Subsection 11.6(b). Each assigning Lender and proposed Assignee shall comply with the requirements of the Settlement Service in connection with effecting any assignment of Loans and Commitments pursuant to the Settlement Service. Assignments and assumptions of Loans and Commitments shall be effected by the provisions otherwise set forth herein until the Administrative Agent notifies the Lenders of the Settlement Service as set forth herein. The Borrower Representative may withdraw its consent to the use of the Settlement Service at any time upon notice to the Administrative Agent, and thereafter assignments and assumptions of the Loans and Commitments shall be effected by the provisions otherwise set forth herein.
Furthermore, no Assignee, which as of the date of any assignment to it pursuant to this Subsection 11.6(b) would be entitled to receive any greater payment under Subsection 4.10, 4.11, 4.12 or 11.5 than the assigning Lender would have been entitled to receive as of such date under such Subsections with respect to the rights assigned shall notwithstanding anything to the contrary in this Agreement be entitled to receive such greater payments unless the assignment was made after an Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing or the Borrower Representative has expressly consented in writing to waive the benefit of this provision at the time of such assignment.
(c) (i) Any Lender other than a Conduit Lender may, in the ordinary course of its business and in accordance with applicable law, without the consent of the Borrower Representative or the Administrative Agent, sell participations (other than to any Disqualified Lender or a natural person) to one or more banks 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 Term Loan Commitments, Incremental Commitments, Extended 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, (C) such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, (D) the BorrowerRepresentative, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) in the case of any participation to a Permitted Affiliated Assignee, such participation shall be governed by the provisions of
 
-141-

Subsection 11.6(h)(ii) to the same extent as if each reference therein to an assignment of a Loan were to a participation of a Loan and the references to Affiliated Lender were to such Permitted Affiliated Assignee in its capacity as a participant. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, supplement, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, supplement, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the second proviso to the second sentence of Subsection 11.1(a) and (2) directly affects such Participant. Subject to Subsection 11.6(c)(ii), the Borrower agreesBorrowers agree that each Participant shall be entitled to the benefits of (and shall have the related obligations under) Subsections 4.10, 4.11, 4.12, 4.13 and 11.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Subsection 11.6(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Subsection 11.7(b) as though it were a Lender, provided that such Participant shall be subject to Subsection 11.7(a) as though it were a Lender.
(d) (i) (i) Notwithstanding the foregoing, no Lender shall be permitted to sell or maintain a participation under this Agreement to or with any Disqualified Lender and any participation to a Person that is or at any time becomes a Disqualified Lender shall be null and void, except to the extent the Borrower Representative has expressly consented to such participation in writing; provided that if any such participation by a Lender is subject to a sub-participation by such Disqualified Lender to a Person that is not a Disqualified Lender or natural person, and such sub-participation if made as a participation directly by such Lender would comply with Subsection 11.6, such sub-participant shall have the right to assume all of the rights and obligations of such Disqualified Lender under such participation and thereby become a Participant hereunder in substitution for such Disqualified Lender (it being understood that such sub-participant shall, prior to the effectiveness of such assumption, provide to such Lender that sold or maintained such participation all documentation and information as is reasonably required by such Lender pursuant to “know your customer” and anti-money laundering rules and regulations and execute and deliver an appropriate assumption agreement to effect such substitution on terms and conditions mutually agreed between such sub-participant and such Lender, and such Disqualified Lender shall thereupon be deemed to have executed and delivered such assumption agreement). Any such participation and Disqualified Lender not permitted prior to the foregoing sentence shall be subject to the provisions of Subsection 11.6(k), except to the extent the Borrower Representative has otherwise expressly consented in writing. Any attempted participation which does not comply with Subsection 11.6 shall be null and void.
(ii) No Loan Party shall be obligated to make any greater payment under Subsection 4.10, 4.11 or 11.5 than it would have been obligated to make in the absence of any participation, unless the sale of such participation is made with the prior written consent of the Borrower Representativeand the Borrower Representative expressly waives the benefit of this provision at the time of such participation. Any Participant that is not incorporated under the laws of the United States of America or a state thereof shall not be entitled to the benefits of Subsection 4.11 unless such Participant complies with Subsection 4.11(b) and provides the forms and certificates referenced therein to the Lender that granted such participation.
(e) Any Lender, without the consent of the Borrower Representative or the Administrative Agent, 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 any pledge or assignment to secure obligations to a Federal Reserve Bank or central bank of a member state of the European Union, and this Subsection 11.6 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 (by foreclosure or otherwise) any such pledgee or Assignee for such Lender as a party hereto.
(f) No assignment or participation made or purported to be made to any Assignee or Participant shall be effective without the prior written consent of the Borrower Representative if it would require theany Borrower to make any filing with any Governmental Authority or qualify any Loan or Note under the laws of any jurisdiction, and the Borrower Representative shall be entitled to request and receive such information and assurances as it may reasonably request from any Lender or any Assignee or Participant to determine whether any such filing or qualification is required or whether any assignment or participation is otherwise in accordance with applicable law.
 
-142-

(g) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating Lender without the consent of the Borrower Representative or the Administrative Agent and without regard to the limitations set forth in Subsection 11.6(b). The BorrowerBorrowers, each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any domestic or foreign bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state, federal or provincial bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance. Each such indemnifying Lender shall pay in full any claim received from theeach such Borrower pursuant to this Subsection 11.6(f) within 30 Business Days of receipt of a certificate from a Responsible Officer of the Borrower Representative specifying in reasonable detail the cause and amount of the loss, cost, damage or expense in respect of which the claim is being asserted, which certificate shall be conclusive absent manifest error. Without limiting the indemnification obligations of any indemnifying Lender pursuant to this Subsection 11.6(f), in the event that the indemnifying Lender fails timely to compensate theeach such Borrower for such claim, any Loans held by the relevant Conduit Lender shall, if requested by the BorrowerRepresentative, be assigned promptly to the Lender that administers the Conduit Lender and the designation of such Conduit Lender shall be void.
(h) If theany Borrower wishes to replace the Loans under any Facility with ones having different terms, it shall have the option, with the consent of the Administrative Agent and subject to at least three Business Days’ (or such shorter period as agreed to by the Administrative Agent in its reasonable discretion) advance notice to the Lenders under such Facility, instead of prepaying the Loans to be replaced, to (i) require the Lenders under such Facility to assign such Loans to the Administrative Agent or its designees and (ii) amend the terms thereof in accordance with Subsection 11.1. Pursuant to any such assignment, all Loans to be replaced shall be purchased at par (allocated among the Lenders under such Facility in the same manner as would be required if such Loans were being optionally prepaid by the Borrower), accompanied by payment of any accrued interest and fees thereon and any amounts owing pursuant to Subsection 4.12. By receiving such purchase price, the Lenders under such Facility shall automatically be deemed to have assigned the Loans under such Facility pursuant to the terms of the form of the Assignment and Acceptance, the Administrative Agent shall record such assignment in the Register and accordingly no other action by such Lenders shall be required in connection therewith. The provisions of this clause (g) are intended to facilitate the maintenance of the perfection and priority of existing security interests in the Collateral during any such replacement.
(i) (i) Notwithstanding anything to the contrary contained herein, (x) any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Loans or Commitments to any Parent Entity, Holdings, any Subsidiary or an Affiliated Lender and (y) any Parent Entity, Holdings and any Subsidiary may, from time to time, purchase or prepay Loans, in each case, on a non-pro rata basis through (1) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed between the Borrower Representative and the Administrative Agent (or other applicable agent managing such auction); provided that (A) any such Dutch auction by Holdings or its Subsidiaries shall be made in accordance with Subsection 4.4(l) and (B) any such Dutch auction by any Parent Entity shall be made on terms substantially similar to Subsection 4.4(l) or on other terms to be agreed between such Parent Entity and the Administrative Agent (or other applicable agent managing such auction) or (2) open market purchases; provided, further, that:
(1) such Affiliated Lender and such other Lender shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit K hereto or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent (an “Affiliated Lender Assignment and Assumption”) and the Administrative Agent shall record such assignment in the Register;
(2) at the time of such assignment after giving effect to such assignment, the aggregate principal amount of all Term Loans held (or participated in) by Affiliated Lenders that are not Affiliated Debt Funds shall not exceed 25.0% of the aggregate principal amount of all Term Loans outstanding under this Agreement;
 
-143-

(3) any such Term Loans acquired by (x) Holdings, thea Borrower or a Restricted Subsidiary shall be retired or cancelled promptly upon the acquisition thereof and (y) an Affiliated Lender may, with the consent of Holdings, be contributed to thea Borrower, whether through a Parent Entity or otherwise, and exchanged for debt or equity securities of Holdings or such Parent Entity that are otherwise permitted to be issued at such time pursuant to the terms of this Agreement, so long as any Term Loans so acquired by Holdings shall be retired and cancelled promptly upon the acquisition thereof; and
(4) [Reserved];
(5) each Lender making such assignment to such Affiliated Lender acknowledges and agrees that in connection with such assignment, (1) such Affiliated Lender then may have, and later may come into possession of Excluded Information, (2) such Lender has independently and, without reliance on the Affiliated Lender, Holdings, theany Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to enter into such assignment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of Holdings, theany Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against Holdings, theany Borrower, its Subsidiaries, the Administrative Agent, and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender entering into such an assignment further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders.
(ii) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender that is not an Affiliated Debt Fund shall have any right to (A) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Loan Parties are not invited, (B) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to Holdings or its representatives or (C) receive advice of counsel to the Administrative Agent, the Collateral Agent or any other Lender or challenge their attorney client privilege.
(iii) Notwithstanding anything in Subsection 11.1 or the definition of “Required Lenders” to the contrary, for purposes of determining 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, an Affiliated Lender that is not an Affiliated Debt Fund 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 such Affiliated Lenders; provided that, (I) to the extent Lenders are being compensated by the BorrowerBorrowers for consenting to an amendment, modification, waiver or any other action, each Affiliated Lender who has been deemed to have voted its Loans in accordance with this Subsection 11.6(h)(iii) shall be entitled to be compensated on the same basis as each consenting Lender as if it had voted all of its Loans in favor of the applicable amendment, modification, waiver or other action); and (II) no amendment, modification, waiver, consent or other action with respect to any Loan Document shall deprive such Affiliated Lender of its ratable share of any payments of Loans of any class to which such Affiliated Lender is entitled under the Loan Documents without such Affiliated Lender providing its consent; provided, further, that such Affiliated Lender shall have the right to approve any amendment, modification, waiver or consent that (x) disproportionately and adversely affects such Affiliated Lender in its capacity as a Lender or affects such Affiliated Lender differently in its capacity as a Lender than other Lenders or (y) is of the type described in Subsections 11.1(a)(i) through (vi) (other than subclauses (v) and (vi)); and in furtherance of the foregoing, (x) the Affiliated Lender agrees to execute and deliver to the Administrative Agent any instrument reasonably requested by the Administrative Agent to evidence the voting of its interest as a Lender in accordance with the provisions of this Subsection 11.6(h)(iii); provided that if the Affiliated Lender fails to promptly execute such instrument such failure shall in no way prejudice any of the Administrative Agent’s rights under this
 
-144-

Subsection 11.6(h)(iii) and (y) the Administrative Agent is hereby appointed (such appointment being coupled with an interest) by such Affiliated Lender as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this Subsection 11.6(h)(iii).
(iv) Each Affiliated Lender that is not an Affiliated Debt Fund, solely in its capacity as a Lender, hereby agrees, and each Affiliated Lender Assignment and Assumption agreement shall provide a confirmation that, if any of Holdings, theany Borrower or any Restricted Subsidiary shall be subject to any voluntary or involuntary bankruptcy, reorganization, insolvency or liquidation proceeding (each, a “Bankruptcy Proceeding”), (i) such Affiliated Lender shall not take any step or action in such Bankruptcy Proceeding to object to, impede, or delay the exercise of any right or the taking of any action by the Administrative Agent (or the taking of any action by a third party that is supported by the Administrative Agent) in relation to such Affiliated Lender’s claim with respect to its Term Loans (“Claim”) (including objecting to any debtor in possession financing, use of cash collateral, grant of adequate protection, sale or disposition, compromise, or plan of reorganization) so long as such Affiliated Lender in its capacity as a Lender is treated in connection with such exercise or action on the same or better terms as the other Lenders and (ii) (with respect to any matter requiring the vote of Lenders during the pendency of a Bankruptcy Proceeding (including voting on any plan of reorganization), the Term Loans held by such Affiliated Lender (and any Claim with respect thereto) shall be deemed to be voted in accordance with Subsection 11.6(h)(iii) above so long as such Affiliate Lender in its capacity as a Lender is treated in connection with the exercise of such right or taking of such action on the same or better terms as other Lenders. For the avoidance of doubt, the Lenders and each Affiliated Lender that is not an Affiliated Debt Fund agree and acknowledge that the provisions set forth in this Subsection 11.6(h)(iv) and the related provisions set forth in each Affiliated Lender Assignment and Assumption constitute a “subordination agreement” as such term is contemplated by, and utilized in, Section 510(a) of the United States Bankruptcy Code, and, as such, it is their intention that this Subsection 11.6(h)(iv) would be enforceable for all purposes in any case where Holdings, theany Borrower or any Restricted Subsidiary has filed for protection under any law relating to bankruptcy, insolvency or reorganization or relief of debtors applicable to Holdings, the applicable Borrower or such Restricted Subsidiary, as applicable. Each Affiliated Lender that is not an Affiliated Debt Fund hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender (solely in respect of Loans, Commitments and participations therein and not in respect of any other claim or status such Affiliated Lender may otherwise have), from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this Subsection 11.6(h)(iv).
(j) Notwithstanding anything to the contrary in this Agreement, Subsection 11.1 or the definition of “Required Lenders” (x) with respect to any assignment or participation to or by an Affiliated Debt Fund, such assignment or participation shall be made pursuant to an open market purchase and (y) for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, supplement, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document, or (iii) directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, all Term Loans held by Affiliated Debt Funds may not account for more than 50.0% of the Term Loans of consenting Lenders included in determining whether the Required Lenders have consented to any action pursuant to Subsection 11.1.
(k) (i) (i) Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, if any Lender or Participant at any time is or becomes a Disqualified Lender, then for so long as such Lender or Participant shall be a Disqualified Lender, the provisions of this Subsection 11.16(k) shall apply with respect to such Disqualified Lender unless the Borrower Representative shall have otherwise expressly consented in writing in its sole discretion (and regardless of whether the Borrower Representative shall have consented to any assignment or participation to such Lender or Participant).
 
-145-

(ii) Any Disqualified Lender shall be bound by the provisions of, but shall not have any rights or remedies or be a beneficiary (whether as a Lender, a Participant or otherwise) under or with respect to, this Agreement or any other Loan Document. Without limiting the foregoing, a Disqualified Lender (1) shall not be entitled to and shall have no right to receive any payment in respect of principal (other than with respect to payments of principal on the Maturity Date for the applicable Tranche), interest, fees, costs, expenses or any other amount under or in respect of any Loan Document, including but not limited to pursuant to Subsections 2.2, 4.1, 4.4, 4.5, 4.8, 4.10, 4.11, 4.12, 11.5, 11.6(c) or 11.7 of this Agreement, Subsection 9.4 of the Guarantee and Collateral Agreement or any similar provision of any other Loan Document, and (2) shall be deemed not to be a Secured Party (as defined in the Guarantee and Collateral Agreement or any other applicable Security Document) under or in respect of any Loan Document. No fees or interest shall accrue for the account of a Disqualified Lender (except solely for interest payable to a permitted assignee thereof following an assignment to such assignee (1) pursuant to and as expressly provided in Subsection 11.6(b) and (2) pursuant to and as expressly provided in Subsection 11.6(m)(iv) below).
(iii) No Disqualified Lender shall have any right to approve, disapprove or consent to any amendment, supplement, waiver or modification of this Agreement or any other Loan Document or any term hereof or thereof. In determining whether the requisite Lender or Lenders have consented to any such amendment, supplement, waiver or modification, and in determining the Required Lenders for any purpose under or in respect of any Loan Document, any Lender that is a Disqualified Lender (and the Loans and/or Commitments of such Disqualified Lender) shall be excluded and disregarded. Each such amendment, supplement, waiver or modification shall be binding and effective as to each Disqualified Lender.
(iv) The Borrower Representative shall have the right (A) at the sole expense of any Lender that is a Disqualified Lender and/or the Person that assigned its Commitments and/or Loans to such Disqualified Lender, to seek to replace or terminate such Disqualified Lender as a Lender by causing such Lender to (and such Lender shall be obligated to) assign any or all of its Commitments and/or Loans and its rights and obligations under this Agreement to one or more assignees (which may, at the Borrower’sBorrower Representative’s sole option, be or include any Parent Entity, any Borrower or any Subsidiary); provided that (1) the Administrative Agent shall not have any obligation to the Borrower Representative to find such a replacement Lender, (2) the Borrower Representative shall not have any obligation to such Disqualified Lender or any other Person to find such a replacement Lender or accept or consent to any such assignment to itself or any other Person and (3) the assignee (or, at its option, the Borrower Representative) shall pay to such Disqualified Lender concurrently with such assignment an amount (which payment shall be deemed payment in full) equal to the lesser of (x) the face principal amount of the Loans so assigned, (y) the amount that such Disqualified Lender paid to acquire such Commitments and/or Loans, and (z) the most recently available quoted price for such Commitments and/or Loans (as determined by the BorrowerHoldings in good faith, which determination shall be conclusive, the “Trading Price”), in each case without interest thereon (it being understood that if the effective date of such assignment is not an Interest Payment Date, such assignee shall be entitled to receive on the next succeeding Interest Payment Date interest on the principal amount of the Loans so assigned that has accrued and is unpaid from the Interest Payment Date last preceding such effective date (except as may be otherwise agreed between such assignee and the BorrowerRepresentative)), or (B) to prepay any Loans held by such Disqualified Lender, in whole or in part, by paying an amount (which payment shall be deemed payment in full) equal to the lesser of (x) the face principal amount of the Loans so prepaid, (y) the amount that such Disqualified Lender paid to acquire such Loans, and (z) the Trading Price for such Loans (in each case without interest thereon), and if applicable, terminate the Commitments of such Disqualified Lender, in whole or in part. In connection with any such replacement, (1) if the Disqualified Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary or appropriate (in the good faith determination of the Administrative Agent or the Borrower Representative, which determination shall be conclusive) to reflect such replacement by the later of (a) the date on which the replacement Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of which the Disqualified Lender shall be paid by the assignee Lender (or, at its option, the Borrower Representative) the amount required pursuant to this Subsection 11.16(k)(iv)(B), then such Disqualified Lender shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and the Borrower Representativeshall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance
 
-146-

and/or such other documentation on behalf of such Disqualified Lender, and the Administrative Agent shall record such assignment in the Register, (2) each Lender (whether or not then a party hereto) agrees to disclose to the Borrower Representative the amount that the applicable Disqualified Lender paid to acquire Commitments and/or Loans from such Lender and (3) each Lender that is a Disqualified Lender agrees to disclose to the Borrower Representative the amount it paid to acquire the Commitments and/or Loans held by it.
(v) No Disqualified Lender (whether as a Lender, a Participant or otherwise) shall have any right to (A) receive any information or material made available to any Lender or the Administrative Agent hereunder or under any other Loan Document, (B) have access to any Internet or intranet website to which any of the Lenders and the Administrative Agent have access (whether a commercial, third-party or other website or whether sponsored by the Administrative Agent, any Borrower or otherwise), (C) attend (including by telephone) or otherwise participate in any meeting or discussions (or portions thereof) among or with any of the BorrowersBorrower, the Administrative Agent and/or one or more Lenders, (D) receive any information or material prepared by any Borrower, the Administrative Agent and/or one or more Lenders or (E) receive advice of counsel to the Administrative Agent, the Collateral Agent or any other Lender or challenge their attorney client privilege. Any Disqualified Lender shall not solicit or seek to obtain any such information or material. If at any time any Disqualified Lender receives or possesses any such information or material, such Disqualified Lender shall (1) notify the Borrower Representative as soon as possible that such information or material has become known to it or came into its possession, (2) immediately return to the Borrower Representative or, at the option of the Borrower Representative, destroy (and confirm to the Borrower Representative such destruction) such information or material, together with any notes, analyses, compilations, forecasts, studies or other documents related thereto which it or its advisors prepared and (3) keep such information or material confidential and shall not utilize such information or material for any purpose. Each Lender (whether or not then a party hereto) agrees to notify the Borrower Representative as soon as possible if it becomes aware that (x) it made an assignment to or has a participation with a Disqualified Lender, or (y) any such Disqualified Lender has received any such information of materials.
(vi) The rights and remedies of Holdings and the Borrower Representative provided herein are cumulative and are not exclusive of any other rights and remedies provided to Holdings and the Borrower Representative or any otherBorrower at law or in equity, and each of Holdings,the Borrower Representative and the Borrowers shall be entitled to pursue any remedy available to it against any Lender that has (or has purported to have) made an assignment or sold or maintained a participation to or with a Disqualified Lender or against any Disqualified Lender. In no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any prospective assignee pursuant to Subsection 11.6(b) or any participant pursuant to Subsection 11.6(c) is a Disqualified Lender.
(l) Notwithstanding the foregoing provisions of this Subsection 11.6, nothing in this Subsection 11.6 is intended to or should be construed to limit the Borrower’s right to prepay the Loans as provided hereunder, including under Subsection 4.4.
11.7 Adjustments; Set-off; Calculations; Computations.
(a) If any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of its Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Subsection 9.1(f), or otherwise (except pursuant to Subsection 2.9, 2.10, 2.11, 4.4, 4.5(b), 4.9, 4.10, 4.11, 4.12, 4.13(d), 11.1(g) or 11.6)), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender’s Loans owing to it, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders an interest (by participation, assignment or otherwise) in such portion of each such other Lender’s Loans owing to it, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
 
-147-

(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Borrower Representative, any such notice being expressly waived by the Borrower Representative to the extent permitted by applicable law, upon the occurrence of an Event of Default under Subsection 9.1(a) to set-off and appropriate and apply against any amount then due and payable under Subsection 9.1(a) by the BorrowerBorrowers any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower. Each Lender agrees promptly to notify the Borrower Representative and the Administrative Agent after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application.
11.8 Judgment.
(a) If, for the purpose of obtaining or enforcing judgment against any Loan Party in any court in any jurisdiction, it becomes necessary to convert into any other currency (such other currency being hereinafter in this Subsection 11.8 referred to as the “Judgment Currency”) an amount due under any Loan Document in any currency (the “Obligation Currency”) other than the Judgment Currency, the conversion shall be made at the rate of exchange prevailing on the Business Day immediately preceding the date of actual payment of the amount due, in the case of any proceeding in the courts of any other jurisdiction that will give effect to such conversion being made on such date, or the date on which the judgment is given, in the case of any proceeding in the courts of any other jurisdiction (the applicable date as of which such conversion is made pursuant to this Subsection 11.8 being hereinafter in this Subsection 11.8 referred to as the “Judgment Conversion Date”).
(b) If, in the case of any proceeding in the court of any jurisdiction referred to in Subsection 11.8(a), there is a change in the rate of exchange prevailing between the Judgment Conversion Date and the date of actual receipt for value of the amount due, the applicable Loan Party shall pay such additional amount (if any, but in any event not a lesser amount) as may be necessary to ensure that the amount actually received in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of the Judgment Currency stipulated in the judgment or judicial order at the rate of exchange prevailing on the Judgment Conversion Date. Any amount due from any Loan Party under this Subsection 11.8(b) shall be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of any of the Loan Documents.
(c) The term “rate of exchange” in this Subsection 11.8 means the rate of exchange at which the Administrative Agent, on the relevant date at or about 12:00 noon, New York City time, would be prepared to sell, in accordance with its normal course foreign currency exchange practices, the Obligation Currency against the Judgment Currency.
11.9 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by telecopy and other electronic transmission), and all of such counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be delivered to Holdings and the Administrative Agent.
11.10 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
11.11 Integration. This Agreement and the other Loan Documents represent the entire agreement of each of the Loan Parties party hereto, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by any of the Loan Parties party hereto, the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
 
-148-

11.12 Governing Law . THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
11.13 Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party (other than the Dutch Security Documents) to the exclusive general jurisdiction of the Supreme Court of the State of New York for the County of New York (the “New York Supreme Court”), and the United States District Court for the Southern District of New York (the “Federal District Court,” and together with the New York Supreme Court, the “New York Courts”) and appellate courts from either of them; provided that nothing in this Agreement shall be deemed or operate to preclude (i) any Agent from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Term Loan Facilities Obligations (in which case any party shall be entitled to assert any claim or defense, including any claim or defense that this Subsection 11.13 would otherwise require to be asserted in a legal action or proceeding in a New York Court), or to enforce a judgment or other court order in favor of the Administrative Agent or the Collateral Agent, (ii) any party from bringing any legal action or proceeding in any jurisdiction for the recognition and enforcement of any judgment, (iii) if all such New York Courts decline jurisdiction over any Person, or decline (or in the case of the Federal District Court, lack) jurisdiction over any subject matter of such action or proceeding, a legal action or proceeding may be brought with respect thereto in another court having jurisdiction and (iv) in the event a legal action or proceeding is brought against any party hereto or involving any of its assets or property in another court (without any collusive assistance by such party or any of its Subsidiaries or Affiliates), such party from asserting a claim or defense (including any claim or defense that this Subsection 11.13(a) would otherwise require to be asserted in a legal proceeding in a New York Court) in any such action or proceeding.
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient forum and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Borrower Representative, the applicable Lender or the Administrative Agent, as the case may be, at the address specified in Subsection 11.2 or at such other address of which the Administrative Agent, any such Lender and the Borrower Representative shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or (subject to clause (a) above) shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Subsection 11.13 any consequential or punitive damages.; and
(f) acknowledges and accepts that, if a party is represented by an attorney in connection with the signing and/or execution of this Agreement or any other agreement, deed or document referred to in this Agreement or made pursuant to this Agreement, and the power of attorney is governed by the laws of the Netherlands, that the existence and extent of the attorney’s authority and the effects of the attorney’s exercise or purported exercise of its authority shall be governed by the laws of the Netherlands.
11.14 Acknowledgements. Holdings and theeach Borrower hereby acknowledgeacknowledges that:
(a) they haveit has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents;
 
-149-

(b) neither any Agent nor any Other Representative or Lender has any fiduciary relationship with or duty to Holdings or thesuch Borrower arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Administrative Agent and Lenders, on the one hand, and Holdings and thesuch Borrower, on the other hand, in connection herewith or therewith is solely that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby and thereby among the Lenders or among Holdings, thesuch Borrower and the Lenders.
11.15 Waiver of Jury Trial. EACH OF HOLDINGS, THE BORROWERBORROWERS, THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.16 Confidentiality.
(a) Each Agent and each Lender agrees to keep confidential any information (a) provided to it by or on behalf of Holdings or theeach Borrower or any of their respective Subsidiaries pursuant to or in connection with the Loan Documents or (b) obtained by such Agent or Lender based on a review of the books and records of Holdings or theeach Borrower or any of their respective Subsidiaries; provided that nothing herein shall prevent any Agent or Lender from disclosing any such information (i) to any other Agent, any Other Representative or any other Lender, (ii) to any Transferee, or prospective Transferee or any creditor or any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to theany Borrower and its obligations which agrees to comply with the provisions of this Subsection 11.16 pursuant to a written instrument (or electronically recorded agreement from any Person listed above in this clause (ii), in respect to any electronic information (whether posted or otherwise distributed on any Platform)) for the benefit of the BorrowerBorrowers (it being understood that each relevant Lender shall be solely responsible for obtaining such instrument (or such electronically recorded agreement)), (iii) to its Affiliates and the employees, officers, partners, directors, agents, attorneys, accountants and other professional advisors of it and its Affiliates, provided that such Lender shall inform each such Person of the agreement under this Subsection 11.16 and take reasonable actions to cause compliance by any such Person referred to in this clause (iii) with this agreement (including, where appropriate, to cause any such Person to acknowledge its agreement to be bound by the agreement under this Subsection 11.16), (iv) upon the request or demand of any Governmental Authority having jurisdiction over such Agent or Lender or its affiliates or to the extent required in response to any order of any court or other Governmental Authority or as shall otherwise be required pursuant to any Requirement of Law, provided that, other than with respect to any disclosure to any bank regulatory authority, such Agent or Lender shall, unless prohibited by any Requirement of Law, notify the Borrower Representative of any disclosure pursuant to this clause (iv) as far in advance as is reasonably practicable under such circumstances, (v) which has been publicly disclosed other than in breach of this Agreement, (vi) in connection with the exercise of any remedy hereunder, under any Loan Document or under any Interest Rate Agreement, (vii) in connection with periodic regulatory examinations and reviews conducted by the National Association of Insurance Commissioners or any Governmental Authority having jurisdiction over such Agent or Lender or its affiliates (to the extent applicable), (viii) in connection with any litigation to which such Agent or Lender (or, with respect to any Interest Rate Agreement, any Affiliate of any Agent or Lender party thereto) may be a party subject to the proviso in clause (iv) above, and (ix) if, prior to such information having been so provided or obtained, such information was already in an Agent’s or a Lender’s possession on a non-confidential basis without a duty of confidentiality to Holdings or theeach Borrower or any of its Subsidiaries being violated. Notwithstanding any other provision of this Agreement, any other Loan Document or any Assignment and Acceptance, the provisions of this Subsection 11.16 shall survive with respect to each Agent and Lender until the second anniversary of such Agent or Lender ceasing to be an Agent or a Lender, respectively. In addition, the Administrative Agent may provide information regarding the Facilities to serveservice providers providing administrative and ministerial services solely in connection with the syndication and administration of the Facilities on a confidential basis; provided that, except with respect to information which has been publicly disclosed other than in breach of this Agreement, the Administrative Agent shall inform each such Person of the agreement under this Subsection 11.16 and take reasonable actions to cause compliance by any such Person with this agreement (including, where appropriate, to cause any such Person to acknowledge its agreement to be bound by the agreement under this Subsection 11.16).
 
-150-

(b) Each Lender acknowledges that any such information referred to in Subsection 11.16(a), and any information (including requests for waivers and amendments) furnished by Holdings or the Administrative Agent pursuant to or in connection with this Agreement and the other Loan Documents, may include material non-public information concerning Holdings, the other Loan Parties and their respective Affiliates or their respective securities. Each Lender represents and confirms that such Lender has developed compliance procedures regarding the use of material non-public information; that such Lender will handle such material non-public information in accordance with those procedures and applicable law, including United States federal and state securities laws; and that such Lender has identified to the Administrative Agent a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and applicable law.
11.17 Incremental Indebtedness; Additional Indebtedness. In connection with the Incurrence by any Loan Party or any Subsidiary thereof of any Incremental Indebtedness, Specified Refinancing Indebtedness or Additional Indebtedness, each of the Administrative Agent and the Collateral Agent agree to execute and deliver the ABL Intercreditor Agreement, the Intercreditor Agreement or any Other Intercreditor Agreement or any Intercreditor Agreement Supplement, and to make or consent to any filings or take any other actions in connection therewith, as may be reasonably deemed by the Borrower Representative to be necessary to effectuate the intent of this Agreement.
11.18 USA PATRIOT Act Notice. Each Lender hereby notifies theeach 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 “Patriot Act”), it is required to obtain, verify, and record information that identifies each Loan Party, which information includes the name of each Loan Party and other information that will allow such Lender to identify each Loan Party in accordance with the Patriot Act, and theeach Borrower agrees to provide such information from time to time to any Lender.
11.19 Electronic Execution of Assignments and Certain Other Documents. The words “execution,” “execute,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other Committed Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
11.20 Reinstatement. This Agreement shall remain in full force and effect and continue to be effective should any petition or other proceeding be filed by or against any Loan Party for liquidation or reorganization, should any Loan Party become insolvent or make an assignment for the benefit of any creditor or creditors or should an interim receiver, receiver, receiver and manager or trustee be appointed for all or any significant part of any Loan Party’s assets, and shall continue to be effective or to be reinstated, as the case may be, if at any time payment and performance of the obligations of the BorrowerBorrowers under the Loan Documents, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the obligations, whether as a fraudulent preference, reviewable transaction or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the obligations of the BorrowerBorrowers hereunder shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
11.21 Acknowledgment and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
 
-151-

(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent 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 any EEA Resolution Authority.
11.22 Joint and Several Liability; Postponement of Subrogation. (a) The obligations of the Borrowers hereunder and under the other Loan Documents shall be joint and several and, as such, each Borrower shall be liable for all of such obligations of each other Borrower under this Agreement and the other Loan Documents. To the fullest extent permitted by law, the liability of each Borrower for the obligations under this Agreement and the other Loan Documents of the other applicable Borrowers with whom it has joint and several liability shall be absolute, unconditional and irrevocable, without regard to (i) the validity or enforceability of this Agreement or any other Loan Document, any of the obligations hereunder or thereunder or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any applicable Secured Party, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance hereunder; provided that no Borrower hereby waives any suit for breach of a contractual provision of any of the Loan Documents) which may at any time be available to or be asserted by such other applicable Borrower or any other Person against any Secured Party or (iii) any other circumstance whatsoever (with or without notice to or knowledge of such other applicable Borrower or such Borrower) which constitutes, or might be construed to constitute, an equitable or legal discharge of such other applicable Borrower for the obligations hereunder or under any other Loan Document, or of such Borrower under this Subsection 11.22 in bankruptcy, in any insolvency proceeding or in any other instance.
(a) Each Borrower agrees that it will not exercise any rights which it may acquire by way of rights of subrogation under this Agreement, by any payments made hereunder or otherwise, until the prior payment in full in cash of all of the Term Loan Facilities Obligations and the permanent termination of all Commitments. Any amount paid to any Borrower on account of any such subrogation rights prior to the payment in full in cash of all of the obligations hereunder and under any other Loan Document and the permanent termination of all Commitments shall be held in trust for the benefit of the applicable Secured Parties and shall immediately be paid to the Administrative Agent for the benefit of the applicable Secured Parties and credited and applied against the obligations of the applicable Borrowers, whether matured or unmatured, in such order as the Administrative Agent shall elect. In furtherance of the foregoing, for so long as any obligations of any Borrower hereunder or any Commitments remain outstanding hereunder or under any other Loan Document, each Borrower shall refrain from taking any action or commencing any proceeding against any other Borrower (or any of its successors or assigns, whether in connection with a bankruptcy proceeding or otherwise) to recover any amounts in respect of payments made in respect of the obligations hereunder or under any other Loan Document of such other Borrower to any Secured Party.
11.23 Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Hedge Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and
 
-152-

Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 11.23, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[SIGNATURE PAGES INTENTIONALLY OMITTED]
 
-153-

Exhibit 10.2
Execution Version
AMENDMENT NO. 1, dated as of November 22, 2019 (this “Amendment”), to the Amended and Restated ABL Credit Agreement dated as of July 28, 2015 and amended and restated as of February 28, 2019 (as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among UNIVAR SOLUTIONS INC. (formerly known as Univar Inc.), a Delaware corporation, (“U.S. Parent Borrower”), UNIVAR CANADA LTD., a company formed under the laws of the Province of British Columbia (the “Canadian Borrower”), the Domestic Subsidiaries of the U.S. Parent Borrower from time to time party thereto (the “U.S. Subsidiary Borrowers”; together with the U.S. Parent Borrower, “the U.S. Borrowers”; and the U.S. Borrowers, together with the Canadian Borrower, the “Borrowers” and each a “Borrower”), the registered lending institutions from time to time parties thereto (each a “Lender” and, collectively, the “Lenders”), BANK OF AMERICA, N.A., as U.S. Administrative Agent, Collateral Agent, U.S. Swingline Lender and U.S. Letter of Credit Issuer, BANK OF AMERICA, N.A. (acting through its Canadian branch), as Canadian Administrative Agent, Canadian Swingline Lender and Canadian Letter of Credit Issuer, and the other parties named therein. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement (as defined below).
WHEREAS, pursuant to Section 12.1 of the Credit Agreement, the Administrative Agents and the relevant Loan Parties may, with the consent of the Required Lenders amend the Credit Agreement and the other Loan Documents pursuant to the Amendment;
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Amendments and Authorization.
(a) The Credit Agreement is, effective as of the Amendment No. 1 Effective Date, 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 pages of the Credit Agreement attached as Exhibit A hereto (the “Amended Credit Agreement”).
(b) Schedule A attached to this Amendment is, effective as of the Amendment No. 1 Effective Date, hereby attached to the Amended Credit Agreement as Schedule 1.1(a) thereto.
(c) Pursuant to Section 12.1 of the Credit Agreement, the Required Lenders hereby authorize each of the Administrative Agent and the Collateral Agent to enter into amendments to the Intercreditor Agreement and to any Security Document, in each case, as are reasonably acceptable to the Administrative Agent and the Collateral Agent, in order to reflect the joinder of the Dutch Guarantor (as defined below) (and any future Non-Borrowing Base Foreign Guarantor in accordance with the Amended Credit Agreement) as a Guarantor under the Amended Credit Agreement.
Section 2. Representations and Warranties, No Default. Each Borrower hereby represents and warrants that on and as of the Amendment No. 1 Effective Date:
(a) prior to and after giving effect to the amendments set forth in this Amendment, no Event of Default exists and is continuing;
(b) after giving effect to the Transactions and the amendments set forth in this Amendment, the U.S. Parent Borrower, together with its Subsidiaries on a consolidated basis, is Solvent;

(c) each of the Loan Parties is duly organized, validly existing and (to the extent applicable in the relevant jurisdiction) in good standing under the laws of the jurisdiction of its incorporation or formation, except (other than with respect to the Borrowers), to the extent that the failure to be organized, existing and (to the extent applicable) in good standing would not reasonably be expected to have a Material Adverse Effect;
(d) each Loan Party has the corporate or other organizational power and authority, and the legal right, to make, deliver and perform this Amendment and each other Loan Document dated as of the date hereof to which such Loan Party is a party and, in the case of each Borrower, to obtain Loans and Letters of Credit under the Amended Credit Agreement, and each such Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment and each other Loan Document dated as of the date hereof to which it is a party and, in the case of each Borrower, to authorize the Loans and Letters of Credit extended to it, if any, on the terms and conditions of this Amendment, the Amended Credit Agreement and any promissory notes requested thereunder;
(e) this Amendment has been duly executed and delivered by each Loan Party, and each other Loan Document to be entered into as of the date hereof to which any Loan Party is a party will be duly executed and delivered on behalf of such Loan Party;
(f) this Amendment and each other Loan Document dated as of the date hereof to which any Loan Party is a party each constitutes a legal, valid and binding obligation of the Loan Parties, enforceable against each such Loan Party in accordance with its terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);
(g) the execution, delivery and performance of this Amendment and each other Loan Document dated as of the date hereof to which any Loan Party is a party by each of the Loan Parties, the Loans made and Letters of Credit issued under the Amended Credit Agreement and the use of the proceeds thereof (x) will not violate any provision of the Organizational Documents of such Loan Party or any of the Restricted Subsidiaries, except (other than with respect to the Borrowers) as would not reasonably be expected to have a Material Adverse Effect and (y) will not violate any Requirement of Law under OFAC or the Foreign Corrupt Practices Act of 1977;
(h) no part of the proceeds of any Extension of Credit will be used for any purpose which violates the provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation X of the Board and, if requested by any Lender or an Administrative Agent, the Borrowers will furnish to such Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR form G-3 or FR Form U-1, referred to in said Regulation U;
(i) (x) each of the Security Documents in effect on the Amendment No. 1 Effective Date and the Dutch Security Documents (as defined below) are or will be effective to create (to the extent described therein) in favor of the Collateral Agent for the benefit of the Secured Parties, a valid and enforceable security interest in or liens on the Collateral described therein, except as to enforcement, as may be limited by applicable domestic or foreign bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing and (y) when (i) all Filings (as defined in the Security Documents) have been completed, (ii) all applicable Instruments, Chattel Paper and Documents (each as described in Security
 
-2-

Documents) constituting Collateral a security interest in which is perfected by possession have been delivered to, and/or are in the continued possession of, the Collateral Agent, the Cash Flow Collateral Agent or the applicable Collateral Representative, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the Intercreditor Agreement, (iii) all Deposit Accounts and Pledged Stock (each as defined in the U.S. Security Agreement) a security interest in which is required by the Security Documents to be or is perfected by “control” (as described in the Uniform Commercial Code as in effect in each applicable jurisdiction (in the case of Deposit Accounts) and the State of New York (in the case of Pledged Stock) from time to time) are under the “control” Collateral Agent, the Cash Flow Collateral Agent or the applicable Collateral Representative, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the Intercreditor Agreement and (iv) all filings or recordings are made in the appropriate offices of the applicable jurisdictions as may be required under the terms of the Dutch Security Documents, the security interests and liens granted pursuant to the Security Documents in effect on the Amendment No. 1 Effective Date and the Dutch Security Documents shall constitute (to the extent described therein and with respect to the Mortgages (if any) only as relates to the real property security interests and liens granted pursuant thereto) a perfected security interest in (to the extent intended to be created thereby and required to be perfected under the Loan Documents), all right, title and interest of each pledgor or mortgagor (as applicable) party thereto in the Collateral described therein (capitalized terms that are used in this clause (i) and not defined in the Amended Credit Agreement are so used as defined in the applicable Security Document);
(j) (x) no Borrower is an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act, and (y) no Borrower is subject to regulation under any federal or state statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness as contemplated hereby and by the Amended Credit Agreement;
(k) The U.S. Parent Borrower and its Restricted Subsidiaries are in compliance with the Patriot Act; and
(l) all representations and warranties contained in the Amended Credit Agreement are true and correct in all material respects on and as of the date hereof, as though made on and 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 in all material respects as of such earlier date.
Section 3. Effectiveness. Section 1 of this Amendment shall become effective on the date (such date, if any, the “Amendment No. 1 Effective Date”) that the following conditions have been satisfied or waived:
(a) Loan Documents. The U.S. Administrative Agent shall have received (i) this Amendment, executed and delivered by each Administrative Agent, the Lenders which constitute the Required Lenders and each Loan Party, (ii) the Foreign Loan Party Guaranty Agreement, executed and delivered by Univar Netherlands Holding B.V. the “Dutch Guarantor” and (iii) the Intercreditor Amendment, executed and delivered by the Collateral Agent and the Cash Flow Collateral Agent.
(b) Fees. The U.S. Parent Borrower shall have paid, on or before the Amendment No. 1 Effective Date, to the Administrative Agents, all costs, fees and expenses required to be paid or reimbursed for which invoices have been presented at least three (3) Business Days prior to the Amendment No. 1 Effective Date.
 
-3-

(c) Legal Opinions. The U.S. Administrative Agent and the Lenders shall have received customary written opinions of (x) Kirkland & Ellis LLP special counsel to the Loan Parties and (y) Eversheds Sutherland (Netherlands) B.V., special Netherlands counsel to the Loan Parties. The Loan Parties hereby request such counsel to deliver such opinions.
(d) Closing Certificate. The U.S. Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Parent Borrower dated the Amendment No. 1 Effective Date certifying as to the satisfaction (or waiver) of the conditions set forth in Sections 2, 3(e) and 3(f) hereof.
(e) Representations. Each of the representations and warranties made by any Loan Party pursuant to the Amended Credit Agreement, and in any other Loan Document to which it is a party, shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date as if made on and as of such date, except to the extent that they relate to a particular date (in which case, they shall be true and correct in all material respects as of such specified date).
(f) No Default. No Default or Event of Default shall exist, or would result immediately, from the transactions contemplated hereby on the Amendment No. 1 Effective Date.
(g) Know Your Customer and Other Required Information; Beneficial Ownership Certification.
(1) The U.S. Administrative Agent shall have received at least three (3) Business Days prior to the Amendment No. 1 Effective Date all documentation and other information about the Loan Parties as has been reasonably requested by the Lenders in writing at least ten (10) Business Days prior to the Amendment No. 1 Effective Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act; and
(2) To the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and an Administrative Agent or a Lender has requested a Beneficial Ownership Certification in writing at least ten (10) Business Days prior to the Amendment No. 1 Effective Date, at least three (3) Business Days prior to the Amendment No. 1 Effective Date, such Administrative Agent or such Lender, as applicable, shall have received a Beneficial Ownership Certification in relation to such Borrower.
(h) Secretary’s Certificate. The U.S. Administrative Agent shall have received a certificate from the Dutch Guarantor, dated the Amendment No. 1 Effective Date, in substance reasonably satisfactory to the U.S. Administrative Agent, with appropriate insertions and attachments of resolutions or other actions, evidence or incumbency and the signature of authorized signatories and Organizational Documents, executed by a Responsible Officer and the Secretary or any Assistant Secretary or other authorized representative of the Dutch Guarantor.
(i) Collateral of Netherlands Borrower. (a) The U.S. Administrative Agent shall have received (i) the Dutch security agreement among the Dutch Guarantor as pledgor, the Collateral Agent as ABL Agent and the Collateral Agent as Term Loan Agent, executed by the parties thereto (the “Dutch Security Agreement”) and (ii) the share pledge agreements with respect to the shares of each of the subsidiaries of the Dutch Guarantor organized in the Netherlands, each executed by the Dutch Guarantor as pledgor, the Collateral Agent as pledgee and such subsidiary as company (collectively, the “Dutch Security Documents”) and (b) none of such Collateral shall be subject to any other pledges, security interests or mortgages except for Liens permitted by the Amended Credit Agreement (including Permitted Liens) or pledges, security interests or mortgages to be released on the Amendment No. 1 Effective Date.
 
-4-

Section 4. [Reserved].
Section 5. 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. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or any other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
Section 6. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT IF THE LAWS OF ANY JURISDICTION OTHER THAN NEW YORK SHALL GOVERN IN REGARD TO THE VALIDITY, PERFECTION OR EFFECT OF PERFECTION OF ANY LIEN OR IN REGARD TO PROCEDURAL MATTERS AFFECTING ENFORCEMENT OF ANY LIENS IN COLLATERAL, SUCH LAWS OF SUCH OTHER JURISDICTIONS SHALL CONTINUE TO APPLY TO THAT EXTENT.
Section 7. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Section 8. Effect of Amendment. 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 Agents or any other 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. Each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement as amended hereby, or any other Loan Document as amended hereby, 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 the other Loan Documents 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 Credit Agreement as amended by this Amendment. Each of the Loan Parties hereby consents to this Amendment and confirms that all obligations of such Loan Party under the Loan Documents to which such Loan Party is a party shall continue to apply to the Credit Agreement as amended hereby.
Section 9. Reaffirmation. Each of the Loan Parties hereby consents to the amendment of the Credit Agreement and the other Loan Documents described in Section 1 of this Amendment and hereby confirms its prior respective guarantees, pledges, grants of security interests, subordinations and other obligations, as applicable, under and subject to the terms of each of the Loan Documents to which it is party, and confirms, agrees and acknowledges that this Amendment shall not constitute a novation of the Credit Agreement or any of the other Loan Document and, notwithstanding the consummation of this Amendment, such guarantees, pledges, grants of security interests, subordinations and other obligations, and the terms of each of the Loan Documents to which it is a party, except as expressly modified by this Amendment, are not affected or impaired in any manner whatsoever and shall continue to be in full force and effect and shall also guarantee and secure all obligations as amended and reaffirmed pursuant to the Credit Agreement and this Amendment.
 
-5-

Section 10. WAIVER OF RIGHT TO TRIAL BY JURY.
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.
[Remainder of page left intentionally blank]
 
-6-

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

UNIVAR SOLUTIONS INC.,	
as U.S. Parent Borrower	
		
By:	 	/s/ Kerri Howard	
	 	Name: Kerri Howard	
	 	Title: Vice President and Treasurer	
	
UNIVAR SOLUTIONS USA INC.,	
as U.S. Subsidiary Borrower	
		
By:	 	/s/ Kerri Howard	
	 	Name: Kerri Howard	
	 	Title: Vice President and Treasurer	
	
UNIVAR HOLDCO LLC	
UNIVAR HOLDCO III LLC	
CHEMPOINT.COM INC.	
UNIVAR USA DELAWARE INC.	
UNIVAR DELAWARE, INC.	
PILATES MERGER SUB II, LLC	
TPG ACCOLADE DELAWARE, LLC	
NEXEO SOLUTIONS HOLDINGS, LLC	
NEXEO SOLUTIONS SUB HOLDING LLC	
NEXEO SOLUTIONS, LLC	
ARCHWAY SALES, LLC	
CHEMICAL SPECIALISTS AND DEVELOPMENT, LLC	
NEXEO SOLUTIONS FINANCE CORPORATION	
STARTEX DISTRIBUTION WEST, LLC	
STARTEX CHEMICAL, LLC
as U.S. Subsidiary Borrowers	
		
By:	 	/s/ Kerri Howard	
	 	Name: Kerri Howard
Title: Treasurer	
 
[Signature Page to Univar Amendment No. 1]

			
UNIVAR CANADA LTD., as Canadian Borrower	
		
By:	 	/s/ Kerri Howard	
	 	Name: Kerri Howard	
	 	Title: Vice President and Treasurer	
	
NEXEO SOLUTIONS CANADA CORP., as Canadian Guarantor	
		
By:	 	/s/ Kerri Howard	
	 	Name: Kerri Howard	
	 	Title: Treasurer	
	
UNIVAR NETHERLANDS HOLDING B.V., as Non-Borrowing Base Foreign Guarantor	
		
By:	 	/s/ Jeffrey Carr	
	 	Name: Jeffrey Carr	
	 	Title: managing director	
 
[Signature Page to Univar Amendment No. 1]

			
BANK OF AMERICA, N.A.,
as U.S. Administrative Agent and Collateral Agent	
		
By:	 	/s/ Brad Breidenbach	
	 	Name: Brad Breidenbach	
	 	Title: Senior Vice President	
	
BANK OF AMERICA, N.A., (ACTING THROUGH ITS CANADA BRANCH),
as Canadian Administrative Agent	
		
By:	 	/s/ Sylwia Durkiewicz	
	 	Name: Sylwia Durkiewicz	
	 	Title: Vice President	
 
[Signature Page to Univar Amendment No. 1]

[Required Lender Signature Pages Not Restated]
 
[Signature Page to Univar Amendment No. 1]

Schedule A
[Redacted]

Exhibit A
[Attached]

EXECUTION VERSIONExhibit A

 
$1,700,000,000
AMENDED AND RESTATED
ABL CREDIT AGREEMENT
Dated as of July 28, 2015 and
as Amended and Restated on February 28, 2019
and as amended by Amendment No. 1, dated as of November 22, 2019
among
UNIVAR SOLUTIONS INC. (formerly known as Univar Inc.),
as the U.S. Parent Borrower,
The U.S. Subsidiary Borrowers
from Time to Time Party Hereto,
UNIVAR CANADA LTD.,
as the Canadian Borrower,
The Several Lenders
from Time to Time Parties Hereto,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
DEUTSCHE BANK SECURITIES INC.
JPMORGAN CHASE BANK, N.A.
WELLS FARGO BANK N.A.
and
GOLDMAN SACHS BANK USA
as Joint Lead Arrangers and Joint Bookrunners,
BANK OF AMERICA, N.A.,
as U.S. Administrative Agent, Collateral Agent, U.S. Swingline Lender
and a U.S. Letter of Credit Issuer,
BANK OF AMERICA, N.A. (acting through its Canada branch),
as Canadian Administrative Agent, a Canadian Swingline Lender
and a Canadian Letter of Credit Issuer,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
DEUTSCHE BANK SECURITIES INC.
JPMORGAN CHASE BANK, N.A.
WELLS FARGO BANK N.A.
and
GOLDMAN SACHS BANK USA
as Co-Syndication Agents
BMO CAPITAL MARKETS CORP,
HSBC SECURITIES (USA) INC.,
U.S. BANK NATIONAL ASSOCIATION,
CITIGROUP GLOBAL MARKETS INC.
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Co-Documentation Agents

 

TABLE OF CONTENTS

 	 	 	  	Page	 	
SECTION 1.	 	DEFINITIONS	  	 	1	 	
1.1.	 	Defined Terms	  	 	1	 	
1.2.	 	Other Interpretive Provisions	  	 	6568	 	
1.3.	 	[Reserved]	  	 	6771	 	
1.4.	 	[Reserved]	  	 	6771	 	
1.5.	 	[Reserved]	  	 	6771	 	
1.6.	 	Exchange Rates	  	 	6771	 	
1.7.	 	Additional Alternative Currencies	  	 	6871	 	
1.8.	 	Change of Currency	  	 	6872	 	
1.9.	 	Effect of Restatement	  	 	6972	 	
1.10.	 	Non-Borrowing Base Foreign Guarantor Documentation	  	 	72	 	
1.11.	 	Dutch Terms	  	 	72	 	
			
SECTION 2.	 	LOANS AND LETTERS OF CREDIT	  	 	6973	 	
2.1.	 	Credit Facilities	  	 	6973	 	
2.2.	 	U.S. Revolving Loans and Borrowing Procedures for U.S. Revolving Loans and Term Loans	  	 	7175	 	
2.3.	 	Canadian Revolving Loans and Borrowing Procedures for Canadian Revolving Loans and Term Loans	  	 	7479	 	
2.4.	 	Letters of Credit	  	 	7883	 	
2.5.	 	Interest	  	 	8488	 	
2.6.	 	Pro Rata Borrowings	  	 	8589	 	
2.7.	 	Interest Period	  	 	8589	 	
2.8.	 	Continuation and Conversion Elections	  	 	8690	 	
2.9.	 	Interest Act (Canada)	  	 	8791	 	
2.10.	 	Increased Costs, Illegality, Etc.	  	 	8792	 	
2.11.	 	Compensation	  	 	9094	 	
2.12.	 	Change of Lending Office	  	 	9095	 	
2.13.	 	Notice of Certain Costs	  	 	9095	 	
2.14.	 	Excess Resulting from Exchange Rate Change	  	 	9095	 	
2.15.	 	Increase of U.S. Maximum Amount and Canadian Maximum Amount; Incremental European Revolving Facility	  	 	9195	 	
2.16.	 	[Reserved]	  	 	9397	 	
2.17.	 	Extensions of Term Loans and Revolving Commitments	  	 	9397	 	
2.18.	 	Defaulting Lenders	  	 	9499	 	
			
SECTION 3.	 	FEES; COMMITMENTS	  	 	95100	 	
3.1.	 	Fees	  	 	95100	 	
3.2.	 	Unused Line Fees	  	 	95100	 	
3.3.	 	Letter of Credit Fee	  	 	96101	 	
3.4.	 	Mandatory Termination of Commitments	  	 	97101	 	
			
SECTION 4.	 	PAYMENTS	  	 	97102	 	
4.1.	 	Repayment of Loans	  	 	97102	 	
4.2.	 	Voluntary Prepayment, Reduction or Termination	  	 	97102	 	
4.3.	 	Mandatory Prepayments	  	 	98103	 	
4.4.	 	Method and Place of Payment	  	 	99104	 	
4.5.	 	Net Payments	  	 	99104	 	
4.6.	 	[Reserved]	  	 	101106	 	
4.7.	 	Limit on Rate of Interest	  	 	101106	 	
 
-i-

							
 	 	 	  	Page	 	
SECTION 5.	 	CONDITIONS PRECEDENT TO RESTATEMENT EFFECTIVE DATE	  	 	102107	 	
5.1.	 	Loan Documents	  	 	102107	 	
5.2.	 	Legal Opinions	  	 	102107	 	
5.3.	 	Fees	  	 	102107	 	
5.4.	 	Repayment	  	 	102107	 	
5.5.	 	Certificates	  	 	102107	 	
5.6.	 	Perfected Liens	  	 	102108	 	
5.7.	 	Secretary’sSecretary’s Certificate	  	 	103108	 	
5.8.	 	Solvency	  	 	103108	 	
5.9.	 	No Material Adverse Effect	  	 	103108	 	
5.10.	 	Patriot Act, etc.	  	 	103108	 	
5.11.	 	Acquisition	  	 	103108	 	
5.12.	 	Borrowing Base Certificate	  	 	103108	 	
5.13.	 	Financial Information	  	 	103108	 	
			
SECTION 6.	 	CONDITIONS PRECEDENT TO ALL CREDIT EVENTS	  	 	103109	 	
6.1.	 	No Default; Representations and Warranties	  	 	103109	 	
6.2.	 	Notice of Borrowing	  	 	104109	 	
6.3.	 	Letter of Credit Request	  	 	104109	 	
			
SECTION 7.	 	REPRESENTATIONS, WARRANTIES AND AGREEMENTS	  	 	104109	 	
7.1.	 	Financial Condition	  	 	104109	 	
7.2.	 	No Change; Solvent	  	 	104109	 	
7.3.	 	Corporate Existence; Compliance with Law	  	 	104110	 	
7.4.	 	Corporate Power; Authorization; Enforceable Obligations	  	 	105110	 	
7.5.	 	No Legal Bar	  	 	105110	 	
7.6.	 	No Material Litigation	  	 	105110	 	
7.7.	 	No Default	  	 	105111	 	
7.8.	 	Ownership of Property; Liens	  	 	105111	 	
7.9.	 	Intellectual Property	  	 	105111	 	
7.10.	 	Taxes	  	 	106111	 	
7.11.	 	Federal Regulations	  	 	106111	 	
7.12.	 	ERISA	  	 	106112	 	
7.13.	 	Collateral	  	 	107112	 	
7.14.	 	Investment Company Act; Other Regulations	  	 	107113	 	
7.15.	 	Subsidiaries	  	 	107113	 	
7.16.	 	Purpose of Loans	  	 	108113	 	
7.17.	 	Environmental Matters	  	 	108113	 	
7.18.	 	No Material Misstatements	  	 	108114	 	
7.19.	 	[Reserved]	  	 	109114	 	
7.20.	 	Insurance	  	 	109114	 	
7.21.	 	Anti-Terrorism	  	 	109114	 	
7.22.	 	EEA Financial Institution	  	 	109114	 	
			
SECTION 8.	 	AFFIRMATIVE COVENANTS	  	 	109114	 	
8.1.	 	Information Covenants	  	 	109115	 	
8.2.	 	Books, Records and Inspections	  	 	113118	 	
8.3.	 	Maintenance of Insurance	  	 	113119	 	
8.4.	 	Payment of Taxes	  	 	114120	 	
8.5.	 	Maintenance of Existence	  	 	114120	 	
8.6.	 	Environmental Laws	  	 	114120	 	
8.7.	 	[Reserved]	  	 	115120	 	
8.8.	 	Additional U.S. Borrowers, Canadian Guarantors, Non-Borrowing Base Foreign Guarantors and Grantors	  	 	115120	 	
8.9.	 	[Reserved]	  	 	116122	 	
 
-ii-

							
 	 	 	  	Page	 	
8.10.	 	Use of Proceeds	  	 	116122	 	
8.11.	 	Further Assurances	  	 	116122	 	
8.12.	 	End of Fiscal Years	  	 	116123	 	
8.13.	 	Cash Management Systems	  	 	116123	 	
8.14.	 	Post-Closing Requirements	  	 	119126	 	
8.15.	 	Foreign Plans	  	 	119127	 	
			
SECTION 9.	 	NEGATIVE COVENANTS	  	 	120127	 	
9.1.	 	Limitation on Indebtedness	  	 	120127	 	
9.2.	 	Limitation on Restricted Payments	  	 	124131	 	
9.3.	 	Limitation on Restrictive Agreements	  	 	125133	 	
9.4.	 	Limitation on Sales of Assets and Subsidiary Stock	  	 	127135	 	
9.5.	 	Limitations on Transactions with Affiliates	  	 	128136	 	
9.6.	 	Limitation on Liens	  	 	129137	 	
9.7.	 	Limitation on Fundamental Changes	  	 	130137	 	
9.8.	 	Limitation on Amendments	  	 	131138	 	
9.9.	 	Consolidated Fixed Charge Coverage Ratio	  	 	131139	 	
9.10.	 	Limitation on Lines of Business	  	 	131139	 	
9.11.	 	Use of Proceeds	  	 	131139	 	
			
SECTION 10.	 	EVENTS OF DEFAULT	  	 	132139	 	
10.1.	 	Payments	  	 	132139	 	
10.2.	 	Representations, Etc.	  	 	132140	 	
10.3.	 	Covenants	  	 	132140	 	
10.4.	 	Default Under Other Agreements	  	 	132140	 	
10.5.	 	Bankruptcy, Etc.	  	 	132140	 	
10.6.	 	ERISA	  	 	133141	 	
10.7.	 	Guarantee	  	 	133141	 	
10.8.	 	Security Documents	  	 	133141	 	
10.9.	 	Judgments	  	 	134141	 	
10.10.	 	Change of Control	  	 	134142	 	
			
SECTION 11.	 	THE AGENTS	  	 	137145	 	
11.1.	 	Appointment	  	 	137145	 	
11.2.	 	Delegation of Duties	  	 	138146	 	
11.3.	 	Exculpatory Provisions	  	 	138146	 	
11.4.	 	Reliance by Agents	  	 	138146	 	
11.5.	 	Notice of Default	  	 	138146	 	
11.6.	 	Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders	  	 	139147	 	
11.7.	 	Indemnification	  	 	139147	 	
11.8.	 	Agents in Their Individual Capacities	  	 	139147	 	
11.9.	 	Successor Agents	  	 	140148	 	
11.10.	 	Parallel Debt	  	 	148	 	
11.1011.11 .	 	Withholding Tax	  	 	140148	 	
11.1111.12 .	 	Certain ERISA Matters	  	 	140149	 	
			
SECTION 12.	 	MISCELLANEOUS	  	 	141150	 	
12.1.	 	Amendments and Waivers	  	 	141150	 	
12.212.3 .	 	Notices	  	 	143152	 	
12.312.4 .	 	No Waiver; Cumulative Remedies	  	 	143152	 	
12.412.5 .	 	Survival of Representations and Warranties	  	 	143152	 	
12.512.6 .	 	Payment of Expenses	  	 	143153	 	
12.612.7 .	 	Successors and Assigns; Participations and Assignments	  	 	145157	 	
12.712.8 .	 	Replacements of Lenders Under Certain Circumstances	  	 	148158	 	
12.812.9 .	 	Adjustments; Set-off	  	 	149158	 	
 
-iii-

							
 	 	 	  	Page	 	
12.912.10 .	 	Counterparts	  	 	150159	 	
12.1012.11 .	 	Severability	  	 	150159	 	
12.1112.12 .	 	Integration	  	 	150159	 	
12.1212.13 .	 	GOVERNING LAW	  	 	150159	 	
12.1312.14 .	 	Submission to Jurisdiction; Waivers	  	 	150160	 	
12.1412.15 .	 	Acknowledgments	  	 	151160	 	
12.1512.16 .	 	WAIVERS OF JURY TRIAL	  	 	151160	 	
12.1612.17 .	 	Confidentiality	  	 	151161	 	
12.1712.18 .	 	Direct Website Communications	  	 	152162	 	
12.1812.19 .	 	USA PATRIOT Act	  	 	153163	 	
12.1912.20 .	 	Judgment Currency	  	 	154163	 	
12.2012.21 .	 	Intercreditor Agreement	  	 	154163	 	
12.2112.22 .	 	Joint and Several Liability of U.S. Borrowers	  	 	154164	 	
12.2212.23 .	 	Contribution and Indemnification Among the U.S. Borrowers	  	 	155165	 	
12.2312.24 .	 	Agency of the U.S. Parent Borrower for Each Other U.S. Borrower	  	 	156165	 	
12.2412.25 .	 	Express Waivers by U.S. Borrowers in Respect of Cross-Guaranties and Cross-Collateralization	  	 	156166	 	
12.2512.26 .	 	Canadian Borrower’sBorrower’s Obligations Several and Not Joint	  	 	157166	 	
12.2612.27 .	 	Eligible Contract Participants	  	 	157166	 	
12.2712.28 .	 	Keepwell	  	 	157166	 	
12.2812.29 .	 	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	  	 	157167	 	
12.30.	 	Acknowledgement Regarding Any Supported QFCs	  	 	167	 	
SCHEDULES

A	 	—	  	Commitments	
1.1(a)	 	—	  	Non-Borrowing Base Foreign Guarantor Documentation Principles	
1.1(c)(ii)	 	—	  	Excluded Canadian Subsidiaries	
1.1(e)	 	—	  	Existing Liens	
1.1(f)	 	—	  	Existing Investments	
2.4	 	—	  	Existing Letters of Credit	
7.4	 	—	  	Consents Required	
7.6	 	—	  	Litigation	
7.9	 	—	  	Intellectual Property Claims	
7.15	 	—	  	Subsidiaries	
7.17	 	—	  	Environmental Matters	
8.1	 	—	  	Website Address for Electronic Financial Reporting	
8.13	 	—	  	Cash Management Systems	
9.1	 	—	  	Existing Indebtedness	
9.5	 	—	  	Affiliate Transactions	
12.2	 	—	  	Notice Addresses	
		
EXHIBITS	  		
			
Exhibit A-1	 		  	U.S. Notice of Borrowing	
Exhibit A-2	 		  	Canadian Notice of Borrowing	
Exhibit A-3	 		  	Term Notice of Borrowing	
Exhibit C	 		  	[Reserved]	
Exhibit D	 		  	[Reserved]	
Exhibit E-1	 		  	[Reserved]	
Exhibit E-2	 		  	[Reserved]	
Exhibit H	 		  	Form of Assignment and Acceptance	
Exhibit J	 		  	Form of Joinder Agreement	
Exhibit K	 		  	Form of U.S. Tax Compliance Certificate	
Exhibit L	 		  	Form of Solvency Certificate	
Exhibit M	 		  	Form of Borrowing Base Certificate	
Exhibit N	 		  	Form of U.S. Subsidiary Borrower Assumption Agreement	
 
-iv-

AMENDED AND RESTATED ABL CREDIT AGREEMENT, dated as of July 28, 2015, (as amended and restated as of February 28, 2019, and as amended by Amendment No. 1, dated as of November 22, 2019) among UNIVAR SOLUTIONSINC., a Delaware corporation (formerly known as Univar Inc.) (the “U.S. Parent Borrower”), UNIVAR CANADA LTD., a company formed under the laws of the Province of Alberta (the “Canadian Borrower”), the Domestic Subsidiaries (each capitalized term used but not defined in this preamble having the meaning provided in Section 1.1) of the U.S. Parent Borrower from time to time party hereto (the “U.S. Subsidiary Borrowers”; together with the U.S. Parent Borrower, the “U.S. Borrowers”; and the U.S. Borrowers, together with the Canadian Borrower, the “Borrowers” and each a “Borrower”), the registered lending institutions from time to time parties hereto (each a “Lender” and, collectively, the “Lenders”), BANK OF AMERICA, N.A., as U.S. Administrative Agent, Collateral Agent, U.S. Swingline Lender and a U.S. Letter of Credit Issuer, BANK OF AMERICA, N.A. (acting through its Canada branch), as Canadian Administrative Agent, a Canadian Swingline Lender and a Canadian Letter of Credit Issuer and Bank of Montreal as a Canadian Swingline Lender.
WHEREAS, the Borrowers, the lenders party thereto, the U.S. Administrative Agent, the Collateral Agent and the Canadian Administrative Agent arewere parties to that certain ABL Credit Agreement, dated as of July 28, 2015 (as amended prior to the date hereofFebruary 28, 2019, the “Original ABL Credit Agreement”); and
WHEREAS, the Borrowers wish to causecaused, and the Lenders party hereto have consented to, the amendment and restatement of the Original Credit Agreement on the terms set forth herein.;
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:
SECTION 1. SECTION 1.Definitions
1.1.                        1.1. Defined Terms.
As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires (it being understood that defined terms in this Agreement shall include in the singular number the plural and in the plural the singular):
“ABL Priority Collateral” shall have the meaning set forth in the Intercreditor Agreement.
“ABR” shall mean for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Effective Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by the U.S. Administrative Agent as its “prime rate” and (c) the LIBOR Rate plus 1.00%; provided that if ABR would otherwise be less than zero, ABR shall instead be zero. The “prime rate” is a rate set by the U.S. Administrative Agent based upon various factors including the U.S. Administrative Agent’sAgent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the ABR due to a change in such rate announced by the U.S. Administrative Agent or in the Federal Funds Effective Rate or LIBOR Rate shall take effect at the opening of business on the day specified in the public announcement of such change or on the effective date of such change in the Federal Funds Effective Rate or LIBOR Rate, respectively.
“ABR Loan” shall mean (i) any U.S. Revolving Loan denominated in Dollars, U.S. Agent Advance, U.S. Swingline Loan or Term Loan, in each case, during any period for which it bears interest by reference to the ABR, or (ii) any Canadian Revolving Loan, Canadian Swingline Loan or Canadian Agent Advance, in each case, denominated in Dollars, during any period for which it bears interest by reference to the Canadian Base Rate, as the context requires.
“Accommodation Payment” shall have the meaning provided in Section 12.22.
“Account Debtor” shall mean each Person obligated in any way on or in connection with an Account or Chattel Paper.

“Accounts” shall mean, with respect to a Loan Party, all of such Loan Party’sParty’s now owned or hereafter acquired or arising accounts, as defined in Article 9 of the UCC, including any rights to payment for the sale or lease of goods or rendition of services, whether or not they have been earned by performance; provided, however, if the governing law where a Loan Party has its domicile or chief executive office is the PPSA or the Civil Code of Quebec, then for purposes of this definition, “UCC” shall mean the PPSA or the Civil Code of Quebec, as the case may be.
“Acquired Indebtedness” shall mean Indebtedness of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from such Person, in each case other than Indebtedness Incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be Incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.
“Acquisition Indebtedness” shall mean Indebtedness of (A) the U.S. Parent Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of any assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the U.S. Parent Borrower or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the U.S. Parent Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation).
“Additional Assets” shall mean (i) any property or assets that replace the property or assets that are the subject of an Asset Disposition; (ii) any property or assets (other than Indebtedness and Capital Stock) used or to be used by the U.S. Parent Borrower or a Restricted Subsidiary or otherwise useful in a Related Business, and any capital expenditures in respect of any property or assets already so used; (iii) the Capital Stock of a Person that is engaged in a Related Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the U.S. Parent Borrower or another Restricted Subsidiary; or (iv) Capital Stock of any Person that at such time is a Restricted Subsidiary acquired from a third party.
“Additional Obligations” shall mean senior or subordinated Indebtedness (which Indebtedness may be (x) secured by a Lien ranking pari passu to the Lien securing the Cash Flow Credit Agreement, (y) secured by a Lien ranking junior to the Lien securing the Cash Flow Credit Agreement or (z) unsecured), including customary bridge financings, in each case issued or incurred by a U.S. Borrower, the terms of which Indebtedness (i) do not provide for a maturity date or weighted average life to maturity earlier than the Cash Flow Maturity Date or shorter than the remaining weighted average life to maturity of the Cash Flow Term Loans, as the case may be (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Cash Flow Maturity Date or the remaining weighted average life to maturity of the existing Cash Flow Term Loans, as applicable) and (ii) to the extent such Indebtedness is subordinated, provide for customary payment subordination to the Obligations under the Loan Documents as reasonably determined by the U.S. Parent Borrower in good faith; provided that (a) such Indebtedness shall not be secured by any Lien on any asset of any Loan Party that does not also secure the U.S. Obligations, or be guaranteed by any Person other than the U.S. Borrowers, and (b) if secured by Collateral, such Indebtedness (and all related Obligations) shall be subject to the terms of the Intercreditor Agreement.
“Additional Obligations Documents” shall mean any document or instrument (including any guarantee, security agreement or mortgage) issued or executed and delivered with respect to any Additional Obligations.
“Adjusted Term Commitment” shall mean at any time the Term Commitment minus the Term Commitments of all Defaulting Lenders.
“Adjusted Total Revolving Commitment” shall mean at any time the Total Revolving Commitment minus the Revolving Commitments of all Defaulting Lenders.
 
-2-

“Administrative Agent” shall mean as the context requires, (a) the U.S. Administrative Agent or (b) the Canadian Administrative Agent. Any general reference to the “Administrative Agent” shall refer to the U.S. Administrative Agent with respect to the U.S. Revolving Facility and/or the Canadian Administrative Agent with respect to the Canadian Revolving Facility and the Initial Term Facility, as applicable.
“Administrative Agent’sAgent’s Office” shall mean, with respect to any currency, the applicable Administrative Agent’sAgent’s address and, as appropriate, account as set forth on Schedule 12.2 to this Agreement with respect to such currency, or such other address or account as such Administrative Agent may from time to time notify to the Borrowers and the Lenders.
“Administrative Questionnaire” shall have the meaning provided in Section 12.6(b)(ii)(D).
“Affiliate” shall mean as to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Affiliate Transaction” shall have the meaning provided in Section 9.5(a).
“Agent Advances” shall mean the collective reference to U.S. Agent Advances and Canadian Agent Advances.
“Agent Parties” shall have the meaning provided in Section 12.17(d).
“Agents” shall mean the Administrative Agents and the Collateral Agent.
“Aggregate Canadian Revolving Exposure” shall mean, at any date of determination, without duplication: the sum of (a) the Outstanding Amount of all Canadian Revolving Loans, Canadian Swingline Loans and Canadian Agent Advances on such date and (b) the Outstanding Amount of Canadian Letter of Credit Obligations on such date in respect of Canadian Letters of Credit.
“Aggregate Revolving Exposure” shall mean, at any date of determination, the sum of (a) the Aggregate Canadian Revolving Exposure on such date and (b) the Aggregate U.S. Revolving Exposure on such date.
“Aggregate U.S. Revolving Exposure” shall mean, at any date of determination, without duplication: the sum of (a) the aggregate Outstanding Amount of all U.S. Revolving Loans, U.S. Swingline Loans and U.S. Agent Advances on such date and (b) the Outstanding Amount of U.S. Letter of Credit Obligations on such date.
“Agreement” shall mean this Amended and Restated ABL Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
“Agreement Currency” shall have the meaning provided in Section 12.19.
“Allocable Amount” shall have the meaning provided in Section 12.22.
“Alternative Currency” shall mean Euros, Cdn. Dollars and Sterling and each other currency (other than Dollars) that is approved in accordance with Section 1.7.
“Amendment” shall have the meaning provided in Section 9.3(c).
“Amendment No. 1” shall mean Amendment No. 1 to this agreement, dated as of November 22, 2019, by and among the Loan Parties, the Administrative Agent and the Lenders party thereto.
 
-3-

“Amendment No. 1 Effective Date” shall have the meaning assigned such term in Amendment No. 1.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Loan Party and its Affiliates concerning or relating to bribery or corruption.
“Applicable Canadian Unused Line Fee Margin” shall mean, with respect to any period for which Canadian Unused Line Fees are paid, (a) 0.30% per annum if the average daily Outstanding Amount of Canadian Revolving Loans (excluding Canadian Agent Advances and Canadian Swingline Loans) and Canadian Letter of Credit Obligations during such period is less than or equal to 40% of the average daily amount of the Total Canadian Revolving Commitment during such period or (b) 0.25% per annum, otherwise.
“Applicable Margin” shall mean, for purposes of calculating the applicable interest rate for any day for any Initial Term Loan, Revolving Loan, Swingline Loan or other Obligations and the applicable rate of the Letter of Credit Fees for any day under Section 3.3, the percentage corresponding to Average Combined Availability as a percentage of the Combined Line Cap for the most recent fiscal quarter (subject to the immediately succeeding sentence):

 	  	Applicable Margin	 		
Pricing	
Level	  	Average Combined
Availability as a
percentage of the
Combined Line Cap	  	Swingline Loans,
Agent Advances,
U.S. Revolving
Loans and
Canadian
Revolving Loans
that are ABR Loans
or Canadian Prime
Rate Loans	 	 	U.S. Revolving
Loans and
Canadian
Revolving Loans
that are LIBOR
Loans or BA
Equivalent Loans
and Letter of
Credit Fees	 	 	Initial
Term
Loans
that are
Canadian
Prime Rate
Loans	 	 	Initial
Term
Loans
that are
BA
Equivalent
Loans	 	
I	  	Greater than or equal to 50%	  	 	0.25	% 	 	 	1.25	% 	 	 	1.00	% 	 	 	2.00	% 		
II	  	Less than 50%	  	 	0.50	% 	 	 	1.50	% 	 	 	1.25	% 	 	 	2.25	% 		
The Applicable Margins shall be adjusted (up or down) prospectively, determined by reference to the pricing grid set forth above, on a quarterly basis on the date that is the first Business Day after each fiscal quarter end; provided, however, that (i) except as set forth below, the initial Applicable Margins shall be based on Pricing Level II; all such initial Applicable Margins shall remain at such levels until the first Business Day following the last calendar day of the first fiscal quarter commencing after the Restatement Effective Date and (ii) if an Event of Default has occurred and is continuing at the time any reduction in the Applicable Margins is to be implemented, no reduction may occur until the first Business Day following the date such Event of Default is waived or cured.
“Applicable U.S. Unused Line Fee Margin” shall mean, with respect to any period for which U.S. Unused Line Fees are paid, (a) 0.30% per annum, if the average daily Aggregate U.S. Revolving Exposure (excluding Swingline Loans and Agent Advances) during such period is less than or equal to 40% of the average daily amount of the Total U.S. Revolving Commitment during such period or (b) 0.25% per annum, otherwise.
“Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Asset Disposition” shall mean any sale, lease, transfer or other disposition of shares of Capital Stock of a Restricted Subsidiary (other than directors’’ qualifying shares, or (in the case of a Foreign Subsidiary (other than a Canadian Loan Party)) to the extent required by applicable law), property or other assets (each referred to for the purposes of this definition as a “disposition”) by the U.S. Parent Borrower or any of its Restricted Subsidiaries (including any disposition by means of a merger, consolidation or similar transaction and including any disposition of property to a Delaware Divided LLCDivision Successor pursuant to a Delaware LLC Division) other than (i) a disposition (x) by a U.S. Borrower to another U.S. Borrower, (y) by a Canadian Loan Party to a Loan Party (other than a Non-Borrowing Base Foreign Guarantor) or (z) by a Non-Borrowing Base Foreign Guarantor or a Restricted Subsidiary that is not a Loan Party to the U.S. Parent Borrower or any other Restricted Subsidiary, (ii) a
 
-4-

disposition in the ordinary course of business, (iii) a disposition of Cash Equivalents, Investment Grade Securities or Temporary Cash Investments, (iv) the sale or discount (with or without recourse, and on customary or commercially reasonable terms) of accounts receivable or notes receivable in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable, (v) any Restricted Payment Transaction, (vi) a disposition that is governed by Section 9.7, (vii) any Financing Disposition, (viii) any “fee in lieu” or other disposition of assets to any Governmental Authority that continue in use by the U.S. Parent Borrower or any Restricted Subsidiary, so long as the U.S. Parent Borrower or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee, (ix) any exchange of property pursuant to or intended to qualify under Section 1031 (or any successor section) of the Code, or any exchange of equipment to be leased, rented or otherwise used in a Related Business, (x) any financing transaction with respect to property built or acquired by the U.S. Parent Borrower or any Restricted Subsidiary after the Closing Date, including any sale/leaseback transaction or asset securitization, (xi) any disposition arising from foreclosure, condemnation, eminent domain, or similar action with respect to any property or other assets, or exercise of termination rights under any lease, license, concession or other agreement, or necessary or advisable (as determined by the U.S. Parent Borrower in good faith) in order to consummate any acquisition of any Person, business or assets, or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement, (xii) any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary, (xiii) a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the U.S. Parent Borrower or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition, (xiv) a disposition of not more than 5.0% of the outstanding Capital Stock of a Foreign Subsidiary (other than a Canadian Loan Party) that has been approved by the Board of Directors, (xv) any disposition or series of related dispositions for aggregate consideration not to exceed $50.0 million, (xvi) the abandonment or other disposition of patents, trademarks or other intellectual property that are, in the reasonable judgment of the U.S. Parent Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the U.S. Parent Borrower and its Subsidiaries taken as a whole, (xvii) any license, sublicense or other grant of rights in or to any trademark, copyright, patent or other intellectual property, (xviii) any Exempt Sale and Leaseback Transaction or (xix) dispositions of Accounts of any Designated Account Debtor pursuant to factoring arrangements in an aggregate amount (with a receivable being deemed to be “outstanding” until the applicable Borrower or applicable Subsidiary has received the full purchase price thereof from the purchaser) not to exceed $50,000,000 at any time outstanding.
“Assignment and Acceptance” shall mean an assignment and acceptance substantially in the form of Exhibit H, or such other form as may be approved by the applicable Administrative Agent.
“Attorney” shall have the meaning provided in Section 11.1(c).
“Authorized Officer” shall mean the President, the Chief Financial Officer, the Treasurer, the Vice President-Finance or any other senior officer of the U.S. Parent Borrower or the Canadian Borrower or any other general officers authorized by the board of directors), or any other officer designated as such in writing to the applicable Administrative Agent by such Person.
“Availability” shall mean the U.S. Availability or Canadian Availability, as the context requires.
“Availability Conditions” shall be deemed to be satisfied on any date if:
 
 	(a)	U.S. Availability shall be not less than $0 on such date; and	
 
 	(b)	Canadian Availability shall be not less than $0 on such date.	
“Average Combined Availability” shall mean, for any period of determination, average daily Combined Availability for such period.
“BA Equivalent Interest Payment Date” shall mean, with respect to a BA Equivalent Loan, (i) the last day of each BA Equivalent Interest Period applicable to such BA Equivalent Loan, (ii) if such BA Equivalent Interest Period is longer than three months, each three month anniversary of the making of such BA Equivalent Loan and (iii) the Termination Date.
 
-5-

“BA Equivalent Interest Period” shall mean, with respect to each BA Equivalent Loan, the interest period applicable thereto, as determined pursuant to Section 2.7.
“BA Equivalent Loan” shall mean a Revolving Loan or Term Loan denominated in Cdn. Dollars which bears interest based on the BA Rate.
“BA Rate” shall mean, for the BA Equivalent Interest Period of each BA Equivalent Loan, the rate of interest per annum equal to the annual rates applicable to Cdn. Dollar bankers’’ acceptances having an identical or comparable term as the proposed BA Equivalent Loan displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuter Monitor Money Rates Service as at approximately 10:00 a.m. New York City time on such day (or, if such day is not a Business Day, as of 10:00 a.m. New York City time on the immediately preceding Business Day), provided that if such rates do not appear on the CDOR Page at such time on such date, the rate for such date will be the average of the annual discount rates (rounded upward to the nearest whole multiple of 1/100 of 1%) as of 10:00 a.m. New York City time on such day at which the Canadian chartered banks listed on Schedule 1 of the Bank Act (Canada) are then offering to purchase Cdn. Dollar bankers’’ acceptances accepted by them having such specified term (or a term as closely as possible comparable to such specified term); provided, further, that if the BA Rate for any BA Equivalent Interest Period would otherwise be less than zero, such BA Rate shall instead be zero.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank of America” shall mean Bank of America, N.A. and its successors.
“Bank Product Reserves” shall mean all reserves which the Administrative Agents from time to time establish in their reasonable credit judgment exercised in good faith for the Bank Products then provided or outstanding.
“Bank Products” shall mean Secured Cash Management Agreements and Secured Hedge Agreements.
“Bank Products Agreement” shall mean any agreement pursuant to which a bank or other financial institution agrees to provide (a) treasury services, (b) credit card, merchant card, purchasing card or stored value card services (including the processing of payments and other administrative services with respect thereto), (c) cash management services (including controlled disbursements, automated clearinghouse transactions, return items, netting, overdrafts, bank guarantees, depository, lockbox, stop payment, electronic funds transfer, information reporting, wire transfer and interstate depository network services) and (d) other banking products or services as may be requested by the U.S. Parent Borrower or any Subsidiary (other than letters of credit and other than loans and advances, except indebtedness arising from services described in clauses (a) through (c) of this definition).
“Bank Products Obligations” of any Person shall mean the obligations of such Person pursuant to any Bank Products Agreement.
“Bankruptcy Code” shall mean Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (or any successor statute), as amended from time to time.
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
 
-6-

“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
“Benefit Plan” shall mean 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 and subject to 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” shall have the meaning provided in Section 12.29(b).
“BIA” shall mean the Bankruptcy and Insolvency Act (Canada) (or any successor statute), as amended from time to time and includes all regulations thereunder.
“Blocked Account” shall mean the U.S. Blocked Account or the Canadian Blocked Account, as the context requires.
“Blocked Account Agreement” shall have the meaning provided in Section 8.13(a)(iii).
“Board” shall mean the Board of Governors of the Federal Reserve System.
“Board of Directors” shall mean, for any Person, the board of directors or other governing body of such Person or, if such Person does not have such a board of directors or other governing body and is owned or managed by a single entity, the board of directors or other governing body of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such board of directors or other governing body. Unless otherwise provided, “Board of Directors” means the Board of Directors of the U.S. Parent Borrower.
“Borrowers” shall have the meaning provided in the preamble to this Agreement.
“Borrowing” shall mean the incurrence of one Type of Loan of a single Class on a single date (or resulting from conversions on a single date) having, in the case of LIBOR Loans or BA Equivalent Loans, the same Interest Period or BA Equivalent Interest Period, as applicable (provided that ABR Loans or Canadian Prime Rate Loans incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of LIBOR Loans or BA Equivalent Loans, as applicable). For the avoidance of doubt, the conversion of a LIBOR Loan into an ABR Loan (or vice versa), the continuation or selection of any Interest Period shall not, in each case, constitute a Borrowing or a Loan.
“Borrowing Base” shall refer to the U.S. Borrowing Base or the Canadian Borrowing Base, as the context requires.
“Borrowing Base Certificate” shall mean a certificate of the U.S. Parent Borrower and the Canadian Borrower, substantially in the form of Exhibit M (or another form acceptable to the U.S. Administrative Agent) setting forth the calculation of the U.S. Borrowing Base and the Canadian Borrowing Base, including a calculation of each component thereof, all in such detail as shall be reasonably satisfactory to the U.S. Administrative Agent. All calculations of the U.S. Borrowing Base and Canadian Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall originally be made by the U.S. Parent Borrower and the Canadian Borrower and certified to the U.S. Administrative Agent; provided that the U.S. Administrative Agent shall have the right to review and adjust any such calculation to the extent that such calculation is not in accordance with this Agreement, including as a result of the failure of any Lien on assets included therein to be valid and perfected on a first priority basis, whether or not such failure has given rise to an Event of Default hereunder.
“Business Day” shall mean any day excluding Saturday, Sunday and any day that in the jurisdiction where the Administrative Agent’sAgent’s Office for Loans in Dollars is located shall be a legal holiday or a day on which banking institutions are authorized by law or other governmental actions to close; provided, however,
 
-7-

(a) if such day relates to any interest rate settings as to a LIBOR Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such LIBOR Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such LIBOR Loan, such day shall be a day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market;
(b) when used in connection with a Canadian Revolving Loan (subject to clause (a) above in the case of a Canadian Revolving Loan that is a LIBOR Loan) or a Loan denominated in Cdn. Dollars, such day shall be a day on which banks are open for business in Toronto, Canada but excluding Saturday, Sunday and any other day which is a legal holiday in Toronto, Canada;
(c) if such day relates to any interest rate settings as to a LIBOR Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such LIBOR Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such LIBOR Loan, such day shall be a TARGET Day;
(d) if such day relates to any interest rate settings as to a LIBOR Loan denominated in a currency other than Dollars or Euro, such day shall be a day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and
(e) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a LIBOR Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such LIBOR Loan (other than any interest rate settings), such day shall be a day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
“Canadian Administrative Agent” shall mean Bank of America, N.A. (acting through its Canada branch), as the administrative agent for the Canadian Revolving Lenders under this Agreement, or any successor administrative agent pursuant to Section 11.
“Canadian Agent Advances” shall have the meaning provided in Section 2.3(h).
“Canadian Availability” shall mean at any time the excess of (x) the lesser of (i) the Total Canadian Revolving Commitment at such time and (ii) the Canadian Borrowing Base at such time minus (y) the Aggregate Canadian Revolving Exposure at such time.
“Canadian Bank” shall mean Bank of America, N.A. (acting through its Canada branch), for so long as it is a Canadian Revolving Lender hereunder.
“Canadian Base Rate” shall mean for any day, the greater of (x) the rate of interest in effect for such day as publicly announced from time to time by the Canadian Administrative Agent in Toronto, Ontario as its “base rate” (the “base rate” being a rate set by the Canadian Administrative Agent based on various factors including costs and desired return of the Canadian Administrative Agent, general economic conditions and other factors, and used as a reference point for pricing some loans in Dollars, which may be priced at, above or below such announced rate) and (b) the LIBOR Rate plus 1.00%; provided that if the Canadian Base Rate would otherwise be less than zero, the Canadian Base Rate shall instead be zero. Any change in the “base rate” announced by the Canadian Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change. Each interest rate based upon the Canadian Base Rate shall be adjusted simultaneously with any change in the “base rate.” In the event that the Canadian Administrative Agent (including any successor or assignee) does not at any time publicly announce a “base rate,” then “Canadian Base Rate” shall mean the “base rate” publicly announced by a Schedule 1 chartered bank in Canada selected by the Canadian Administrative Agent.
 
-8-

“Canadian Blocked Account” shall have the meaning provided in Section 8.13(a).
“Canadian Borrower” shall have the meaning provided in the preamble to this Agreement.
“Canadian Borrowing Base” shall mean, with respect to the Canadian Loan Parties, at any time, an amount equal to the Dollar Equivalent of (v) 85% multiplied by the book value of Eligible Accounts of the Canadian Loan Parties plus (w) 85% multiplied by the Net Orderly Liquidation Value of Eligible Inventory of the Canadian Loan Parties (without duplication) plus (x) 100% multiplied by the amount of cash of the Canadian Loan Parties held in deposit accounts with the Canadian Administrative Agent or any other bank reasonably satisfactory to the Administrative Agent and, in each case, subject to control agreements (in form and substance reasonably satisfactory to the Collateral Agent) in favor of the Collateral Agent (without duplication) plus (y) at the election of the U.S. Parent Borrower at the time of delivery of the relevant Borrowing Base Certificate, an amount not to exceed the excess of (i) the U.S. Borrowing Base at such time minus (ii) the Aggregate U.S. Revolving Exposure at such time, subject to a Reserve against the U.S. Borrowing Base in an amount equal to such amount so elected (the “U.S. Availability Reserve”) minus (z) any Reserves from time to time established by the Canadian Administrative Agent with respect to the Canadian Borrowing Base.
“Canadian Collateral” shall mean all property pledged or purported to be pledged pursuant to the Canadian Security Documents.
“Canadian Commitment Increase” shall have the meaning provided in Section 2.15(a).
“Canadian Concentration Account” shall have the meaning provided in Section 8.13(a).
“Canadian Defined Benefit Plan” shall mean a Foreign Pension Plan which is subject to registration under the PBA or other applicable pension standard legislation in Canada and which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the Income Tax Act (Canada).
“Canadian Designated Account” shall have the meaning provided in Section 2.3(c).
“Canadian Economic Sanctions and Export Control Laws” shall mean any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.
“Canadian Guarantee” shall mean, collectively, the guarantees by the Canadian Subsidiaries in favor of the Collateral Agent for the benefit of the Canadian Secured Parties in respect of the Canadian Obligations.
“Canadian Guarantee and Security Agreement” shall mean the Amended and Restated ABL Canadian Guarantee and Collateral Agreement among the Canadian Borrower, the other Canadian Subsidiaries from time to time party thereto and the Collateral Agent for the benefit of the Secured Parties, dated as of the Restatement Effective Date, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Canadian Guarantor” shall mean, except as set forth in Schedule 1.1(c) to this Agreement, each Canadian Subsidiary that provides a Canadian Guarantee or becomes a party to the Canadian Guarantee after the Closing Date pursuant to Section 8.8 or otherwise.
“Canadian Letter of Credit” shall have the meaning provided in Section 2.4(a)(ii).
“Canadian Letter of Credit Fee” shall have the meaning provided in Section 3.3(b).
 
-9-

“Canadian Letter of Credit Issuer” shall mean the Canadian Bank, any Affiliate of the Canadian Bank, Bank of Montreal or any other financial institution, in each case, that issues any Canadian Letter of Credit pursuant to this Agreement; provided that solely for purposes of each Existing Letter of Credit, the entity identified on Schedule 2.4 to this Agreement as the issuer of such Letter of Credit shall be deemed for all purposes of this Agreement to be the Canadian Letter of Credit Issuer and shall have all rights, obligations and privileges of the Canadian Letter of Credit Issuer with respect thereto.
“Canadian Letter of Credit Obligations” shall mean, as at any date of determination, the Dollar Equivalent of the aggregate amount available to be drawn under all outstanding Canadian Letters of Credit plus the aggregate Dollar Equivalent of all amounts drawn under the Canadian Letters of Credit, including all Letter of Credit Borrowings arising under Canadian Letters of Credit. For all purposes of this Agreement, if on any date of determination a Canadian 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 Canadian Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Canadian Letter of Credit Participant” shall mean a Letter of Credit Participant in a Canadian Letter of Credit.
“Canadian Letter of Credit Subfacility” shall mean $75,000,000.
“Canadian Line Cap” shall mean at any time the lesser of (i) the Total Canadian Revolving Commitment at such time and (ii) the Canadian Borrowing Base at such time.
“Canadian Loan Parties” shall mean the Canadian Borrower and the Canadian Guarantors.
“Canadian Lock Boxes” shall have the meaning provided in Section 8.13(a).
“Canadian Notice of Borrowing” shall have the meaning provided in Section 2.3(b)(i).
“Canadian Notice of Conversion or Continuation” shall have the meaning provided in Section 2.8(c).
“Canadian Obligations” shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, the Canadian Loan Parties arising under any Loan Document and all debts, liabilities, obligations, covenants and duties of any Canadian Subsidiary under any Secured Cash Management Agreement or Secured Hedge Agreement, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent (including by way of Guarantee), due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Canadian Loan Party of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“Canadian Prime Rate” shall mean, on any day, the greater of (x) the nominal annual rate of interest announced from time to time by the Canadian Administrative Agent as its reference rate of interest for loans made in Cdn. Dollars to Canadian customers and designated as its “prime rate” (the “prime rate” being a rate set by the Canadian Administrative Agent based upon various factors including the Canadian Administrative Agent’sAgent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate) and (y) the BA Rate plus 1.00%; provided that if the Canadian Prime Rate would otherwise be less than zero, the Canadian Prime Rate shall instead be zero. Any change in the prime rate announced by the Canadian Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change. Each rate of interest based upon the Canadian Prime Rate shall be adjusted simultaneously with any change in the Canadian Prime Rate. In the event that the Canadian Administrative Agent (including any successor or assignor) does not at any time publicly announce a prime rate, the “Prime Rate” shall mean the “prime rate” publicly announced by a Schedule 1 chartered bank in Canada selected by the Canadian Administrative Agent.
 
-10-

“Canadian Prime Rate Loan” shall mean a Canadian Revolving Loan, Canadian Swingline Loan, Canadian Agent Advance or Term Loan which bears interest based on the Canadian Prime Rate.
“Canadian Revolving Commitment” shall mean, as to any Canadian Revolving Lender, the obligation of such Lender, if any, to make Canadian Revolving Loans and participate in Canadian Letters of Credit and Canadian Swingline Loans in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Canadian Revolving Commitment” opposite such Lender’sLender’s name on Schedule A or in the Assignment and Acceptance pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Canadian Revolving Commitments of all Canadian Revolving Lenders as of the Restatement Effective Date is $325,000,000.
“Canadian Revolving Facility” shall have the meaning provided in Section 2.1(b).
“Canadian Revolving Lender” shall mean a Lender with a Canadian Revolving Commitment or an outstanding Canadian Revolving Loan, Canadian Swingline Loan, Canadian Agent Advance or that is a Canadian Letter of Credit Participant.
“Canadian Revolving Loans” shall have the meaning provided in Section 2.3(a).
“Canadian Secured Parties” shall mean the Canadian Administrative Agent, the Collateral Agent, each Canadian Revolving Lender, each Canadian Swingline Lender, each Canadian Letter of Credit Issuer, each Initial Term Lender, each Secured Hedge Bank that is party to any Secured Hedge Agreement with any Canadian Subsidiary, each Cash Management Bank that is party to a Secured Cash Management Agreement with a Canadian Subsidiary and each sub-agent pursuant to Section 11 appointed by the Canadian Administrative Agent.
“Canadian Security Agreement” shall mean the general security agreements and deeds of hypothec entered into by the Canadian Loan Parties in favor of the Collateral Agent to secure the Canadian Obligations or the guarantees thereof, as the same may be amended, supplemented or otherwise modified from time to time, including, but not limited to, the Canadian Guarantee and Security Agreement.
“Canadian Security Documents” shall mean the Canadian Security Agreement and any other agreements executed by one or more of the Canadian Loan Parties pursuant to which the Collateral Agent has been granted a Lien to secure the Canadian Obligations or the guarantees thereof.
“Canadian Specified Suppressed Availability” at any time, shall mean the excess at such time of (i) the Canadian Borrowing Base at such time over (ii) the Total Canadian Revolving Commitment at such time; provided that (i) for so long as any Term Loans are outstanding, for purposes of any test of any minimum Cdn. Dollar amount of the Canadian Borrowing Base or any threshold percentage of the Canadian Borrowing Base set forth in this Agreement, if Canadian Specified Suppressed Availability would otherwise account for more than 50% of such Cdn. Dollar amount or threshold percentage, then Canadian Specified Suppressed Availability shall instead be deemed to be 50% of such Cdn. Dollar amount or threshold percentage and (ii) at any time that no Term Loans are outstanding, if the excess of (x) the Total Canadian Revolving Commitment at such time over (y) the Aggregate Canadian Revolving Exposure at such time is less than 5.0% of the Total Canadian Revolving Commitment at such time, Canadian Specified Suppressed Availability shall be deemed to be zero.
“Canadian Subsidiary” shall mean any direct or indirect Subsidiary of the U.S. Parent Borrower which is incorporated or otherwise organized under the laws of Canada or any province or territory thereof.
“Canadian Swingline Commitment” shall mean the obligation of the Canadian Swingline Lenders to make Canadian Swingline Loans in an aggregate Outstanding Amount not to exceed $30,000,000. The Canadian Swingline Commitment of each Canadian Swingline Lender on the Restatement Effective Date shall be set forth on Schedule A.
 
-11-

“Canadian Swingline Lenders” shall mean (i) the Canadian Bank, (ii) Bank of Montreal and (iii) any successor financial institution to either of the foregoing agreed to by the Canadian Administrative Agent, each in its capacity as provider of Canadian Swingline Loans.
“Canadian Swingline Loan” shall have the meaning provided in Section 2.3(g)(i).
“Canadian Testing Availability” at any time, shall mean the sum of (i) Canadian Availability at such time plus (ii) Canadian Specified Suppressed Availability at such time.
“Canadian Unused Line Fee” shall have the meaning provided in Section 3.2(b).
“Capital Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under leases evidencing Capitalized Lease Obligations) by the U.S. Parent Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on a consolidated statement of cash flows of the U.S. Parent Borrower.
“Capital Stock” shall mean, as to any Person, any and all shares or units of, rights to purchase, warrants or options for, or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.
“Capitalized Lease Obligation” shall mean an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP. The Stated Maturity of any Capitalized Lease Obligation shall be the date of the last payment of rent or any other amount due under the related lease.
“Captive Insurance Subsidiary” shall mean any Subsidiary of the U.S. Parent Borrower that is subject to regulation as an insurance company (or any Subsidiary thereof).
“Cash Dominion Event” shall mean the occurrence of either of the following events: (a) Combined Availability is less than or equal to the greater of (i) $100,000,000 and (ii) 10.0% of the Combined Line Cap for five consecutive Business Days or (b) upon the declaration of such by the Required Lenders when a Specified Event of Default has occurred and is continuing.
“Cash Equivalents” shall mean any of the following: (a) money, (b) securities issued or fully guaranteed or insured by the United States of America, Canada, the United Kingdom, Switzerland or a member state of the European Union or any agency or instrumentality of any thereof, (c) time deposits, certificates of deposit or bankers’’ acceptances of (i) any bank or other institutional lender under this Agreement or any Affiliate thereof or (ii) any commercial bank having capital and surplus in excess of $500,000,000 (or the foreign currency equivalent thereof as of the date of such investment) and the commercial paper of the holding company of which is rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’sMoody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c)(i) or (c)(ii) above, (e) money market instruments, commercial paper or other short-term obligations rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’sMoody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (f) investments in money market funds subject to the risk limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940, as amended, (g) investments similar to any of the foregoing denominated in foreign currencies approved by the Board of Directors, and (h) solely with respect to any Captive Insurance Subsidiary, any investment that person is permitted to make in accordance with applicable law.
“Cash Flow Administrative Agent” shall mean Bank of America, in its capacity as administrative agent under the Cash Flow Credit Agreement, and its successors and assigns.
 
-12-

“Cash Flow Collateral Agent” shall mean Bank of America, in its capacity as collateral agent under the Cash Flow Credit Agreement, and its successors and assigns.
“Cash Flow Credit Agreement” shall mean the Cash Flow Credit Agreement, dated July 1, 2015, by and among the U.S. Parent Borrower, Univar USA Inc., the lenders party thereto, the Cash Flow Administrative Agent and the other parties named therein, as such agreement may be amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original Cash Flow Credit Agreement or other credit agreements or otherwise, unless such agreement or instrument expressly provides that it is not intended to be and is not a Cash Flow Credit Agreement hereunder). Any reference to the Cash Flow Credit Agreement hereunder shall be deemed a reference to any Cash Flow Credit Agreement then in existence.
“Cash Flow Credit Facility” shall mean the collective reference to the Cash Flow Loan Documents, any notes issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Cash Flow Credit Agreement or one or more other credit agreements, indentures or financing agreements or otherwise, unless such agreement or instrument expressly provides that it is not intended to be and is not a Term Facility hereunder).
“Cash Flow Loan Documents” shall mean the “Loan Documents” (or comparable term) as defined in the Cash Flow Credit Agreement, as the same may be amended, supplemented, waived, otherwise modified, extended, renewed, refinanced or replaced from time to time.
“Cash Flow Maturity Date” shall mean July 1, 2024.
“Cash Flow Term Loans” shall mean all loans outstanding under the Cash Flow Credit Agreement on the Restatement Effective Date.
“Cash Management Agreement” shall mean (i) any agreement or arrangement to provide cash management services, including treasury, depository, overdraft, credit or debit card (including non-card electronic payable services), purchase card, electronic funds transfer and other cash management arrangements and (ii) any other agreement (including, without limitation, any agreement which states that it is a “Cash Management Agreement” for purposes of this Agreement) other than an agreement relating to Indebtedness incurred in reliance on Section 9.1(a), Section 9.1(b)(i), Section 9.1(b)(iii), Section 9.1(b)(ix), Section 9.1(b)(x) or Section 9.1(b)(xi).
“Cash Management Bank” shall mean any Person that, either (x) at the time it enters into a Cash Management Agreement or (y) on the Closing Date or the Restatement Effective Date, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement, including for the avoidance of doubt, any Cash Management Agreement entered into prior to the Closing Date or the Restatement Effective Date, as applicable.
“CCAA” shall mean Companies’’ Creditors Arrangement Act (Canada) (or any successor statute), as amended from time to time, and includes all regulations thereunder.
“Cdn. Dollar” and “Cdn.$” shall mean dollars in the lawful currency of Canada.
“CD&R” shall mean Clayton, Dubilier & Rice, LLC and any successor in interest thereto, and any successor to its investment management business.
 
-13-

“CD&R Fund VIII” shall mean Clayton, Dubilier & Rice Fund VIII, L.P., a Cayman Islands exempted limited partnership, and any successor in interest thereto.
“CD&R Investors” shall mean, collectively, (i) CD&R Fund VIII, (ii) CD&R Friends & Family Fund VIII, L.P., a Cayman Islands exempted limited partnership, and any successor in interest thereto, and (iii) any Affiliate of any CD&R Investor identified in clauses (i) and (ii) of this definition.
“Change in Law” shall mean (a) the adoption of any law, treaty, order, policy, rule or regulation after the Closing Date, (b) any change in any law, treaty, order, policy, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) any guideline, request or directive issued or made after the Closing Date by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law) that requires compliance by a Lender; 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”, regardless of the date enacted, adopted or issued.
“Change of Control” shall mean (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders or a Parent Entity, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50.0% of the total voting power of the Voting Stock of the U.S. Parent Borrower; provided that (x) so long as the U.S. Parent Borrower is a Subsidiary of any Parent Entity, no “person” shall be deemed to be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of the U.S. Parent Borrower unless such “person” shall be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such Parent Entity and (y) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the “beneficial owner”; (ii) the U.S. Parent Borrower sells or transfers, in one or a series of related transactions, all or substantially all of the assets of the U.S. Parent Borrower and its Restricted Subsidiaries to, another Person (other than one or more Permitted Holders) and any “person” (as defined in clause (i) above), other than one or more Permitted Holders or any Parent Entity, is or becomes the “beneficial owner” (as so defined), directly or indirectly, of more than 50.0% of the total voting power of the Voting Stock of the transferee Person in such sale or transfer of assets, as the case may be; provided that (x) so long as such transferee Person is a Subsidiary of a parent Person, no “person” shall be deemed to be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such transferee Person unless such “person” shall be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such parent Person and (y) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the beneficial owner; (iii) the U.S. Parent Borrower shall cease to own, directly or indirectly, 100.0% of the Capital Stock of any other Borrower (or any Successor U.S. Parent Borrower) unless such transaction is otherwise permitted hereby and such Borrower shall cease to constitute a Borrower following such transaction; or (iv) a “Change of Control” as defined in the Senior Notes Indenture (or any indenture or other agreement governing Refinancing Indebtedness in respect of the Senior Notes, and in each case in an aggregate principal amount equal to or greater than $150.0 million).
“Chattel Paper” shall have the meaning provided in Article 9 of the UCC and in the PPSA, as applicable.
“Class,” when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are U.S. Revolving Loans, Canadian Revolving Loans, European Revolving Loans or Initial Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a U.S. Revolving Commitment, a Canadian Revolving Commitment, an Incremental European Revolving Commitment or a Reallocated European Revolving Commitment or an Initial Term Commitment.
“Closing Date” shall mean July 28, 2015.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
 
-14-

“Collateral” shall mean the U.S. Collateral and the Canadian Collateral, collectively. “Collateral,” for the avoidance of doubt, shall not include at any time any Excluded Assets.all property pledged or purported to be pledged (or upon which a Lien is or is purported to be created) pursuant to the Security Documents.
“Collateral Agent” shall mean Bank of America, as collateral agent under the Security Documents, or any successor collateral agent pursuant to Section 11.
“Collateral Representative” shall mean (i) with respect to the Cash Flow Credit Agreement, the Cash Flow Collateral Agent and (ii) with respect to any Indebtedness secured by Liens on the Collateral, the collateral agent under the agreement governing such Indebtedness.
“Combined Availability” at any time, shall mean, as determined by the Administrative Agents in their reasonable credit judgment, the sum of (a) Canadian Testing Availability at such time plus (b) U.S. Testing Availability at such time.
“Combined Line Cap” shall mean at any time, the sum of (a) the U.S. Line Cap at such time and (B) the Canadian Line Cap at such time.
“Commitment Increase” shall have the meaning provided in Section 2.15(a).
“Commitment Increase Effective Date” shall have the meaning provided in Section 2.15(c).
“Commitments” shall mean, with respect to each Lender (to the extent applicable), such Lender’sLender’s U.S. Revolving Commitment, Canadian Revolving Commitment, Incremental European Revolving Commitment, Reallocated European Revolving Commitment, Swingline Commitment and Initial Term Commitment.
“Commodities Agreement” shall mean, in respect of a Person, any commodity futures contract, forward contract, option or similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or beneficiary.
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Commonly Controlled Entity” shall mean an entity, whether or not incorporated, which is under common control with the U.S. Parent Borrower within the meaning of Section 4001 of ERISA or is part of a group which includes the U.S. Parent Borrower and which 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 Sections 414(m) and (o) of the Code.
“Concentration Account” shall mean the U.S. Concentration Account or the Canadian Concentration Account, as the context requires.
“Consolidated Coverage Ratio” shall mean, as of any date of determination, the ratio of (i) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the U.S. Parent Borrower are available to (ii) Consolidated Interest Expense for such four fiscal quarters; provided that:
(1) if, since the beginning of such period, the U.S. Parent Borrower or any Restricted Subsidiary has Incurred any Indebtedness or the U.S. Parent Borrower has issued any Designated Preferred Stock that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness or an issuance of Designated Preferred Stock of U.S. Parent Borrower, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness or Designated Preferred Stock or as if such Indebtedness or Designated Preferred Stock had been Incurred or issued, as
 
-15-

applicable, on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B) if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation),
(2) if, since the beginning of such period, the U.S. Parent Borrower or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness, or any Designated Preferred Stock of the U.S. Parent Borrower, that is no longer outstanding on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been repaid with an equivalent permanent reduction in commitments thereunder) or a Discharge of Designated Preferred Stock of the U.S. Parent Borrower, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness or Designated Preferred Stock, including with the proceeds of such new Indebtedness or such new Designated Preferred Stock of the U.S. Parent Borrower, as if such Discharge had occurred on the first day of such period,
(3) if, since the beginning of such period, the U.S. Parent Borrower or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business or designated any Restricted Subsidiary as an Unrestricted Subsidiary (any such disposition or designation, a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to any Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to the U.S. Parent Borrower and its continuing Restricted Subsidiaries in connection with such Sale for such period (including, but not limited to, through the assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is sold or any Restricted Subsidiary is designated as an Unrestricted Subsidiary, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent the U.S. Parent Borrower and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale,
(4) if, since the beginning of such period, the U.S. Parent Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder, or designated any Unrestricted Subsidiary as a Restricted Subsidiary (any such Investment, acquisition or designation, a “Purchase”), Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period, and
(5) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the U.S. Parent Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (2), (3) or (4) above if made by the U.S. Parent Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period;
 
-16-

provided that (in the event that the U.S. Parent Borrower shall classify Indebtedness Incurred on the date of determination as Incurred in part under Section 9.1(a) and in part under Section 9.1(b), as provided in Section 9.1(c)(iii)) any such pro forma calculation of Consolidated Interest Expense shall not give effect to any such Incurrence of Indebtedness on the date of determination pursuant to Section 9.1(b) (other than, if the U.S. Parent Borrower at its option has elected to disregard Indebtedness being Incurred on the date of determination in part under Section 9.1(a) for purposes of calculating the Consolidated Total Leverage Ratio for Incurring Indebtedness on the date of determination in part under Section 9.1(b)(x), Section 9.1(b)(x)) or to any Discharge of Indebtedness from the proceeds of any such Incurrence pursuant to such Section 9.1(b) (other than Section 9.1(b)(x), if the Incurrence of Indebtedness under Section 9.1(b)(x) is being given effect to in the calculation of the Consolidated Coverage Ratio).
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or a Responsible Officer of the U.S. Parent Borrower; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the U.S. Parent Borrower to be taken no later than 18 months after the date of determination. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness). If any Indebtedness bears, at the option of the U.S. Parent Borrower or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as the U.S. Parent Borrower or such Restricted Subsidiary may designate. If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or accounting officer of the U.S. Parent Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
“Consolidated EBITDA” shall mean, for any period, the Consolidated Net Income for such period, plus (x) the following to the extent deducted in calculating such Consolidated Net Income, without duplication: (i) provision for all taxes (whether or not paid, estimated or accrued) based on income, profits or capital (including penalties and interest, if any), (ii) Consolidated Interest Expense, all items excluded from the definition of Consolidated Interest Expense pursuant to clause (iii) thereof (other than Special Purpose Financing Expense), any Special Purpose Financing Fees, and to the extent not reflected in Consolidated Interest Expense, costs of surety bonds in connection with financing activities, (iii) depreciation, (iv) amortization (including but not limited to amortization of goodwill and intangibles and amortization and write-off of financing costs), (v) any non-cash charges or non-cash losses, (vi) any expenses or charges related to any equity offering, Investment or Indebtedness permitted by this Agreement (whether or not consummated or incurred, and including any offering or sale of Capital Stock to the extent the proceeds thereof were intended to be contributed to the equity capital of the U.S. Parent Borrower or its Restricted Subsidiaries), (vii) the amount of any loss attributable to non-controlling interests, (viii) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Hedging Obligations or other derivative instruments, (ix) any management, monitoring, consulting and advisory fees and related expenses paid to any of the Sponsors or any of their respective Affiliates, (x) interest and investment income, (xi) the amount of loss on any Financing Disposition, and (xii) any costs or expenses pursuant to any management or employee stock option or other equity-related plan, program or arrangement, or other benefit plan, program or arrangement, or any equity subscription or equityholder agreement, to the extent funded with cash proceeds contributed to the capital of the U.S. Parent Borrower or an issuance of Capital Stock of the U.S. Parent Borrower (other than Disqualified Stock), plus (y) the amount of net cost savings projected by the U.S. Parent Borrower in good faith to be realized as the result of actions taken or to be taken on or prior to the date that is 18 months after the Closing Date, or 18 months after the consummation of any operational change, respectively (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions (which adjustments may be incremental to pro forma
 
-17-

adjustments made pursuant to the proviso to the definition of “Consolidated Coverage Ratio,” “Consolidated Secured Leverage Ratio” or “Consolidated Total Leverage Ratio”); provided that, solely for purposes of the Consolidated Fixed Charge Coverage Ratio, the amount of any increase to Consolidated EBITDA for any period pursuant to this clause (y) for any period shall not exceed 25% of Consolidated EBITDA for such period prior to giving effect to such increase pursuant to this clause (y).
“Consolidated Fixed Charge Coverage Ratio” shall mean, for any Test Period, the ratio of (i) Consolidated EBITDA for such Test Period minus Capital Expenditures of the U.S. Parent Borrower and the Restricted Subsidiaries paid in cash during such Test Period except to the extent such Capital Expenditures were made with the proceeds of Indebtedness (other than any Loans) or through equity investments received by the U.S. Parent Borrower minus the aggregate amount of income taxes of the U.S. Parent Borrower and the Restricted Subsidiaries paid in cash during such Test Period to (ii) Consolidated Fixed Charges for such Test Period.
“Consolidated Fixed Charges” shall mean, for any period, without duplication, the sum of (A) all scheduled payments of principal on Indebtedness (other than (i) refinancings or repayments made with additional Indebtedness (other than proceeds of Loans), (ii) payments of Obligations under this Agreement, (iii) payments and prepayments under other revolving credit facilities that do not constitute permanent payments under any such facility, whether upon termination of such facility or otherwise, and do not result in a permanent reduction in any revolving credit commitment under any such facility and (iv) payments of intercompany Indebtedness), (B) the Consolidated Interest Expense for such period to the extent payable in cash and (C) cash dividends paid by the U.S. Parent Borrower with respect to its Capital Stock for such period (other than cash dividends made with the proceeds of additional Indebtedness (other than proceeds of Loans)).
“Consolidated Interest Expense” shall mean, for any period, (i) the total interest expense of the U.S. Parent Borrower and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of the U.S. Parent Borrower and its Restricted Subsidiaries, including any such interest expense consisting of (A) interest expense attributable to Capitalized Lease Obligations, (B) amortization of debt discount, (C) interest in respect of Indebtedness of any other Person that has been Guaranteed by the U.S. Parent Borrower or any Restricted Subsidiary, but only to the extent that such interest is actually paid by the U.S. Parent Borrower or any Restricted Subsidiary, (D) non-cash interest expense, (E) the interest portion of any deferred payment obligation, and (F) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’’ acceptance financing, plus (ii) Preferred Stock dividends paid in cash in respect of Disqualified Stock of the U.S. Parent Borrower held by Persons other than the U.S. Parent Borrower or a Restricted Subsidiary minus (iii) to the extent otherwise included in such interest expense referred to in clause (i) above, Special Purpose Financing Expense, accretion or accrual of discounted liabilities not constituting Indebtedness, expense resulting from discounting of Indebtedness in conjunction with recapitalization or purchase accounting, and any “additional interest” in respect of registration rights arrangements for any securities, amortization or write-off of financing costs, in each case under clauses (i) through (iii) above as determined on a Consolidated basis in accordance with GAAP; provided that gross interest expense shall be determined after giving effect to any net payments made or received by the U.S. Parent Borrower and its Restricted Subsidiaries with respect to Interest Rate Agreements.
“Consolidated Net Income” shall mean, for any period, the net income (loss) of the U.S. Parent Borrower and its Restricted Subsidiaries, determined on a Consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided that, without duplication, there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Unrestricted Subsidiary,
(ii) any net income (loss) of any Restricted Subsidiary that is not a Loan Party if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or indirectly, to the U.S. Parent Borrower by operation of the terms of such Restricted Subsidiary’sSubsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than (x) restrictions that have been waived or otherwise released, (y) restrictions pursuant to this Agreement or the other Loan Documents, and (z) restrictions in effect on the Closing Date with respect to a Restricted Subsidiary and other restrictions with respect to such Restricted
 
-18-

Subsidiary that taken as a whole are not materially less favorable to the Lenders than such restrictions in effect on the Closing Date as determined by the U.S. Parent Borrower in good faith), except that (A) the U.S. Parent Borrower’sBorrower’s equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that could have been made by such Restricted Subsidiary during such period to the U.S. Parent Borrower or another Restricted Subsidiary (subject, in the case of a dividend that could have been made to another Restricted Subsidiary, to the limitation contained in this clause (ii)) and (B) the net loss of such Restricted Subsidiary shall be included to the extent of the aggregate Investment of the U.S. Parent Borrower or any of its other Restricted Subsidiaries in such Restricted Subsidiary,
(iii) (x) any gain or loss realized upon the sale, abandonment or other disposition of any asset of the U.S. Parent Borrower or any Restricted Subsidiary (including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise disposed of in the ordinary course of business (as determined in good faith by the Board of Directors) and (y) any gain or loss realized upon the disposal, abandonment or discontinuation of operations of the U.S. Parent Borrower or any Restricted Subsidiary,
(iv) any extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges (or any amortization thereof) associated with the Transactions or any acquisition, merger or consolidation, whether or not completed, after the date hereof or any accounting change), any severance, relocation, consolidation, closing, integration, facilities opening, business optimization, transition or restructuring costs, charges or expenses, any signing, retention or completion bonuses, and any costs associated with curtailments or modifications to pension and post-retirement employee benefit plans,
(v) the cumulative effect of a change in accounting principles,
(vi) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments,
(vii) any unrealized gains or losses in respect of Hedge Agreements,
(viii) any unrealized foreign currency translation gains or losses, including in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person,
(ix) any non-cash compensation charge arising from any grant of limited liability company interests, stock, stock options or other equity based awards,
(x) to the extent otherwise included in Consolidated Net Income, any unrealized foreign currency translation gains or losses, including in respect of Indebtedness or other obligations of the U.S. Parent Borrower or any Restricted Subsidiary owing to the U.S. Parent Borrower or any Restricted Subsidiary,
(xi) any non-cash charge, expense or other impact attributable to application of the purchase or recapitalization method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-up of assets to the extent resulting from such purchase or recapitalization accounting adjustments), non-cash charges for deferred tax valuation allowances and non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP,
(xii) expenses related to the conversion of various employee benefit programs in connection with the IPO and non-cash compensation related expenses, and
(xiii) to the extent covered by insurance and actually reimbursed (or the U.S. Parent Borrower has determined that there exists reasonable evidence that such amount will be reimbursed by the insurer and such amount is not denied by the applicable insurer in writing within 180 days and is reimbursed within 365 days of the date of such evidence (with a deduction in any future calculation of Consolidated Net Income for any amount so added back to the extent not so reimbursed within such 365-day period)), any expenses with respect to liability or casualty events or business interruption,
 
-19-

provided, further, that the exclusion of any item pursuant to the foregoing clauses (i) through (xiii) shall also exclude the tax impact of any such item, if applicable.
In the case of any unusual or nonrecurring gain, loss or charge not included in Consolidated Net Income pursuant to clause (iv) above in any determination thereof, the U.S. Parent Borrower will deliver a certificate of a Responsible Officer to the U.S. Administrative Agent promptly after the date on which Consolidated Net Income is so determined, setting forth the nature and amount of such unusual or nonrecurring gain, loss or charge.
“Consolidated Secured Indebtedness” shall mean, as of any date of determination, (i) an amount equal to the Consolidated Total Indebtedness (without regard to clause (ii) of the definition thereof) as of such date that in each case is then secured by Liens on property or assets of the U.S. Parent Borrower and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby), minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Section 9.1(b)(ix) and (B) Unrestricted Cash of the U.S. Parent Borrower and its Restricted Subsidiaries.
“Consolidated Secured Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Secured Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the U.S. Parent Borrower are available, provided that:
(1) if, since the beginning of such period, the U.S. Parent Borrower or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, the U.S. Parent Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the U.S. Parent Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the U.S. Parent Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
provided that, in the event that the U.S. Parent Borrower shall classify Indebtedness Incurred on the date of determination as secured in part pursuant to clause (k)(1) of the “Permitted Liens” definition in respect of Indebtedness Incurred pursuant to Section 9.1(b)(i)(II) and clause (ii) of the definition of Maximum Incremental Facilities Amount in the Cash Flow Credit Agreement as in effect on the Closing Date and in part pursuant to one or more other clauses of the definition of Permitted Liens, as provided in clause (y) of the final paragraph of such definition, any calculation of the Consolidated Secured Leverage Ratio, including in the definition of “Maximum Incremental Facilities Amount,” shall not include any such Indebtedness (and shall not give effect to any Discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of such definition.
 
-20-

For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of the U.S. Parent Borrower; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the U.S. Parent Borrower to be taken no later than 18 months after the date of determination.
“Consolidated Total Assets” shall mean, as of any date of determination, the total assets, in each case reflected on the consolidated balance sheet of the U.S. Parent Borrower as at the end of the most recently ended fiscal quarter of the U.S. Parent Borrower for which a balance sheet is available, determined on a Consolidated basis in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or Liens or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
“Consolidated Total Indebtedness” shall mean, as of any date of determination, an amount equal to (i) the aggregate principal amount of outstanding Indebtedness of the U.S. Parent Borrower and its Restricted Subsidiaries as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts in respect of funded letters of credit); Capitalized Lease Obligations; debt obligations evidenced by bonds, debentures, notes or similar instruments; Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a Loan Party) Preferred Stock, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Hedging Obligations) minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Section 9.1(b)(ix) and (B) Unrestricted Cash of the U.S. Parent Borrower and its Restricted Subsidiaries.
“Consolidated Total Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Total Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the U.S. Parent Borrower are available, provided that:
(1) if, since the beginning of such period, the U.S. Parent Borrower or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, the U.S. Parent Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the U.S. Parent Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the U.S. Parent Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
provided that, for purposes of the foregoing calculation, in the event that the U.S. Parent Borrower shall classify Indebtedness Incurred on the date of determination as Incurred in part pursuant to Section 9.1(b)(x) (other than by reason of subclause (2) of the proviso to such clause (x)) and in part pursuant to one or more other clauses of Section 9.1(b) and/or (unless the U.S. Parent Borrower at its option has elected to disregard Indebtedness being Incurred on the date of determination in part pursuant to subclause (2) of the proviso to Section 9.1(b)(x) for purposes of calculating the Consolidated Coverage Ratio for Incurring Indebtedness on the date of determination in part under
 
-21-

Section 9.1(a)) pursuant to Section 9.1(a) (as provided in Sections 9.1(c)(ii) and (iii)), Consolidated Total Indebtedness shall not include any such Indebtedness Incurred pursuant to one or more such other clauses of Section 9.1(b) and/or pursuant to Section 9.1(a), and shall not give effect to any Discharge of any Indebtedness from the proceeds of any such Indebtedness being disregarded for purposes of the calculation of the Consolidated Total Leverage Ratio that otherwise would be included in Consolidated Total Indebtedness.
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of the U.S. Parent Borrower; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the U.S. Parent Borrower to be taken no later than 18 months after the date of determination.
“Consolidation” shall mean the consolidation of the accounts of each of the Restricted Subsidiaries with those of the U.S. Parent Borrower in accordance with GAAP; provided that “Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of the U.S. Parent Borrower or any Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an investment. The term “Consolidated” has a correlative meaning.
“Contractual Obligation” shall mean, as to any Person, any provision of any material security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Contribution Amounts” shall mean the aggregate amount of capital contributions applied by the U.S. Parent Borrower to permit the Incurrence of Contribution Indebtedness pursuant to Section 9.1(b)(xi).
“Contribution Indebtedness” shall mean Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary in an aggregate principal amount not greater than twice the aggregate amount of cash contributions (other than Specified Equity Contributions, Excluded Contributions, the proceeds from the issuance of Disqualified Stock or contributions by the U.S. Parent Borrower or any Restricted Subsidiary) made to the capital of the U.S. Parent Borrower or such Restricted Subsidiary after the Closing Date (whether through the issuance or sale of Capital Stock or otherwise); provided that such Contribution Indebtedness (a) is Incurred within 180 days after the receipt of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to a certificate of a Responsible Officer of the U.S. Parent Borrower on the date of Incurrence thereof.
“Corresponding Obligations” means all Secured Obligations as they may exist from time to time, other than the Parallel Debts.
“Covenant Compliance Event” shall mean the Combined Availability at any time is less than or equal to 10.0% of the Combined Line Cap. For purposes hereof, the occurrence of a Covenant Compliance Event shall be deemed continuing until the Combined Availability has exceeded 10.0% of the Combined Line Cap for 20 consecutive days, in which case a Covenant Compliance Event shall no longer be deemed to be continuing for purposes of this Agreement.
“Covered Entity” shall have the meaning provided in Section 12.29(b).
“Covered Party” shall have the meaning provided in Section 12.29(a).
“Credit Event” shall mean and include the making (but not the conversion or continuation) of a Term Loan, Revolving Loan, Agent Advance or Swingline Loan or the issuance of a Letter of Credit. For the avoidance of doubt “Credit Event” does not include participation payments or advances, sold or made (as applicable) pursuant to Section 2.4(f)(iii).
 
-22-

“Currency Agreement” shall mean, in respect of a Person, any foreign exchange contract, currency swap agreement or other similar agreement or arrangements (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
“CVC” shall mean CVC Capital Partners Limited.
“CVC Investors” shall mean any funds or limited partnerships managed or advised by CVC Capital Partners Limited or any of its Affiliates or direct or indirect Subsidiaries or any investors in such funds or limited partnerships (but excluding, in each case, any portfolio companies in which such funds or limited partnerships hold an investment and excluding, in each case, any funds or entities managed or advised by CVC Credit Partners Holdings Limited or any of its direct or indirect Subsidiaries engaged in the same or a similar business to CVC Credit Partners Holdings Limited) who are investors in such funds or limited partnerships as at the Closing Date, investing directly or indirectly in the U.S. Parent Borrower.
“Debt Maturity Reserve” shall mean a Reserve equal to the aggregate principal amount of the Senior Notes to the extent outstanding 60 days prior to the stated maturity thereof.
“Default” shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Default Rate” shall have the meaning provided in Section 2.5(c).
“Delaware Divided LLC” shall mean any Delaware LLC which has been formed upon consummation of a Delaware LLC Division.
“Delaware LLC” shall mean any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” shall mean the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
“Default RateRight” shall have the meaning provided in Section 2.512.29(cb).
“Defaulting Lender” shall mean any Lender or Agent whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender Default.”
“Deposit Account” shall mean any deposit account (as such term is defined in Article 9 of the UCC) and includes a bank account with a deposit function.
“Designated Account Debtor” shall mean each Account Debtor designated in writing by the U.S. Borrower to the U.S. Administrative Agent as a “Designated Account Debtor” (provided that, if such Account Debtor had any Eligible Accounts that were included in the calculation of any Borrowing Base in the most recent Borrowing Base Certificate delivered to the U.S. Administrative Agent, such designation shall only be allowed to the extent the Borrowers have provided an updated Borrowing Base Certificate to the U.S. Administrative Agent prepared as of the date of such most recently delivered Borrowing Base Certificate but giving effect to the exclusion of all Accounts of such Designated Account Debtor from Eligible Accounts and demonstrating that after giving effect to such designation no prepayment of Loans or cash collateralization of Letters of Credit would be required pursuant to Section 4.3(a)); provided that upon written notice to the U.S. Administrative Agent, the U.S. Parent Borrower may designate an Account Debtor that was previously designated as a Designated Account Debtor as no longer being a Designated Account Debtor so long as no Accounts of such Account Debtor have been transferred pursuant to clause (xix) of the definition of “Asset Disposition” within the previous 120 days (or 210 days, with respect to any Account Debtor who has Accounts arising from transactions with the Canadian Borrower’sBorrower’s agricultural division) prior to such date of designation.
 
-23-

“Designated Noncash Consideration” shall mean the Fair Market Value of noncash consideration received by the U.S. Parent Borrower or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to a certificate of a Responsible Officer of the U.S. Parent Borrower, setting forth the basis of such valuation.
“Designated Obligations” shall mean all obligations of the Borrowers with respect to (a) principal of and interest on the Loans (other than Term Loans), (b) all unreimbursed drawings under Letters of Credit and (c) accrued and unpaid fees under the Loan Documents.
“Designated Preferred Stock” shall mean Preferred Stock of the U.S. Parent Borrower (other than Disqualified Stock) or any Parent Entity that is issued after the Closing Date for cash (other than to the U.S. Parent Borrower or a Restricted Subsidiary) and is so designated as Designated Preferred Stock under this Agreement and the Cash Flow Credit Agreement, pursuant to a certificate of a Responsible Officer of the U.S. Parent Borrower.
“Discharge” shall have the meaning provided in clause (2) of the definition of “Consolidated Coverage Ratio.”
“Disinterested Directors” shall mean, with respect to any Affiliate Transaction, one or more members of the Board of Directors of the U.S. Parent Borrower, or one or more members of the Board of Directors of a Parent Entity, having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of any such Board of Directors shall not be deemed to have such a financial interest by reason of such member’smember’s holding Capital Stock of the U.S. Parent Borrower or any Parent Entity or any options, warrants or other rights in respect of such Capital Stock.
“disposition” shall have the meaning provided in the definition of the term “Asset Disposition” in this Section 1.1.
“Disqualified Stock” shall mean, with respect to any Person, any Capital Stock (other than Management Stock) that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control” or an Asset Disposition or other disposition) (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control” or an Asset Disposition or other disposition), in whole or in part, in each case on or prior to the Cash Flow Maturity Date; provided that Capital Stock issued to any employee benefit plan, or by any such plan to any employees of the U.S. Parent Borrower or any Subsidiary, shall not constitute Disqualified Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.
“Dividing Person” has the meaning assigned to it in the definition of “Division.”
“Division ” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.
 
-24-

“Dollar Equivalent” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the applicable Administrative Agent or Letter of Credit Issuer, as applicable, on the basis of the Spot Rate for the purchase of Dollars with such Alternative Currency.
“Dollars” and “$” shall mean dollars in lawful currency of the United States of America.
“Domestic Subsidiary” shall mean any Restricted Subsidiary of the U.S. Parent Borrower other than a Foreign Subsidiary.
“Dutch Security Agreement” shall have the meaning assigned such term in Amendment No. 1.
“Dutch Security Documents” shall have the meaning assigned such term in Amendment No. 1.
“Dutch Loan Party” means any Loan Party organized under the laws of the Netherlands.
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Accounts” shall mean, with respect to any U.S. Borrower or Canadian Loan Party, the Accounts created and owned by such U.S. Borrower or Canadian Loan Party and arising in the ordinary course of such U.S. Borrower or Canadian Loan Party’sParty’s business from the sale of goods by such U.S. Borrower or Canadian Loan Party, and which the applicable Administrative Agent in the exercise of its reasonable, good faith credit judgment determines to be Eligible Accounts; provided that neither Administrative Agent shall establish any criteria for excluding Accounts from Eligible Accounts other than those set forth below unless (i) such Administrative Agent shall have given the U.S. Parent Borrower at least five Business Days’’ prior notice of such Administrative Agent’sAgent’s intention to establish such criteria including an explanation as to the reasons that such Administrative Agent has determined in its reasonable, good faith credit judgment that such criteria are appropriate and (ii) to the extent the U.S. Parent Borrower shall have objected to the addition of such criteria within five Business Days of receiving such notice, such Administrative Agent shall have taken into consideration the U.S. Parent Borrower’sBorrower’s basis of objection and shall have negotiated in good faith with the U.S. Parent Borrower for a period of five Business Days in order to reach a mutually satisfactory resolution with respect to such additional criteria (it being understood that nothing in the foregoing shall prohibit either Administrative Agent from establishing additional criteria for excluding Accounts from Eligible Accounts without the consent of the U.S. Parent Borrower if, following such Administrative Agent’sAgent’s compliance with the procedures set forth above, such Administrative Agent shall have determined in its reasonable, good faith credit judgment that such criteria are appropriate). Without limiting the discretion of the Administrative Agents to establish other criteria of ineligibility in their reasonable good faith credit judgment in accordance with the foregoing, unless otherwise approved by the Administrative Agents in their discretion, Eligible Accounts shall not include any Account:
(a) with respect to which more than 120 days (or 210 days, with respect to Accounts of the Canadian Borrower arising from its agricultural division) have elapsed since the date of the original invoice therefor or which is more than 60 days past due from the due date of the original invoice;
 
-25-

(b) with respect to which any of the representations, warranties, covenants, and agreements contained in this Agreement, any Security Document or any other Loan Document are incorrect in any material respect or have been breached and remain uncured;
(c) with respect to which Account (or any other Account due from such Account Debtor), in whole or in part, a check, promissory note, draft, trade acceptance or other instrument for the payment of money has been received, presented for payment and returned uncollected for any reason, unless and until such uncollected payment has been made and the Administrative Agents have consented to the inclusion of such Account as eligible;
(d) which represents a Progress Billing;
(e) with respect to which any one or more of the following events has occurred to the Account Debtor on such Account: death or judicial declaration of incompetency of an Account Debtor who is an individual; the filing by or against the Account Debtor of a request, proposal, notice of intent to file a proposal, or petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as a bankrupt, winding-up, or other relief under the bankruptcy, insolvency, or similar laws of the United States or Canada, any state, province or territory thereof, or any other foreign jurisdiction, now or hereafter in effect; the making of any general assignment by the Account Debtor for the benefit of creditors; the appointment of a receiver, interim receiver, monitor, custodian, sequestrator, administrator or trustee for the Account Debtor or for any of the assets of the Account Debtor, including the appointment of or taking possession by a “custodian,” as defined in the Bankruptcy Code; the institution by or against the Account Debtor of any other type of insolvency proceeding (under the bankruptcy laws of the United States, Canada (including the BIA and CCAA) or otherwise) or of any formal or informal proceeding for the dissolution or liquidation of, settlement of claims against, or winding up of affairs of, the Account Debtor; the sale, assignment, or transfer of all or substantially all of the assets of the Account Debtor; the nonpayment generally by the Account Debtor of its debts as they become due; or the cessation of the business of the Account Debtor as a going concern;
(f) if fifty percent (50%) or more of the aggregate amount of outstanding Accounts owed at such time by the Account Debtor thereon is classified as ineligible under clause (a) above;
(g) owed by an Account Debtor which: (i) does not maintain its chief executive office in the United States of America or, in the case of any Account Debtor of a Canadian Loan Party, Canada; or (ii) is not organized under the laws of the United States of America or Canada or any state or province thereof; or (iii) is the government of any country or sovereign state (other than the United States of America or Canada or any state, province, municipality or other political subdivision thereof), or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof; except to the extent that such Account is secured or payable by a letter of credit satisfactory to the applicable Administrative Agent in its reasonable credit judgment;
(h) owed by an Account Debtor which is an Affiliate or officer, director or employee of a U.S. Borrower or Canadian Loan Party or owed by an Account Debtor which is a Designated Account Debtor;
(i) owed by an Account Debtor to which a U.S. Borrower or Canadian Loan Party or any of its Subsidiaries is indebted in any way, or which is subject to any right of setoff or recoupment by the Account Debtor, unless the Account Debtor has entered into an agreement acceptable to the applicable Administrative Agent to waive setoff rights; or if the Account Debtor thereon has disputed liability or made any claim with respect to any other Account due from such Account Debtor; of if such Account is subject to a chargeback or a rebate that has been earned but not taken; but in each such case only to the extent of such indebtedness, setoff, recoupment, dispute, claim, chargeback or rebate;
 
-26-

(j) owed by the government of the United States of America or Canada, or any department, agency, public or crown corporation or other instrumentality thereof, unless, (i) in the case of an Account owed to a U.S. Borrower by the government of the United States or any department, agency, public corporation or other instrumentality thereof, the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq.), and any other steps necessary to perfect the U.S. Administrative Agent’sAgent’s Liens therein, have been complied with to the U.S. Administrative Agent’sAgent’s satisfaction with respect to such Account or (ii) in the case of an Account owed to a Canadian Loan Party by the government of Canada, or any department, agency, public or crown corporation or other instrumentality thereof, the FAA or any equivalent legislation and any other steps necessary to perfect the Collateral Agent’sAgent’s Liens therein, have been complied with to the Canadian Administrative Agent’sAgent’s satisfaction with respect to such Account;
(k) which is subject to cash-on-delivery or cash-in-advance payment terms;
(l) which represents a sale on a bill-and-hold, guaranteed sale, sale and return, sale on approval, consignment, or other repurchase or return basis;
(m) which is evidenced by a promissory note or other instrument or by chattel paper unless the Collateral Agent has a perfected first priority security interest in such note, instrument or chattel paper;
(n) if the applicable Administrative Agent believes, in the exercise of its reasonable judgment, that the prospect of collection of such Account is materially impaired or that there is a material likelihood that such Account may not be paid by reason of the Account Debtor’sDebtor’s financial inability to pay;
(o) with respect to which the Account Debtor is located in any State requiring the filing of a notice of business activities report or similar report in order to permit the applicable U.S. Borrower or Canadian Loan Party to seek judicial enforcement in such State of payment of such Account, unless such U.S. Borrower or Canadian Loan Party has qualified to do business in such state or has filed a notice of business activities report or equivalent report for the then current year;
(p) which is not evidenced by an invoice;
(q) with respect to an Account arising from a sale, if the Account does not represent a final sale;
(r) owed by an Account Debtor which is obligated to the U.S. Borrower or Canadian Loan Parties respecting Accounts the aggregate unpaid balance of which (together with the aggregate unpaid balance of Accounts owing by Affiliates of such Account Debtor) exceeds 7.5% of the aggregate unpaid balance of all Accounts owed to the U.S. Borrower or Canadian Loan Parties at such time by all of the U.S. Borrower or Canadian Loan Parties’’ Account Debtors, but only to the extent of such excess;
(s) with respect to which the Account Debtor has made any security deposit (including container drum deposits) or other advance payment that, in the applicable Administrative Agent’sAgent’s reasonable credit judgment, adversely affects the collectability of the Account but only up to the amount of such security deposit;
(t) with respect to which the goods giving rise to such Account have not been shipped and delivered to and accepted by the Account Debtor or the services giving rise to such Account have not been performed by such U.S. Borrower or Canadian Loan Party, and, if applicable, accepted by the Account Debtor, or the Account Debtor revokes its acceptance of such goods or services;
(u) that was acquired, or is an Account of a Person that was acquired, by the U.S. Parent Borrower or its Restricted Subsidiaries following the Closing Date outside the ordinary course of business in a transaction involving the payment of consideration by the U.S. Parent Borrower and its Restricted Subsidiaries in excess of $50,000,000 unless the applicable Administrative Agent has had an opportunity to conduct a field examination with respect to the Accounts or Persons so acquired;
 
-27-

(v) which is not subject to the Collateral Agent’sAgent’s first priority Liens, which are perfected as to such Accounts, or which are subject to any other Lien whatsoever (other than Liens under the Loan Documents and other Permitted Liens, provided that such other Permitted Liens (i) are junior in priority to the Collateral Agent’sAgent’s Liens or subject to Reserves and (ii) do not impair the ability of the Collateral Agent to realize on or obtain the full benefit of the Collateral); or
(w) which is payable in any currency other than Dollars or Cdn. Dollars.
If any Account at any time ceases to be an Eligible Account, the Administrative Agents may exclude such Account from the calculation of Eligible Accounts.
“Eligible Inventory” shall mean, with respect to any U.S. Borrower or Canadian Loan Party, the Inventory of such U.S. Borrower or Canadian Loan Party, valued at the lower of cost (on a first-in, first-out basis) or market, which the Administrative Agents, in their reasonable, good faith credit judgment, determine to be Eligible Inventory; provided that neither Administrative Agent shall establish any criteria for excluding Inventory from Eligible Inventory other than those set forth below unless (i) such Administrative Agent shall have given the U.S. Parent Borrower at least five Business Days’’ prior notice of such Administrative Agent’sAgent’s intention to establish such criteria including an explanation as to the reasons that such Administrative Agent has determined in its reasonable, good faith credit judgment that such criteria are appropriate and (ii) to the extent the U.S. Parent Borrower shall have objected to the addition of such criteria within five Business Days of receiving such notice, such Administrative Agent shall have taken into consideration the U.S. Parent Borrower’sBorrower’s basis of objection and shall have negotiated in good faith with the U.S. Parent Borrower for a period of five Business Days in order to reach a mutually satisfactory resolution with respect to such additional criteria (it being understood that nothing in the foregoing shall prohibit either Administrative Agent from establishing additional criteria for excluding Inventory from Eligible Inventory without the consent of the U.S. Parent Borrower if, following such Administrative Agent’sAgent’s compliance with the procedures set forth above, such Administrative Agent shall have determined in its reasonable, good faith credit judgment that such criteria are appropriate). Without limiting the reasonable good faith credit judgment of the Administrative Agents to establish other criteria of ineligibility unless otherwise approved by the Administrative Agents in their discretion, Eligible Inventory of a U.S. Borrower or Canadian Loan Party shall not include any Inventory of such U.S. Borrower or Canadian Loan Party:
(a) that is not owned by such U.S. Borrower or Canadian Loan Party;
(b) that is not subject to the Collateral Agent’sAgent’s first priority Liens, which are perfected as to such Inventory under the laws of the jurisdiction where such Inventory is located, or that are subject to any other Lien whatsoever (other than Liens under the Loan Documents and other Permitted Liens, provided that such other Permitted Liens (i) are junior in priority to the Collateral Agent’sAgent’s Liens or subject to Reserves and (ii) do not impair the ability of the Collateral Agent to realize on or obtain the full benefit of the Collateral);
(c) that consists of work-in-progress, customized products, display items, samples or packing or shipping materials, packaging, manufacturing supplies or replacement or spare parts not considered for sale in the ordinary course of business;
(d) that consists of goods which have been returned by the buyer, other than goods that are undamaged or that are resaleable in the normal course of business;
(e) that does not comply in all material respects with each of the representations and warranties respecting Eligible Inventory made in the Loan Documents;
(f) that is covered by negotiable document of title, unless such document has been delivered to the Collateral Agent;
(g) the cost of which is subject to a deferred rebate, to the extent of such rebate;
 
-28-

(h) that is not in good condition, is unmerchantable or does not meet all standards imposed by any Governmental Authority, having regulatory authority over such goods, their use or sale;
(i) that is not currently either usable or saleable, at prices approximating at least cost, in the normal course of such U.S. Borrower or Canadian Loan Party’sParty’s business or that is slow moving, defective or stale;
(j) that is more than one year old, or that is obsolete or returned or repossessed or used goods taken in trade;
(k) that is located outside the United States of America or Canada;
(l) that is in-transit, other than Inventory in-transit from a U.S. Borrower or Canadian Loan Party’sParty’s location in the United States of America or Canada to another location of a U.S. Borrower or Canadian Loan Party in the United States of America or Canada;
(m) that is located in a public warehouse or in possession of a bailee or in a facility leased by a U.S. Borrower or Canadian Loan Party, unless (A) the warehouseman or the bailee or the lessor has delivered to the applicable Administrative Agent, if requested by such Administrative Agent, a waiver agreement in form and substance satisfactory to such Administrative Agent or (B) a Reserve for rents or storage charges has been established for Inventory at that location;
(n) that contains or bears any intellectual property rights licensed to a U.S. Borrower or Canadian Loan Party by any Person if the applicable Administrative Agent is not satisfied that the Collateral Agent may sell or otherwise dispose of such Inventory in accordance with the terms of the U.S. Security Agreement or the Canadian Security Agreement, as applicable, without infringing the rights of the licensor of such intellectual property rights or violating any contract with such licensor (and without payment of any royalties other than any royalties due with respect to the sale or disposition of such Inventory pursuant to the existing license agreement) and as to which such U.S. Borrower or Canadian Loan Party has not delivered to the applicable Administrative Agent a consent or sublicense agreement from such licensor in form and substance acceptable to such Administrative Agent if requested, in each case to the extent necessary in order to enable the Collateral Agent to foreclose on or otherwise exercise remedies with respect to the Collateral pursuant to the terms of the U.S. Security Agreement or the Canadian Security Agreement, as applicable;
(o) that is not included in the calculation of a current perpetual inventory report (including all Inventory purchased by the U.S. Borrowers’’ International Sourcing Group);
(p) that represents intercompany profit;
(q) that is Inventory placed on consignment or with a processor;
(r) that is reserved for as slow or dead inventory by the Borrowers; or
(s) that was acquired, or is Inventory of a Person that was acquired, by the U.S. Parent Borrower or its Restricted Subsidiaries following the Closing Date outside the ordinary course of business in a transaction involving the payment of consideration by the U.S. Parent Borrower and its Restricted Subsidiaries in excess of $50,000,000 unless the applicable Administrative Agent has had an opportunity to conduct a field examination with respect to the Inventory or Persons so acquired.
If any Inventory of a U.S. Borrower or Canadian Loan Party at any time ceases to be Eligible Inventory, the Administrative Agents may exclude such Inventory from the calculation of Eligible Inventory of such U.S. Borrower or Canadian Loan Party.
 
-29-

“EMU Legislation” shall mean the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Costs” shall mean any and all costs or expenses (including attorney’s and consultant’sattorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, fines, penalties, damages, settlement payments, judgments and awards), of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way relating to, any actual or alleged violation of, noncompliance with or liability under any Environmental Laws. Environmental Costs include any and all of the foregoing, without regard to whether they arise out of or are related to any past, pending or threatened proceeding of any kind.
“Environmental Laws” shall mean any and all U.S. or foreign, federal, state, provincial, territorial, local or municipal laws, rules, orders, enforceable guidelines and orders-in-council, regulations, statutes, ordinances, codes, decrees, and such requirements of any Governmental Authority properly promulgated and having the force and effect of law or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health (as it relates to exposure to Materials of Environmental Concern) or the environment, as have been, or now or at any relevant time hereafter are, in effect.
“Environmental Permits” shall mean any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any Environmental Law.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Euro” and “EUR” shall mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
“European ABL Agreement” shall mean the European ABL Facility Agreement, dated as of March 24, 2014, among Univar B.V., the other Subsidiaries of the U.S. Parent Borrower from time to time party thereto, the U.S. Parent Borrower, as guarantor, J.P. Morgan Europe Limited, as administrative agent and collateral agent, and certain other parties thereto from time to time; as such agreement may bewas amended and restated and restated pursuant to that certain Deed of Amendment and Restatement, dated as of December 19, 2018, and as may be further amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original European ABL Agreement or other credit agreements or otherwise, except to the extent that such agreement, instrument or document expressly provides that it is not intended to be and is not a European ABL Agreement). Any reference to the European ABL Agreement hereunder shall be deemed a reference to each European ABL Agreement then in existence.
“European ABL Facility” shall mean the collective reference to the European ABL Agreement, any Loan Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original European ABL Agreement or one or more other credit agreements, indentures (including the Indenture) or financing agreements or otherwise), except to the extent that such agreement, instrument or document expressly provides that it is not intended to be and is not a European ABL Facility. Without limiting the generality of the foregoing, the term “European ABL Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred
 
-30-

thereunder or contemplated thereby, (ii) adding Subsidiaries of the U.S. Parent Borrower as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“European Revolving Commitment” shall mean, as to any European Revolving Lender, the obligation of such European Revolving Lender, if any, to make European Revolving Loans and participate in other Credit Events as may be included in the applicable European Revolving Facility, as the same may be changed from time to time pursuant to the terms hereof.
“European Revolving Facility” shall mean each European revolving facility as established as a Reallocated European Revolving Facility pursuant to Section 2.1(c) or as Incremental European Revolving Facility pursuant to Section 2.15(a).
“European Revolving Lender” shall mean a Lender with European Revolving Commitments.
“European Revolving Loans” shall mean Revolving Loans pursuant to a European Revolving Facility.
“Event of Default” shall have the meaning provided in Section 10.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
“Excluded Assets” shall have the meaning provided (x) in the case of the U.S. Borrowers, in the U.S. Security Agreement or,(y) in the case of the Canadian Loan Parties, in the Canadian Security Agreement.
“Excluded Canadian Subsidiary” shall mean, at any date of determination, any Canadian Subsidiary of the U.S. Parent Borrower:
(a) that is an Immaterial Subsidiary;
(b) that is prohibited by Requirement of Law or 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 becoming a Canadian Guarantor or granting Liens to secure the Canadian Obligations or if Guaranteeing, or granting Liens to secure, the Obligations would require governmental (including regulatory) consent, approval, license or authorization unless such consent, approval, license or authorization has been received;
(c) with respect to which the U.S. Parent Borrower and the Collateral Agent reasonably agree that the burden or cost or other consequences of providing a Guarantee of the Canadian Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom;
(d) with respect to which the provision of such Guarantee of the Canadian Obligations would result in material adverse tax consequences to the U.S. Parent Borrower or one of its Subsidiaries (as reasonably determined by the U.S. Parent Borrower and notified in writing to the Collateral Agent);
(e) that is a joint venture or Non-Wholly Owned Subsidiary;
(f) that is an Unrestricted Subsidiary;
(g) that is a Captive Insurance Subsidiary;
(h) that is a Special Purpose Entity; or
(i) that is a Subsidiary formed solely for the purpose of (x) becoming a Parent Entity, or (y) merging with the U.S. Parent Borrower in connection with another Subsidiary becoming a Parent Entity, in each case to the extent such entity becomes a Parent Entity or is merged with the U.S. Parent Borrower within 60 days of the formation thereof, or otherwise creating or forming a Parent Entity;
 
-31-

provided that, notwithstanding the foregoing, any Canadian Subsidiary that Guarantees the payment of the Senior Notes shall not be an Excluded Canadian Subsidiary.
Subject to the proviso in the preceding sentence, any Canadian Subsidiary that fails to meet the foregoing requirements as of the last day of the period of the most recent four consecutive fiscal quarters for which consolidated financial statements of the U.S. Parent Borrower are available shall continue to be deemed an Excluded Canadian Subsidiary hereunder until the date that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant to Section 8.1 with respect to such period.
“Excluded Contribution” shall mean Net Cash Proceeds, or the Fair Market Value of property or assets, received by the U.S. Parent Borrower as capital contributions to the U.S. Parent Borrower after the Closing Date or from the issuance or sale (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the U.S. Parent Borrower, in each case to the extent designated as an Excluded Contribution pursuant to a certificate of a Responsible Officer of the U.S. Parent Borrower.
“Excluded Swap Obligations” shall mean, with respect to any Swap Guarantor, any Swap Obligation if, and to the extent that, all or a portion of any Guarantee of such Swap Guarantor of, or the grant by such Swap Guarantor of a security interest to secure, such Swap Obligations (or any Guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Swap Guarantor’sGuarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 12.27, any other keepwell, support, or other agreement for the benefit of such Swap Guarantor and any and all guarantees of such Swap Guarantor’sGuarantor’s Swap Obligations by other Loan Parties) at the time the Guarantee or grant of security interest of such Swap Guarantor would otherwise have become effective with respect to such Swap Obligation but for such Swap Guarantor’sGuarantor’s failure to constitute an “eligible contract participant” at such time.
“Excluded Taxes” shall mean, with respect to any Agent or any Lender, (a) tax imposed on or measured by net income (however denominated) and franchise taxes or similar taxes (imposed or measured by overall gross receipts) imposed on such Agent or Lender by the jurisdiction under the laws of which such Agent or Lender is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located; (b) in the case of a Non-U.S. Lender with respect to any U.S. Revolving Loan or other Loans made to the U.S. Borrowers, any U.S. federal withholding tax to the extent imposed on amounts payable to such Non-U.S. Lender at the time such Non-U.S. Lender becomes a party hereto (or designates a new lending office) except to the extent that such Non-U.S. Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to Section 4.5(a); (c) taxes attributable to a Non-U.S. Lender’sLender’s failure to comply with Section 4.5(d); (d) any U.S. federal withholding taxes imposed pursuant to current Section 1471, Section 1472 or Section 1474 of the Code (and any amended or successor version that is substantively comparable), and any regulations issued thereunder or published administrative guidance issued pursuant thereto; or (e) unless an Event of Default has occurred and is continuing, Taxes imposed under Part XIII of the Income Tax Act (Canada).
“Excluded U.S. Subsidiary” shall mean, at any date of determination, any Domestic Subsidiary of the U.S. Parent Borrower:
(a) that is an Immaterial Subsidiary;
(b) that is prohibited by Requirement of Law or 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 becoming a U.S. Borrower or granting Liens to secure the Obligations or if becoming a U.S. Borrower, or granting Liens to secure the Obligations would require governmental (including regulatory) consent, approval, license or authorization unless such consent, approval, license or authorization has been received;
 
-32-

(c) with respect to which the U.S. Parent Borrower and the Collateral Agent reasonably agree that the burden or cost or other consequences of providing becoming a U.S. Borrower shall be excessive in view of the benefits to be obtained by the Lenders therefrom;
(d) with respect to which becoming a U.S. Borrower would result in material adverse tax consequences to the U.S. Parent Borrower or one of its Subsidiaries (as reasonably determined by the U.S. Parent Borrower and notified in writing to the Collateral Agent);
(e) that is a Subsidiary of a Foreign Subsidiary;
(f) that is a joint venture or Non-Wholly Owned Subsidiary;
(g) that is an Unrestricted Subsidiary;
(h) that is a Captive Insurance Subsidiary;
(i) that is a Special Purpose Entity; or
(j) that is a Subsidiary formed solely for the purpose of (x) becoming a Parent Entity or (y) merging with the U.S. Parent Borrower in connection with another Subsidiary becoming a Parent Entity, in each case to the extent such entity becomes a Parent Entity or is merged with the U.S. Parent Borrower within 60 days of the formation thereof, or otherwise creating or forming a Parent Entity;
provided that, notwithstanding the foregoing, any Subsidiary that Guarantees the payment of the Senior Notes shall not be an Excluded U.S. Subsidiary.
Subject to the proviso in the preceding sentence, any Subsidiary that fails to meet the foregoing requirements as of the last day of the period of the most recent four consecutive fiscal quarters for which consolidated financial statements of the U.S. Parent Borrower are available shall continue to be deemed an Excluded U.S. Subsidiary hereunder until the date that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant to Section 8.1 with respect to such period.
“Exempt Sale and Leaseback Transaction” shall mean any Sale and Leaseback Transaction (a) in which the sale or transfer of property occurs within 180 days of the acquisition of such property by the U.S. Parent Borrower or any of its Subsidiaries or (b) that involves property with a book value of $100.0 million or less and is not part of a series of related Sale and Leaseback Transactions involving property with an aggregate value in excess of such amount and entered into with a single Person or group of Persons. For purposes of the foregoing, “Sale and Leaseback Transaction” means any arrangement with any Person providing for the leasing by the U.S. Parent Borrower or any of its Subsidiaries of real or personal property that has been or is to be sold or transferred by the U.S. Parent Borrower or any such 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 U.S. Parent Borrower or such Subsidiary.
“Existing Canadian Loans” shall mean all “Canadian Revolving Loans” outstanding under the Original ABL Credit Agreement immediately prior to the effectiveness of this Agreement on the Restatement Effective Date.
“Existing Indebtedness” shall mean Indebtedness of the U.S. Parent Borrower and its Subsidiaries outstanding on the Closing Date and set forth on Schedule 9.1 to this Agreement.
“Existing Letter of Credit” shall mean each letter of credit listed on Schedule 2.4.
“Existing U.S. Revolving Loans” shall mean all “U.S. Revolving Loans” outstanding under the Original ABL Credit Agreement immediately prior to the effectiveness of this Agreement on the Restatement Effective Date.
 
-33-

“Extension” shall have the meaning provided in Section 2.17(a).
“Extension Offer” shall have the meaning provided in Section 2.17(a).
“Extended Revolving Commitment” shall have the meaning provided in Section 2.17(a).
“Extended Term Loans” shall have the meaning provided in Section 2.17(a).
“Extending Revolving Lender” shall have the meaning provided in Section 2.17(a).
“Extending Term Lender” shall have the meaning provided in Section 2.17(a).
“FAA” shall mean the Financial Administration Act (Canada), as amended.
“Facilities” shall mean the U.S. Revolving Facility, the Canadian Revolving Facility, the Initial Term Facility, each Reallocated European Revolving Facility, if any, and each Incremental European Revolving Facility.
“Fair Market Value” shall mean, with respect to any asset or property, the fair market value of such asset or property as determined in good faith by senior management of the U.S. Parent Borrower or the Board of Directors, whose determination shall be conclusive.
“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the per annum rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published on the next succeeding Business Day by the Federal Reserve Bank of New York; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the succeeding Business Day, (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to the U.S. Administrative Agent on such day on such transactions as determined by the U.S. Administrative Agent and (c) if the Federal Funds Effective Rate would otherwise be less than zero, the Federal Funds Effective Rate shall instead be zero.
“Final Maturity Date” shall mean the later of the Revolving Maturity Date and the Initial Term Maturity Date.
“Financing Disposition” shall mean any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets (a) by the U.S. Parent Borrower or any Restricted Subsidiary thereof to or in favor of any Special Purpose Entity, or by any Special Purpose Subsidiary, in each case in connection with the Incurrence by a Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets or (b) by the U.S. Parent Borrower or any Restricted Subsidiary thereof to or in favor of any Special Purpose Entity that is not a Special Purpose Subsidiary.
“Fiscal Year” shall mean any period of 12 consecutive months ending on December 31 of any calendar year.
“Fixed GAAP Date” shall mean the Closing Date; provided that at any time after the Closing Date, the U.S. Parent Borrower may by written notice to the Administrative Agent elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.
“Fixed GAAP Terms” shall mean (a) the definitions of the terms “Capital Expenditures,” “Capitalized Lease Obligation,” “Consolidated Coverage Ratio,” “Consolidated Fixed Charges,” “Consolidated Fixed Charge Coverage Ratio,” “Consolidated EBITDA,” “Consolidated Interest Expense,” “Consolidated Net Income,” “Consolidated Secured Indebtedness,” “Consolidated Secured Leverage Ratio,” “Consolidated Total
 
-34-

Assets,” “Consolidated Total Indebtedness,” “Consolidated Total Leverage Ratio,” “Consolidated Working Capital,” “Consolidation,” “Excess Cash Flow,” “Foreign Borrowing Base,” “Foreign Consolidated Total Assets,” “Foreign Segment Consolidated Total Assets,” “Inventory,” or “Receivables,” (b) all defined terms in this Agreement to the extent used in or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and (c) any other term or provision of this Agreement or the Loan Documents that, at the U.S. Parent Borrower’sBorrower’s election, may be specified by the U.S. Parent Borrower by written notice to the Administrative Agent from time to time.
“Foreign Borrowing Base” shall mean the sum of (1) 85% of the book value of Inventory of the U.S. Parent Borrower’sBorrower’s Foreign Subsidiaries (other than Canadian Subsidiaries and any Foreign Subsidiaries that are Loan Parties), (2) 85% of the book value of Receivables of the U.S. Parent Borrower’sBorrower’s Foreign Subsidiaries (other than Canadian Subsidiaries and any Foreign Subsidiaries that are Loan Parties) and (3) cash, Cash Equivalents and Temporary Cash Investments of the U.S. Parent Borrower’sBorrower’s Foreign Subsidiaries (other than Canadian Subsidiaries and any Foreign Subsidiaries that are Loan Parties) (in each case, determined as of the end of the most recently ended fiscal month of the U.S. Parent Borrower for which internal consolidated financial statements of the U.S. Parent Borrower are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).
“Foreign Consolidated Total Assets” shall mean, as of any date of determination, the sum of the Foreign Segment Consolidated Total Assets of each Foreign Subsidiary Reporting Segment.
“Foreign Loan Party Guaranty Agreement” shall mean the Foreign Loan Party Guaranty Agreement, in form and substance reasonably satisfactory to the Administrative Agent, delivered to the Administrative Agent by each Foreign Subsidiary that becomes a Non-Borrowing Base Foreign Guarantor on or after the Amendment No. 1 Effective Date pursuant to Section 8.8 hereof, as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Foreign Pension Plan” shall mean a registered pension plan which is subject to applicable pension legislation other than ERISA or the Code, which a Restricted Subsidiary sponsors or maintains, or to which it makes or is obligated to make contributions or has within the preceding five years made or accrued such contributions.
“Foreign Plan” shall mean each Foreign Pension Plan, deferred compensation or other retirement or superannuation plan, fund, program, agreement, commitment or arrangement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne, outside the United States of America, by the U.S. Parent Borrower or any of its Restricted Subsidiaries, other than any such plan, fund, program, agreement or arrangement sponsored by a Governmental Authority.
“Foreign Plan Termination Event” shall mean (a) the withdrawal of the Canadian Borrower or any other Canadian Subsidiary from a Canadian Defined Benefit Plan which is “multi-employer pension plan,” as defined under applicable pension standards legislation, during a plan year; or (b) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan or the filing of an amendment with the applicable Governmental Authority which terminates a Canadian Defined Benefit Plan, in whole or in part; or (c) the institution of proceedings by any Governmental Authority to terminate a Canadian Defined Benefit Plan in whole or in part or have a replacement administrator appointed to administer a Canadian Defined Benefit Plan; or (d) any other event or condition or declaration or application which results in the termination or winding up of a Canadian Defined Benefit Plan, in whole or in part, or the appointment by any Governmental Authority of a replacement administrator to administer a Canadian Defined Benefit Plan.
“Foreign Security Documents” shall mean, collectively, (a) the Dutch Security Documents, and (b) each other security agreement or other instrument or document executed and delivered by a Non-Borrowing Base Foreign Guarantor pursuant to Section 8.8, 8.9 or 8.11 or pursuant to any other such Foreign Security Documents to secure any of the Obligations.
 
-35-

“Foreign Segment Consolidated Total Assets” shall mean, with respect to each Foreign Subsidiary Reporting Segment, as of any date of determination, total assets, in each case reflected on the consolidated balance sheet of such Foreign Subsidiary Reporting Segment as at the end of the most recently ended fiscal quarter of the U.S. Parent Borrower for which such a balance sheet is available, determined by consolidating the accounts of each of the Subsidiaries within such Foreign Subsidiary Reporting Segment in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
“Foreign Subsidiary” shall mean any Subsidiary of the U.S. Parent Borrower (a) that is organized under the laws of any jurisdiction outside of the United States of America and any Subsidiary of such Foreign Subsidiary or (b) that is a Foreign Subsidiary Holdco. Any subsidiary of the U.S. Parent Borrower which is organized and existing under the laws of Puerto Rico or any other territory of the United States of America shall be a Foreign Subsidiary.
“Foreign Subsidiary Holdco” shall mean any Restricted Subsidiary of the U.S. Parent Borrower, so long as such Restricted Subsidiary has no material assets other than securities or indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof), intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof), and/or other assets incidental to an ownership interest in any such securities, indebtedness, Contractual Obligations, intellectual property or Subsidiaries. Any Subsidiary which is a Foreign Subsidiary Holdco that fails to meet the foregoing requirements as of the last day of the period for which consolidated financial statements of the U.S. Parent Borrower are available shall continue to be deemed a “Foreign Subsidiary Holdco” hereunder until the date that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant to Section 8.1 with respect to such period.
“Foreign Subsidiary Reporting Segment” shall mean a group of Foreign Subsidiaries of the U.S. Parent Borrower which the U.S. Parent Borrower treats as an operating segment in connection with its internal financial reporting.
“Fronting Fees” shall mean the U.S. Fronting Fee and the Canadian Fronting Fee.
“FSCO” shall mean the Financial Services Commission of Ontario or like body in any other province of Canada with whom a Canadian Defined Benefit Plan is registered in accordance with applicable law and any other Governmental Authority succeeding to the functions thereof.
“Fund” shall mean any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
“GAAP” shall mean generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement), including those 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 approved by a significant segment of the accounting profession, and subject to the following sentence. If at any time the SEC permits or requires U.S. domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes, the U.S. Parent Borrower may elect by written notice to the Administrative Agent to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the date specified in such notice, IFRS as in effect on the date specified in such notice (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement) and (b) for prior periods, GAAP as defined in the first sentence of this definition. All ratios and computations based on GAAP contained in this Agreement shall be computed in conformity with GAAP.
“GDPR ” means the European Union General Data Protection Regulation, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 and the Dutch GDPR Implementation Act (Uitvoeringswet Algemene verordening gegevensbescherming).
 
-36-

“Goldman” shall mean Goldman, Sachs & Co., GSMP V Onshore US. Ltd., GSMP V Offshore US. Ltd., GSMP V Institutional US, Ltd. and any of their respective Affiliates.
“Governmental Authority” shall mean the government of the United States or any other nation, or of any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).
“Guarantee” shall mean any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantors ” shall mean each Borrower (other than with respect to its own Obligations), the Canadian Guarantors and the Non-Borrowing Base Foreign Guarantors; each individually, a “Guarantor.”
“Hedge Agreements” shall mean, collectively, Interest Rate Agreements, Currency Agreements and Commodities Agreements.
“Hedge Bank” shall mean any Person that either (x) at the time it enters into a Hedge Agreement or (y) on the Closing Date or the Restatement Effective Date, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Hedge Agreement, including for the avoidance of doubt, any Hedge Agreement entered into prior to the Closing Date or the Restatement Effective Date, as applicable.
“Hedging Obligations” shall mean, as to any Person, the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodities Agreement.
“IFRS” shall mean International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such board, or the SEC, as the case may be), as in effect from time to time.
“Immaterial Subsidiary” shall mean any Subsidiary of the U.S. Parent Borrower designated as such in writing by the U.S. Parent Borrower to the Administrative Agent that (i) (x) contributed 5.00% or less of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the U.S. Parent Borrower are available, and (y) had consolidated assets representing 5.00% or less of Consolidated Total Assets as of the end of the most recently ended financial period for which consolidated financial statements of the U.S. Parent Borrower are available; and (ii) together with all other Immaterial Subsidiaries designated pursuant to the preceding clause (i), (x) contributed 5.00% or less of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the U.S. Parent Borrower are available, and (y) had consolidated assets representing 5.00% or less of Consolidated Total Assets as of the end of the most recently ended financial period for which consolidated financial statements of the U.S. Parent Borrower are available.
“Increasing Lender” shall have the meaning provided in Section 2.15(c).
“Incremental European Revolving Commitment” shall have the meaning provided in Section 2.15(a).
“Incremental European Revolving Facility” shall mean a revolving facility established pursuant to Section 2.15 made up of Incremental European Revolving Commitments and Incremental European Revolving Loans.
 
-37-

“Incremental European Revolving Lender” shall mean a Lender with an Incremental European Revolving Commitment or an outstanding Incremental European Revolving Loan.
“Incremental European Revolving Loan” shall have the meaning provided in Section 2.15(a).
“Incur” shall mean issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock, will be deemed not to be an Incurrence of Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
“Indebtedness” shall mean, with respect to any Person on any date of determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all reimbursement obligations of such Person in respect of letters of credit, bankers’’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed);
(iv) all obligations of such Person to pay the deferred and unpaid purchase price of property (except Trade Payables), which purchase price is due more than one year after the date of placing such property in final service or taking final delivery and title thereto;
(v) all Capitalized Lease Obligations of such Person;
(vi) the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such Person is a Subsidiary of the U.S. Parent Borrower other than a Loan Party) any Preferred Stock of such Subsidiary, but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Capital Stock, or if less (or if such Capital Stock has no such fixed price), to the involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Capital Stock, such fair market value shall be as determined in good faith by senior management of the U.S. Parent Borrower, the Board of Directors of the U.S. Parent Borrower or the Board of Directors of the issuer of such Capital Stock);
(vii) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of Indebtedness of such Person shall be the lesser of (A) the fair market value of such asset at such date of determination (as determined in good faith by the U.S. Parent Borrower) and (B) the amount of such Indebtedness of such other Persons;
(viii) all Guarantees by such Person of Indebtedness of other Persons, to the extent so Guaranteed by such Person; and
 
-38-

(ix) to the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such time).
The amount of Indebtedness of any Person at any date shall be determined as set forth above or as otherwise provided for in this Agreement, or otherwise shall equal the amount thereof that would appear as a liability on a balance sheet of such Person (excluding any notes thereto) prepared in accordance with GAAP.
“Indemnified Liabilities” shall have the meaning provided in Section 12.5.
“Indemnified Taxes” shall mean all Taxes (including Other Taxes) other than Excluded Taxes.
“Indemnitee” shall have the meaning provided in Section 12.5.
“Initial Agreement” shall have the meaning provided in Section 9.3(c).
“Initial Lien” shall have the meaning provided in Section 9.6(a).
“Initial Term Commitment” shall mean (a) in the case of each Lender that is a Lender on the Restatement Effective Date, the amount set forth opposite such Lender’sLender’s name on Schedule A as such Lender’sLender’s “Initial Term Commitment” and (b) in the case of any Lender that becomes a Lender after the Restatement Effective Date, the amount specified as such Lender’sLender’s “Initial Term Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Initial Term Commitments, in each case as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the Initial Term Commitments as of the Restatement Effective Date is $175,000,000.
“Initial Term Facility” shall mean, at any time, the aggregate principal amount of the Initial Term Commitments and the Initial Term Loans of all Initial Term Lenders outstanding at such time.
“Initial Term Lender” shall mean each Lender that has an Initial Term Commitment, or that is the holder of an Initial Term Loan.
“Initial Term Loan” shall have the meaning assigned to such term in Section 2.1(e).
“Initial Term Maturity Date” shall mean the date that is three years after the Restatement Effective Date (or if such date is not a Business Day, the preceding Business Day).
“Insolvency” shall mean, with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“Insolvency Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
“Intellectual Property” shall have the meaning provided in Section 7.9.
“Intercreditor Agreement” shall mean the ABL Intercreditor Agreement, dated as of the Closing Date, between the Cash Flow Collateral Agent and the Collateral Agent, and acknowledged by each of the U.S. Borrowers, as the same may be amended, restated, modified supplemented, superseded or waived from time to time.
“Interest Period” shall mean, with respect to any LIBOR Loan, the interest period applicable thereto, as determined pursuant to Section 2.7.
“Interest Rate Agreement” shall mean, with respect to any Person, any interest rate protection agreement, future agreement, option agreement, swap agreement, cap agreement, collar agreement, hedge agreement or other similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
 
-39-

“Investment” in any Person by any other Person shall mean any direct or indirect advance, loan or other extension of credit (other than to customers, dealers, licensees, franchisees, suppliers, consultants, directors, officers or employees of any Person in the ordinary course of business) or capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person. For purposes of the definition of “Unrestricted Subsidiary” and Section 9.2 only, (i) “Investment” shall include the portion (proportionate to the U.S. Parent Borrower’sBorrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the U.S. Parent Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary, provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the U.S. Parent Borrower shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (x) the U.S. Parent Borrower’sBorrower’s “Investment” in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to the U.S. Parent Borrower’sBorrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation, and (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value (as determined in good faith by the U.S. Parent Borrower) at the time of such transfer. Guarantees shall not be deemed to be Investments. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the U.S. Parent Borrower’sBorrower’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment.
“Investment Company Act” shall mean the Investment Company Act of 1940, as amended from time to time.
“Investment Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’sMoody’s and BBB- (or the equivalent) by S&P, or any equivalent rating by any other Rating Agency.
“Investment Grade Securities” shall mean (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents); (ii) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the U.S. Parent Borrower and its Subsidiaries; (iii) investments in any fund that invests exclusively in investments of the type described in clauses (i) and (ii) above, which fund may also hold immaterial amounts of cash pending investment or distribution; and (iv) corresponding instruments in countries other than the United States customarily utilized for high quality investments.
“Investors” shall mean (i) the CD&R Investors, (ii) the CVC Investors, (iii) the Temasek Investors, (iv) Goldman and (v) Parcom.
“IPO” shall mean the initial public offering of the U.S. Parent Borrower’sBorrower’s common stock which closed on June 23, 2015.
“ISP” shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Joinder Agreement” shall mean an agreement substantially in the form of Exhibit J.
“Judgment Currency” shall have the meaning provided in Section 12.19.
“Junior Capital” shall mean, collectively, any Indebtedness of any Parent Entity or the U.S. Parent Borrower that (i) is not secured by any asset of the U.S. Parent Borrower or any Restricted Subsidiary, (ii) is expressly subordinated to the prior payment in full of the Obligations hereunder on terms consistent with those for senior subordinated high yield debt securities issued by U.S. companies sponsored by the Sponsors (as determined
 
-40-

in good faith by the U.S. Parent Borrower, which determination shall be conclusive), (iii) has a final maturity date that is not earlier than, and provides for no scheduled payments of principal prior to, the date that is 91 days after the Cash Flow Maturity Date (other than through conversion or exchange of any such Indebtedness for Capital Stock (other than Disqualified Stock) of the U.S. Parent Borrower, Capital Stock of any Parent Entity or any other Junior Capital), (iv) has no mandatory redemption or prepayment obligations other than obligations that are subject to the prior payment in full in cash of the Obligations under this Agreement and (v) does not require the payment of cash interest until the date that is 91 days after the Cash Flow Maturity Date.
“Junior Debt” shall mean (i) the Senior Notes and Guarantees thereof (and Refinancing Indebtedness in respect thereof Incurred pursuant to Section 9.1(b)(iii)) and (ii) any Subordinated Obligations.
“LCA Election” shall have the meaning provided in Section 1.2(h).
“LCA Test Date” shall have the meaning provided in Section 1.2(h).
“Lead Arrangers” shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., Wells Fargo Bank N.A. and Goldman Sachs Bank USA, as Joint Lead Arrangers.
“Lender” shall have the meaning provided in the preamble to this Agreement and shall include each Swingline Lender, with respect to Agent Advances, each Administrative Agent.
“Lender Default” shall mean (a) the refusal (which may be given verbally or in writing and has not been retracted) or failure of any Lender (including any Agent in its capacity as Lender) to make available its portion of any incurrence of Loans, which refusal or failure is not cured within two Business Days after the date of such refusal or failure, (b) the failure of any Lender (including any Agent in its capacity as Lender) to pay over to an Administrative Agent, any Letter of Credit Issuer or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, (c) a Lender (including any Agent in its capacity as Lender) has notified the U.S. Parent Borrower or an Administrative Agent that it does not intend to comply with its funding obligations hereunder, (d) a Lender (including any Agent in its capacity as Lender) has failed, within 10 Business Days after request by the Administrative Agent, to confirm that it will comply with its funding obligations hereunder (provided that such Lender Default pursuant to this clause (d) shall cease to be a Lender Default upon receipt of such confirmation by the Administrative Agent), (e) an Agent or a Lender has admitted in writing that it is insolvent or such Agent or Lender becomes subject to a Lender-Related Distress Event or (f) a Lender (including any Agent in its capacity as a Lender) has become the subject of a Bail-In Action.
“Lender-Related Distress Event” shall mean, with respect to any Agent or Lender (each, a “Distressed Person”), a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’sPerson’s assets, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Agent or Lender or any person that directly or indirectly controls such Agent or Lender by a Governmental Authority or an instrumentality thereof so long as such equity interest does not result in or provide such Lender 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 such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender; provided, further, that the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator with respect to an Agent or Lender or any person that directly or indirectly controls such Agent or Lender under the Dutch Financial Supervision Act 2007 (as amended from time to time and including any successor legislation) shall not be a “Lender-Related Distress Event” with respect to such Agent or Lender or any person that directly or indirectly controls such Agent or Lender.
 
-41-

“Letter of Credit Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.
“Letter of Credit Fees” shall mean the collective reference to the U.S. Letter of Credit Fees and the Canadian Letter of Credit Fees.
“Letter of Credit Issuer” shall mean a Canadian Letter of Credit Issuer or a U.S. Letter of Credit Issuer. Any reference to a “Letter of Credit Issuer” shall refer to a U.S. Letter of Credit Issuer with respect to the U.S. Revolving Facility and a Canadian Letter of Credit Issuer with respect to the Canadian Revolving Facility, as applicable.
“Letter of Credit Issuer LC Sublimit” shall mean, with respect to each Letter of Credit Issuer, the amount set forth on Schedule B.
“Letter of Credit Maturity Date” shall mean the date that is 5 days prior to the Revolving Maturity Date.
“Letter of Credit Obligations” shall mean, collectively, the U.S. Letter of Credit Obligations and the Canadian Letter of Credit Obligations.
“Letter of Credit Participant” shall have the meaning provided in Section 2.4(f)(i).
“Letter of Credit Participation” shall have the meaning provided in Section 2.4(f)(i).
“Letters of Credit” shall mean the collective reference to U.S. Letters of Credit and Canadian Letters of Credit and shall include all Existing Letters of Credit.
“Liabilities” shall mean, collectively, any and all claims, obligations, liabilities, causes of action, actions, suits, proceedings, investigations, judgments, decrees, losses, damages, fees, costs and expenses (including interest, penalties and fees and disbursements of attorneys, accountants, investment bankers and other professional advisors), in each case whether incurred, arising or existing with respect to third parties or otherwise at any time or from time to time.
“LIBOR” shall have the meaning specified in the definition of “LIBOR Rate”.
“LIBOR Interest Payment Date” shall mean, with respect to a LIBOR Loan, (i) the last day of each Interest Period applicable to such LIBOR Loan, (ii) if such Interest Period is longer than 3 months, each 3 month anniversary of the making of such LIBOR Loan and (iii) the Termination Date.
“LIBOR Loan” shall mean any Revolving Loan bearing interest at a rate determined by reference to the LIBOR Rate.
“LIBOR Rate” shall mean:
(a) for any Interest Period with respect to a LIBOR Loan of any currency, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for a period equal in length to such Interest Period) (“LIBOR”) as published on the applicable Bloomberg screen page (or other commercially available source providing such quotations as designated by the applicable Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period (or on the first day of such Interest Period in the case of any LIBOR Loan denominated in Sterling), for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and
 
-42-

(b) for any interest calculation with respect to an ABR Loan on any date, the rate per annum equal to LIBOR, at approximately 11:00 a.m., London time determined two London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day;
provided that if any LIBOR Rate as determined above shall otherwise be less than zero, then such LIBOR Rate shall be deemed to be zero.
“LIBOR Screen Rate” shall mean the LIBOR quote on the applicable screen page the applicable Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the applicable Administrative Agent from time to time).
“Lien” shall mean any mortgage, pledge, security interest, encumbrance, hypothecation, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).
“Limited Condition Acquisition” shall mean any acquisition by one or more of the U.S. Parent Borrower and its Restricted Subsidiaries of any assets, business or Person permitted by this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan Documents” shall mean this Agreement, the Canadian Guarantee,and Security Agreement, the Foreign Loan Party Guaranty Agreement, the Security Documents, the Intercreditor Agreement and any promissory notes issued by a Borrower hereunder, as the same may be amended, supplemented, waived, otherwise modified, extended, renewed, refinanced or replaced from time to time.
“Loan Party” shall mean each of the Borrowers and, the Canadian Guarantors and the Non-Borrowing Base Foreign Guarantors.
“Loans” shall mean the Revolving Loans and the Term Loans and shall include, as the context requires, Swingline Loans and Agent Advances.
“Lock Boxes” shall mean the U.S. Lock Boxes or the Canadian Lock Boxes, as the context requires.
“Management Advances” shall mean (1) loans or advances made to directors, management members, officers, employees or consultants of any Parent Entity, the U.S. Parent Borrower or any Restricted Subsidiary (x) in respect of travel, entertainment or moving-related expenses incurred in the ordinary course of business, (y) in respect of moving-related expenses incurred in connection with any closing or consolidation of any facility, or (z) in the ordinary course of business and (in the case of this clause (z)) not exceeding $50.0 million in the aggregate outstanding at any time, (2) promissory notes of Management Investors acquired in connection with the issuance of Management Stock to such Management Investors, (3) Management Guarantees, or (4) other Guarantees of borrowings by Management Investors in connection with the purchase of Management Stock, which Guarantees are permitted under Section 9.1.
“Management Agreements” shall mean, collectively, (i) the Indemnification Agreement, dated as of November 30, 2010, among the U.S. Parent Borrower, CD&R and certain of its Affiliates, (ii) the Indemnification Agreement, dated as of November 30, 2010, among the U.S. Parent Borrower and certain Affiliates of CVC, (iii) the ThirdFourth Amended and Restated Stockholders Agreement, among the U.S. Parent Borrower, CD&R, certain Affiliates of CD&R and CVC, and certain other parties thereto, dated as of June 2723, 20122015 and (iv) any other agreement primarily providing for indemnification and/or contribution for the benefit of any Permitted Holder in respect of Liabilities resulting from, arising out of or in connection with, based upon or relating to (a) any management consulting, financial advisory, financing, underwriting or placement services or other investment banking activities, (b) any offering of securities or other financing activity or arrangement of or by any Parent Entity or any of its Subsidiaries or (c) any action or failure to act of or by any Parent Entity or any of its Subsidiaries (or any of their respective predecessors); in each case as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof and of this Agreement.
 
-43-

“Management Guarantees” shall mean guarantees (x) of up to an aggregate principal amount outstanding at any time of $30.0 million of borrowings by Management Investors in connection with their purchase of Management Stock or (y) made on behalf of, or in respect of loans or advances made to, directors, officers, employees or consultants of any Parent Entity, the U.S. Parent Borrower or any Restricted Subsidiary (1) in respect of travel, entertainment and moving-related expenses incurred in the ordinary course of business, or (2) in the ordinary course of business and (in the case of this clause (2)) not exceeding $15.0 million in the aggregate outstanding at any time.
“Management Indebtedness” shall mean Indebtedness Incurred to (a) any Person other than a Management Investor of up to an aggregate principal amount outstanding at any time of $15.0 million, and (b) any Management Investor, in each case, to finance the repurchase or other acquisition of Capital Stock of the U.S. Parent Borrower, any Restricted Subsidiary or any Parent Entity (including any options, warrants or other rights in respect thereof) from any Management Investor, which repurchase or other acquisition of Capital Stock is permitted by Section 9.2.
“Management Investors” shall mean the management members, officers, directors, employees and other members of the management of any Parent Entity, the U.S. Parent Borrower or any of their respective Subsidiaries, or family members or relatives of any of the foregoing (provided that, solely for purposes of the definition of “Permitted Holders,” such relatives shall include only those Persons who are or become Management Investors in connection with estate planning for or inheritance from other Management Investors, as determined in good faith by the U.S. Parent Borrower, which determination shall be conclusive), or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the U.S. Parent Borrower, any Restricted Subsidiary or any Parent Entity.
“Management Stock” shall mean Capital Stock of the U.S. Parent Borrower, any Restricted Subsidiary or any Parent Entity (including any options, warrants or other rights in respect thereof) held by any of the Management Investors.
“Mandatory Canadian Borrowing” shall have the meaning provided in Section 2.3(g)(ii).
“Mandatory U.S. Borrowing” shall have the meaning provided in Section 2.2(g)(ii).
“Material Adverse Effect” shall mean a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of the U.S. Parent Borrower and its Restricted Subsidiaries taken as a whole, (b) the validity or enforceability as to the Loan Parties (taken as a whole) party thereto of the Loan Documents taken as a whole or (c) the rights or remedies of the Agents and the Lenders under the Loan Documents, in each case taken as a whole.
“Material Subsidiaries” shall mean Restricted Subsidiaries of the U.S. Parent Borrower constituting, individually or in the aggregate (as if such Restricted Subsidiaries constituted a single Subsidiary), a “significant subsidiary” in accordance with Rule 1-02 under Regulation S-X.
“Materials of Environmental Concern” shall mean any pollutants, contaminants, hazardous or toxic substances or materials or wastes defined, listed, or regulated as such in or under, or which may give rise to liability under, any applicable Environmental Law, including gasoline, petroleum (including crude oil or any fraction thereof), petroleum products or by-products, asbestos and polychlorinated biphenyls.
“Maximum Incremental Facilities Amount” shall have the meaning given to such term in the Cash Flow Credit Agreement as in effect on the Closing Date.
“Minimum Borrowing Amount” shall mean (a) with respect to a Borrowing of LIBOR Loans, the Dollar Equivalent of $5,000,000, (b) with respect to a Borrowing of ABR Loans, $1,000,000, (c) with respect to a Borrowing of BA Equivalent Loans, Cdn.$5,000,000 and (d) with respect to a Borrowing of Canadian Prime Rate Loans, Cdn.$1,000,000.
 
-44-

“Minimum Extension Condition” shall have the meaning provided in Section 2.17(b).
“Minimum Tranche Amount” shall have the meaning provided in Section 2.17(b).
“Monthly Borrowing Base Certificate” shall have the meaning provided in Section 8.1(o).
“Moody’sMoody’s” shall mean Moody’sMoody’s Investors Service, Inc., and its successors.
“Multiemployer Plan” shall mean a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Cash Proceeds” shall mean, with respect to any issuance or sale of any securities of the U.S. Parent Borrower or any Subsidiary by the U.S. Parent Borrower or any Subsidiary, or any capital contribution, or any Incurrence of Indebtedness, the cash proceeds of such issuance, sale, contribution or Incurrence net of attorneys’’ fees, accountants’’ fees, underwriters’’ or placement agents’’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance, sale, contribution or Incurrence and net of all taxes paid or payable as a result, or in respect, thereof.
“Net Orderly Liquidation Value” shall mean, with respect to the Inventory of a U.S. Borrower or Canadian Loan Party at any time, the orderly liquidation value (net of costs and expenses estimated to be incurred in connection with such liquidation) of such Loan Party’sParty’s Inventory that is estimated to be recoverable in an orderly liquidation of such Inventory, expressed as a percentage of the net book value thereof, such percentage to be as determined from time to time by reference to the most recent Inventory appraisal completed by a qualified third-party appraisal company (approved by the applicable Administrative Agent in its reasonable discretion) delivered to such Administrative Agent.
“New Lender” shall have the meaning provided in Section 2.15(c).
“Nexeo Acquisition” shall have the meaning provided in Section 5.11.
“Non-Borrowing Base Foreign Guarantee” shall mean, collectively, the guarantees by the Non-Borrowing Base Foreign Guarantor in favor of the Collateral Agent for the benefit of the Secured Parties in respect of the Obligations made pursuant to the Foreign Loan Party Guaranty Agreement or otherwise.
“Non-Borrowing Base Foreign Guarantor” shall mean each Foreign Subsidiary (other than a U.S. Subsidiary or a Canadian Subsidiary) that provides a Guarantee of the Obligations by becoming a party to the Foreign Loan Party Guaranty Agreement or otherwise on or after the Amendment No. 1 Effective Date pursuant to Section 8.8.
“Non-Borrowing Base Foreign Guarantor Documentation Principles” shall mean the principles set forth in Schedule 1.1(a).
“Non-Consenting Lender” shall have the meaning provided in Section 12.7(b).
“Non-U.S. Lender” shall mean any Administrative Agent or Lender that is not, for United States federal income tax purposes, (a) an individual who is a citizen or resident of the United States, (b) a corporation, partnership or other entity treated as a corporation or partnership created or organized in or under the laws of the United States, any state thereof or the District of Columbia, (c) an estate whose income is subject to U.S. federal income taxation regardless of its source or (d) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States persons have the authority to control all substantial decisions of such trust or a trust that has a valid election in effect under applicable U.S. Treasury regulations to be treated as a United States person. In addition, solely for purposes of clause (b) of the definition of “Excluded Taxes,” a Non-U.S. Lender shall include a Lender that is a partnership or other entity treated as a partnership created or organized in or under the laws of the United States, any state thereof or the District of Columbia or a qualified intermediary, but only to the extent the partners of such partnership (including indirect
 
-45-

partners if the direct partners are partnerships or other entities treated as partnerships for U.S. federal income tax purposes created or organized in or under the laws of the United States, any state thereof or the District of Columbia), or the beneficial owners with respect to such qualified intermediary, are treated as Non-U.S. Lenders under the preceding sentence.
“Non-Wholly Owned Subsidiary” shall mean each Subsidiary that is not a Wholly Owned Subsidiary.
“Notice of Borrowing” shall mean a Canadian Notice of Borrowing, a U.S. Notice of Borrowing or a Term Notice of Borrowing, as the context requires.
“Notice of Conversion or Continuation” shall mean a U.S. Notice of Conversion or Continuation or a Canadian Notice of Conversion or Continuation as the context requires.
“Obligations” shall mean the U.S. Obligations and the Canadian Obligations; provided that the Obligations shall in no event include any Excluded Swap Obligations.
“Obligations” and “Secured Obligations” shall mean (x) all obligations of the Borrowers and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest and fees, if any (including interest and fees accruing during (or that would accrue but for) the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans and Letters of Credit and reimbursement obligations, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Holdings and the other Loan Parties under this Agreement and the other Loan Documents and (y) all other obligations and liabilities, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the U.S. Parent Borrower and the other Loan Parties under any Hedging Agreement (as defined in the Guarantee and Collateral Agreement) entered into with any Hedging Provider (as defined in the Guarantee and Collateral Agreement), any Bank Products Agreement (as defined in the Guarantee and Collateral Agreement) entered into with any Bank Products Provider (as defined in the Guarantee and Collateral Agreement) or any Management Guarantee entered into with any Management Credit Provider or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, amounts payable in connection with any such Bank Products Agreement or a termination of any transaction entered into pursuant to any such Hedging Agreement, fees, indemnities, costs, expenses or otherwise (including, without limitation, all reasonable fees, expenses and disbursements of counsel to the Administrative Agent or any other Secured Party that are required to be paid by any Loan Party pursuant to the terms of the Credit Agreement or any other Loan Document); provided that the Secured Obligations shall not include any Excluded Swap Obligations (as defined in the Guarantee and Collateral; provided that, the “Obligation” and the “Secured Obligations” shall in no event include any Excluded Swap Obligations. For the avoidance of doubt, “Obligations” and “Secured Obligations” includes, the Letter of Credit Obligations, the U.S. Obligations and the Canadian Obligations.
“OFAC” shall have the meaning provided in Section 7.21(b).
“Organizational Documents” shall mean, with respect to any Person, (a) the articles of incorporation, certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person and (b) the bylaws or operating agreement (or the equivalent governing documents) of such Person.
“Original Credit Agreement” shall have the meaning provided in the preamble.
“Other Representatives” shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., Wells Fargo Bank N.A. and Goldman Sachs Bank USA, in their capacities as Joint Lead Arrangers and Joint Bookrunners.
 
-46-

“Other Taxes” shall mean any and all present or future stamp, registration, documentary or any other excise, property or similar taxes (including interest, fines, penalties, additions to tax and related expenses with regard thereto) arising from any payment made or required to be made under this Agreement or any other Loan Document or from the execution or delivery of, registration or enforcement of, consummation or administration of, or otherwise with respect to, this Agreement or any other Loan Document.
“Outstanding Amount” shall mean (i) with respect to Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Loans occurring on such date; and (ii) with respect to any Letter of Credit Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such Letter of Credit Obligations on such date after giving effect to any issuance of any Letter of Credit occurring on such date and any other changes in the aggregate amount of the Letter of Credit Obligations as of such date, including as a result of any reimbursements by the Borrowers of any drawings under Letters of Credit on such date.
“Overnight Rate” shall mean, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, (b) with respect to any amount denominated in Cdn. Dollars, the rate of interest per annum at which overnight deposits in Cdn. Dollars in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the Canadian Administrative Agent in the Canadian banking market for Cdn. Dollars to major banks in such market and (c) with respect to any amount denominated in an Alternative Currency other than Cdn. Dollars, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for such currency to major banks in such interbank market.
“Parallel Debt” has the meaning given to that term in paragraph (a) of Section 10.10.
“Parcom” shall mean Parcom Buy Out Fund II B.V. and any of its Affiliates.
“Parent Entity” shall mean any Other Parent and any other Person that is a Subsidiary of any Other Parent and of which the U.S. Parent Borrower is a Subsidiary. As used herein, “Other Parent” means a Person of which the U.S. Parent Borrower becomes a Subsidiary after the Closing Date that is designated by the U.S. Parent Borrower as an “Other Parent” and solely for so long as the U.S. Parent Borrower remains a Subsidiary of such Person, provided that either (x) immediately after the U.S. Parent Borrower first becomes a Subsidiary of such Person, more than 50.0% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50.0% of the Voting Stock of the U.S. Parent Borrower or a Parent Entity of the U.S. Parent Borrower immediately prior to the U.S. Parent Borrower first becoming such Subsidiary or (y) such Person shall be deemed not to be an Other Parent for the purpose of determining whether a Change of Control shall have occurred by reason of the U.S. Parent Borrower first becoming a Subsidiary of such Person. The U.S. Parent Borrower shall not in any event be deemed to be a “Parent Entity.”
“Parent Expenses” shall mean (i) costs (including all professional fees and expenses) incurred by any Parent Entity in connection with maintaining its existence or in connection with its reporting obligations under, or in connection with compliance with, applicable laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement or any other agreement or instrument relating to Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act, the Exchange Act or the respective rules and regulations promulgated thereunder, (ii) expenses incurred by any Parent Entity in connection with the acquisition, development, maintenance, ownership, prosecution, protection and defense of its intellectual property and associated rights (including but not limited to trademarks, service marks, trade names, trade dress, patents, copyrights and similar rights, including registrations and registration or renewal applications in respect thereof; inventions, processes, designs, formulae, trade secrets, know-how, confidential information, computer software, data and documentation, and any other intellectual
 
-47-

property rights; and licenses of any of the foregoing) to the extent such intellectual property and associated rights relate to the business or businesses of the U.S. Parent Borrower or any Subsidiary thereof, (iii) indemnification obligations of any Parent Entity owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written agreements with or for the benefit of any such Person (including pursuant to certain Management Agreements), or obligations in respect of director and officer insurance (including premiums therefor), (iv) other administrative and operational expenses of any Parent Entity incurred in the ordinary course of business, and (v) fees and expenses incurred by any Parent Entity in connection with any offering of Capital Stock or Indebtedness, (w) which offering is not completed, or (x) where the net proceeds of such offering are intended to be received by or contributed or loaned to the U.S. Parent Borrower or a Restricted Subsidiary, or (y) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received, contributed or loaned, or (z) otherwise on an interim basis prior to completion of such offering so long as any Parent Entity shall cause the amount of such expenses to be repaid to the U.S. Parent Borrower or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed.
“Participant” shall have the meaning provided in Section 12.6(c).
“Participant Register” shall have the meaning provided in Section 12.6(c).
“Participating Member State” shall mean each state so described in any EMU Legislation.
“Patriot Act” shall have the meaning provided in Section 12.18.
“Payment Conditions” shall be deemed to be satisfied on any date if, after giving pro forma effect to any specified action occurring on such date (i) no Specified Event of Default has occurred and (ii) either (A) Combined Availability is greater than or equal to 15% of the Combined Line Cap or (B) (x) the Combined Availability shall be greater than 10.0% of the Combined Line Cap (or, for purposes of Section 9.2, 12.5% of the Combined Line Cap) and (y) on a pro forma basis, the Borrowers shall be in compliance with a minimum Consolidated Fixed Charge Coverage Ratio of 1.0 to 1.0.
“PBA” shall mean the Pension Benefits Act (Ontario) and all regulations thereunder as amended from time to time and any successor legislation thereto.
“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
“Permitted Holders” shall mean any of the following: (i) any of the Investors; (ii) any of the Management Investors, CD&R, CVC and their respective Affiliates; (iii) any investment fund or vehicle managed, sponsored or advised by CD&R, CVC, or any Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle; (iv) any limited or general partners of, or other investors in, any CD&R Investor, CVC Investor or any Affiliate thereof, or any such investment fund or vehicle; and (v) any Person acting in the capacity of an underwriter (solely to the extent that and for so long as such Person is acting in such capacity) in connection with a public or private offering of Capital Stock of any Parent Entity or the U.S. Parent Borrower.
“Permitted Investment” shall mean an Investment by the U.S. Parent Borrower or any Restricted Subsidiary in, or consisting of, any of the following:
(i) (w) a U.S. Borrower in another U.S. Borrower, (x) a Canadian Loan Party in a Loan Party, (y) a (other than a Non-Borrowing Base Foreign Guarantor), (y) a Non-Borrowing Base Foreign Guarantor or a Restricted Subsidiary that is not a Loan Party in the U.S. Parent Borrower or any Restricted Subsidiary, or a Person that will, upon the making of such Investment, become a Restricted Subsidiary (and any Investment held by such Person that was not acquired by such Person in contemplation of so becoming a Restricted Subsidiary) or (z) other Investments in Restricted Subsidiaries in an aggregate amount outstanding not to exceed $100 million;
 
-48-

(ii) another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, or is liquidated into, the U.S. Parent Borrower or a Restricted Subsidiary (and, in each case, any Investment held by such other Person that was not acquired by such Person in contemplation of such merger, consolidation or transfer);
(iii) Temporary Cash Investments, Investment Grade Securities or Cash Equivalents;
(iv) receivables owing to the U.S. Parent Borrower or any Restricted Subsidiary, if created or acquired in the ordinary course of business;
(v) any securities or other Investments received as consideration in, or retained in connection with, sales or other dispositions of property or assets, including Asset Dispositions made in compliance with Section 8.4;
(vi) securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, the U.S. Parent Borrower or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;
(vii) Investments in existence or made pursuant to legally binding written commitments in existence on the Closing Date and set forth on Schedule 1.1(f) to this Agreement, and in each case any extension, modification, replacement, reinvestment or renewal thereof; provided that the amount of any such Investment may be increased in such extension, modification, replacement, reinvestment or renewal only (x) as required by the terms of such Investment or binding commitment as in existence on the Closing Date or (y) as otherwise permitted by this Agreement;
(viii) Currency Agreements, Interest Rate Agreements, Commodities Agreements and related Hedging Obligations, which obligations are Incurred in compliance with Section 8.1;
(ix) pledges or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 8.6;
(x) (1) Investments in or by any Special Purpose Subsidiary, or in connection with a Financing Disposition by, to, in or in favor of any Special Purpose Entity, including Investments of funds held in accounts permitted or required by the arrangements governing such Financing Disposition or any related Indebtedness, or (2) any promissory note issued by the U.S. Parent Borrower or any Parent Entity, provided that if such Parent Entity receives cash from the relevant Special Purpose Entity in exchange for such note, an equal cash amount is contributed by any Parent Entity to the U.S. Parent Borrower;
(xi) bonds secured by assets leased to and operated by the U.S. Parent Borrower or any Restricted Subsidiary that were issued in connection with the financing of such assets so long as the U.S. Parent Borrower or any Restricted Subsidiary may obtain title to such assets at any time by paying a nominal fee, canceling such bonds and terminating the transaction;
(xii) Investments so long as on a pro forma basis, the Payment Conditions are satisfied;
(xiii) any Investment to the extent made using Capital Stock of the U.S. Parent Borrower (other than Disqualified Stock), Capital Stock of any Parent Entity or Junior Capital as consideration;
(xiv) Management Advances;
(xv) other Investments in an aggregate amount outstanding at any time not to exceed an amount equal to $100.0 million per annum;
 
-49-

(xvi) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 9.5(b) (except transactions described in clauses (i), (ii)(4), (iii), (v), (vi), (ix) and (x) therein), including any Investment pursuant to any transaction described in Section 9.5(b)(ii) (whether or not any Person party thereto is at any time an Affiliate of the U.S. Parent Borrower); and
(xvii) any Investment by any Captive Insurance Subsidiary in connection with the provision of insurance to the U.S. Parent Borrower or any of its Subsidiaries, which Investment is made in the ordinary course of business of such Captive Insurance Subsidiary, or by reason of applicable law, rule, regulation or order, or that is required or approved by any regulatory authority having jurisdiction over such Captive Insurance Subsidiary or its business, as applicable.; and
(xviii) other Investments in any Non-Borrowing Base Foreign Guarantor that has outstanding Indebtedness with respect to which a Loan Party is a co-borrower or a Guarantor, so long as the proceeds of such Investments are used to make payments in respect of such Indebtedness;
If any Investment pursuant to clause (xv) above is made (x) by any U.S. Borrower in any Person that is not a U.S. Borrower, (y) by any Canadian Loan Party in any Person that is not a Loan Party (other than a Non-Borrowing Base Foreign Guarantor) or (z) by any Non-Borrowing Base Foreign Guarantor or any Restricted Subsidiary that is not a Loan Party in any Person that is not a Restricted Subsidiary and such Person thereafter (A) becomes a U.S. Borrower, Loan Party (other than a Non-Borrowing Base Foreign Guarantor) or Restricted Subsidiary, respectively, or (B) is merged or consolidated into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, a U.S. Borrower, Loan Party (other than a Non-Borrowing Base Foreign Guarantor) or a Restricted Subsidiary, respectively, then such Investment shall thereafter be deemed to have been made pursuant to clause (i) or (ii) above, as applicable, and not clause (xv) above.
“Permitted Liens” shall mean:
(a) Liens for taxes, assessments or other governmental charges not yet delinquent or the nonpayment of which in the aggregate would not reasonably be expected to have a material adverse effect on the U.S. Parent Borrower and its Restricted Subsidiaries, taken as a whole, or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the U.S. Parent Borrower or a Subsidiary thereof, as the case may be, in accordance with GAAP;
(b) Liens with respect to outstanding motor vehicle fines and carriers’’, warehousemen’swarehousemen’s , mechanics’’ , landlords’’ , materialmen’s, repairmen’smaterialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations that are not overdue for a period of more than 60 days or that are bonded or that are being contested in good faith and by appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers’’ compensation, professional liability insurance, insurance programs, unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business;
(e) easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, charges, and other similar encumbrances or title defects incurred, or leases or subleases granted to others, in the ordinary course of business, which do not in the aggregate materially interfere with the ordinary conduct of the business of the U.S. Parent Borrower and its Restricted Subsidiaries, taken as a whole;
 
-50-

(f) Liens existing on, or provided for under written arrangements existing on, the Closing Date and set forth on Schedule 1.1(e) to this Agreement, or (in the case of any such Liens securing Indebtedness of the U.S. Parent Borrower or any of its Subsidiaries existing or arising under written arrangements existing on the Closing Date) securing any Refinancing Indebtedness in respect of such Indebtedness (other than Indebtedness Incurred under Section 9.1(b)(i) and secured under clause (k)(1) of this definition), so long as the Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the U.S. Parent Borrower or any Restricted Subsidiary of the U.S. Parent Borrower has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
(h) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Hedging Obligations, Bank Products Obligations, Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with Section 9.1; provided that any such Liens on the Collateral are subject to the Intercreditor Agreement;
(i) Liens arising out of judgments, decrees, orders or awards in respect of which the U.S. Parent Borrower or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to or from third parties;
(k) Liens securing Indebtedness (including Liens securing any obligations in respect thereof) consisting of (1) Indebtedness Incurred in compliance with Section 9.1(b)(i), provided, that any Liens on Collateral securing such Indebtedness (other than Liens securing the Obligations pursuant to the Loan Documents) shall be subject to the Intercreditor Agreement, (2) Indebtedness Incurred in compliance with clauses (b)(iv), (b)(v), (b)(vii), (b)(viii), (b)(xv) or clauses (b)(iii)(B) and (C) of Section 9.1 (other than Refinancing Indebtedness Incurred in respect of Indebtedness described in Sections 9.1(a)), (3) any Indebtedness Incurred in compliance with Section 9.1(b)(xiii), provided that any Liens securing such Indebtedness shall rank junior to the Liens securing the Obligations and shall be subject to the Intercreditor Agreement, (4) (A) Acquisition Indebtedness Incurred in compliance with Section 9.1(b)(x) or (xi), provided that (x) such Liens are limited to all or part of the same property or assets, including Capital Stock (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof) acquired, or of any Person acquired or merged or consolidated with or into the U.S. Parent Borrower or any Restricted Subsidiary, in any transaction to which such Acquisition Indebtedness relates, (y) if such Liens are not junior to the Liens securing the Obligations pursuant to the Intercreditor Agreement, on the date of the Incurrence of such Indebtedness after giving effect to such Incurrence, the Consolidated Secured Leverage Ratio would equal or be less than the Consolidated Secured Leverage Ratio immediately prior to giving effect thereto or (z) such Liens rank junior to the Liens securing the Obligations and shall be subject to the Intercreditor Agreement, or (B) any Refinancing Indebtedness Incurred in respect thereof, (5) Indebtedness of any Restricted Subsidiary that is not a Loan Party (limited, in the case of this clause (k)(5), to Liens on any of the property and assets of any Restricted Subsidiary that is not a Loan Party) and (6) obligations in respect of Management Advances or Management Guarantees, in each case under the foregoing clauses (1) through (6) including Liens securing any Guarantee of any thereof;
 
-51-

(l) Liens existing on property or assets of a Person at the time such Person becomes a Subsidiary of the U.S. Parent Borrower (or at the time the U.S. Parent Borrower or a Restricted Subsidiary acquires such property or assets, including any acquisition by means of a merger or consolidation with or into the U.S. Parent Borrower or any Restricted Subsidiary); provided, however, that such Liens are not created in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; provided, further, that for purposes of this clause (l), if a Person other than the U.S. Parent Borrower is the Successor U.S. Parent Borrower with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of the U.S. Parent Borrower, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by the U.S. Parent Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor U.S. Parent Borrower;
(m) Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(n) any encumbrance or restriction (including, but not limited to, pursuant to put and call agreements or buy/sell arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(o) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness (other than any Indebtedness described in clause (k)(1) above of this definition) secured by, or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other obligation secured by, any other Permitted Liens, provided that any such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations to which such Liens relate;
(p) Liens (1) arising by operation of law (or by agreement to the same effect) in the ordinary course of business, including Liens arising under or by reason of the Perishable Agricultural Commodities Act of 1930, as amended from time to time, (2) on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets, (3) on receivables (including related rights), (4) on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent that such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose, (5) securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities (including in connection with purchase orders and other agreements with customers), (6) (A) on assets of a U.S. Borrower in favor of another U.S. Borrower, (B) on assets of a Canadian Loan Party in favor of another Loan Party (other than a Non-Borrowing Base Foreign Guarantor) or (C) on assets of a Non-Borrowing Base Foreign Guarantor or aRestricted Subsidiary that is not a Loan Party in favor of the U.S. Parent Borrower or any Restricted Subsidiary, (7) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business, (8) on inventory or other goods and proceeds securing obligations in respect of bankers’’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or other goods, (9) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business, (10) attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business, (11) arising in connection with repurchase agreements permitted under Section 9.1 on assets that are the subject of such repurchase agreements, or (12) arising under the PBA or other applicable pension standards legislation in Canada in respect of pension plan contribution amounts not yet due;
(q) other Liens securing Indebtedness or other obligations that in the aggregate do not exceed an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets at the time of Incurrence of such Indebtedness or other obligations; provided that such Liens, if attaching to any ABL Priority Collateral, shall be junior to the Liens securing the Obligations and subject to an intercreditor agreement on terms reasonably satisfactory to the Administrative Agent and the U.S. Parent Borrower; and
 
-52-

(r) Liens on assets of Restricted Subsidiaries that are not Loan Parties securing Indebtedness (including Liens securing any Obligations in respect thereof) or other obligations of, or in favor of, any Special Purpose Entity, or in connection with a Special Purpose Financing or otherwise, Incurred pursuant to clause (b)(ix) of Section  9.1.; and
(s) Liens created or arising under the general terms and conditions (algemene bankvoorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging van Banken), (in particular under any Liens arising under clause 24 or clause 25 thereof as amended or substituted from time to time) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and conditions.
For purposes of determining compliance with this definition, (w) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition 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), (x) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, the U.S. Parent Borrower shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition, (y) in the event that a portion of Indebtedness secured by a Lien could be classified as secured in part pursuant to clause (k)(1) above in respect of Indebtedness Incurred pursuant to Section 9.1(b)(i)(II) and clause (ii) of the definition of “Maximum Incremental Facilities Amount” in the Cash Flow Credit Agreement as in effect on the Closing Date (giving effect to the Incurrence of such portion of such Indebtedness), the U.S. Parent Borrower, in its sole discretion, may classify such portion of such Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (k)(1) above in respect of Indebtedness Incurred pursuant to Section 9.1(b)(i)(II) and clause (ii) of the definition of “Maximum Incremental Facilities Amount” in the Cash Flow Credit Agreement as in effect on the Closing Date and the remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition and (z) if any Liens securing Indebtedness are Incurred to refinance Liens securing Indebtedness initially Incurred in reliance on a basket measured by reference to a percentage of Consolidated Total Assets at the time of incurrence, and such refinancing would cause the percentage of Consolidated Total Assets restriction to be exceeded if calculated based on the Consolidated Total Assets on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such Indebtedness secured by such Liens does not exceed the principal amount of such Indebtedness secured by such Liens being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
“Permitted Payment” shall have the meaning provided in Section 9.2(b).
“Person” shall mean an individual, partnership, corporation, limited liability company, unlimited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
“Plan” shall mean at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the U.S. Parent Borrower or a Commonly Controlled Entity is an “employer” as defined in Section 3(5) of ERISA but does not include any Foreign Plan.
“Platform” shall mean Intralinks, SyndTrak Online or any other similar electronic distribution system.
“PPSA” shall mean, the Personal Property Security Act (Ontario) (or any successor statute) or similar legislation of any other jurisdiction the laws of which are required by such legislation to be applied in connection with the issue, perfection, enforcement, validity or effect of security interests.
 
-53-

“Preferred Stock” shall mean as applied to the Capital Stock of any corporation or company, Capital Stock of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation or company, over Capital Stock of any other class of such corporation or company.
“prime rate” shall mean the “prime rate” referred to in the definition of “ABR.”
“Proceeds of Crime Act” shall mean the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended from time to time, and including all regulations thereunder.
“Process Agent” shall have the meaning provided in Section 12.13(f).
“Progress Billing” shall mean any invoice for goods sold or leased or services rendered under a contract or agreement pursuant to which the Account Debtor’sDebtor’s obligation to pay such invoice is conditioned upon the U.S. Borrower or Canadian Loan Party’sParty’s completion of any further performance under the contract or agreement.
“Projections” shall mean those financial projections included in the confidential information memoranda and related material prepared in connection with the syndication of the Facility and provided to the Lenders on or about June 2015.
“Pro Rata Share” shall mean:
(a) with respect to a U.S. Revolving Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such U.S. Revolving Lender’sLender’s U.S. Revolving Commitment and the denominator of which is the sum of the amounts of all of the U.S. Revolving Lenders’’ U.S. Revolving Commitments (or if the U.S. Revolving Commitments have been terminated, such percentage as most recently in effect prior to such termination and after giving effect to subsequent assignments);
(b) with respect to a Canadian Revolving Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such Canadian Revolving Lender’sLender’s Canadian Revolving Commitment and the denominator of which is the sum of the amounts of all of the Canadian Revolving Lenders’’ Canadian Revolving Commitments (or if the Canadian Revolving Commitments have been terminated, such percentage as most recently in effect prior to such termination and after giving effect to subsequent assignments);
(c) with respect to a Term Lender of any Class, a fraction (expressed as a percentage), the numerator of which is the amount of such Term Lender’sLender’s Term Commitment of such Class and the denominator of which is the sum of all Term Lenders’’ Term Commitments of such Class (or, if the Term Commitments of such Class have been terminated, a fraction (expressed as a percentage), the numerator of which is the Outstanding Amount of such Term Lender’sLender’s Term Loan of such Class and the denominator of which is the Outstanding Amount of all Term Lenders’’ Term Loans of such Class); and
(e) with respect to a European Revolving Lender of any Class, a fraction (expressed as a percentage), the numerator of which is the amount of such European Revolving Lender’sLender’s European Revolving Commitment of such Class and the denominator of which is the sum of all European Revolving Lenders’’ European Revolving Commitments of such Class (or, if the European Revolving Commitments of such Class have been terminated, a fraction (expressed as a percentage), the numerator of which is the Outstanding Amount of such Incremental European Revolving Lender’sLender’s European Revolving Loan of such Class and the denominator of which is the Outstanding Amount of all European Revolving Lenders’’ Incremental European Revolving Loans of such Class).
“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.
 
-54-

“Public Lender” shall have the meaning provided in Section 12.17(c).
“Purchase” shall have the meaning provided in clause (4) of the definition of “Consolidated Coverage Ratio.”
“Purchase Money Obligations” shall mean any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets, and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
“QFC” shall have the meaning provided in Section 12.29(b).
“QFC Credit Support” shall have the meaning provided in Section 12.29.
“Qualified Canadian Lender” shall mean a financial institution that (i) is listed on Schedule I, II, or III of the Bank Act (Canada), (ii) has received an approval to have a financial establishment in Canada pursuant to Section 522.21 of the Bank Act (Canada), or (iii) is not a foreign bank for purposes of the Bank Act (Canada).
“Rating Agency” shall mean Moody’sMoody’s or S&P or, if Moody’sMoody’s or S&P or both shall not make a rating on the Term Loans publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the U.S. Parent Borrower which shall be substituted for Moody’sMoody’s or S&P or both, as the case may be.
“Reallocated European Revolving Commitment” shall mean, as to any European Revolving Lender, the obligation of such European Revolving Lender, if any, to make Reallocated European Revolving Loans and participate in other Credit Events as may be included in the applicable Reallocated European Revolving Facility, as the same may be changed from time to time pursuant hereto.
“Reallocated European Revolving Facility” shall have the meaning provided in Section 2.1(d).
“Reallocated European Revolving Loans” shall mean Revolving Loans pursuant to a Reallocated European Revolving Facility.
“Receivable” shall mean a right to receive payment pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay, as determined in accordance with GAAP.
“refinance” shall mean refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell or extend (including pursuant to any defeasance or discharge mechanism); and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this Agreement shall have a correlative meaning.
“Refinancing Indebtedness” shall mean Indebtedness that is Incurred to refinance Indebtedness Incurred pursuant to this Agreement and the Loan Documents, the Senior Notes and any Indebtedness (or unutilized commitment in respect of Indebtedness) existing on the Closing Date and set forth on Schedule 9.1 to this Agreement or Incurred (or established) in compliance with this Agreement (including Indebtedness of the U.S. Parent Borrower that refinances Indebtedness of any Restricted Subsidiary (to the extent permitted in this Agreement) and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness Incurred pursuant to a commitment that refinances any Indebtedness or unutilized commitment; provided that (1) if such Indebtedness is Subordinated Obligations, the Refinancing Indebtedness (x) has a final Stated Maturity at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the final Stated Maturity of the Indebtedness being refinanced (or, if shorter, the Initial Term Maturity Date), (y) has a weighted average life to maturity at the time such Refinancing Indebtedness is Incurred that is equal to or longer than the remaining weighted average life to maturity of the Indebtedness being refinanced (or, if shorter, the remaining weighted average life to maturity of the Cash
 
-55-

Flow Term Loans) and (z) if an Event of Default under Section 10.1 or 10.5 is continuing, is subordinated in right of payment to the Obligations to the same extent as the Indebtedness being refinanced, (2) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of (x) the aggregate principal amount then outstanding of the Indebtedness being refinanced, plus (y) an amount equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise then outstanding under the financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be drawn in compliance with Section 9.1 immediately prior to such refinancing, plus (z) fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such Refinancing Indebtedness, (3) Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that is not (A) a Restricted Subsidiary that is not a Loan Party that refinances Indebtedness of Loan Party or (B) a Canadian Loan Party that refinances Indebtedness of a U.S. Borrower, in either case, that could not have been initially Incurred by such Restricted Subsidiary or Canadian Loan Party, respectively, pursuant to Section 9.1 or (y) Indebtedness of the U.S. Parent Borrower or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary, and (4) if the Indebtedness being refinanced is secured by a Lien on the Collateral that is subject to the Intercreditor Agreement, the Liens securing such new Indebtedness shall be subject to the Intercreditor Agreement or a customary intercreditor agreement reasonably satisfactory to the Administrative Agents and the U.S. Parent Borrower.
“Register” shall have the meaning provided in Section 12.6(b)(iv).
“Regulation D” shall mean Regulation D of the Board as in effect from time to time.
“Regulation S-X” shall mean Regulation S-X promulgated by the SEC, as in effect on the Closing Date.
“Regulation T” shall mean Regulation T of the Board as in effect from time to time.
“Regulation U” shall mean Regulation U of the Board as in effect from time to time.
“Regulation X” shall mean Regulation X of the Board as in effect from time to time.
“Related Business” shall mean those businesses in which the U.S. Parent Borrower or any of its Subsidiaries is engaged on the Closing Date, or that are similar, related, complementary, incidental or ancillary thereto or extensions, developments or expansions thereof.
“Related Parties” shall mean, with respect to any Person, such Person’sPerson’s affiliates and the partners, officers, directors, trustees, employees, shareholders, members, attorneys and other advisors, agents and controlling persons of such person and of such person’sperson’s affiliates and “Related Party” shall mean any of them.
“Related Taxes” shall mean (x) any taxes, charges or assessments, including but not limited to sales, use, transfer, rental, ad valorem, value added, stamp, property, consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges or assessments (other than federal, state or local taxes measured by income and federal, state or local withholding imposed by any government or other taxing authority on payments made by any Parent Entity other than to another Parent Entity), required to be paid by any Parent Entity by virtue of its being incorporated or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than the U.S. Parent Borrower, any of its Subsidiaries or, any Parent Entity), or being a holding company parent of the U.S. Parent Borrower, any of its Subsidiaries or, any Parent Entity or receiving dividends from or other distributions in respect of the Capital Stock of the U.S. Parent Borrower, any of its Subsidiaries, any Parent Entity, or having guaranteed any obligations of the U.S. Parent Borrower or any Subsidiary thereof, or having made any payment in respect of any of the items for which the U.S. Parent Borrower or any of its Subsidiaries is permitted to make payments to any Parent Entity pursuant to Section 8.2, or acquiring, developing, maintaining, owning, prosecuting, protecting or defending its intellectual property and associated rights (including but not limited to receiving or paying royalties for the use thereof) relating to the business or businesses of the U.S. Parent Borrower or any Subsidiary thereof, (y) any other
 
-56-

federal, state or local taxes measured by income for which any Parent Entity is liable up to an amount not to exceed, with respect to federal taxes, the amount of any such taxes that the U.S. Parent Borrower and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated basis as if the U.S. Parent Borrower had filed a consolidated return on behalf of an affiliated group (as defined in Section 1504 of the Code) of which it were the common parent, or with respect to state and local taxes, the amount of any such taxes that the U.S. Parent Borrower and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated, combined, unitary or affiliated basis as if the U.S. Parent Borrower had filed a consolidated, combined, unitary or affiliated return on behalf of an affiliated group (as defined in the applicable state or local tax laws for filing such return) consisting only of the U.S. Parent Borrower and its Subsidiaries or (z) any other foreign taxes measured by income for which any Parent Entity is liable. Taxes include all interest, penalties and additions relating thereto.
“Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30 day notice period is waived under Section 21, 22, 23, 24, 25, 27 or 28 of PBGC Regulation Section 4043 or any successor regulation thereto.
“Required Lenders” shall mean, at any date, Lenders having or holding a majority of the Dollar Equivalent of the sum of (x) the Adjusted Total Revolving Commitment at such date (or, if the Revolving Commitments have been terminated, the Revolving Commitments as most recently in effect prior to such termination and after giving effect to subsequent assignments), (y) the Adjusted Term Commitment at such date and (z) the Outstanding Amount of all Term Loans (excluding Term Loans held by Defaulting Lenders) on such date.
“Requirement of Law” shall mean, as to any Person, the Organizational Documents of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation 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 material property or to which such Person or any of its material property is subject, including laws, ordinances and regulations pertaining to zoning, occupancy and subdivision of real properties and including GDPR; provided that the foregoing shall not apply to any non-binding recommendation of any Governmental Authority.
“Reserves” shall mean reserves that limit the availability of credit hereunder, consisting of reserves against the U.S. Borrowing Base and Canadian Borrowing Base in each instance, established by the Administrative Agents from time to time in the Administrative Agents’’ reasonable credit judgment in good faith, reasonably consistent with the Administrative Agents’’ practices with similarly situated borrowers and proportionate, in the Administrative Agents’’ reasonable credit judgment to the credit risk associated with the relevant risk or event; without duplication, and in each case to the extent not already taken into account in the calculation of the applicable Borrowing Base. Without limiting the generality of the foregoing, the following reserves shall be deemed to be a reasonable exercise of the Administrative Agent’sAgent’s credit judgment (but such Administrative Agent shall not be required to utilize such reserve): (a) Bank Product Reserves, (b) a reserve for accrued, unpaid interest then due on the Obligations, (c) reserves for rent at a leased, warehouse or bailment location for which the applicable Administrative Agent has not received a collateral access or similar agreement, which reserve shall be in an amount equal to the lesser of (i) 3 months’’ rent or (ii) applicable Availability provided by the Eligible Inventory at such location, and reserves for other statutory liens (including, without limitation, for liens arising from the nonpayment of claims or demands when due permitted in clause (b) of the defined term Permitted Liens), (d) Inventory shrinkage reserves and Inventory cost test reserves, (e) reserves for taxes, assessments, charges and other governmental levies which are delinquent, where the Person holding such claim has a perfected security interest in the Collateral, (f) customs and frequent charges relating to transportation of Inventory, (g) an amount equal to the product of (i) the excess, if any, of (x) the percentage amount, determined by the applicable Administrative Agent in its reasonable credit judgment as of the Closing Date and adjusted for each field audit examination hereunder, equal to (A) the aggregate amount of discounts, credits, rebates, adjustments, returns, writedowns, writeoffs and other reductions in the aggregate amount collected by the Loan Parties in respect of Accounts during the period of four fiscal quarters most recently ended, divided by (B) the aggregate amount of Eligible Accounts during the period of four fiscal quarters most recently ended and (y) 5.0%, multiplied by (ii) the aggregate amount of Eligible Accounts as of such date, (h) reserves established by the applicable Administrative Agent for amounts payable by the Canadian Borrower and the Canadian Guarantors and secured by any Liens, choate or inchoate, which rank or which would reasonably be expected to rank in priority to the Collateral Agent’sAgent’s Liens and/or for amounts which represent costs relating to the enforcement of the Collateral Agent’sAgent’s Liens including, without limitation, any such amounts due and not paid for wages and vacation pay
 
-57-

(including, pursuant to, the Wage Earners Protection Program Act (Canada)), severance pay, amounts due and not paid under any legislation relating to workers’’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Income Tax Act (Canada), sales tax, excise tax, tax payable pursuant to Part IX of the Excise Tax Act (Canada) (net of GST input credits) or similar applicable provincial legislation, government royalties, amounts currently or past due and not paid for realty, municipal or similar taxes (to the extent impacting personal or movable property) and all amounts currently or past due and not contributed, remitted or paid to any Plan or Foreign Plan or under the Canada Pension Plan or the PBA, amounts for wind-up deficiencies or any similar statutory or other claims that would have or would reasonably be expected to have priority over any Liens granted to the Collateral Agent in the future, (i) the U.S. Availability Reserve and (j) the Debt Maturity Reserve, which shall be established automatically on the date that is 60 days prior to the maturity of the Senior Notes.
“Responsible Officer” shall mean, as to any Person, any of the following officers of such Person: (a) the chief executive officer or the president of such Person and, with respect to financial matters, the chief financial officer, the treasurer or the controller of such Person, (b) any vice president of such Person or, with respect to financial matters, any assistant treasurer or assistant controller of such Person, in each case who has been designated in writing to the Administrative Agent or the Collateral Agent as a Responsible Officer by such chief executive officer or president of such Person or, with respect to financial matters, by such chief financial officer of such Person, (c) solely for purposes of notices given to Section 2, Responsible Officer shall include any other officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent and (d) with respect to Section 8.7 and ERISA matters and without limiting the foregoing, the general counsel (or substantial equivalent) of such Person; and as to any Person incorporated in the Netherlands, any board member authorized to represent such Person.
“Restatement Effective Date” shall mean February 28, 2019, the first date on which each of the conditions set forth in Section 5 was satisfied.
“Restricted Payment” shall have the meaning provided in Section 9.2(a).
“Restricted Payment Transaction” shall mean any Restricted Payment permitted pursuant to Section 9.2, any Permitted Payment, any Permitted Investment, or any transaction specifically excluded from the definition of the term “Restricted Payment” (including pursuant to the exception contained in clause (i) of such definition and the parenthetical exclusions contained in clauses (ii) and (iii) of such definition).
“Restricted Subsidiary” shall mean any Subsidiary of the U.S. Parent Borrower other than an Unrestricted Subsidiary.
“Revaluation Date” shall mean (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Loan denominated in an Alternative Currency, (ii) each date of a continuation of an Interest Period or BA Equivalent Interest Period for a Loan denominated in an Alternative Currency, and (iii) such additional dates as the Administrative Agents shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by a Letter of Credit Issuer under any Letter of Credit denominated in an Alternative Currency and (iv) such additional dates as the Administrative Agents or the Letter of Credit Issuers shall determine or the Required Lenders shall require.
“Revolving Commitments” shall mean the U.S. Revolving Commitments, the Canadian Revolving Commitments and any European Revolving Commitments.
“Revolving Loans” shall mean the collective reference to the U.S. Revolving Loans, the Canadian Revolving Loans and any European Revolving Loans.
 
-58-

“Revolving Maturity Date” shall mean the date that is five years after the Restatement Effective Date (or if such date is not a Business Day, the preceding Business Day).
“Sanctioned Country” means a country or territory which is at any time subject to comprehensive Sanctions.
“Sanctioned Person” means, at any time (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union or any European Union member state, Her Majesty’sMajesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating organized or resident in a Sanctioned Country, (c) any Person controlled by any such Person or Persons described in the foregoing clauses (a) and (b), or (d) any Person otherwise the subject of any Sanctions.
“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 OFAC or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state, Her Majesty’sMajesty’s Treasury of the United Kingdom or the respective governmental or supranational institutions which have jurisdiction over any of the Loan Parties or their Subsidiaries in relation to economic or financial sanctions.
“S&P” shall mean Standard & Poor’sPoor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and its successors.
“Sale” shall have the meaning provided in clause (3) of the definition of “Consolidated Coverage Ratio.”
“Scheduled Unavailability Date” shall have the meaning set forth in Section 2.10(e).
“SEC” shall mean the United States Securities and Exchange Commission.
“Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between the U.S. Parent Borrower or any of its Subsidiaries and any Cash Management Bank.
“Secured Hedge Agreement” shall mean any Hedge Agreement that is entered into by and between the U.S. Parent Borrower or any of its Subsidiaries and any Hedge Bank.
“Secured Parties” shall mean the Canadian Secured Parties and the U.S. Secured Parties.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Security Documents” shall mean the Canadian Security Documents and, the U.S. Security Documents and the Foreign Security Documents, collectively.
“Senior Notes” shall mean the 6.755.125% Senior Notes due 20232027 of the U.S. Parent Borrower outstanding on the date hereofAmendment No. 1 Effective Date, as the same may be exchanged for substantially similar senior notes that have been registered under the Securities Act, and as the same or such substantially similar notes may be amended, supplemented, waived or otherwise modified from time to time.
“Senior Notes Documents” shall mean the Senior Notes Indenture and all other instruments, agreements and other documents evidencing or governing the Senior Notes or providing for any guarantee, obligation, security or other right in respect thereof.
“Senior Notes Indenture” shall mean the Indenture dated as Julyof the Amendment No. 1, 2015 Effective Date, under which the Senior Notes are issued, as the same may be amended, supplemented, waived or otherwise modified from time to time.
 
-59-

“Single Employer Plan” shall mean any Plan which is covered by Title IV or Section 302 of ERISA or Section 412 of the Code, but which is not a Multiemployer Plan.
“Solvent” and “Solvency” shall mean, with respect to the U.S. Parent Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date means (i) the Fair Market Value and Present Fair Salable Value of the assets of the U.S. Parent Borrower and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the U.S. Parent Borrower and its Subsidiaries taken as a whole do not have unreasonably small capital; and (iii) the U.S. Parent Borrower and its Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature (all capitalized terms used in this definition (other than “Borrower” and “Subsidiary” which have the meanings set forth in this Agreement) shall have the meaning assigned to such terms in the form of solvency certificate attached hereto as Exhibit L).
“Special Purpose Entity” shall mean, (x) any Special Purpose Subsidiary or (y) any other Person that is engaged in the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code or any analogous law, as in effect in any applicable jurisdiction from time to time), other accounts and/or other receivables, and/or related assets and/or (ii) financing or refinancing in respect of Capital Stock of any Special Purpose Subsidiary.
“Special Purpose Financing” shall mean any financing or refinancing of assets consisting of or including Receivables of any Restricted Subsidiary that have been transferred to a Special Purpose Entity or made subject to a Lien in a Financing Disposition (including any financing or refinancing in respect of Capital Stock of a Special Purpose Subsidiary held by another Special Purpose Subsidiary).
“Special Purpose Financing Expense” shall mean for any period, (a) the aggregate interest expense for such period on any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary, which Indebtedness is not recourse to the U.S. Parent Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), and (b) Special Purpose Financing Fees.
“Special Purpose Financing Fees” shall mean distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Special Purpose Financing.
“Special Purpose Financing Undertakings” shall mean representations, warranties, covenants, indemnities, guarantees of performance and (subject to clause (y) of the proviso below) other agreements and undertakings entered into or provided by the U.S. Parent Borrower or any of its Restricted Subsidiaries that the U.S. Parent Borrower determines in good faith (which determination shall be conclusive) are customary or otherwise necessary or advisable in connection with a Special Purpose Financing or a Financing Disposition; provided that (x) it is understood that Special Purpose Financing Undertakings may consist of or include (i) reimbursement and other obligations in respect of notes, letters of credit, surety bonds and similar instruments provided for credit enhancement purposes, (ii) Hedging Obligations or other obligations relating to Interest Rate Agreements, Currency Agreements or Commodities Agreements entered into by the U.S. Parent Borrower or any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing Disposition, or (iii) any Guarantee in respect of customary recourse obligations (as determined in good faith by the U.S. Parent Borrower, which determination shall be conclusive) in connection with any Special Purpose Financing or Financing Disposition, including in respect of Liabilities in the event of any involuntary case commenced with the collusion of any Special Purpose Subsidiary or any Affiliate thereof, or any voluntary case commenced by any Special Purpose Subsidiary, under any applicable bankruptcy law, and (y) subject to the preceding clause (x), any such other agreements and undertakings shall not include any Guarantee of Indebtedness of a Special Purpose Subsidiary by the U.S. Parent Borrower or a Restricted Subsidiary that is not a Special Purpose Subsidiary.
“Special Purpose Subsidiary” shall mean any Subsidiary of the U.S. Parent Borrower that (a) is engaged solely in (x) the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code or any analogous law, as in effect in any applicable jurisdiction from time to time) and other accounts and receivables (including any thereof constituting or evidenced by chattel paper,
 
-60-

instruments or general intangibles), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and/or (ii) owning or holding Capital Stock of any Special Purpose Subsidiary and/or engaging in any financing or refinancing in respect thereof, and (y) any business or activities incidental or related to such business, and (b) is designated as a “Special Purpose Subsidiary” by the U.S. Parent Borrower.
“Specified Equity Contribution” shall mean cash equity contributions (which if in the form of preferred equity with respect to the U.S. Parent Borrower shall be on terms and conditions reasonably acceptable to the Administrative Agent) made directly or indirectly to the U.S. Parent Borrower as cash equity after the commencement of a fiscal quarter and on or prior to the day on which a Covenant Compliance Event has occurred for the Test Period ending on the last day of such fiscal quarter, which equity contribution is added to Consolidated EBITDA solely for the purposes of calculating compliance with Section 9.9.
“Specified Event of Default” shall mean an Event of Default under Section 10.1, Section 10.2 (solely as it relates to Borrowing Base Certificates), Section 10.3 (solely as it relates to Section 8.1(o), Section 8.13 or Section 9.9) or Section 10.5.
“Specified Loan Party” shall mean any Loan Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 12.27).
“Sponsors” shall mean, collectively, CD&R and CVC.
“Spot Rate” for a currency shall mean the rate determined by the applicable Administrative Agent or Letter of Credit Issuer, as applicable to be the rate quoted by such Person in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that such Administrative Agent or Letter of Credit Issuer may obtain such spot rate from another financial institution designated by such Administrative Agent or Letter of Credit Issuer if it does not have as of the date of determination a spot buying rate for any such currency.
“Stated Maturity” shall mean, with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).
“Sterling” or “£” shall mean lawful currency of the United Kingdom.
“Subordinated Obligations” shall mean any Indebtedness of any Loan Party (whether outstanding on the Closing Date or thereafter Incurred) that is expressly subordinated in right of payment to the Obligations of such Loan Party under the Loan Documents pursuant to a written agreement.
“Subsidiary” shall mean, as to any Person, a corporation, partnership, limited liability company or other entity (a) of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned by such Person, or (b) the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person and, in the case of this clause (b), which is treated as a consolidated subsidiary for accounting purposes. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the U.S. Parent Borrower.
“Successor Rate” shall have the meaning specified in Section 2.10(e).
“Successor Rate Conforming Changes” shall have the meaning specified in Section 2.10(e).
“Successor U.S. Parent Borrower” shall have the meaning provided in Section 9.7(a)(ii).
 
-61-

“Supermajority Lenders” shall mean, at any date, Lenders having or holding not less than 66 2/3% of the Dollar Equivalent of the sum of (x) the Adjusted Total Revolving Commitment at such date (or, if the Revolving Commitments have been terminated, the Revolving Commitments as most recently in effect prior to such termination and after giving effect to subsequent assignments), (y) the Adjusted Term Commitment at such date and (z) the Outstanding Amount of all Term Loans (excluding Term Loans held by Defaulting Lenders) on such date.
“Supported QFC” shall have the meaning provided in Section 12.29.
“Supporting Letter of Credit” shall have the meaning provided in Section 2.4(h).
“Swap Guarantor” shall mean (i) any Guarantor (other than the U.S. SubsidiaryParent Borrower orand Canadian GuarantorBorrower) and (ii) with respect to the payment and performance by each Guarantor (other than the U.S. SubsidiaryParent Borrower orand Canadian GuarantorBorrower) of its obligations under its Guarantee or grant of security interest with respect to all Obligations with respect to Swap Obligations, the U.S. Parent Borrower.
“Swap Obligations” shall mean, with respect to any Swap 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.
“Swingline Commitments” shall mean, collectively, the U.S. Swingline Commitment and the Canadian Swingline Commitment.
“Swingline Lender” shall mean, as the context requires, the U.S. Swingline Lender or a Canadian Swingline Lender. Any reference to the “Swingline Lender” shall refer to the U.S. Swingline Lender with respect to the U.S. Revolving Facility and/or a Canadian Swingline Lender with respect to the Canadian Revolving Facility, as applicable.
“Swingline Loan” shall have the meaning specified in Section 2.3(g).
“TARGET Day” shall mean any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the applicable Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Tax Sharing Agreement” shall mean any tax sharing agreement among the U.S. Parent Borrower, a Parent Entity and any of their respective Affiliates, as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Taxes” shall mean any and all present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority.
“Temasek Investors” shall mean, collectively, (i) Temasek Holdings (Private) Limited, and any successor in interest thereto, (ii) Dahlia Investments Pte. Ltd., and any successor in interest thereto, and (iii) any Affiliate of any Temasek Investor identified in clauses (i) and (ii) of this definition.
“Temporary Cash Investments” shall mean any of the following: (i) any investment in (x) direct obligations of the United States of America, Canada, a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the U.S. Parent Borrower or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any thereof, or obligations Guaranteed by the United States of America, Canada or a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the U.S. Parent Borrower or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any of the foregoing, or obligations guaranteed by any of the
 
-62-

foregoing or (y) direct obligations of any foreign country recognized by the United States of America rated at least “A” by S&P or “A-1” by Moody’sMoody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’sMoody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (ii) overnight bank deposits, and investments in time deposit accounts, certificates of deposit, bankers’’ acceptances and money market deposits (or, with respect to foreign banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by (x) any bank or other institutional lender under this Agreement or any affiliate thereof or (y) a bank or trust company that is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital and surplus aggregating in excess of $250,000,000 (or the foreign currency equivalent thereof) and whose long term debt is rated at least “A” by S&P or “A-1” by Moody’sMoody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’sMoody’s then exists, the equivalent of such rating by any nationally recognized rating organization) at the time such Investment is made, (iii) repurchase obligations with a term of not more than 30 days for underlying securities or instruments of the types described in clause (i) or (ii) above entered into with a bank meeting the qualifications described in clause (ii) above, (iv) Investments in commercial paper, maturing not more than 270 days after the date of acquisition, issued by a Person (other than that of the U.S. Parent Borrower or any of its Subsidiaries), with a rating at the time as of which any Investment therein is made of “P-2” (or higher) according to Moody’sMoody’s or “A-2” (or higher) according to S&P (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’sMoody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (v) Investments in securities maturing not more than one year after the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’sMoody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’sMoody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vi) Indebtedness or Preferred Stock (other than of the U.S. Parent Borrower or any of its Subsidiaries) having a rating of “A” or higher by S&P or “A2” or higher by Moody’sMoody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’sMoody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vii) investment funds investing 95.0% of their assets in securities of the type described in clauses (i) through (vi) above (which funds may also hold reasonable amounts of cash pending investment and/or distribution), (viii) any money market deposit accounts issued or offered by a domestic commercial bank or a commercial bank organized and located in a country recognized by the United States of America, in each case, having capital and surplus in excess of $250,000,000 (or the foreign currency equivalent thereof), or investments in money market funds subject to the risk limiting conditions of Rule 2a-7 (or any successor rule) of the SEC under the Investment Company Act of 1940, as amended and (ix) similar investments approved by the Board of Directors in the ordinary course of business.
“Term Commitment” shall mean an Initial Term Commitment.
“Term Lender” shall mean each Lender that has a Term Commitment, or that is the holder of a Term Loan.
“Term Loan” shall mean an Initial Term Loan.
“Term Notice of Borrowing” shall have the meaning provided in Section 2.2(b)(i).
“Termination Date” shall mean (i) the date on which all Commitments shall have terminated, no Loans shall be outstanding and the Letter of Credit Obligations outstanding shall have been reduced to zero, returned or cash collateralized on terms satisfactory to the applicable Letter of Credit Issuer(s) and (ii) when used with respect to (A) the Canadian Revolving Commitments, Canadian Revolving Loans, Canadian Agent Advances, Canadian Swingline Loans and Canadian Letters of Credit, shall mean the date on which the Canadian Revolving Commitments shall have terminated, no Canadian Revolving Loans, Canadian Swingline Loans or Canadian Agent Advances shall be outstanding and the Canadian Letters of Credit outstanding shall have been reduced to zero, returned or cash collateralized on terms satisfactory to the Canadian Letter of Credit Issuer, (B) the U.S. Revolving Commitments, U.S. Revolving Loans, U.S. Swingline Loans, U.S. Agent Advances and U.S. Letters of Credit, shall mean the date on which the U.S. Revolving Commitments shall have terminated, no U.S. Revolving Loans, U.S. Swingline Loans or U.S. Agent Advances shall be outstanding and the U.S. Letters of Credit outstanding shall have been reduced to zero, returned or cash collateralized on terms reasonably satisfactory to the U.S. Letter of Credit Issuer (or other arrangements have been made with respect thereto on terms reasonably satisfactory to the applicable U.S. Letter of Credit Issuer) and (C) the Term Commitments and Term Loans, shall mean the date on which the Term Commitments shall have terminated and no Term Loans shall be outstanding.
 
-63-

“Test Period” shall mean, for any determination under this Agreement, the most recent four consecutive fiscal quarters of the U.S. Parent Borrower then last ended for which financial statements have been delivered pursuant to Section 8.1(a) or (b).
“Total Canadian Revolving Commitment” shall mean the sum of the Canadian Revolving Commitments of all Lenders.
“Total Revolving Commitment” shall mean the sum of the Total Canadian Revolving Commitment and the Total U.S. Revolving Commitment.
“Total U.S. Revolving Commitment” shall mean the sum of the U.S. Revolving Commitments of all U.S. Revolving Lenders.
“Trade Payables” shall mean with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services.
“Transactions” shall mean collectively, any or all of the following (whether taking place prior to, on or following the date hereof): (i) the entry into the amendment to the Cash Flow Credit Facility and Incurrence of Indebtedness thereunder by one or more of the U.S. Parent Borrower and its Subsidiaries, (ii) the entry into the Facilities and the Incurrence of Indebtedness thereunder by one or more of the U.S. Parent Borrower and its Subsidiaries on the Closing Date and (iii) all other transactions relating to any of the foregoing (including payment of fees and expenses related to any of the foregoing).
“Transferee” shall mean any Participant or assignee.
“Type” shall mean (i) as to any U.S. Revolving Loan or Term Loan, if any, its nature as an ABR Loan or a LIBOR Loan or a BA Equivalent Loan, (ii) as to any Canadian Revolving Loan, its nature as an ABR Loan, Canadian Prime Rate Loan, BA Equivalent Loan or a LIBOR Loan and (iii) as to any Term Loan, its nature as a Canadian Prime Rate Loan or a BA Equivalent Loan.
“UCC” shall mean the Uniform Commercial Code in effect from time to time in New York; provided that if, with respect to any UCC financing statement or by reason of any provisions of law, the perfection or the effect of perfection or non-perfection of the security interests granted to the Administrative Agent pursuant to the applicable Loan Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of each Loan Document and any financing statement relating to such perfection or effect of perfection or non-perfection.
“UFCA” shall have the meaning provided in Section 12.22.
“UFTA” shall have the meaning provided in Section 12.22.
“Unfunded Current Liability” shall mean (i) of any Plan shall mean the amount, if any, by which the Accumulated Benefit Obligation (as defined under Statement of Financial Accounting Standards No. 87 (“SFAS 87”)) under the Plan as of the close of its most recent plan year, determined in accordance with SFAS 87 as in effect on the date hereof, using the actuarial assumptions and methods specified in the most recent actuarial report for such Plan, exceeds the fair market value of the assets allocable thereto and (ii) of any Canadian Defined Benefit Plan of the Canadian Borrower or any Canadian Subsidiary shall mean going concern and solvency funding deficiencies, if any, determined in the applicable actuarial report and used for funding the Canadian Defined Benefit Plan pursuant to the PBA or other applicable pension standards legislation in Canada.
 
-64-

“Unrestricted Cash” shall mean, at any date of determination, (a) the aggregate amount of cash, Cash Equivalents and Temporary Cash Investments included in the cash accounts that would be listed on the consolidated balance sheet of the U.S. Parent Borrower prepared in accordance with GAAP as of the end of the most recent four consecutive quarters ending prior to the date of such determination for which consolidated financial statements of the U.S. Parent Borrower are available to the extent such cash is not classified as “restricted” for financial statement purposes (unless so classified solely because of any provision under the Loan Documents or any other agreement or instrument governing other Indebtedness that is subject to the Intercreditor Agreement governing the application thereof or because they are subject to a Lien securing the Obligations or other Indebtedness that is subject to the Intercreditor Agreement), plus (b) the proceeds from any Incurrence of Additional Obligations since the date of such consolidated balance sheet and on or prior to the date of determination that are (in the good faith judgment of the U.S. Parent Borrower) intended to be used for working capital purposes.
“Unrestricted Subsidiary” shall mean (i) any Subsidiary of the U.S. Parent Borrower that at the time of determination is an Unrestricted Subsidiary, as designated by the Board of Directors in the manner provided below, and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of the U.S. Parent Borrower (including any newly acquired or newly formed Subsidiary of the U.S. Parent Borrower), other than a Borrower and any direct or indirect parent entity of a Borrower to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the U.S. Parent Borrower or any other Restricted Subsidiary of the U.S. Parent Borrower that is not a Subsidiary of the Subsidiary to be so designated; provided, that (A) such designation was made at or prior to the Closing Date, or (B) the Subsidiary to be so designated has total consolidated assets of $1,000 or less, (C) if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Section 9.2 and (D) immediately after such designation, no Event of Default under Section 10.1 or 10.5 shall have occurred and be continuing. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that immediately after giving effect to such designation (1) (x) the U.S. Parent Borrower could Incur at least $1.00 of additional Indebtedness under Section 9.1(a) or (y) the Consolidated Coverage Ratio would be greater than it was immediately prior to giving effect to such designation or (z) such Subsidiary shall be a Special Purpose Subsidiary with no Indebtedness outstanding other than Indebtedness that can be Incurred (and upon such designation shall be deemed to be Incurred and outstanding) pursuant to Section 9.1(b) and (2) immediately after such designation, no Event of Default under Section 10.1 or 10.5 shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the U.S. Administrative Agent by promptly filing with the U.S. Administrative Agent a copy of the resolution of the U.S. Parent Borrower’sBorrower’s Board of Directors giving effect to such designation and a certificate of a Responsible Officer of the U.S. Parent Borrower certifying that such designation complied with the foregoing provisions.
“Unused Canadian Letter of Credit Subfacility” shall mean, at any time, an amount equal to the Canadian Letter of Credit Subfacility at such time minus the Outstanding Amount of Canadian Letter of Credit Obligations at such time.
“Unused Line Fees” shall mean a collective reference to the U.S. Unused Line Fee and the Canadian Unused Line Fee.
“Unused U.S. Letter of Credit Subfacility” shall mean, at any time, an amount equal to the U.S. Letter of Credit Subfacility at such time minus the Outstanding Amount of U.S. Letter of Credit Obligations at such time.
“U.S. Administrative Agent” shall mean Bank of America, as the administrative agent for the U.S. Revolving Lenders and Term Lenders under this Agreement, or any successor administrative agent pursuant to Section 11.
“U.S. Agent Advances” shall have the meaning provided in Section 2.2(h)(i).
“U.S. Availability” shall mean, at any time the excess of (x) the lesser of (i) the Total U.S. Revolving Commitment at such time and (ii) the U.S. Borrowing Base at such time minus (y) the Aggregate U.S. Revolving Exposure at such time.
 
-65-

“U.S. Availability Reserve” shall the meaning provided in the definition of “Canadian Borrowing Base”.
“U.S. Blocked Account” shall have the meaning provided in Section 8.13(a)(i).
“U.S. Borrowers” shall have the meaning provided in the preamble to this Agreement.
“U.S. Borrowing Base” shall mean, on any date, a Dollar amount equal to (w) 85% multiplied by the book value of Eligible Accounts of the U.S. Borrowers on such date plus (x) 85% multiplied by the Net Orderly Liquidation Value of Eligible Inventory (without duplication) of the U.S. Borrowers on such date plus (y) 100% multiplied by the amount of cash of the U.S. Borrowers held in deposit accounts with an affiliate of the U.S. Administrative Agent and subject to control agreements (in form and substance reasonably satisfactory to the Collateral Agent) in favor of the U.S. Administrative Agent (without duplication) minus (z) any Reserves on such date established by the U.S. Administrative Agent with respect to the U.S. Borrowing Base.
“U.S. Collateral” shall mean all property pledged or purported to be pledged pursuant to the U.S. Security Documents.
“U.S. Commitment Increase” shall have the meaning provided in Section 2.15(a).
“U.S. Concentration Account” shall have the meaning provided in Section 8.13(a)(i).
“U.S. Designated Account” shall have the meaning provided in Section 2.2(c).
“U.S. Fronting Fee” shall have the meaning provided in Section 3.3(a).
“U.S. Guarantee” shall mean, collectively, the guarantees by the U.S. Borrowers in favor of the Collateral Agent for the benefit of the Secured Parties in respect of the Obligations made pursuant to the U.S. Security Agreement or otherwise.
“U.S. Letter of Credit” shall have the meaning provided in Section 2.4(a)(i).
“U.S. Letter of Credit Fee” shall have the meaning provided in Section 3.3(a).
“U.S. Letter of Credit Issuer” shall mean Bank of America, Wells Fargo Bank, N.A. (solely with respect to any Existing Letters of Credit issued by it) any Affiliate of Bank of America or any other financial institution that issues any U.S. Letter of Credit pursuant to this Agreement; provided that solely for purposes of each Existing Letter of Credit, the entity identified on Schedule 2.4 to this Agreement as the issuer of such Letter of Credit shall be deemed for all purposes of this Agreement to be the U.S. Letter of Credit Issuer and shall have all rights, obligations and privileges of the U.S. Letter of Credit Issuer with respect thereto.
“U.S. Letter of Credit Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding U.S. Letters of Credit plus the aggregate of all amounts drawn under the U.S. Letters of Credit, including all Letter of Credit Borrowings under U.S. Letters of Credit. For all purposes of this Agreement, if on any date of determination a U.S. 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 U.S. Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“U.S. Letter of Credit Participant” shall mean a Letter of Credit Participant in a U.S. Letter of Credit.
“U.S. Letter of Credit Subfacility” shall mean $250,000,000.
“U.S. Line Cap” shall mean at any time the lesser of (i) the Total U.S. Revolving Commitment at such time and (ii) the U.S. Borrowing Base at such time.
 
-66-

“U.S. Lock Boxes” shall have the meaning provided in Section 8.13(a)(i).
“U.S. Notice of Borrowing” shall have the meaning provided in Section 2.2(b)(i).
“U.S. Notice of Conversion or Continuation” shall have the meaning provided in Section 2.8(b)(iii).
“U.S. Obligations” shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, the U.S. Borrowers arising under any Loan Document and all debts, liabilities, obligations, covenants and duties of the U.S. Parent Borrower or any of its Subsidiaries (other than Canadian Subsidiaries) under any Secured Cash Management Agreement or Secured Hedge Agreement, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any U.S. Borrower or any of its Subsidiaries of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“U.S. Parent Borrower” shall have the meaning provided in the preamble to this Agreement.
“U.S. Revolving Commitment” shall mean, as to any U.S. Revolving Lender, the obligation of such U.S. Revolving Lender, if any, to make U.S. Revolving Loans and participate in U.S. Letters of Credit, U.S. Swingline Loans and U.S. Agent Advances in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “U.S. Revolving Commitment” opposite such U.S. Revolving Lender’sLender’s name on Schedule A or in the Assignment and Acceptance pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the U.S. Revolving Commitments of the U.S. Revolving Lenders as of the Restatement Effective Date is $1,200,000,000.
“U.S. Revolving Facility” shall have the meaning provided in Section 2.1(a).
“U.S. Revolving Lender” shall mean a Lender with a U.S. Revolving Commitment or an outstanding U.S. Revolving Loan, U.S. Swingline Loan, U.S. Agent Advance or that is a U.S. Letter of Credit Participant.
“U.S. Revolving Loan” shall have the meaning provided in Section 2.2(a).
“U.S. Secured Parties” shall mean the U.S. Administrative Agent, the Collateral Agent, each U.S. Revolving Lender, each U.S. Swingline Lender, each U.S. Letter of Credit Issuer, each Term Lender, each Secured Hedge Bank that is party to any Secured Hedge Agreement with any Restricted Subsidiary (other than a Canadian Subsidiary), each Cash Management Bank that is party to a Secured Cash Management Agreement with a Restricted Subsidiary (other than a Canadian Subsidiary) and each sub-agent pursuant to Section 11 appointed by the U.S. Administrative Agent.
“U.S. Security Agreement” shall mean the Amended and Restated ABL Guarantee and Collateral Agreement among the U.S. Borrowers, the other Domestic Subsidiaries from time to time party thereto and the Collateral Agent for the benefit of the Secured Parties, dated as of the Restatement Effective Date, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.
“U.S. Security Documents” shall mean, collectively, (a) the U.S. Security Agreement, and (b) each other security agreement or other instrument or document executed and delivered pursuant to Section 8.8, 8.9 or 8.11 or pursuant to any other such U.S. Security Documents to secure any of the Obligations.
“U.S. Special Resolution Regimes” shall have the meaning provided in Section 12.29.
“U.S. Specified Suppressed Availability” at any time, shall mean the excess at such time of (i) the U.S. Borrowing Base at such time over (ii) the Total U.S. Revolving Commitment at such time; provided that (i) for so long as any Term Loans are outstanding, for purposes of any test of any minimum Dollar amount of the U.S.
 
-67-

Borrowing Base or any threshold percentage of the U.S. Borrowing Base set forth in this Agreement, if U.S. Specified Suppressed Availability would otherwise account for more than 50% of such Dollar amount or threshold percentage, then U.S. Specified Suppressed Availability shall instead be deemed to be 50% of such Dollar amount or threshold percentage and (ii) at any time that no Term Loans are outstanding, if the excess of (x) the Total U.S. Revolving Commitment at such time over (y) the Aggregate U.S. Revolving Exposure at such time is less than 5.0% of the Total U.S. Revolving Commitment at such time, U.S. Specified Suppressed Availability shall be deemed to be zero.
“U.S. Subsidiary” shall mean any direct or indirect Subsidiary of the U.S. Parent Borrower which is organized under the laws of the United States of America.
“U.S. Subsidiary Borrower Assumption Agreement” shall mean an Assumption Agreement substantially in the form of Exhibit N, executed by any Domestic Subsidiary that becomes a U.S. Subsidiary Borrower after the Closing Date, as the same may be amended, supplemented or otherwise modified from time to time.
“U.S. Swingline Commitment” shall mean the obligation of the U.S. Swingline Lender to make U.S. Swingline Loans in an aggregate amount not to exceed $60,000,000.
“U.S. Swingline Lender” shall mean Bank of America, in its capacity as provider of U.S. Swingline Loans.
“U.S. Swingline Loan” shall have the meaning provided in Section 2.2(g)(i).
“U.S. Tax Compliance Certificate” shall have the meaning provided in Section 4.5(d)(iii).
“U.S. Testing Availability” at any time, shall mean the sum of (i) U.S. Availability at such time plus (ii) U.S. Specified Suppressed Availability at such time.
“U.S. Unused Line Fee” shall have the meaning provided in Section 3.2(a).
“Voting Stock” shall mean, as to any entity, all classes of Capital Stock of such entity then outstanding and normally entitled to vote in the election of directors or all interests in such entity with the ability to control the management or actions of such entity.
“Wholly Owned Subsidiary” shall mean, as to any Person, any Subsidiary of such Person of which such Person owns, directly or indirectly through one or more Wholly Owned Subsidiaries, all of the Capital Stock of such Subsidiary other than directors qualifying shares or shares held by nominees.
“Write-Down and Conversion Powers” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.1                         1.2. Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)(a) As used herein and in any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to the U.S. Parent Borrower and its Restricted Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b)(b) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
 
-68-

(c)(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d)(d) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(e)(e) Any references in this Agreement to “cash and/or Cash Equivalents,” “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(f)(f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(g)(g) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the U.S. Parent Borrower, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if the U.S. Parent Borrower has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(h)(h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(1) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Fixed Charge Coverage Ratio (other than for the purposes of determining compliance with Section 9.6 as to whether any Default or Event of Default shall have occurred thereunder), the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(2) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets but excluding any Combined Availability requirement);
in each case, at the option of the U.S. Parent Borrower (the U.S. Parent Borrower’sBorrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be
 
-69-

entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of the U.S. Parent Borrower are available, the U.S. Parent Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the U.S. Parent Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total Assets or Foreign Consolidated Total Assets of the U.S. Parent Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the U.S. Parent Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability (other than any Combined Availability requirement) with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the U.S. Parent Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
(i)(i) For purposes of any Collateral located in the Province of Québec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (q) “personal property” shall be deemed to include “movable property,” (r) “real property” shall be deemed to include “immovable property,” (s) “tangible property” shall be deemed to include “corporeal property,” (t) “intangible property” shall be deemed to include “incorporeal property,” (u) “security interest” and “mortgage” shall be deemed to include a “hypothec,” (v) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Québec, (w) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (x) any “right of offset,” “right of setoff” or similar expression shall be deemed to include a “right of compensation,” (y) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, and (z) an “agent” shall be deemed to include a “mandatary.”
(j)(j) Any deduction of Reserves in any definition herein shall be without duplication.
(k) Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
 
-70-

1.1.                         1.3. [Reserved].
1.1.                         1.4.[Reserved].
1.1.                         1.5.[Reserved].
1.1.                         1.6. Exchange Rates. The applicable Administrative Agent or Letter of Credit Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the Dollars and Alternative Currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the applicable Administrative Agent or Letter of Credit Issuer, as applicable.
1.1.                          1.7. Additional Alternative Currencies.
(a)(a) The Borrowers may from time to time request that LIBOR Loans be made and/or Letters of Credit be issued under the U.S. Revolving Facility and/or the Canadian Revolving Facility in a currency other than those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of LIBOR Loans, such request shall be subject to the approval of the U.S. Administrative Agent and the U.S. Revolving Lenders, in the case of the U.S. Revolving Facility, or the Canadian Administrative Agent and the Canadian Revolving Lenders, in the case of the Canadian Revolving Facility; and in the case of any such request with respect to the issuance of Letters of Credit under the U.S. Revolving Facility or Canadian Revolving Facility, such request shall be subject to the approval of the applicable Administrative Agent and Letter of Credit Issuer.
(a) (b) Any such request shall be made to the applicable Administrative Agent not later than 11:00 a.m., twenty Business Days prior to the date of the desired borrowing (or such other time or date as may be agreed by the applicable Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the applicable Letter of Credit Issuer, in its or their sole discretion). In the case of any such request pertaining to LIBOR Loans, the applicable Administrative Agent shall promptly notify each applicable Lender thereof; and in the case of any such request pertaining to Letters of Credit, the applicable Administrative Agent shall promptly notify the applicable Letter of Credit Issuer thereof. Each applicable Lender (in the case of any such request pertaining to LIBOR Loans) or the applicable Letter of Credit Issuer (in the case of a request pertaining to Letters of Credit) shall notify the applicable Administrative Agent, not later than 11:00 a.m., ten Business Days (or such other period of time as may be agreed by the applicable Administrative Agent in its sole discretion) after receipt of such request whether it consents, in its sole discretion, to the making of LIBOR Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(a) (c) Any failure by any applicable Lender or Letter of Credit Issuer, as the case may be, to respond to such request within the time period specified in the preceding paragraph shall be deemed to be a refusal by such Lender or the Letter of Credit Issuer, as the case may be, to permit LIBOR Loans to be made or Letters of Credit to be issued in such requested currency. If the applicable Administrative Agent and all applicable Lenders consent to making LIBOR Loans in such requested currency, the Administrative Agent shall so notify the U.S. Parent Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency under the applicable facility hereunder for purposes of any borrowing of LIBOR Loans; and if the applicable Administrative Agent and Letter of Credit Issuer consent to the issuance of Letters of Credit in such requested currency, the applicable Administrative Agent shall so notify the U.S. Parent Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If an Administrative Agent shall fail to obtain consent of all applicable Lenders to any request for an additional currency under this Section 1.7, such Administrative Agent shall promptly so notify the U.S. Parent Borrower.
 
-71-

1.1.                          1.8. Change of Currency.
(a) (a) Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any LIBOR Loan in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such LIBOR Loan, at the end of the then current Interest Period.
(a) (b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agents may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
(a)(c) Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agents may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.
1.1.                         1.9. Effect of Restatement. This Agreement shall amend and restate the Original Credit Agreement in its entirety, with the parties hereby agreeing that there is no novation of the Original Credit Agreement and, on the Restatement Effective Date, the rights and obligations of the parties under the Original Credit Agreement shall be subsumed and governed by this Agreement. Following the Restatement Effective Date, the Commitments under the Original Credit Agreement shall no longer be in effect and thereafter only Commitments under this Agreement shall be outstanding until otherwise terminated in accordance with the terms hereof.
1.10. Non-Borrowing Base Foreign Guarantor Documentation. Each guaranty and each collateral document entered into by a Non-Borrowing Base Foreign Guarantor, in the case of Non-Borrowing Base Foreign Guarantor, shall be subject to the Non-Borrowing Base Foreign Guarantor Documentation Principles in all respects.
1.11. Dutch Terms. In this Agreement, where it relates to a Person incorporated in the Netherlands, a reference to:
(a) “the Netherlands” means the European part of the Kingdom of the Netherlands and “Dutch” means in or of the Netherlands;
(b) “organizational documents” means the articles of association (statuten), the deed of incorporation (akte van oprichting) and an up-to-date extract of registration of the Dutch trade register;
(c) a “certificate of incorporation” means a deed of incorporation (akte van oprichting);
(d) a “security interest”, “security” or “lien” includes any mortgage (hypotheekrecht), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van rententie), right to reclaim goods (recht van reclame) and any right in rem (beperkt recht) created for the purpose of granting security (goederenrechtelijke zekerheid);
(e) a “winding-up”, “administration” or “dissolution” includes declared bankrupt (failliet verklaard) or dissolved (ontbonden);
(f) a “moratorium” includes surseance van betaling or voorlopige surseance van betaling and a “moratorium is declared” includes surseance verleend or voorlopige surseance verleend;
 
-72-

(g) a “liquidator”, “receiver”, “administrative receiver”, “conservator”, “trustee”, “administrator”, “compulsory manager”, “custodian”, “assignee for the benefit of creditors” or similar Person includes a curator, a beoogd curator or a bewindvoerder;
(h) an “attachment” includes a executoriaal beslag or conservatoir beslag;
(i) “all necessary corporate or other organizational action to authorize” includes without limitation (i) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden) and (ii) obtaining an unconditional positive advice (advies) from the competent works council(s);
(j) to “commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors” includes a Person having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990); and
(k) a “proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors” includes any insolvency proceedings within the meaning of the Insolvency Regulation listed or to be listed in Annex A thereto.
SECTION 1.SECTION 2. Loans and Letters of Credit
1.1.                         2.1. Credit Facilities.
(a) (a) Subject to all of the terms and conditions of this Agreement, the U.S. Revolving Lenders agree to make available a revolving credit facility (the “U.S. Revolving Facility”) to the U.S. Borrowers from time to time prior to the Revolving Maturity Date, which credit facilities shall be composed of a revolving line of credit consisting of U.S. Revolving Loans, U.S. Swingline Loans and U.S. Letters of Credit of up to the Total U.S. Revolving Commitment. U.S. Revolving Loans denominated in Dollars may be ABR Loans or LIBOR Loans as further provided herein. U.S. Revolving Loans denominated in Cdn. Dollars shall at all times be BA Equivalent Loans. U.S. Revolving Loans denominated in Alternative Currencies (other than Cdn. Dollars) shall at all times be LIBOR Loans. Each U.S. Revolving Lender may, at its option, make any Loan available to any U.S. Borrower by causing any foreign or domestic branch or Affiliate of such U.S. Revolving Lender to make such U.S. Revolving Loan; provided that any exercise of such option shall not affect the obligation of such U.S. Borrower to repay such U.S. Revolving Loan in accordance with the terms of this Agreement.
(a) (b) Subject to all of the terms and conditions of this Agreement, the Canadian Revolving Lenders agree to make available a revolving credit facility (the “Canadian Revolving Facility”) to the Canadian Borrower from time to time prior to the Revolving Maturity Date, which credit facilities shall be composed of a revolving line of credit consisting of Canadian Revolving Loans to the Canadian Borrower, Canadian Swingline Loans to the Canadian Borrower and Canadian Letters of Credit for the account of the Canadian Borrower of up to the Total Canadian Revolving Commitment. Canadian Revolving Loans denominated in Dollars may be ABR Loans or LIBOR Loans as further provided herein. Canadian Revolving Loans denominated in Cdn. Dollars may be Canadian Prime Rate Loans or BA Equivalent Loans as further provided herein. Canadian Revolving Loans denominated in Alternative Currencies (other than Cdn. Dollars) shall at all times be LIBOR Loans. Each Canadian Revolving Lender may, at its option, make any Loan available to any Canadian Borrower by causing any foreign or domestic branch or Affiliate of such Qualified Canadian Lender to make such Canadian Revolving Loan; provided that any exercise of such option shall not affect the obligation of such Canadian Borrower to repay such Canadian Revolving Loan in accordance with the terms of this Agreement.
(a) (c) To the extent a Reallocated European Revolving Facility of the applicable Class has not previously been established, the U.S. Parent Borrower may request the establishment of a Reallocated European Revolving Facility (the “Reallocated European Revolving Facility”); provided that (i) the borrower under such Reallocated European Revolving Facility shall be a Restricted Subsidiary of the U.S. Parent Borrower organized
 
-73-

under the laws of the United Kingdom, the Netherlands or Germany, (ii) such Reallocated European Revolving Facility shall be guaranteed by the U.S. Borrowers and, Canadian Loan Parties and the Non-Borrowing Base Foreign Guarantors and secured by the U.S. Collateral and the Canadian Collateral, (iii) Borrowings under such Reallocated European Revolving Facility shall be subject to U.S. Availability and a Reserve shall be implemented in respect of the U.S. Borrowing Base in an amount equal to the aggregate amount of Commitments in respect of such Reallocated European Revolving Facility, (iv) the aggregate amount of Commitments in respect of such Reallocated European Revolving Facility shall not exceed $50,000,000, (v) prior to creation of such Reallocated European Revolving Facility, each Lender under such Reallocated European Revolving Facility shall have received all documentation and other information about the relevant borrower under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and to the extent such borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have received, to the extent requested, a Beneficial Ownership Certification in relation to such borrower, (vi) the Administrative Agents shall have consented to the establishment of such Reallocated European Revolving Facility (such consent not to be unreasonably withheld, conditioned or delayed), (vii) the Commitments under such Reallocated European Revolving Facility shall have been reallocated from the Canadian Revolving Facility or the U.S. Revolving Facility pursuant to Section 2.1(d), (viii) obligations under such Reallocated European Revolving Facility will be pari passipassu in right of payment with the obligations under the U.S. Revolving Facility and the “waterfall” in Section 10 shall be amended to reflect such priority and (ix) the terms of such Reallocated European Revolving Facility shall otherwise be substantially similar to the terms applicable to the U.S. Revolving Facility including with respect to maturity and pricing. To the extent a Reallocated European Revolving Facility is established, this Agreement and the other Loan Documents may be amended solely with the consent of the U.S. Parent Borrower and the Administrative Agent to give effect to the foregoing requirements, including for any local law provisions and such other administrative changes as may be required to give effect to such Reallocated European Revolving Facility. Each European Revolving Lender may, at its option, make any European Revolving Loan available to the applicable borrower by causing any foreign or domestic branch or Affiliate of such European Revolving Lender to make such European Revolving Loan; provided that any exercise of such option shall not affect the obligation of such borrower to repay European Revolving Loan in accordance with the terms of this Agreement.
(a) (d) Up to one time in any fiscal quarter of the U.S. Parent Borrower, so long as Availability Conditions would be satisfied before and after giving effect thereto, the Borrowers may reallocate (i) all or a portion of any U.S. Revolving Lenders’’ Commitments with respect to the U.S. Revolving Facility to the Canadian Revolving Facility, to a Reallocated European Revolving Facility (to the extent established, including an establishment concurrent with such reallocation) or to an Incremental European Revolving Facility (to the extent established, including an establishment concurrent with such reallocation), (ii) all or a portion of any Canadian Revolving Lenders’’ Commitments with respect to the Canadian Revolving Facility to the U.S. Revolving Facility, to a Reallocated European Revolving Facility (to the extent established) or to an Incremental European Revolving Facility (to the extent established) or (iii) all or a portion of any European Revolving Lenders’’ Commitments with respect to a Reallocated European Revolving Facility or Incremental European Revolving Facility to the Canadian Revolving Facility, the U.S. Revolving Facility, Reallocated European Revolving Facility(to the extent established) or to an Incremental European Revolving Facility (to the extent established), in each case by written notice to the Administrative Agents delivered at least 10 Business Days prior to the proposed date of effectiveness of such reallocation, in form reasonably satisfactory to the Administrative Agents and with the written consent of each Lender whose commitment is being reallocated (it being understood that any Reallocated European Revolving Facility shall be subject to the cap set forth in clause (c) above); provided that (i) no Default or Event of Default shall exist and be continuing or result from such reallocation, (ii) the aggregate principal amount of the Total Revolving Commitments shall not increase as a result of such reallocation and (iii) the aggregate principal amount of the Revolving Commitments of any Lender who participates in such reallocation shall not increase as a result of such reallocation. Upon such reallocation, (i) the specified amount of such Lender’sLender’s U.S. Revolving Commitments, Canadian Revolving Commitments, Reallocated European Revolving Commitments or Incremental European Revolving Commitments, as applicable, shall be deemed to be converted to an increase in such Canadian Revolving Commitments, U.S. Revolving Commitments, Reallocated European Revolving Commitments or Incremental European Revolving Commitments, as applicable, for all purposes hereof and (ii) each Lender shall purchase or sell U.S. Revolving Loans, Canadian Revolving Loans, Reallocated European Revolving Loans or Incremental European Revolving Loans, as applicable, at par to the other Lenders as specified by the Administrative Agents in an amount necessary such that, after giving effect to all such purchases and sales, each Lender shall have funded its Pro Rata Share of the entire amount of the then outstanding U.S. Revolving Loans, Canadian Revolving Loans, Reallocated Revolving Loans and Incremental European Revolving Loans, as applicable.
 
-74-

(a) (e) Subject to all of the terms and conditions of this Agreement, on the Restatement Effective Date, each Initial Term Lender agrees, severally and not jointly, to make a loan (each such loan an “Initial Term Loan”) to the Canadian Borrower in Cdn. Dollars in an amount equal to such Lender’sLender’s Initial Term Commitment at an exchange rate such that the total aggregate amount of the Initial Term Loans funded on the Restatement Effective Date equals Cdn.$230,000,000. The Initial Term Loans may, at the option of the Canadian Borrower, be incurred and maintained as, and/or converted into, Canadian Prime Rate Loans or BA Equivalent Loans; provided that all Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Initial Term Loans of the same Type. Initial Term Loans may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid, may not be reborrowed.
1.1. 2.2. U.S. Revolving Loans and Borrowing Procedures for U.S. Revolving Loans and Term Loans.
.
(a) (a) Amounts. Subject to all of the terms and conditions of this Agreement, each U.S. Revolving Lender severally, but not jointly, agrees, upon the U.S. Parent Borrower’sBorrower’s request from time to time on any Business Day during the period from the Restatement Effective Date to the Revolving Maturity Date, to make revolving loans (the “U.S. Revolving Loans”) to the U.S. Borrowers denominated in Dollars or any Alternative Currency in amounts not to exceed such U.S. Revolving Lender’sLender’s Pro Rata Share of the Total U.S. Revolving Commitment, so long as after giving effect thereto and the application of the proceeds thereof, the Availability Conditions are satisfied. The U.S. Borrowers may use the U.S. Revolving Commitments by borrowing, prepaying the U.S. Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. U.S. Revolving Loans of the applicable Class shall automatically be made as ABR Loans for the payment of interest on such Loans and other Obligations due hereunder on the date when due to the extent available in accordance with the foregoing limitations and not paid by the U.S. Borrowers and, in each case, as provided for herein.
(a) (b) Procedure for Borrowing.
(i)(i) Each Borrowing of U.S. Revolving Loans or Term Loans by the U.S. Borrowers shall be made upon the U.S. Parent Borrower’sBorrower’s irrevocable written notice delivered to the U.S. Administrative Agent in the form of a notice of borrowing substantially in the form of Exhibit A-1 (each a “U.S. Notice of Borrowing”) or Exhibit A-3 (a “Term Notice of Borrowing”), as applicable, which must be received by the U.S. Administrative Agent prior to (i) 1:00 p.m. (New York City time) three Business Days prior to the date of such Borrowing, in the case of LIBOR Loans denominated in Dollars or BA Equivalent Loans, (ii) 1:00 p.m. (New York City time) at least four Business Days prior to the date of such Borrowing, in the case of LIBOR Loans denominated in an Alternative Currency and (iii) 1:00 p.m. (New York City time) at least one Business Day prior to the date of such Borrowing, in the case of ABR Loans, specifying:
(A)(A) whether such Borrowing consists of U.S. Revolving Loans or Term Loans;
(A) (B) the amount and currency of the Borrowing, which must equal or exceed the Minimum Borrowing Amount (and increments of $1,000,000 in excess of such amount or the approximate equivalent amount thereof in the case of Alternative Currencies);
(A)(C) the date of the requested Borrowing, which must be a Business Day;
(A) (D) whether the U.S. Revolving Loans requested are to be ABR Loans, BA Equivalent Loans or LIBOR Loans, an ABR Loan (in the case of U.S. Revolving Loans denominated in Dollars) or LIBOR Loans with an Interest Period of one month, in the case of U.S. Revolving Loans denominated in an Alternative Currency (other than Cdn. Dollars)); provided that all U.S. Revolving Loans made by each of the U.S. Revolving Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of U.S. Revolving Loans of the same Type;
 
-75-

(A) (E) in the case of a request for BA Equivalent Loans, the duration of the initial BA Equivalent Interest Period to be applicable thereto (and if not specified, it shall be deemed a request for a BA Equivalent Interest Period of one month); and
(A) (F) in the case of a request for LIBOR Loans, the duration of the initial Interest Period to be applicable thereto (and if not specified, it shall be deemed a request for an Interest Period of one month).
(ii)(ii) In lieu of delivering a U.S. Notice of Borrowing, the U.S. Parent Borrower may give the U.S. Administrative Agent telephonic notice of such request for advances on or before the deadline set forth above (promptly confirmed by delivery of a completed U.S. Notice of Borrowing). The U.S. Administrative Agent at all times shall be entitled to rely on such telephonic notice in making such U.S. Revolving Loans, regardless of whether any written confirmation is received.
(a) (c) U.S. Designated Accounts. On or prior to the Closing Date, the U.S. Parent Borrower delivered to the U.S. Administrative Agent a notice setting forth the account for the U.S. Borrowers (each, a “U.S. Designated Account”) to which each Administrative Agent is authorized to transfer the proceeds of the Loans requested hereunder by the U.S. Parent Borrower. The U.S. Parent Borrower may designate a replacement account from time to time by written notice to the U.S. Administrative Agent duly executed by an Authorized Officer of the U.S. Parent Borrower. All such U.S. Designated Accounts must be reasonably satisfactory to the U.S. Administrative Agent.
(a) (d) No Liability. The U.S. Administrative Agent shall not incur any liability to the U.S. Borrowers as a result of acting upon any notice referred to in Sections 2.2(b) and (c), which the U.S. Administrative Agent believes in good faith to have been given by an Authorized Officer of the U.S. Parent Borrower. The crediting of U.S. Revolving Loans and Term Loans to a U.S. Designated Account conclusively establishes the obligation of each U.S. Borrower to repay such U.S. Revolving Loans and Term Loans as provided herein.
(a)(e) Notice Irrevocable. Any U.S. Notice of Borrowing (or telephonic notice in lieu thereof) made pursuant to Section 2.2(b) shall be irrevocable. The U.S. Borrowers shall be bound to borrow the funds requested therein in accordance therewith.
(a) (f) Making of U.S. Revolving Loans and Term Loans; Reserves.
(i)(i) Promptly after receipt of a U.S. Notice of Borrowing or telephonic or electronic notice in lieu thereof, the U.S. Administrative Agent shall notify the applicable U.S. Revolving Lenders or Term Lenders by telecopy, telephone or e-mail of the requested Borrowing. Each applicable Lender shall transfer its Pro Rata Share of the requested Borrowing to the U.S. Administrative Agent in immediately available funds in the currency in which such Loan is denominated to the account from time to time designated by the U.S. Administrative Agent, not later than 2:00 p.m. (New York City time) on the date of the applicable Borrowing. After the U.S. Administrative Agent’sAgent’s receipt of all proceeds of such U.S. Revolving Loans or Term Loans, the U.S. Administrative Agent shall make the proceeds of such Loans available to the U.S. Borrowers on the date of the applicable Borrowing by, not later than 4:00 p.m. (New York City time) transferring same day funds to the U.S. Designated Account designated by the U.S. Borrower; provided, however, that no U.S. Revolving Loans shall be made on any date unless, after giving effect thereto, the Availability Conditions are satisfied on such date.
(ii)(ii) The U.S. Administrative Agent may establish Reserves or change any of the Reserves, in the exercise of its reasonable good faith credit judgment, provided that (A) any changes to such Reserves will be made in good faith and (B) such Reserves shall not be established or changed except upon not less than five (5) Business Days’’ notice to the U.S. Parent Borrower (unless an Event of Default exists in which event no notice shall be required), and to the extent the U.S. Parent Borrower shall have objected to the addition of or change to such Reserve during such 5 Business Day period, the U.S. Administrative Agent shall have taken into consideration the U.S. Parent Borrower’sBorrower’s basis of objection and shall have negotiated in good faith with the U.S. Parent Borrower in order to reach a mutually satisfactory resolution with respect to such Reserve (other than if an Event of Default exists). The U.S. Administrative Agent will be available during such period to discuss any such proposed Reserve or change with the U.S. Parent Borrower and without limiting the right of the U.S. Administrative Agent to
 
-76-

establish or change such Reserves in the U.S. Administrative Agent’sAgent’s reasonable credit judgment, the U.S. Parent Borrower may take such action as may be required so that the event, condition or matter that is the basis for such Reserve no longer exists, in a manner and to the extent reasonably satisfactory to the U.S. Administrative Agent. The amount of any Reserve established by the U.S. Administrative Agent shall have a reasonable relationship as determined by the U.S. Administrative Agent in its reasonable credit judgment to the event, condition or other matter that is the basis for the Reserve. Notwithstanding anything herein to the contrary, a Reserve shall not be established to the extent that such Reserve would be duplicative of any specific item excluded as ineligible in the definitions of Eligible Accounts or Eligible Inventory, but the U.S. Administrative Agent shall retain the right, subject to the requirements of this paragraph, to establish Reserves with respect to prospective changes in eligible Collateral that may reasonably be anticipated.
(a)(g) U.S. Swingline Commitment.
(i)(i) Subject to and upon the terms and conditions herein set forth, the U.S. Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Restatement Effective Date and prior to the Revolving Maturity Date, to make a loan or loans (each a “U.S. Swingline Loan” and, collectively, the “U.S. Swingline Loans”) in Dollars in the amount of that Borrowing available to the U.S. Borrowers by transferring same day funds to the U.S. Designated Account or such other account(s) as may be designated by the U.S. Parent Borrower in writing not later than 2:00 p.m. (New York City time). Each U.S. Swingline Loan shall be subject to all the terms and conditions applicable to U.S. Revolving Loans that are ABR Loans except that all payments thereon (including interest) shall be made to the U.S. Swingline Lender. The U.S. Swingline Lender shall not make any U.S. Swingline Loan if (1) the U.S. Administrative Agent has received written notice from any U.S. Revolving Lender that one or more of the applicable conditions precedent set forth in Section 5 or Section 6 will not be satisfied on the date of the requested Borrowing, (2) after giving effect to the requested Borrowing, the Availability Conditions would not be satisfied on such date, or (3) such U.S. Swingline Loan would cause the aggregate outstanding principal balance of all U.S. Swingline Loans to exceed the U.S. Swingline Commitment. U.S. Swingline Loans shall at all times be ABR Loans.
(ii)(ii) On any Business Day, the U.S. Swingline Lender may, in its sole discretion (and, if any U.S. Swingline Loan is outstanding for five Business Days, the U.S. Swingline Lender shall on such fifth Business Day), give notice to each U.S. Revolving Lender that all then outstanding U.S. Swingline Loans shall be funded with a Borrowing of U.S. Revolving Loans, in which case U.S. Revolving Loans constituting ABR Loans (each such Borrowing, a “Mandatory U.S. Borrowing”) shall be made on the immediately succeeding Business Day by each U.S. Revolving Lender pro rata based on each such Lender’sLender’s Pro Rata Share, and the proceeds thereof shall be applied directly to the U.S. Swingline Lender to repay the U.S. Swingline Lender for such outstanding U.S. Swingline Loans. Each U.S. Revolving Lender hereby irrevocably agrees to make such U.S. Revolving Loans upon one Business Day’sDay’s notice pursuant to each Mandatory U.S. Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the U.S. Swingline Lender notwithstanding (i) that the amount of the Mandatory U.S. Borrowing may not comply with the Minimum Borrowing Amount, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing (unless the U.S. Swingline Lender has received written notice thereof from any Lender as contemplated above prior to the date such Swingline Loan was made), (iv) the date of such Mandatory U.S. Borrowing or (v) any reduction in the U.S. Revolving Commitments or the U.S. Borrowing Base after any such U.S. Swingline Loans were made. In the event that, in the sole judgment of the U.S. Swingline Lender, any Mandatory U.S. Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of any U.S. Borrower), each U.S. Revolving Lender hereby agrees that it shall forthwith purchase from the U.S. Swingline Lender (without recourse or warranty) such participation of the outstanding U.S. Swingline Loans as shall be necessary to cause the U.S. Revolving Lenders to share in such U.S. Swingline Loans ratably based upon their respective Pro Rata Shares, provided that all principal and interest payable on such U.S. Swingline Loans shall be for the account of the U.S. Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to such U.S. Revolving Lender purchasing the same from and after such date of purchase.
 
-77-

(iii)(iii) If at any time that U.S. Swingline Loans are outstanding a U.S. Revolving Lender becomes a Defaulting Lender, all or any part of such U.S. Swingline Loans shall be reallocated among the non-Defaulting Lenders that are U.S. Revolving Lenders in accordance with their respective Pro Rata Shares (calculated without giving effect to any such Defaulting Lender’sLender’s U.S. Revolving Commitments) but only to the extent (x) the sum of all non-Defaulting Lenders’’ U.S. Revolving Commitments plus such Defaulting Lender’sLender’s pro rata share of such Swingline Loans does not exceed the total of all non-Defaulting Lenders’’ U.S. Revolving Commitments and (y) the condition set forth in Section 6.1(a) is satisfied at such time; provided that, subject to Section 12.28, neither such reallocation nor any payment by a non-Defaulting Lender pursuant hereto will constitute a waiver or release of any claim any Borrower, any Lender, the U.S. Administrative Agent or U.S. Swingline Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a non-Defaulting Lender. If the reallocation described above cannot, or can only partially, be effected, the U.S. Borrowers shall within one Business Day following notice by the U.S. Administrative Agent prepay such unreallocated portion of the Swingline Loans. Notwithstanding the foregoing, the U.S. Swingline Lender shall be under no obligation to make any U.S. Swingline Loan at any time that any U.S. Revolving Lender is a Defaulting Lender unless it is satisfied that the related exposure will be 100% covered by the U.S. Revolving Commitments of the non-Defaulting Lenders and participating interests in any such newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with this Section 2.2 (and Defaulting Lenders shall not participate therein).
(a) (h) U.S. Agent Advances.
(i)(i) Subject to the limitations set forth below, the U.S. Administrative Agent is authorized by the U.S. Borrowers and the U.S. Revolving Lenders, from time to time in the U.S. Administrative Agent’sAgent’s sole discretion, (A) after the occurrence of a Default or an Event of Default, or (B) at any time that any of the other conditions precedent set forth in Section 6 have not been satisfied, to make U.S. Revolving Loans (that may only be ABR Loans) in Dollars to the U.S. Borrowers on behalf of the U.S. Revolving Lenders in an aggregate principal amount outstanding at any time not to exceed $50,000,000 (provided that, after giving effect to the making of any such ABR Loan, the aggregate Outstanding Amount of U.S. Revolving Loans, U.S. Agent Advances, U.S. Swingline Loans and U.S. Letter of Credit Obligations shall not exceed the Total U.S. Revolving Commitment) which the U.S. Administrative Agent, in its good faith judgment, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof, (2) to enhance the likelihood of, or maximize the amount of, repayment of the U.S. Revolving Loans and other U.S. Obligations (including through ABR Loans for the purpose of enabling the U.S. Borrowers to meet their payroll and associated tax obligations), and/or (3) to pay any other amount chargeable to the U.S. Borrowers pursuant to the terms of this Agreement, including costs, fees and expenses as described in Section 12.5 (any of such advances are herein referred to as “U.S. Agent Advances”); provided that U.S. Agent Advances shall not be outstanding for more than 30 consecutive days unless the Availability Conditions are satisfied; provided, further, that the Required Lenders may at any time revoke the U.S. Administrative Agent’sAgent’s authorization to make U.S. Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon the U.S. Administrative Agent’sAgent’s receipt thereof. At any time, the U.S. Administrative Agent may require the U.S. Revolving Lenders to fund their risk participations in the U.S. Agent Advances as described in Section 2.2(h)(ii).
(ii)(ii) Upon the making of a U.S. Agent Advance by the U.S. Administrative Agent (whether before or after the occurrence of a Default or an Event of Default), each U.S. Revolving Lender shall be deemed, without further action by any party hereto, unconditionally and irrevocably to have purchased from the U.S. Administrative Agent, without recourse or warranty, an undivided interest and participation in such U.S. Agent Advance in proportion to its Pro Rata Share of the Total U.S. Revolving Commitment. All principal and interest payable on such U.S. Agent Advance shall be for the account of the U.S. Administrative Agent until the date, if any, on which the U.S. Administrative Agent requires any U.S. Revolving Lender to fund its participation in any U.S. Agent Advance purchased hereunder; after such date, the U.S. Administrative Agent shall promptly distribute to such U.S. Revolving Lender, such Lender’sLender’s Pro Rata Share of all payments of principal and interest and all proceeds of Collateral received by the U.S. Administrative Agent in respect of such U.S. Agent Advance.
(iii)(iii) The U.S. Agent Advances shall be secured by the Collateral Agent’sAgent’s Liens in and to the Collateral and shall constitute ABR Loans and U.S. Obligations hereunder.
 
-78-

1.12.3. Canadian Revolving Loans and Borrowing Procedures for Canadian Revolving Loans and Term Loans.
(a) (a) Amounts. Subject to all of the terms and conditions of this Agreement, each Canadian Revolving Lender severally, but not jointly, agrees, upon the Canadian Borrower’sBorrower’s request from time to time on any Business Day during the period from the Restatement Effective Date to the Revolving Maturity Date, to make revolving loans (the “Canadian Revolving Loans”) to the Canadian Borrower, denominated in Dollars or any Alternative Currency in Outstanding Amounts not to exceed such Canadian Revolving Lender’sLender’s Pro Rata Share of the Total Canadian Revolving Commitment so long as after giving effect thereto and to the application of the proceeds thereof, the Availability Conditions are satisfied. The Canadian Borrower may use the Canadian Revolving Commitments by borrowing, prepaying the Canadian Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. Canadian Revolving Loans of the applicable Class shall automatically be made as ABR Loans or Canadian Prime Rate Loans to the Canadian Borrower for the payment of interest on such Loans and other Obligations of the Canadian Borrower on the date when due to the extent available in accordance with the foregoing limitations and not paid by the Canadian Borrower and, in each case, as provided for herein.
(a) (b) Procedure for Borrowing.
(i)(i) Each Borrowing of Canadian Revolving Loans or Term Loans by the Canadian Borrower shall be made upon the Canadian Borrower’sBorrower’s irrevocable written notice delivered to the Canadian Administrative Agent in the form of a notice of borrowing substantially in the form of Exhibit A-2 (“Canadian Notice of Borrowing”) or Exhibit A-3 (a “Term Notice of Borrowing”), as applicable, which must be received by the Canadian Administrative Agent prior to (i) 1:00 p.m. (New York City time) three Business Days prior to the date of such Borrowing, in the case of LIBOR Loans denominated in Dollars or BA Equivalent Loans, (ii) 1:00 p.m. (New York City time) four Business Days prior to the date of such Borrowing, in the case of LIBOR Loans denominated in Alternative Currencies and (iii) 1:00 p.m. (New York City time) one Business Day prior to the date of such Borrowing, in the case of Canadian Prime Rate Loans or ABR Loans, specifying:
(A) (A) whether such Borrowing consists of Canadian Revolving Loans or Term Loans;
(A) (B) the amount and currency of the Borrowing which must equal or exceed the Minimum Borrowing Amount (and increments of $1,000,000 or the approximate Dollar Equivalent thereof in excess of such amount);
(A) (C) the date of the requested Borrowing, which must be a Business Day;
(A) (D) whether the Canadian Revolving Loans requested are to be Canadian Prime Rate Loans, ABR Loans, BA Equivalent Loans or LIBOR Loans (and if not specified, it shall be deemed a request for a Canadian Prime Rate Loan (in the case of Canadian Revolving Loans denominated in Cdn. Dollars), an ABR Loan (in the case of Canadian Revolving Loans denominated in Dollars) or LIBOR Loans with an Interest Period of one month, in the case of Canadian Revolving Loans denominated in an Alternative Currency (other than Cdn. Dollars)); provided that all Canadian Revolving Loans made by each of the Canadian Revolving Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Canadian Revolving Loans of the same Type;
(A) (E) in the case of a request for BA Equivalent Loans, the duration of the initial BA Equivalent Interest Period to be applicable thereto (and if not specified, it shall be deemed a request for a BA Equivalent Interest Period of one month); and
(A) (F) in the case of a request for LIBOR Loans, the duration of the initial Interest Period to be applicable thereto (and if not specified, it shall be deemed a request for an Interest Period of one month).
 
-79-

(ii)(ii) In lieu of delivering a Canadian Notice of Borrowing, the Canadian Borrower may give the Canadian Administrative Agent telephonic notice of such request for advances on or before the deadline set forth above (promptly confirmed by delivery of a completed Canadian Notice of Borrowing). The Canadian Administrative Agent at all times shall be entitled to rely on such telephonic notice in making such Canadian Revolving Loans, regardless of whether any written confirmation is received.
(iii)(iii) The Canadian Borrower shall not have the right to request a BA Equivalent Loan or a LIBOR Loan while an Event of Default has occurred and is continuing.
(a) (c) Reliance upon Authority. On or prior to the Closing Date, the Canadian Borrower delivered to the Canadian Administrative Agent a notice setting forth the account for the Canadian Borrower (each a “Canadian Designated Account”) to which the Canadian Administrative Agent is authorized to transfer the proceeds of the Canadian Revolving Loans requested hereunder by the Canadian Borrower. The Canadian Borrower may designate a replacement account from time to time by written notice to the Canadian Administrative Agent duly executed by an Authorized Officer of the Canadian Borrower. All such Canadian Designated Accounts must be reasonably satisfactory to the Canadian Administrative Agent and must be domiciled in Canada.
(a)(d) No Liability. The Canadian Administrative Agent shall not incur any liability to the Canadian Borrower as a result of acting upon any notice referred to in Sections 2.3(b) and (c), which the Canadian Administrative Agent believes in good faith to have been given by an Authorized Officer of the Canadian Borrower. The crediting of Canadian Revolving Loans and Term Loans to a Canadian Designated Account conclusively establishes the obligation of the Canadian Borrower to repay such Canadian Revolving Loans and Term Loans as provided herein.
(a)(e) Notice Irrevocable. Any Canadian Notice of Borrowing (or telephonic notice in lieu thereof) made pursuant to Section 2.3(b) shall be irrevocable. The Canadian Borrower shall be bound to borrow the funds requested therein in accordance therewith.
(a) (f) Making of Canadian Revolving Loans and Term Loans; Reserves.
(i)(i) Promptly after receipt of a Canadian Notice of Borrowing or telephonic or electronic notice in lieu thereof, the Canadian Administrative Agent shall notify each Canadian Revolving Lender by telecopy, telephone or e-mail of the requested Borrowing. Each Canadian Revolving Lender shall transfer its Pro Rata Share of the requested Borrowing to the Canadian Administrative Agent in immediately available funds in the applicable currency, to the account from time to time designated by the Canadian Administrative Agent, not later than 2:00 p.m. (New York City time) on the date of the applicable Borrowing. After the Canadian Administrative Agent’sAgent’s receipt of all proceeds of any Borrowing of Canadian Revolving Loans or Term Loans, the Canadian Administrative Agent shall make the proceeds of such Canadian Revolving Loans or Term Loans available to the Canadian Borrower on the date of the applicable Borrowing by, not later than 4:00 p.m. (New York City time) transferring same day funds to the Canadian Designated Account designated by such Canadian Borrower; provided, however, that no Canadian Revolving Loans or Term Loans shall be made on any date unless, after giving effect thereto, the Availability Conditions are satisfied.
(ii)(ii) The Canadian Administrative Agent may establish Reserves or change any of the Reserves, in the exercise of its reasonable credit judgment, provided that (A) any changes to such reserves will be made in good faith and (B) such Reserves shall not be established or changed except upon not less than five (5) Business Days’’ notice to the Canadian Borrower (unless an Event of Default exists in which event no notice shall be required), and to the extent the Canadian Borrower shall have objected to the addition of or change to such Reserve during such 5 Business Day period, the Canadian Administrative Agent shall have taken into consideration the Canadian Borrower’sBorrower’s basis of objection and shall have negotiated in good faith with the Canadian Borrower in order to reach a mutually satisfactory resolution with respect to such Reserve (other than if an Event of Default exists). The Canadian Administrative Agent will be available during such period to discuss any such proposed Reserve or change with the Canadian Borrower and without limiting the right of the Canadian Administrative Agent to establish or change such Reserves in the Canadian Administrative Agent’sAgent’s reasonable credit judgment, the Canadian Borrower may take such action as may be required so that the event, condition or matter that is the basis for such Reserve no longer exists, in a manner and to the extent reasonably
 
-80-

satisfactory to the Canadian Administrative Agent. The amount of any Reserve established by the Canadian Administrative Agent shall have a reasonable relationship as determined by the Canadian Administrative Agent in its reasonable credit judgment to the event, condition or other matter that is the basis for the Reserve. Notwithstanding anything herein to the contrary, a Reserve shall not be established to the extent that such Reserve would be duplicative of any specific item excluded as ineligible in the definitions of Eligible Accounts or Eligible Inventory, but the Canadian Administrative Agent shall retain the right, subject to the requirements of this paragraph, to establish Reserves with respect to prospective changes in eligible Collateral that may reasonably be anticipated.
(a) (g) Canadian Swingline Commitment.
(i)(i) Subject to and upon the terms and conditions herein set forth, each Canadian Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Restatement Effective Date and prior to the Revolving Maturity Date, to make a loan or loans (each a “Canadian Swingline Loan” and, collectively, the “Canadian Swingline Loans” and, together with the U.S. Swingline Loans, the “Swingline Loans”) in Dollars or Cdn. Dollars in the amount of that Borrowing available to the Canadian Borrower by transferring same day funds to the Canadian Designated Account or such other account(s) as may be designated (by not later than 12:00 Noon (New York City time) on the day of funding) by the Canadian Borrower in writing. Each Canadian Swingline Loan shall be subject to all the terms and conditions applicable to other Canadian Revolving Loans except that all payments thereon (including interest) shall be made to the applicable Canadian Swingline Lenders. No Canadian Swingline Lender shall make any Canadian Swingline Loan if (1) the Canadian Administrative Agent has received written notice from any Canadian Revolving Lender that one or more of the applicable conditions precedent set forth in Section 5 or Section 6 will not be satisfied on the date of the requested Borrowing, (2) after giving effect to the requested Borrowing, the Availability Conditions would not be satisfied, or (3) such Canadian Swingline Loan would cause the aggregate outstanding principal balance of all Canadian Swingline Loans to exceed the Canadian Swingline Commitment. Canadian Swingline Loans shall at all times be maintained as ABR Loans or Canadian Prime Rate Loans, as applicable.
(ii)(ii) On any Business Day, any Canadian Swingline Lender may, in its sole discretion (and, if any Canadian Swingline Loan is outstanding for five Business Days, the Canadian Swingline Lender shall on such fifth Business Day), give notice by 1:00 p.m. (New York City time) to each Canadian Revolving Lender that all then outstanding Canadian Swingline Loans made by such Canadian Swingline Lender shall be funded with a Borrowing of Canadian Revolving Loans in the same currency in which the then outstanding Canadian Swingline Loans are denominated, in which case Canadian Revolving Loans constituting ABR Loans or Canadian Prime Rate Loans (each such Borrowing, a “Mandatory Canadian Borrowing”), as applicable, shall be made to the Canadian Borrower (in the amount of its Canadian Swingline Loans from such Canadian Swingline Lender (in the amount of their Canadian Swingline Loans from such Canadian Swingline Lender) on the next Business Day by each Canadian Revolving Lender based on each Lender’sLender’s Pro Rata Share and in the same currency as the applicable Canadian Swingline Loan is denominated, and the proceeds thereof shall be applied directly to such Canadian Swingline Lender to repay the Canadian Swingline Lender for such outstanding Canadian Swingline Loans. Each Canadian Revolving Lender hereby irrevocably agrees to make such Canadian Revolving Loans pursuant to each Mandatory Canadian Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Canadian Swingline Lenders notwithstanding (i) that the amount of the Mandatory Canadian Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.3, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing (unless the Canadian Swingline Lenders has received written notice thereof from any Lender as contemplated above prior to the date such Canadian Swingline Loan was made), (iv) the date of such Mandatory Canadian Borrowing, (v) any reduction in the Canadian Revolving Commitments, the Canadian Borrowing Base after any such Canadian Swingline Loans were made or (vi) any fluctuations in exchange rates following the date such Canadian Swingline Loans were made. In the event that, in the sole judgment of the Canadian Swingline Lenders, any Mandatory Canadian Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the BIA in respect of the Canadian Borrower), each Canadian Revolving Lender hereby agrees that it shall forthwith purchase from the Canadian Swingline Lenders (without recourse or warranty) such participation of the outstanding Canadian Swingline Loans as shall be necessary to cause the Canadian Revolving Lenders to share in such Canadian Swingline Loans ratably based upon their respective Pro Rata Shares, provided that all principal and interest payable on such Canadian Swingline Loans made by any Canadian Swingline Lender shall be for the account of such Canadian Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to such Lender purchasing same from and after such date of purchase.
 
-81-

(iii)(iii) If at any time that Canadian Swingline Loans are outstanding a Canadian Revolving Lender becomes a Defaulting Lender, all or any part of the risk participations in such Canadian Swingline Loans shall be reallocated among the non-Defaulting Lenders that are Canadian Revolving Lenders in accordance with their respective Pro Rata Shares (calculated without giving effect to any such Defaulting Lender’sLender’s Canadian Revolving Commitments) but only to the extent (x) the sum of all non-Defaulting Lenders’’ Canadian Revolving Commitments plus such Defaulting Lender’sLender’s pro rata share of such Swingline Loans does not exceed the total of all non-Defaulting Lenders’’ Canadian Revolving Commitments and (y) the condition set forth in Section 6.1(a) is satisfied at such time; provided that neither such reallocation nor any payment by a non-Defaulting Lender pursuant hereto will constitute a waiver or release of any claim any Borrower, any Lender, the Canadian Administrative Agent or Canadian Swingline Lenders may have against such Defaulting Lender or cause such Defaulting Lender to be a non-Defaulting Lender. If the reallocation described above cannot, or can only partially, be effected, the Canadian Borrower shall within one Business Day following notice by the Canadian Administrative Agent prepay such unreallocated portion of the Swingline Loans. Notwithstanding the foregoing, no Canadian Swingline Lender shall be under any obligation to make any Canadian Swingline Loan at any time that any Canadian Revolving Lender is a Defaulting Lender unless it is satisfied that the related exposure will be 100% covered by the Canadian Revolving Commitments of the non-Defaulting Lenders and participating interests in any such newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with this Section 2.3 (and Defaulting Lenders shall not participate therein).
(a) (h) Canadian Agent Advances.
(i)(i) Subject to the limitations set forth below, the Canadian Administrative Agent is authorized by the Canadian Borrower and the Canadian Revolving Lenders, from time to time in the Canadian Administrative Agent’sAgent’s sole discretion, (A) after the occurrence of a Default or an Event of Default, or (B) at any time that any of the other conditions precedent set forth in Section 6 have not been satisfied, to make ABR Loans or Canadian Prime Rate Loans to the Canadian Borrower on behalf of the Canadian Revolving Lenders in an aggregate Outstanding Amount at any time not to exceed $15,000,000 (provided that, after giving effect thereto, the aggregate Outstanding Amount of Canadian Revolving Loans, Canadian Agent Advances, Canadian Swingline Loans and Canadian Letter of Credit Obligations does not exceed the Total Canadian Revolving Commitment) which the Canadian Administrative Agent, in its good faith judgment, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof, (2) to enhance the likelihood of, or maximize the amount of, repayment of the Revolving Loans and other Obligations (including through ABR Loans or Canadian Prime Rate Loans for the purpose of enabling the Canadian Borrower to meet their payroll and associated tax obligations), and/or (3) to pay any other amount chargeable to the Canadian Borrower pursuant to the terms of this Agreement, including costs, fees and expenses as described in Section 12.5 (any of such advances are herein referred to as “Canadian Agent Advances”); provided that Canadian Agent Advances shall not be outstanding for more than 30 consecutive days unless the Availability Conditions are satisfied; provided, further, that the Required Lenders may at any time revoke the Canadian Administrative Agent’sAgent’s authorization to make Canadian Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon the Canadian Administrative Agent’sAgent’s receipt thereof. At any time, the Canadian Administrative Agent may require the Canadian Revolving Lenders to fund their risk participations as described in Section 2.3(h)(ii).
(ii)(ii) Upon the making of a Canadian Agent Advance by the Canadian Administrative Agent (whether before or after the occurrence of a Default or an Event of Default), each Canadian Revolving Lender shall be deemed, without further action by any party hereto, unconditionally and irrevocably to have purchased from the Canadian Administrative Agent, without recourse or warranty, an undivided interest and participation in such Canadian Agent Advance in proportion to its Pro Rata Share of the Canadian Revolving Commitments. All principal and interest payable on such Canadian Agent Advance shall be for the account of the Canadian Administrative Agent until the date, if any, on which the Canadian Administrative Agent requires any Canadian Revolving Lender to fund its participation in any Canadian Agent Advance purchased hereunder; after such date, the Canadian Administrative Agent shall promptly distribute to such Canadian Revolving Lender, such Lender’sLender’s Pro Rata Share of all payments of principal and interest and all proceeds of Collateral received by the Canadian Administrative Agent in respect of such Canadian Agent Advance.
 
-82-

(iii)(iii) The Canadian Agent Advances shall be secured by the Collateral Agent’sAgent’s Liens in and to the Collateral and shall constitute ABR Loans or Canadian Prime Rate Loans, and Canadian Obligations (in the case of Canadian Agent Advances to the Canadian Borrower) hereunder.
1.1 2.4. Letters of Credit.
(a)(a) Agreement to Issue or Cause to Issue.
(i)(i) Subject to the terms and conditions of this Agreement, the U.S. Letter of Credit Issuer agrees to issue for the account of the U.S. Borrowers or its Subsidiaries (so long as a Loan PartyU.S. Borrower is a co-applicant thereunder) one or more standby or documentary letters of credit denominated in Dollars or any Alternative Currency (each a “U.S. Letter of Credit”) from time to time during the term of this Agreement but not later than the Letter of Credit Maturity Date.
(ii)(ii) Subject to the terms and conditions of this Agreement, the Canadian Letter of Credit Issuer agrees to issue for the account of the Canadian Borrower or their Subsidiaries (so long as a Canadian Loan Party is a co-applicant thereunder) one or more standby or documentary letters of credit denominated in Dollars or any Alternative Currency (“Canadian Letter of Credit”) from time to time during the term of this Agreement but not later than the Letter of Credit Maturity Date; provided that in the event a standby or documentary letter of credit is issued for the account of a Subsidiary of the Canadian Borrower, the Canadian Borrower shall be a co-borrower in respect of such letter of credit.
(iii)(iii) Each Existing Letter of Credit shall be deemed to have been issued under this Agreement on the Restatement Effective Date under the applicable Revolving Facility and for the account of the applicable Borrowers, in each case, indicated on Schedule 2.4 to this Agreement. Notwithstanding the foregoing, any Existing Letter of Credit issued by Wells Fargo Bank, N.A. shall not be renewed at the relevant time of expiration.
(iv)(iv) All Canadian Letters of Credit and U.S. Letters of Credit outstanding under the Original Credit Agreement on the Restatement Effective Date shall continue to be outstanding as Canadian Letters of Credit and U.S. Letters of Credit, respectively.
(a)(b) Amounts; Outside Expiration Date. A Letter of Credit Issuer shall not issue or cause to be issued any Letter of Credit if: (i) (x) in the case of a U.S. Letter of Credit, the maximum available Dollar Equivalent amount of the requested U.S. Letter of Credit is greater than the Unused U.S. Letter of Credit Subfacility at such time and (y) in the case of a Canadian Letter of Credit, the maximum available Dollar Equivalent amount of the requested Canadian Letter of Credit is greater than the Unused Canadian Letter of Credit Subfacility at such time; (ii) after giving effect to the maximum available Dollar Equivalent amount of the requested Letter of Credit and all commissions, fees, and charges due from the requesting Borrower in connection with the opening thereof (to the extent such commissions, fees and charges are not paid in cash prior to or at the time of the opening thereof) the Availability Conditions would not be satisfied; (iii) such Letter of Credit has an expiration date on or after the Letter of Credit Maturity Date or more than 12 months from the date of issuance; for the avoidance of doubt, this provision does not apply to any “evergreen” or automatic renewal provision; (iv) such Letter of Credit will have an expiration date on or before the Revolving Maturity Date, unless such Letter of Credit has been cash collateralized or backstopped on terms reasonably acceptable to the applicable Letter of Credit Issuer (in which case, any participations of any U.S. Revolving Lender or Canadian Revolving Lender, as applicable, in undrawn Letters of Credit shall expire on the Revolving Maturity Date; or (v) such Letter of Credit, when aggregated with the Dollar Equivalent amount of all other outstanding Letters of Credit issued by such Letter of Credit Issuer, would cause such Letter of Credit Issuer to exceed its Letter of Credit Issuer LC Sublimit (it being understood that the Existing Letters of Credit issued by Wells Fargo Bank, N.A. are not subject to such Letter of Credit Issuer LC Sublimit). With respect to any Letter of Credit which contains any “evergreen” or automatic renewal provision, each applicable Lender shall be deemed to have consented to any such extension or renewal unless any such Lender shall have provided to the applicable Administrative Agent written notice that it declines to consent to any such extension or renewal at least thirty (30) days prior to the date on which the applicable Letter of Credit Issuer is entitled to decline to extend or renew such Letter of Credit. If all of the requirements of this Section 2.4 are met and no Default or Event of Default has occurred and is continuing, no Lender shall decline to consent to any such extension or renewal.
 
-83-

(a) (c) Other Conditions. In addition to conditions precedent contained in Section 6, the obligation of each Letter of Credit Issuer to issue or to cause to be issued any Letter of Credit is subject to the following conditions precedent having been satisfied in a manner reasonably satisfactory to such Letter of Credit Issuer:
(i)(i) The Canadian Borrower, in the case of Canadian Letters of Credit to be issued for the account of the Canadian Borrower, or the U.S. Parent Borrower, in the case of any Letter of Credit to be issued for the account of the U.S. Borrowers, shall have delivered to the applicable Letter of Credit Issuer, at such times and in such manner as such Letter of Credit Issuer may prescribe, an application in form and substance satisfactory to such Letter of Credit Issuer and reasonably satisfactory to the applicable Administrative Agent for the issuance of the Letter of Credit and such other documents as may be reasonably required pursuant to the terms thereof in connection with such issuance, and the form, terms and purpose of the proposed Letter of Credit shall be reasonably satisfactory to the applicable Administrative Agent and the applicable Letter of Credit Issuer;
(i)(ii) as of the date of issuance, no order of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain money center banks generally from issuing letters of credit of the type and in the amount of the proposed Letter of Credit, and no law, rule or regulation applicable to money center banks generally and no request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over money center banks generally shall prohibit, or request that the proposed Letter of Credit Issuer refrain from, the issuance of letters of credit generally or the issuance of such Letters of Credit; and
(i)(iii) no Letter of Credit Issuer shall be required to issue any Letter of Credit if there is then any Defaulting Lender unless the applicable Borrowers shall be in compliance with Section 2.4(i).
(a) (d) Procedure for Issuance of Letters of Credit.
(i)(i) Request for Issuance. The U.S. Parent Borrower or Canadian Borrower, as applicable, must notify the applicable Administrative Agent and Letter of Credit Issuer of a requested Letter of Credit by no later than 1:00 p.m. (New York City time) at least three (3) Business Days prior to the proposed issuance date. Such notice shall be irrevocable and must specify the currency and original face amount of the Letter of Credit requested, the Business Day of issuance of such requested Letter of Credit, whether such Letter of Credit may be drawn in a single or in partial draws, the Business Day on which the requested Letter of Credit is to expire, the purpose for which such Letter of Credit is to be issued, the beneficiary of the requested Letter of Credit and, in the case of the U.S. Parent Borrower, whether such Letter of Credit is a Canadian Letter of Credit or a U.S. Letter of Credit. The applicable Borrower shall attach to such notice the proposed form of the Letter of Credit.
(ii)(ii) Responsibilities of the Administrative Agent; Issuance. As of the Business Day immediately preceding the requested issuance date of any Letter of Credit, the applicable Administrative Agent shall determine the amount of the Unused U.S. Letter of Credit Subfacility or the Unused Canadian Letter of Credit Subfacility, as applicable, and applicable Availability as of such date. If (A) the Dollar Equivalent of the face amount of the requested Letter of Credit is less than the Unused U.S. Letter of Credit Subfacility or the Unused Canadian Letter of Credit Subfacility, as applicable, and (B) the Dollar Equivalent of the amount of such requested Letter of Credit and all commissions, fees, and charges due from the requesting Borrower in connection with the opening thereof (to the extent such commissions, fees and charges are not paid in cash prior to or at the time of the opening thereof) would not result in the Availability Conditions failing to be met, the Administrative Agent shall notify the applicable Letter of Credit Issuer to issue the requested Letter of Credit on the requested issuance date so long as the other conditions hereof are met.
(iii)(iii) No Extensions or Amendment. No Letter of Credit Issuer shall be obligated to extend or amend any Letter of Credit issued pursuant hereto unless the requirements of this Section 2.4 are met as though a new Letter of Credit were being requested and issued.
 
-84-

(a) (e) Payments Pursuant to Letters of Credit. Each Borrower agrees to reimburse immediately the applicable Letter of Credit Issuer for any draw under any Letter of Credit issued for the account of such Borrower, and to pay the applicable Letter of Credit Issuer the amount of all other charges and fees payable to such Letter of Credit Issuer in connection with such Letter of Credit immediately when due, irrespective of any claim, setoff, defense or other right which such Borrower may have at any time against such Letter of Credit Issuer or any other Person. Each drawing under any U.S. Letter of Credit shall constitute a request by the U.S. Parent Borrower to the U.S. Administrative Agent for a Borrowing of an ABR Loan in the Dollar Equivalent amount of such drawing. Each drawing under any Canadian Letter of Credit shall constitute a request by the Canadian Borrower to the Canadian Administrative Agent for a Borrowing of a Canadian Prime Rate Loan by the Canadian Borrower in the amount of such drawing. In each case, the date of Borrowing with respect to such Borrowing shall be the date of such drawing.
(a)(f) Letter of Credit Participations.
(i)(i) Immediately upon the issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of Credit Issuer shall be deemed to have sold and transferred to each U.S. Revolving Lender, in the case of any U.S. Letter of Credit, or each Canadian Revolving Lender, in the case of any Canadian Letter of Credit, as applicable (each such Lender, in its capacity under this Section 2.4, a “Letter of Credit Participant”), and each such Letter of Credit Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each, a “Letter of Credit Participation”), to the extent of such Letter of Credit Participant’sParticipant’s Pro Rata Share, in each such Letter of Credit, each substitute therefor, each drawing made thereunder and the obligations of the Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto; provided that the Letter of Credit Fees will be paid directly to the applicable Administrative Agent for the ratable account of the applicable Letter of Credit Participants as provided in Section 3.3 and the Letter of Credit Participants shall have no right to receive any portion of any Fronting Fees.
(ii)(ii) In determining whether to pay under any Letter of Credit, the relevant Letter of Credit Issuer shall have no obligation relative to the Letter of Credit Participants other than to confirm that any documents required to be delivered under such Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for the Letter of Credit Issuer any resulting liability.
(iii)(iii) In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the applicable Borrower shall not have repaid such amount in full to the respective Letter of Credit Issuer pursuant to Section 2.4(e), the applicable Letter of Credit Issuer shall promptly notify the applicable Administrative Agent of such failure, and each Letter of Credit Participant with respect to such Letter of Credit shall promptly and unconditionally pay to the applicable Administrative Agent for the account of the applicable Letter of Credit Issuer, the Dollar Equivalent amount of such Letter of Credit Participant’sParticipant’s Pro Rata Share of such unreimbursed payment in Dollars (in the case of any U.S. Letter of Credit) or Cdn. Dollars(in the case of any Canadian Letter of Credit) and in immediately available funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to the applicable Administrative Agent for the account of the Letter of Credit Issuer its Pro Rata Share of such unreimbursed amount arising from any wrongful payment made by the Letter of Credit Issuer under any such Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If a Letter of Credit Issuer so requests, prior to 11:00 a.m. (New York City time) on any Business Day, any Letter of Credit Participant required to fund a payment under a Letter of Credit, such Letter of Credit Participant shall make available to the Administrative Agent for the account of such Letter of Credit Issuer such Letter of Credit Participant’sParticipant’s Pro Rata Share of the amount of such payment no later than 1:00 p.m. (New York City time) on such Business Day (or, if such notice is provided after such time, on the next Business Day) in immediately available funds. If and to the extent such Letter of Credit Participant shall not have so made its Pro Rata Share of the amount of such payment available to the applicable Administrative Agent for the account of the applicable Letter of Credit Issuer, such Letter of Credit Participant agrees to pay to the applicable Administrative Agent for the account of the applicable Letter of Credit Issuer, forthwith on demand, such amount, together with interest thereon for each day from such date until the date such amount is paid to the applicable Administrative Agent for the account of the applicable Letter of Credit Issuer at a
 
-85-

rate per annum equal to the Overnight Rate from time to time then in effect, plus any administrative, processing or similar fees customarily charged by such Letter of Credit Issuer in connection with the foregoing. The failure of any Letter of Credit Participant to make available to the applicable Administrative Agent for the account of the applicable Letter of Credit Issuer its Pro Rata Share of any payment under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to the applicable Administrative Agent for the account of the applicable Letter of Credit Issuer its Pro Rata Share of any payment under such Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to the applicable Administrative Agent such other Letter of Credit Participant’sParticipant’s Pro Rata Share of any such payment.
(iv)(iv) Whenever a Letter of Credit Issuer receives a payment in respect of an unpaid reimbursement obligation as to which the applicable Administrative Agent has received for the account of such Letter of Credit Issuer any payments from the Letter of Credit Participants pursuant to clause (c) above, the Letter of Credit Issuer shall pay to the applicable Administrative Agent and such Administrative Agent shall promptly pay to each applicable Letter of Credit Participant that has paid its Pro Rata Share of such reimbursement obligation, in the same currency as received and in immediately available funds, an amount equal to such Letter of Credit Participant’sParticipant’s share (based upon the proportionate aggregate amount originally funded by such Letter of Credit Participant to the aggregate amount funded by all Letter of Credit Participants) of the Dollar Equivalent amount so paid in respect of such reimbursement obligation and interest thereon accruing after the purchase of the respective Letter of Credit Participations at the Overnight Rate.
(v)(v) The obligations of the Letter of Credit Participants to make payments to the applicable Administrative Agent for the account of a Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, provided, however, that no Letter of Credit Participant shall be obligated to pay to the applicable Administrative Agent for the account of a Letter of Credit Issuer its Pro Rata Share of any unreimbursed amount arising from any wrongful payment made by such Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Letter of Credit Issuer.
(a)(g) Indemnification; Exoneration; Power of Attorney.
(i)(i) Indemnification. In addition to amounts payable as elsewhere provided in this Section 2.4, each Borrower agrees to protect, indemnify, pay and hold harmless the applicable Letter of Credit Participants, Letter of Credit Issuer and Administrative Agent from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’’ fees) which any such Letter of Credit Participant, Letter of Credit Issuer or Administrative Agent may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit for the account of such Borrower, except to the extent they are found by a final decision of a court of competent jurisdiction to have resulted from such Letter of Credit Participant’sParticipant’s, Letter of Credit Issuer’sIssuer’s or Administrative Agent’sAgent’s, as the case may be, gross negligence, willful misconduct or breach of any Loan Document. The Borrowers’’ obligations under this Section 2.4 shall survive payment of all other Obligations.
(ii)(ii) Assumption of Risk by the Borrowers. As among the Borrowers, the Letter of Credit Participants, Letter of Credit Issuers and Administrative Agents, each Borrower assumes all risks of the acts and omissions of, or misuse of any of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, the Letter of Credit Participants, Letter of Credit Issuers and Administrative Agents shall not be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any officer or authorized signatory of any Borrower in connection with the application for and issuance of and presentation of drafts with respect to any of the Letters of Credit believed in good faith by a Letter of Credit Issuer to be a valid, sufficient and correct document, even if it should prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, believed in good faith by a Letter of Credit Issuer to be a valid, sufficient and correct document which may prove to be invalid or ineffective for any reason; (C) the failure of the beneficiary of any Letter of Credit to comply duly with conditions required in order to draw upon such Letter of
 
-86-

Credit; (D) errors, omissions, interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit or of the proceeds thereof; (G) the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; (H) any consequences arising from causes beyond the control of the applicable Letter of Credit Participants, Letter of Credit Issuer or Administrative Agent, including any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority or (I) the applicable Letter of Credit Issuer’sIssuer’s honor of a draw for which the draw or any certificate fails to comply in any respect with the terms of the Letter of Credit. None of the foregoing shall affect, impair or prevent the vesting of any rights or powers of the Administrative Agents, Letter of Credit Issuers or any Letter of Credit Participants under this Section 2.4(g).
(iii)(iii) Exoneration. Without limiting the foregoing, no action or omission whatsoever by the Administrative Agent or any Lender (excluding any Lender in its capacity as a Letter of Credit Issuer) shall result in any liability of the Administrative Agent or any Lender to any Borrower, or relieve any Borrower of any of its obligations hereunder to any such Person, under or with respect to any Letter of Credit issued or provided for the account of any Borrower.
(iv)(iv) Rights Against Letter of Credit Issuer. Nothing contained in this Agreement is intended to limit any Borrower’sBorrower’s rights, if any, with respect to a Letter of Credit Issuer which arise as a result of the letter of credit application and related documents executed by and between such Borrower and such Letter of Credit Issuer.
(v)(v) Account Party. Each Borrower hereby authorizes and directs each applicable Letter of Credit Issuer to name such Borrower as the “Account Party” therein and to deliver to the applicable Administrative Agent all instruments, documents and other writings and property received by such Letter of Credit Issuer pursuant to the Letter of Credit issued or to be issued for the account of such Borrower, and to accept and rely upon the Administrative Agent’sAgent’s instructions and agreements with respect to all matters arising in connection with such Letter of Credit or the application therefor.
(a) (h) Supporting Letter of Credit. If, notwithstanding the provisions of Section 2.4(b) and Section 10.1, any Letter of Credit is outstanding upon the termination of this Agreement, then upon such termination each applicable Borrower shall deposit with the applicable Administrative Agent, for the benefit of the Letter of Credit Issuer and the Letter of Credit Participants with respect to each Letter of Credit issued for the account of such Borrower then outstanding, a standby letter of credit (a “Supporting Letter of Credit”) in form and substance satisfactory to such Administrative Agent, issued by an issuer satisfactory to such Administrative Agent in the same currency and in an amount equal to 105% of the greatest amount for which such Letter of Credit may be drawn plus any fees and expenses associated with such Letter of Credit, under which Supporting Letter of Credit the applicable Administrative Agent is entitled to draw amounts necessary to reimburse the applicable Letter of Credit Issuer and the applicable Letter of Credit Participants for payments to be made by such Letter of Credit Issuer and such Letter of Credit Participants under such Letter of Credit and any fees and expenses associated with such Letter of Credit. Such Supporting Letter of Credit shall be held by the applicable Administrative Agent, for the benefit of the applicable Letter of Credit Issuer and the applicable Letter of Credit Participants, as security for, and to provide for the payment of, the aggregate undrawn amount of such Letters of Credit remaining outstanding.
(a) (i) Reallocation of Letter of Credit Participations; Cash Collateralization. If at any time a Letter of Credit Participant with respect to any Letter of Credit becomes a Defaulting Lender, (A) for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund Letter of Credit Participations, the “Pro Rata Share” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided, that, the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund Letter of Credit Participations shall not exceed the positive difference, if any, of (1) the U.S. Revolving Commitment (in the case of U.S. Letters of Credit) or the Canadian Revolving Commitment (in the case of a Canadian Letter of Credit) of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the U.S. Revolving Loans (in the case of U.S. Letters of Credit) or the Canadian Revolving Loans (in the case of Canadian Letters of Credit) of that Lender or (B) if the U.S. Revolving Commitment (in the case of U.S. Letters of Credit) or the Canadian Revolving Commitment (in the case of a Canadian Letters of Credit) of all applicable non-
 
-87-

Defaulting Lenders minus the aggregate Outstanding Amount of the U.S. Revolving Loans (in the case of U.S. Letters of Credit) or the Canadian Revolving Loans (in the case of Canadian Letters of Credit) of all applicable Lenders is less than the Letter of Credit Participations of such Defaulting Lender, U.S. Borrowers (in the case of U.S. Letters of Credit) or the Canadian Borrower (in the case of Canadian Letters of Credit) shall deposit cash collateral with the applicable Letter of Credit Issuer in an amount equal to the unreallocated portion of the Defaulting Lender’sLender’s Letter of Credit Participation in such Letter of Credit which cash collateral shall be held as security by such Letter of Credit Issuer for the Defaulting Lender’sLender’s funding obligations in respect of its Letter of Credit Participation in such Letter of Credit; provided that such reallocation by a non-Defaulting Lender pursuant hereto will not constitute a waiver or release of any claim any Borrower, any Lender, the Administrative Agents or any Letter of Credit Issuer may have against such Defaulting Lender or cause such Defaulting Lender to be a non-Defaulting Lender. Upon the earlier of (i) expiration of the Letter of Credit for which cash collateral has been deposited with the applicable Letter of Credit Issuer and (ii) the Letter of Credit Participant whose Letter of Credit Participation in such Letter of Credit was reallocated or cash collateralized ceasing to be a Defaulting Lender, such cash collateral shall be returned by the applicable Letter of Credit Issuer to the applicable Borrower and/or for purposes of computing the amount of the obligation of each Lender to acquire, refinance or fund Letter of Credit Participations, the “Pro Rata Share” of each Lender shall be computed after giving effect to the Commitment of the Lender who ceased to be a Defaulting Lender. Notwithstanding anything to the contrary in this Agreement, at any time that a Letter of Credit Participant with respect to any Letter of Credit is a Defaulting Lender and commitments are reallocated pursuant to clause (i)(A) above, any calculation of Canadian Fronting Fees, Canadian Letter of Credit Fees, Canadian Unused Line Fees, U.S. Fronting Fees, U.S. Letter of Credit Fees or U.S. Unused Line Fees shall be calculated after giving effect to such reallocation.
(a) (j) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable Letter of Credit Issuer and the applicable Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit.
1.1. 2.5. Interest.
(a) (a) Interest Rates. All outstanding U.S. Revolving Loans and Term Loans shall bear interest on the unpaid principal amount thereof from the date made or incurred until paid in full in cash at a rate determined by reference to the ABR (in the case of ABR Loans), the Canadian Prime Rate (in the case of Canadian Prime Rate Loans), the applicable LIBOR Rate (in the case of LIBOR Loans) or the applicable BA Rate (in the case of BA Equivalent Loans) in each case, plus the Applicable Margin. All Canadian Revolving Loans and Term Loans shall bear interest on the unpaid principal amount thereof (including, to the extent permitted by law, on interest thereon not paid when due) from the date made or incurred until paid in full in cash at a rate determined by reference to the Canadian Base Rate (in the case of ABR Loans), Canadian Prime Rate (in the case of Canadian Prime Rate Loans), applicable LIBOR Rate (in the case of LIBOR Loans) or the applicable BA Rate (in the case of BA Equivalent Loans), in each case, plus the Applicable Margin. All outstanding U.S. Swingline Loans and U.S. Agent Advances shall bear interest on the unpaid principal amount thereof from the date made or incurred until paid in full in cash at a rate determined by reference to the ABR plus the Applicable Margin for U.S. Revolving Loans that are ABR Loans. All outstanding Canadian Swingline Loans and Canadian Agent Advances denominated in (x) Dollars shall bear interest on the unpaid principal amount thereof from the date made or incurred until paid in full in cash at a rate determined by reference to the Canadian Base Rate plus the Applicable Margin and (y) Cdn. Dollars shall bear interest on the unpaid principal amount thereof from the date made or incurred until paid in full in cash at a rate determined by reference to the Canadian Prime Rate plus the Applicable Margin.
(a)(b) Each change in the ABR or the Canadian Base Rate, as applicable, shall be reflected in the interest rate applicable to ABR Loans as of the effective date of such change, and each change in the Canadian Prime Rate shall be reflected in the interest rate applicable to Canadian Prime Rate Loans as of the effective date of such change. All interest charges shall be computed on the basis of a year of 360 days and actual days elapsed (which results in more interest being paid than if computed on the basis of a 365-day year) except that interest charges computed by reference to (i) the ABR under the Canadian Revolving Facility and Canadian Prime Rate and the BA Rate shall be computed on the basis of a year of 365 days and actual days elapsed and (ii) the ABR under the U.S. Revolving Facility or, in the case of LIBOR Loans denominated in Sterling only, the LIBOR Rate, shall be
 
-88-

computed on the basis of a year of 365 or 366, as applicable, days and actual days elapsed. The U.S. Borrowers shall pay to the U.S. Administrative Agent interest accrued on their ABR Loans (other than U.S. Swingline Loans which shall be paid to the U.S. Swingline Lender) in arrears on the first day of each April, July, October and January hereafter and on the Termination Date for the ratable benefit of the Lenders (including the U.S. Administrative Agent with respect to U.S. Agent Advances) holding such ABR Loans. Each Borrower shall pay to the applicable Administrative Agent interest on all LIBOR Loans of each Class made to such Borrower or Borrowers in arrears on each LIBOR Interest Payment Date (which interest paid by the Canadian Borrower shall be payable by the Canadian Administrative Agent to the Canadian Revolving Lenders on the third Business Day after payment by the Canadian Borrower) for the benefit of the Lenders holding the LIBOR Loans of such Class. The Canadian Borrower shall pay to the Canadian Administrative Agent (i) interest accrued on all of its Canadian Prime Rate Loans and ABR Loans (other than Canadian Swingline Loans which shall be paid to the Canadian Swingline Lender) in arrears on the first day of each April, July, October and January and on the Termination Date (which shall be payable by the Canadian Administrative Agent to the applicable Canadian Revolving Lenders (including the Canadian Administrative Agent with respect to Canadian Agent Advances) or Initial Term Lenders on the next Business Day after payment by the Canadian Borrower) and (ii) interest on all BA Equivalent Loans in arrears on each BA Equivalent Interest Payment Date (which shall be payable by the Canadian Administrative Agent to the applicable Canadian Revolving Lenders or Initial Term Lenders on the third Business Day after payment by the Canadian Borrower).
(a) (c) Default Rate. If all or a portion of (i) the principal amount of any Revolving Loan, Term Loan, Agent Advance or Swingline Loan or (ii) any interest payable thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum that is (the “Default Rate”) (x) in the case of overdue principal, the rate that would otherwise be applicable thereto plus 2% or (y) in the case of any overdue interest, to the extent permitted by applicable law, the rate applicable to ABR Loans or Canadian Prime Rate Loans made pursuant to the applicable Commitments, as applicable, of the Class with respect to which such interest has accrued plus 2% from the date of such non-payment to the date on which such amount is paid in full (after as well as before judgment).
(a)(d) Recalculation of Applicable Margin. In the event that any Borrowing Base Certificate is shown to be inaccurate and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for a fiscal quarter (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) the Borrowers shall immediately deliver to the Administrative Agents a correct certificate for such Applicable Period, (ii) the Applicable Margin shall be determined based on the corrected Borrowing Base Certificate for such Applicable Period, and (iii) the applicable Borrower or Borrowers shall immediately pay to the applicable Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with Section 4.5. This provision shall not limit the rights of the Administrative Agents and Lenders with respect to any other remedy hereunder. This provision shall survive payment of all other Obligations and termination of this Agreement.
1.1.2.6. Pro Rata Borrowings. Each Borrowing of Revolving Loans under this Agreement shall be made by the Lenders pro rata on the basis of their then applicable Pro Rata Shares. Each Borrowing of Term Loans under this Agreement shall be made by the Lenders in accordance with their then applicable Pro Rata Shares. It is understood that (a) no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender severally but not jointly shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder and (b) other than as expressly provided herein with respect to a Defaulting Lender, failure by a Lender to perform any of its obligations under any of the Loan Documents shall not release any Person from performance of its obligation under any Loan Document.
1.1.2.7. Interest Period. At the time a Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in respect of the making of, or conversion into or continuation as, a Borrowing of LIBOR Loans or BA Equivalent Loans in accordance with Section 2.8(a), such Borrower shall have the right to elect by giving the applicable Administrative Agent written notice (or telephonic notice promptly confirmed in writing) the Interest Period or BA Equivalent Interest Period applicable to such Borrowing, which Interest Period or BA Equivalent Interest Period shall, at the option of such Borrower, be a one, two, three, six or (if available from all the Lenders making such Loans as determined by such Lenders in good faith) twelve month period (or such other period of less than six months as to which the Administrative Agent may consent), or in the case of an Interest Period, one week.
 
-89-

Notwithstanding anything to the contrary contained above:
(a)(a) the initial Interest Period or BA Equivalent Interest Period for any Borrowing of LIBOR Loans or BA Equivalent Loans shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans or Canadian Prime Rate Loans, as applicable) and each Interest Period or BA Equivalent Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the preceding Interest Period or BA Equivalent Interest Period expires;
(b)(b) if any Interest Period or BA Equivalent Interest Period relating to a Borrowing of LIBOR Loans or BA Equivalent Loan begins on the last Business Day of a calendar month or begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period or BA Equivalent Interest Period, such Interest Period or BA Equivalent Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period or BA Equivalent Interest Period;
(c)(c) if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period or BA Equivalent Interest Period shall expire on the next succeeding Business Day, provided that if any Interest Period or BA Equivalent Interest Period in respect of a LIBOR Loan or BA Equivalent Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period or BA Equivalent Interest Period shall expire on the preceding Business Day; and
(d)(d) the applicable Borrower shall not be entitled to elect any Interest Period or BA Equivalent Interest Period in respect of any LIBOR Loan or BA Equivalent Loan if such Interest Period or BA Equivalent Interest Period would extend beyond the Final Maturity Date.
1.1. 2.8. Continuation and Conversion Elections.
(a) (a) Subject to clauses (b) and (c),
(i)(i) the U.S. Parent Borrower shall have the option on any Business Day to convert all or a portion equal to at least $5,000,000 of the outstanding principal amount of Loans of any Class denominated in Dollars of one Type into a Borrowing or Borrowings of another Type;
(i)(ii) each Borrower shall have the option on any Business Day to continue the outstanding principal amount of any LIBOR Loans as LIBOR Loans for an additional Interest Period; and
(i)(iii) each Borrower shall have the option: (1) to convert, as of any Business Day, any of its Canadian Prime Rate Loans other than Canadian Swingline Loans and Canadian Agent Advances (or any part thereof in an amount not less than Cdn.$5,000,000) into BA Equivalent Loans; (2) to continue any BA Equivalent Loans made to such Borrower having BA Equivalent Interest Periods expiring on such day (or any part thereof in an amount not less than Cdn.$5,000,000; or (3) to convert any ABR Loans other than Canadian Swingline Loans and Canadian Agent Advances (or any part thereof in an amount not less than the Dollar Equivalent of $5,000,000) into LIBOR Loans;
provided that (i) no partial conversion of LIBOR Loans or BA Equivalent Loans shall reduce the outstanding principal amount of LIBOR Loans or BA Equivalent Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted into LIBOR Loans and Canadian Prime Rate Loans may not be converted into BA Equivalent Loans if a Default or Event of Default is in existence on the date of the conversion and the applicable Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such conversion, (iii) LIBOR Loans may not be continued as LIBOR Loans for an additional Interest Period and BA Equivalent Loans may not be continued as BA Equivalent Loans for an additional BA Equivalent Interest Period if a Default or an Event of Default is in existence on the date of the proposed
 
-90-

continuation and the applicable Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation; provided that any LIBOR Loan denominated in an Alternative Currency shall remain as a LIBOR Loan for an Interest Period of one month, (iv) Borrowings resulting from conversions pursuant to this Section 2.8 shall be limited in number as provided in clause (f).
(a)(b) Each such conversion or continuation of U.S. Revolving Loans shall be effected by the U.S. Parent Borrower by giving the U.S. Administrative Agent at the Administrative Agent’sAgent’s Office prior to 1:00 p.m. (New York City time) at least (i) three Business Days’’ , in the case of a continuation of or conversion to LIBOR Loans denominated in Dollars or BA Equivalent Loans, (ii) four Business Days’’, in the case of a continuation of LIBOR Loans denominated in an Alternative Currency or (iii) one Business Day’sDay’s , in the case of a conversion into ABR Loans or Canadian Prime Rate Loans, prior written notice (or telephonic notice promptly confirmed in writing) (each, a “U.S. Notice of Conversion or Continuation”) specifying the Class of Loans to be so converted or continued, the Type of Loans to be converted or continued into and, if such Loans are to be converted into or continued as LIBOR Loans or BA Equivalent Loans, the Interest Period or BA Equivalent Interest Period to be initially applicable thereto. The U.S. Administrative Agent shall give each applicable Lender notice as promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.
(a)(c) Each such conversion or continuation of Canadian Revolving Loans or Term Loans shall be effected by the Canadian Borrower by giving the Canadian Administrative Agent at the Administrative Agent’sAgent’s Office prior to 1:00 p.m. (New York City time) at least (i) three Business Days’’, in the case of a continuation of or conversion to LIBOR Loans denominated in Dollars or BA Equivalent Loans, (ii) four Business Days’’, in the case of a continuation of LIBOR Loans denominated in an Alternative Currency or (iii) one Business Day’sDay’s , in the case of a conversion into ABR Loans or Canadian Prime Rate Loans, prior written notice (or telephonic notice promptly confirmed in writing) (each, a “Canadian Notice of Conversion or Continuation”) specifying the Loans to be so converted or continued, the Type of Loans to be converted or continued into and, if such Loans are to be converted into or continued as LIBOR Loans or BA Equivalent Loans, the Interest Period or BA Equivalent Interest Period to be initially applicable thereto. The Canadian Administrative Agent shall give each applicable Lender notice as promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.
(a)(d) If any Default or an Event of Default is in existence at the time of any proposed continuation of any LIBOR Loans or BA Equivalent Loans and the applicable Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation, such LIBOR Loans or BA Equivalent Loans shall be automatically converted on the last day of the current Interest Period or BA Equivalent Interest Period into ABR Loans or Canadian Prime Rate Loans, as applicable; provided that any LIBOR Loan denominated in an Alternative Currency shall remain as a LIBOR Loan for an Interest Period of one month. If upon the expiration of any Interest Period or BA Equivalent Interest Period the applicable Borrower has failed to elect a new Interest Period or BA Equivalent Interest Period to be applicable thereto as provided in clause (a), such Borrower shall be deemed to have elected to convert such Borrowing of LIBOR Loans into a Borrowing of ABR Loans or of BA Equivalent Loans into Canadian Prime Rate Loans, effective as of the expiration date of such current Interest Period or BA Equivalent Interest Period; provided that any LIBOR Loan denominated in an Alternative Currency shall remain as a LIBOR Loan for an Interest Period of one month.
(a)(e) No Revolving Loan may be converted into or continued as a Revolving Loan denominated in a different currency.
(a) (f) There may not be more than 20 different Borrowings of LIBOR Loans or BA Equivalent Loans in effect hereunder at any time.
1.1. 2.9. Interest Act (Canada). For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest or any fee to be paid hereunder or in connection herewith is to be calculated on the basis of a 360-day or 365-day year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360 or 365, as applicable. The principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement with respect to the Canadian Borrower, and the rates of interest stipulated in this Agreement payable by the Canadian Borrower are intended to be nominal rates and not
 
-91-

effective rates or yields. Any provision of this Agreement that would oblige a Canadian Loan Party to pay any fine, penalty or rate of interest on any arrears of principal or interest secured by a mortgage on real property or hypothec on immovables that has the effect of increasing the charge on arrears beyond the rate of interest payable on principal money not in arrears shall not apply to such Canadian Loan Party, which shall be required to pay interest on money in arrears at the same rate of interest on principal money not in arrears.
1.1. 2.10. Increased Costs, Illegality, Etc.
(a) In the event that (x) in the case of clause (i) below, the applicable Administrative Agent or (y) in the case of clauses (ii), (iii) and (iv) below, any Lender shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i)(i) on any date for determining the LIBOR Rate for any Interest Period or the BA Rate for any BA Equivalent Interest Period that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing or BA Rate Borrowing are not generally available in the relevant market or (y) (A) by reason of any changes arising on or after the Closing Date affecting the interbank LIBOR or bankers’’ acceptances market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of “LIBOR Rate” or “BA Rate” and (B) the circumstances described in Section 2.10(e)(i) do not apply; or
(i)(ii) at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any LIBOR Loans or BA Equivalent Loans or Letters of Credit (other than any increase or reduction attributable to Taxes) because of (x) any Change in Law), such as, for example, without limitation, a change in official reserve requirements, and/or (y) other circumstances affecting the interbank LIBOR or bankers’’ acceptances market or the position of such Lender in such market; or
(i)(iii) at any time, that, as a result of any Change in Law after the date hereof, such Lender shall incur any new or incremental Taxes with respect to any Loan or Letter of Credit or any transaction contemplated hereunder (except for Indemnified Taxes covered by Section 4.5 or any Excluded Tax payable by such Lender); or
(i) (iv) at any time, that the making or continuance of any LIBOR Loan or BA Equivalent Loans has become unlawful by compliance by such Lender in good faith with any law, governmental rule, regulation, guideline or order (or would conflict with any such governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the date hereof that materially and adversely affects the interbank LIBOR or bankers’’ acceptances market;
then, and in any such event, such Lender (or the applicable Administrative Agent, in the case of clause (i) above) shall within a reasonable time thereafter give notice (if by telephone, confirmed in writing) to the Borrowers and to the applicable Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, LIBOR Loans or BA Equivalent Loans in the applicable currency shall no longer be available until such time as the applicable Administrative Agent notifies the applicable Borrower and the Lenders that the circumstances giving rise to such notice by such Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion or Continuation given by the applicable Borrower with respect to LIBOR Loans or BA Equivalent Loans that have not yet been incurred shall be deemed rescinded by the applicable Borrower, (y) in the case of clause (ii) above, the applicable Borrower shall pay to such Lender, promptly after receipt of written demand therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the applicable Borrower by such Lender shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of subclause (iii) above, the applicable Borrower shall take one of the actions specified in Section 2.10(b) as promptly as possible and, in any event, within the time period required by law.
 
-92-

(a)(b) At any time that any LIBOR Loan or BA Equivalent Loan is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the applicable Borrower(s) may (and in the case of a LIBOR Loan or BA Equivalent Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if the affected LIBOR Loan or BA Equivalent Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii), (y) if the affected LIBOR Loan denominated in Dollars or BA Equivalent Loan is then outstanding, upon at least three Business Days’’ notice to the Administrative Agent, require the affected Lender to convert each such LIBOR Loan into an ABR Loan or BA Equivalent Loan into a Canadian Prime Rate Loan, provided that if more than one Lender is affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b) or (z) in the case of any LIBOR Loan denominated in an Alternative Currency, repay such LIBOR Loan at the end of the then current Interest Period.
(a)(c) If any Change in Law relating to capital adequacy or liquidity of any Lender or compliance by any Lender or its parent with any Change in Law relating to capital adequacy or liquidity has or would have the effect of reducing the rate of return on such Lender’sLender’s or its parent’sparent’s or its Affiliate’sAffiliate’s capital or assets as a consequence of such Lender’sLender’s commitments or obligations hereunder to a level below that which such Lender or its parent or its Affiliate could have achieved but for such Change in Law (taking into consideration such Lender’sLender’s or its parent’sparent’s policies with respect to capital adequacy), then from time to time, promptly after demand by such Lender (with a copy to the Administrative Agent), the applicable Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent for such reduction. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the applicable Borrower, which notice shall set forth in reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not, subject to Section 2.13, release or diminish the applicable Borrower’sBorrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) upon receipt of such notice.
(a)(d) It is understood that this Section 2.10 shall not apply to (i) Taxes indemnifiable under Section 4.5 or (ii) Excluded Taxes.
(a)(e) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if an Administrative Agent determines (which determination shall be conclusive absent manifest error) that:
(i)(i) adequate and reasonable means do not exist for ascertaining LIBOR Rate for any requested Interest Period in a particular currency or the BA Rate for any BA Equivalent Interest Period, including, without limitation, because the LIBOR Screen Rate or BA Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(i)(ii) the administrator of the LIBOR Screen Rate or BA Rate or a Governmental Authority having jurisdiction over the applicable Administrative Agent has made a public statement identifying a specific date after which LIBOR, the LIBOR Screen Rate or the BA Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”),
then, promptly after such determination (or if later, in the case of clause (ii), not later than 90 days prior to the Scheduled Unavailability Date), the Administrative Agent shall notify the Borrower and the Lenders (a “LIBOR Successor Notice” or “BA Successor Notice”, respectively); or
 
-93-

(i)(iii) new syndicated loans have started to adopt a new benchmark interest rate to replace LIBOR Rate or the BA Rate, then, reasonably promptly after such determination by the applicable Administrative Agent or receipt by either Administrative Agent of such notice, as applicable, the applicable Administrative Agent and the applicable Borrower may amend this Agreement to replace LIBOR or the BA Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “Successor Rate”), together with any proposed Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the applicable Administrative Agent shall have posted such proposed amendment to all applicable Lenders and the applicable Borrower(s) unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment. Such Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the applicable Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the applicable Administrative Agent.
If no Successor Rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the applicable Administrative Agent will promptly so notify the applicable Borrower(s) and each applicable Lender. Thereafter, (x) the obligation of the Lenders to make or maintain LIBOR Loans in the applicable currency or BA Equivalent Loans, as applicable shall be suspended, (to the extent of the affected LIBOR Loans or Interest Periods or BA Equivalent Loans or BA Equivalent Interest Periods), and (y) the LIBOR Rate component shall no longer be utilized in determining ABR or the Canadian Base Rate. Upon receipt of such notice, the applicable Borrower(s) may revoke any pending request for a Borrowing of, conversion to or continuation of LIBOR Loans in the applicable currency (to the extent of the affected LIBOR Loans or Interest Periods) or BA Equivalent Loans (to the extent of the affected BA Equivalent Loans or BA Equivalent Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans to the extent such request is a Borrowing denominated in Dollars (subject to the foregoing clause (y)) or Canadian Prime Rate Loans to the extent such request is a Borrowing of BA Equivalent Loans, as applicable, in the amount specified therein.
Notwithstanding anything else herein, any definition of Successor Rate shall provide that in no event shall such Successor Rate be less than zero for purposes of this Agreement.
For purposes hereof, “Successor Rate Conforming Changes” means, with respect to any proposed Successor Rate, any conforming changes to the definition of ABR, Canadian Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the applicable Administrative Agent in consultation with the applicable Borrower(s), to reflect the adoption of such Successor Rate and to permit the administration thereof by the applicable Administrative Agent in a manner substantially consistent with market practice (or, if the applicable Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Successor Rate exists, in such other manner of administration as the applicable Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement).
1.1. 2.11. Compensation. If (a) any payment of principal of any LIBOR Loan or BA Equivalent Loan is made by any Borrower to or for the account of a Lender other than on the last day of the Interest Period for such LIBOR Loan or the last day of the BA Equivalent Interest Period for such BA Equivalent Loan or any such Loan is converted to an ABR Loan or Canadian Prime Rate Loan other than on the last day of the Interest Period or BA Equivalent Interest Period applicable thereto as a result of a payment or conversion pursuant to Section 2.8, 2.10, 4.1, 4.2 or 12.7, as a result of acceleration of the maturity of the Loans pursuant to Section 10 or for any other reason, (b) any Borrowing of LIBOR Loans or BA Equivalent Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any ABR Loan or Canadian Prime Rate Loan is not converted into a LIBOR Loan or BA Equivalent Loan as a result of a withdrawn Notice of Conversion or Continuation, (d) any LIBOR Loan is not continued as a LIBOR Loan or any BA Equivalent Loan is not continued as a BA Equivalent Loan, as the case may be, as a result of a withdrawn Notice of Conversion or Continuation or (e) any prepayment of principal of any LIBOR Loan or BA Equivalent Loan is not made as a result of a withdrawn notice of prepayment pursuant to Section 4.2, then the applicable Borrower or Borrowers shall, after receipt of a written request by such Lender (which request shall set forth in reasonable detail the basis for requesting such amount), pay to the Administrative
 
-94-

Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to convert, failure to continue or failure to prepay, including any loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such LIBOR Loan or BA Equivalent Loan.
1.1. 2.12. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii), 2.10(a)(iii), 2.10(b) or 4.5 with respect to such Lender, it will, if requested by the applicable Borrower use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event, or to assign its rights and obligations hereunder (subject to the provisions of Section 12.6) to another of its offices, branches or Affiliates; provided that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.12 shall affect or postpone any of the obligations of the applicable Borrower or the right of any Lender provided in Section 2.10 or 4.5.
1.12.13. Notice of Certain Costs. Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Section 2.10 or 2.11 is given by any Lender more than 270 days after such Lender has knowledge (or should have had knowledge) of the occurrence of the event giving rise to the additional cost, reduction in amounts, loss, tax or other additional amounts described in such Sections, such Lender shall not be entitled to compensation under Section 2.10 or 2.11, as the case may be, for any such amounts incurred or accruing prior to the 271st day prior to the giving of such notice to the applicable Borrower.
1.1.2.14. Excess Resulting from Exchange Rate Change. If at any time following one or more fluctuations in the exchange rate of any Alternative Currency against the Dollar, (a) the Availability Conditions are not satisfied, (b) the Outstanding Amount of U.S. Swingline Loans or U.S. Letters of Credit exceeds the U.S. Swingline Commitment or the U.S. Letter of Credit Subfacility, respectively, or (c) the Outstanding Amount of Canadian Swingline Loans or Canadian Letters of Credit exceeds the Canadian Swingline Commitment or the Canadian Letter of Credit Subfacility, respectively, the Borrowers shall (x) if such excess is in an aggregate amount that is greater than or equal to $500,000, within two (2) Business Days of notice from the applicable Administrative Agent, (y) if such excess is an aggregate amount that is less than $500,000 and such excess continues to exist in an aggregate amount less than $250,000 for at least five (5) Business Days, within two (2) Business Days of notice from the applicable Administrative Agent or (z) if an Event of Default has occurred and is continuing, immediately (i) make the necessary payments or repayments to reduce such Obligations to an amount necessary to eliminate such excess or (ii) maintain or cause to be maintained with the Collateral Agent deposits as continuing collateral security for the holders of the applicable Obligations in an amount equal to or greater than the amount of such excess, such deposits to be maintained in such form and upon such terms as are acceptable to the applicable Administrative Agent.
1.1.2.15. Increase of U.S. Maximum Amount and Canadian Maximum Amount; Incremental European Revolving Facility.
(a) (a) Subject to the terms and conditions hereof, at any time and from time to time after the Restatement Effective Date, provided that no Default or Event of Default has occurred and is continuing, (i) the U.S. Borrowers may request one or more increases in the U.S. Revolving Commitments (each such commitment increase, a “U.S. Commitment Increase”) by notifying the U.S. Administrative Agent (and the U.S. Administrative Agent shall notify each Lender) of the amount of the proposed U.S. Commitment Increase, (ii) the Canadian Borrower may request one or more increases in the Canadian Revolving Commitments (each such commitment increase, a “Canadian Commitment Increase”) by notifying the Canadian Administrative Agent (and the Canadian Administrative Agent shall notify each Canadian Revolving Lender) of the amount of the proposed Canadian Commitment Increase and (iii) the U.S. Parent Borrower may request new incremental commitments in respect of one or more Incremental European Revolving Facilities (any such commitments, “Incremental European Revolving Commitments” and the loans thereunder “Incremental European Revolving Loans”) or one or more increases to an existing Incremental European Revolving Facility (each such increase, a “European Commitment Increase” collectively with the U.S. Commitment Increases and the Canadian Commitment Increases, the “Commitment Increases”). Notwithstanding anything in this Agreement, no Commitment Increase or Incremental
 
-95-

European Revolving Commitment shall require the approval of any Lender other than any Lender (if any) providing all or part of the Commitment Increase or Incremental European Revolving Commitment, no Lender shall be required to provide all or part of any Commitment Increase or Incremental European Revolving Commitment unless it agrees to do so in its sole discretion, no Commitment Increase or Incremental European Revolving Commitment shall be in an amount less than $10,000,000, and the aggregate amount of all Commitment Increases shall not exceed $300,000,000; provided that no more than $250,000,000 of such amount shall be in the form of Incremental European Revolving Commitments and European Commitment Increases.
(a) (b) In any such case, each Person providing a portion of the requested Commitment Increase, or Incremental European Revolving Commitments (subject to Section 2.15(d) below) shall execute and deliver to the applicable Administrative Agent and Borrower(s) all such documentation as may be reasonably required by the Administrative Agent to evidence such Commitment Increase or Incremental European Revolving Commitments.
(a) (c) If any requested Commitment Increase or Incremental European Revolving Commitment is agreed to in accordance with this Section 2.15, the applicable Administrative Agent and the applicable Borrower(s) shall determine the effective date of such Commitment Increase or Incremental European Revolving Commitments (the “Commitment Increase Effective Date”). The applicable Administrative Agent, with the consent and approval of the applicable Borrower(s), shall promptly confirm in writing to the Lenders the final allocation of such Commitment Increase or Incremental European Revolving Commitment and the Commitment Increase Effective Date. On any Commitment Increase Effective Date where a Commitment Increase is affected: (i) each Person added as a new Lender pursuant to a Commitment Increase (a “New Lender”) shall become a U.S. Revolving Lender, Canadian Revolving Lender or European Revolving Lender, as applicable, hereunder and under the other Loan Documents pursuant to a Joinder Agreement with a Revolving Commitment as set forth therein; (ii) the Revolving Commitment of each existing U.S. Revolving Lender, Canadian Revolving Lender or European Revolving Lender, as applicable, that increases its Revolving Commitment pursuant to a Commitment Increase (an “Increasing Lender”) shall be increased; (iii) the applicable Borrower shall pay (which may be funded with the Revolving Loans made under the Commitment Increase) the principal amount of, and accrued and unpaid interest on, U.S. Revolving Loans of the U.S. Revolving Lenders, Canadian Revolving Loans of the Canadian Revolving Lenders or European Revolving Loans of the European Revolving Lenders, in each case, other than the New Lenders, in an amount sufficient (as determined by the applicable Administrative Agent) to permit the New Lenders and the Increasing Lenders to fund U.S. Revolving Loans, Canadian Revolving Loans or European Revolving Loans, as applicable, in an amount equal to the New Lenders’’ and the Increasing Lenders’’ respective Pro Rata Shares of the then outstanding U.S. Revolving Loans, Canadian Revolving Loans or Incremental European Revolving Loans, as applicable, and in connection with such payment shall also pay funding losses, if any, on such repayment in accordance with Section 4.5; (iv) each New Lender shall fund U.S. Revolving Loans, Canadian Revolving Loans or Incremental European Revolving Loans, as applicable, in an amount equal to its Pro Rata Share of the then outstanding U.S. Revolving Loans, Canadian Revolving Loans or Incremental European Revolving Loans, as applicable; and (v) each Increasing Lender shall fund U.S. Revolving Loans, Canadian Revolving Loans or Incremental European Revolving Loans, as applicable, in an amount necessary such that, after giving effect to such funding, it shall have funded its Pro Rata Share of the entire amount of the then outstanding U.S. Revolving Loans, Canadian Revolving Loans or Incremental European Revolving Loans, as applicable. Any New Lender shall be required to have a Revolving Commitment of not less than $15,000,000 (or in the case of Incremental European Revolving Commitments, not less than $10,000,000). The increase of the Total U.S. Revolving Commitment ,Total Canadian Revolving Commitment or existing Incremental European Revolving Commitments or the establishment of any new Incremental European Revolving Commitments in accordance with this Section 2.15 shall not require any further consent under Section 11.1 hereof, and the applicable Administrative Agent, the applicable Borrower(s) and the U.S. Revolving Lenders, the Canadian Revolving Lenders or European Revolving Lenders, as applicable may execute any amendments to give effect to the terms of this Section 2.15 if deemed necessary by, and acceptable to, the applicable Administrative Agent (including, in the case of an Incremental European Revolving Commitment, amendments to the other Loan Documents and amendments to include any local law provisions).
(a) (d) Incremental European Revolving Commitments shall be established pursuant to an amendment to this Agreement signed by the U.S. Parent Borrower, the other applicable borrowers under such Incremental European Revolving Facility, the Lenders providing such Incremental European Revolving Commitments and the Administrative Agents; provided that (i) the borrowers under any such Incremental European Revolving Facility shall be one or more Restricted Subsidiaries of the U.S. Parent Borrower organized under the laws of the United
 
-96-

Kingdom, the Netherlands or Germany, (ii) availability under such Incremental European Revolving Facility shall be based on a borrowing base of the assets of the applicable borrowers and, as a condition to the establishment of an Incremental European Revolving Commitment, the Administrative Agents shall have received the results of a reasonably satisfactory field examination and appraisal with respect to the assets to be included in the borrowing base with respect to such Incremental European Revolving Facility, (iii) the advances rates with respect to the borrowing base applicable to such Incremental European Revolving Facility shall not exceed the advance rates applicable to the Canadian Borrowing Base or the U.S. Borrowing Base, (iv) the eligibility requirements with respect to the assets to be included in the borrowing base applicable to such Incremental European Revolving Facility shall be reasonably acceptable to the Administrative Agents, (v) the Collateral Agent shall have a valid and perfected, first priority Lien (subject to Permitted Liens) in the assets to be included in the borrowing base for the applicable Incremental European Revolving Facility (or substantially all assets, in the case of borrowers organized in certain jurisdictions as determined by the Collateral Agent or as otherwise agreed between the U.S. Parent Borrower and the Collateral Agent), (vi) any Incremental European Revolving Facility shall be guaranteed by the U.S. Borrowers and the Canadian Loan Parties and secured by the U.S. Collateral and the Canadian Collateral on a pari passu basis with the Obligations, (vii) as a condition to the establishment of an Incremental European Revolving Commitment, each Lender under such Incremental European Revolving Facility shall have received all documentation and other information about the relevant borrower under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and to the extent such borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have received, to the extent requested, a Beneficial Ownership Certification in relation to such borrower, (viii) this Agreement shall be amended such that any and all thresholds or triggers based on Combined Availability shall take into account the availability with respect to the relevant Incremental European Revolving Facility, (ix) any Incremental European Revolving Facility may include letter of credit or swingline facilities as agreed among the U.S. Parent Borrower, the Administrative Agents and the relevant Lenders, and (x) the terms of such Incremental European Revolving Commitments shall otherwise be substantially similar to the terms applicable to the U.S. Revolving Facility including with respect to maturity and pricing.
(a) (e) As a condition precedent to the effectiveness of any such Commitment Increase or Incremental European Revolving Commitments, the applicable Borrower(s) shall deliver to the Administrative Agent a certificate signed by a Responsible Officer, dated as of the Commitment Increase Effective Date, certifying that as of the Commitment Increase Effective Date no Default or Event of Default has occurred and is continuing.
1.1. 2.16. [Reserved].
1.1 2.17. Extensions of Term Loans and Revolving Commitments.
(a) (a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrowers to all Lenders with Term Loans or Revolving Commitments of the same Class, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans or Revolving Commitments of the applicable Class) and on the same terms to each such Lender, the Borrowers are hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’sLender’s Term Loans and/or Revolving Commitments of the applicable Class and otherwise modify the terms of such Term Loans and/or Revolving Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Term Loans and/or Revolving Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’sLender’s Term Loans) (each, an “Extension,” and each group of Term Loans so extended being a separate Class of Term Loans from the Class of Term Loans from which they were converted, and any Extended Revolving Commitments (as defined below) shall constitute a separate Class of Revolving Commitments from the Class of Revolving Commitments from which they were converted), so long as the following terms are satisfied: (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders, (ii) except as to interest rates, fees and final maturity (which shall be determined by the Borrowers and set forth in the relevant Extension Offer), the Revolving Commitment of any Revolving Lender that agrees to an extension with respect to such Revolving Commitment (an “Extending Revolving Lender”) extended pursuant to an Extension (an “Extended Revolving Commitment”), and the related outstandings, shall be a Revolving Commitment (or related outstandings, as the case may be) with the same terms as
 
-97-

the original Class of Revolving Commitments (and related outstandings); and (y) at no time shall there be Revolving Commitments hereunder (including Extended Revolving Commitments and any original Revolving Commitments) which have more than three different maturity dates, (iii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates (which shall, subject to immediately succeeding clauses (iv), (v) and (vi), be determined between the Borrowers and set forth in the relevant Extension Offer), the Term Loans of any Term Lender that agrees to an extension with respect to such Term Loans (an “Extending Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms as the Term Loans, (iv) the final maturity date of any Extended Term Loans shall be no earlier than the Initial Term Maturity Date and the amortization schedule applicable to Term Loans pursuant to Section 4.1(b)) for periods prior to the Initial Term Maturity Date may not be increased, (v) 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 Initial Term Loans, (vi) if the aggregate principal amount of the Term Loans (calculated on the face amount thereof) or Class of Revolving Commitments, as the case may be, in respect of which Term Lenders, U.S. Revolving Lenders or the Canadian Revolving Lenders, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans or Revolving Commitments of such Class, as the case may be, offered to be extended by the Borrowers pursuant to such Extension Offer, then the Term Loans or Revolving Loans, as the case may be, of such Term Lenders, U.S. Revolving Lenders or the Canadian Revolving Lenders, as the case may be, shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Term Lenders, U.S. Revolving Lenders or Canadian Revolving Lenders, as the case may be, have accepted such Extension Offer, (vi) all documentation in respect of such Extension shall be consistent with the foregoing, (vii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrowers and (viii) the Minimum Tranche Amount shall be satisfied unless waived by the Administrative Agents.
(a) (b) With respect to all Extensions consummated by the Borrowers pursuant to this Section 2.17, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Sections 4.2 and 4.3 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment; provided that (x) the applicable Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’sBorrower’s sole discretion and may be waived by the Borrower) of Term Loans or Revolving Commitments (as applicable) of any or all applicable Classes be tendered and (y) no Class of Extended Term Loans shall be in an amount of less than $25,000,000 (the “Minimum Tranche Amount”), unless such Minimum Tranche Amount is waived by the Administrative Agents. The Administrative Agents and the Lenders hereby consent to the transactions contemplated by this Section 2.17 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.17.
(a) (c) No consent of any Lender or the Administrative Agents shall be required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or Revolving Commitments (or a portion thereof) and (B) with respect to any Extension of any Class of Revolving Commitments, the consent of any Letter of Credit Issuer and Swingline Lender(s) shall be required if such Person is acting as a Letter of Credit Issuer or Swingline Lender under the Extended Revolving Commitments. All Extended Term Loans, Extended Revolving Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations of the applicable Borrowers under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agents to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new Classes in respect of Revolving Commitments or Term Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agents and the Borrowers in connection with the establishment of such new Classes, in each case on terms consistent with this Section 2.17.
 
-98-

(a) (d) In connection with any Extension, the applicable Borrower shall provide the Administrative Agents at least ten (10) Business Days’’ prior written notice thereof, and shall agree to such procedures (including, without limitation, regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agents, in each case acting reasonably to accomplish the purposes of this Section 2.17.
1.1 2.18. Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers and Amendments. Such Defaulting Lender’sLender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 12.01 and in the definition of “Required Lenders” and “Supermajority Lenders”.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 4 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 12.8 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder; third, to cash collateralize the Letter of Credit Issuer’sIssuer’s Aggregate Revolving Exposure with respect to such Defaulting on terms reasonably acceptable to the Administrative Agent; fourth, as the applicable Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’sLender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the Letter of Credit Issuer’sIssuer’s future Aggregate Revolving Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement on terms reasonably satisfactory to the Administrative Agent; sixth, to the payment of any amounts owing to the Lenders, the Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Letter of Credit Issuer or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’sLender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to a Borrower as a result of any judgment of a court of competent jurisdiction obtained by a Borrower against such Defaulting Lender as a result of such Defaulting Lender’sLender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Letter of Credit Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 6 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Obligations owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect the terms hereof). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.18(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(A) Each Defaulting Lender shall not be entitled to receive fees payable under Section 3.2 and for any period during which that Lender is a Defaulting Lender.
 
-99-

(B) With respect to any fee payable under Section 3.3, the applicable Borrowers shall (x) pay to each non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’sLender’s participation in Letter of Credit Obligations that has been reallocated to such non-Defaulting Lender pursuant to the terms hereof, (y) pay to the applicable Letter of Credit Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Letter of Credit Issuer’sIssuer’s remaining exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(b) Defaulting Lender Cure. If the Borrowers, the Administrative Agent, Swingline Lender and the Letter of Credit Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their applicable percentages of the Revolving Commitments of the applicable class, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’sLender’s having been a Defaulting Lender.
SECTION 1. SECTION 3. Fees; Commitments
1.1 3.1. Fees. The Borrowers agree to pay, or cause to be paid to the applicable Administrative Agent and other Agents any fees in the amounts previously agreed to in writing by the Borrowers in connection with this Agreement.
1.1 3.2. Unused Line Fees.
(a) (a) On the first day of each April, July, October and January and on the Termination Date, the U.S. Borrowers agree to pay to the U.S. Administrative Agent, (i) for the ratable account of the U.S. Revolving Lenders, in accordance with their respective U.S. Revolving Commitments, an unused line fee (the “U.S. Unused Line Fee”) equal to the Applicable U.S. Unused Line Fee Margin per annum times the average daily amount by which the aggregate U.S. Revolving Commitments exceeded the aggregate Outstanding Amount of U.S. Revolving Loans and U.S. Letter of Credit Obligations (which shall exclude, for the purposes of this Section 3.2(a) only, the principal amount of all U.S. Swingline loans and U.S. Agent Advances). The U.S. Unused Line Fee shall be computed on the basis of a 360-day year for the actual number of days elapsed. All principal payments received by the U.S. Administrative Agent shall be deemed to be credited to the U.S. Borrowers’’ loan account immediately upon receipt for purposes of calculating the U.S. Unused Line Fee pursuant to this Section 3.2(a).
(a) (b) On the first day of each April, July, October and January and on the Termination Date, the Canadian Borrower agrees to pay to the Canadian Administrative Agent, for the ratable account of the Canadian Revolving Lenders, in accordance with their respective Canadian Revolving Commitments, an unused line fee (the “Canadian Unused Line Fee”) equal to the Applicable Canadian Unused Line Fee Margin per annum times the average daily amount by which the aggregate Canadian Revolving Commitments exceeded the aggregate Outstanding Amount of Canadian Revolving Loans and Canadian Letters of Credit (which shall exclude, for the purposes of this Section 3.2(b) only, the principal amount of all Canadian Swingline Loans and Canadian Agent Advances). The Canadian Unused Line Fee shall be computed on the basis of a 360-day year for the actual number of days elapsed. All principal payments received by the Canadian Administrative Agent shall be deemed to be credited to the Canadian Borrower’sBorrower’s loan account immediately upon receipt for purposes of calculating the Canadian Unused Line Fee pursuant to this Section 3.2(b).
 
-100-

1.1 3.3. Letter of Credit Fee.
(a) (a) The U.S. Borrowers agree to pay (x) to the U.S. Administrative Agent, for the account of each U.S. Revolving Lender for each U.S. Letter of Credit, a fee denominated in the currency of the relevant U.S. Letter of Credit (the “U.S. Letter of Credit Fee”) at a per annum rate equal to the Applicable Margin in effect from time to time with respect to LIBOR Loans that are U.S. Revolving Loans on such Lender’sLender’s Pro Rata Share of the daily undrawn amount of such U.S. Letter of Credit from time to time, (y) to the U.S. Administrative Agent, for the account of each U.S. Letter of Credit Issuer, a fronting fee denominated in the currency of the relevant U.S. Letter of Credit (the “U.S. Fronting Fee”) of one-eighth of one percent (0.125%) of the face amount of each U.S. Letter of Credit issued by it, and (z) to each U.S. Letter of Credit Issuer, all out-of-pocket costs, fees and expenses incurred or charged by the U.S. Letter of Credit Issuer in connection with the application for, processing of, issuance or extension of, drawing under, or amendment to, any U.S. Letter of Credit. The U.S. Letter of Credit Fee payable by the U.S. Borrowers with respect to a U.S. Letter of Credit shall be payable quarterly in arrears on the first day of each April, July, October and January following the date on which such U.S. Letter of Credit is issued and on the Termination Date. The U.S. Letter of Credit Fee shall be computed on the basis of a 360-day year for the actual number of days elapsed. The U.S. Fronting Fee payable by the U.S. Borrowers with respect to a U.S. Letter of Credit shall be payable upon the issuance of such U.S. Letter of Credit.
(a) (b) The Canadian Borrower (with respect to Canadian Letters of Credit issued for the account of the Canadian Borrower) and each U.S. Borrower (with respect to Canadian Letters of Credit issued for the account of the U.S. Borrowers), respectively, agrees to pay (x) to the Canadian Administrative Agent, for the account of each Canadian Revolving Lender for each Canadian Letter of Credit issued for the account of the Canadian Borrower or U.S. Borrowers, respectively, a fee denominated in the currency of the relevant Canadian Letter of Credit (the “Canadian Letter of Credit Fee”) at a per annum rate equal to the Applicable Margin in effect from time to time with respect to LIBOR Loans that are Canadian Revolving Loans on such Lender’sLender’s Pro Rata Share of the daily undrawn amount of such Canadian Letter of Credit from time to time, (y) to the Canadian Administrative Agent, for the account of each Canadian Letter of Credit Issuer, a fronting fee denominated in the currency of the relevant Canadian Letter of Credit (the “Canadian Fronting Fee”) of one-eighth of one percent (0.125%) of the face amount of each Canadian Letter of Credit issued by it for the account of the Canadian Borrower or U.S. Borrowers, respectively, and (z) to each Canadian Letter of Credit Issuer, all out-of-pocket costs, fees and expenses incurred or charged by the Canadian Letter of Credit Issuer in connection with the application for, processing of, issuance or extension of, drawing under, or amendment to, any Canadian Letter of Credit. The Canadian Letter of Credit Fee with respect to a Canadian Letter of Credit shall be payable quarterly in arrears on the first day of each April, July, October and January following the date on which such Canadian Letter of Credit is issued and on the Termination Date. The Canadian Letter of Credit Fee shall be computed on the basis of a 360-day year for the actual number of days elapsed. The Canadian Fronting Fee with respect to a Canadian Letter of Credit shall be payable upon the issuance of such Canadian Letter of Credit.
1.1 3.4. Mandatory Termination of Commitments.
(a) (a) The Revolving Commitments shall terminate at 5:00 p.m. (New York City time) on the Revolving Maturity Date.
(a) (b) The Swingline Commitments shall terminate at 5:00 p.m. (New York City time) on the Revolving Maturity Date.
(a) (c) The Initial Term Commitments shall terminate at 5:00 p.m. (New York City time) on the Restatement Effective Date (or, if earlier, upon the funding of the Initial Term Loans on the Restatement Effective Date).
 
-101-

SECTION SECTION 4. Payments
1.1. 4.1. Repayment of Loans.
(a) (a) Revolving Loans. The U.S. Borrowers shall repay the outstanding principal balance of the U.S. Revolving Loans, U.S. Agent Advances and U.S. Swingline Loans made to them, in each case, plus all accrued but unpaid interest thereon, on the Revolving Maturity Date. The Canadian Borrower shall repay the outstanding principal balance of the Canadian Revolving Loans, Canadian Agent Advances and Canadian Swingline Loans made to them, plus all accrued but unpaid interest thereon, on the Revolving Maturity Date.
(a) (b) Initial Term Loans. The Canadian Borrower shall repay to the Canadian Administrative Agent, in Cdn. Dollars, for the benefit of the Term Lenders, on the last day of each March, June, September and December of each year, commencing with June 30, 2021 (or, if not a Business Day, the immediately preceding Business Day), in an aggregate principal amount of the Initial Term Loans equal to 25% of the aggregate principal amount of such Initial Term Loans outstanding on the Restatement Effective Date based on the aggregate amount thereof funded in Cdn. Dollars. To the extent not previously paid, outstanding Initial Term Loans shall be due and payable on the Initial Term Maturity Date.
1.1. 4.2. Voluntary Prepayment, Reduction or Termination.
(a) (a) The Borrowers may, upon at least 3 Business Days’’ notice to the applicable Administrative Agent and without premium or penalty, voluntarily prepay the Revolving Loans of any Class, Swingline Loans or Agent Advances in whole or in part; provided that (i) any partial prepayment pursuant to this Section 4.2 shall be in the amount of at least $5,000,000 and (ii) any prepayment of LIBOR Loans or BA Equivalent Loans pursuant to this Section 4.2 on any day other than the last day of an Interest Period or BA Equivalent Interest Period applicable thereto shall be subject to compliance by the Borrowers with the applicable provisions of Section 2.11.
(a) (b) The Borrowers may, upon at least 3 Business Days’’ notice to the applicable Administrative Agent and without premium or penalty, terminate or permanently reduce the U.S. Revolving Commitments or the Canadian Revolving Commitments in whole or in part; provided that (i) any such reduction shall apply proportionately and permanently to reduce, with respect to the U.S. Revolving Facility, the U.S. Revolving Commitment of each U.S. Revolving Lender and with respect to the Canadian Revolving Facility, the Canadian Revolving Commitment of each Canadian Revolving Lender, (ii) any partial reduction pursuant to this Section 4.2 shall be in the amount of at least $5,000,000, and (iii) after giving effect to any such termination or reduction the Availability Conditions are satisfied.
(a) (c) The Canadian Borrower shall have the right to prepay Term Loans of any Class, without premium or penalty, in whole or in part from time to time on the following terms and conditions: (a) the Canadian Borrower shall give the Canadian Administrative Agent at the Canadian Administrative Agent’sAgent’s Office for payment in Cdn. Dollars written notice (or telephonic notice promptly confirmed in writing) of its intent to make such prepayment, the amount of such prepayment and (in the case of BA Equivalent Loans) the specific Borrowing(s) pursuant to which made, which notice shall be given by the Canadian Borrower no later than 12:00 noon (New York City time) (i) in the case of BA Equivalent Loans, three Business Days prior to, or (ii) in the case of Canadian Prime Rate Loans, one Business Day prior to, the date of such prepayment and shall promptly be transmitted by the Administrative Agent to each of the Lenders; (b) each partial prepayment of (i) any Borrowing of BA Equivalent Loans shall be in a minimum amount of $5,000,000 and in multiples of $1,000,000 in excess thereof and (ii) any Canadian Prime Rate Loans shall be in a minimum amount of $1,000,000 and in multiples of $1,000,000 in excess thereof; provided that no partial prepayment of BA Equivalent Loans made pursuant to a single Borrowing shall reduce the outstanding BA Equivalent Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount for BA Equivalent Loans and (c) any prepayment of BA Equivalent Loans pursuant to this Section 4.1 on any day other than the last day of an BA Equivalent Interest Period applicable thereto shall be subject to compliance by the Canadian Borrower with the applicable provisions of Section 2.11. Each prepayment in respect of any Term Loans pursuant to this Section 4.2(c) shall be applied to reduce scheduled amortization of such Term Loans in such order as the Canadian Borrower may specify.
 
-102-

1.1. 4.3. Mandatory Prepayments.
(a) (a) If at any time, the Availability Conditions shall cease to be satisfied, the Borrowers shall immediately upon demand by the Administrative Agent prepay such of their respective Loans (and cash collateralize such of their respective Letter of Credit Obligations in the currencies in which such Letters of Credit are denominated) in an amount sufficient such that the Availability Conditions are again satisfied.
(a) (b) At all times after the occurrence and during the continuation of a Cash Dominion Event and notification thereof by the Administrative Agents to the U.S. Parent Borrower (subject to the provisions of the Security Documents and the Intercreditor Agreement), on each Business Day, at or before 1:00 p.m. (New York City time), the applicable Administrative Agent shall apply all immediately available funds credited to the applicable Concentration Account after, if applicable, exercise of the applicable Agent’sAgent’s control with respect to such Concentration Account to prepay Loans to the U.S. Borrowers in the case of amounts contained in the U.S. Concentration Accounts or Loans to the Canadian Borrower in the case of amounts contained in the Canadian Concentration Accounts, as the case may be.
(a) (c) [Reserved].
(a) (d) With respect to each prepayment of Loans required by this Section 4.3, the applicable Borrower(s) may, if applicable, designate the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which they are made. In the absence of a designation by the Borrowers as described in the preceding sentence, the applicable Administrative Agent shall, subject to the above, make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.11. Notwithstanding any provision in this Section 4.3 to the contrary,
(i) (i) all prepayments of Revolving Loans by the U.S. Borrowers under this Section 4 shall be applied, first, to the payment of any U.S. Agent Advances that may be outstanding, second, to the payment of all U.S. Swingline Loans to the U.S. Borrowers to any Letter of Credit Borrowings with respect to U.S. Letters of Credit outstanding, third, to the payment of all U.S. Revolving Loans to the U.S. Borrowers then outstanding, pro rata, fourth, to cash collateralize any remaining Letters of Credit issued for the account of the U.S. Borrowers and fifth, in the order specified in clause (ii) below, and
(i) (ii) all prepayments of Revolving Loans by the Canadian Borrower under this Section 4 shall be applied, first, to the payment of any Canadian Agent Advances to the Canadian Borrower that may be outstanding, second, to the payment of all Canadian Swingline Loans to the Canadian Borrower and to any Letter of Credit Borrowings with respect to Canadian Letters of Credit issued for the account of the Canadian Borrower outstanding, third, to the payment of all Canadian Revolving Loans to the Canadian Borrower then outstanding, pro rata, and fourth, to cash collateralize any remaining Canadian Letters of Credit issued for the account of the Canadian Borrower.
(a) (e) In lieu of making any payment pursuant to this Section 4.3 in respect of any LIBOR Loan or any BA Equivalent Loan other than on the last day of the Interest Period or BA Equivalent Interest Period, as applicable, so long as no Event of Default shall have occurred and be continuing, the applicable Borrower(s) at its or their option may deposit with the respective Administrative Agent an amount in the applicable currency equal to the amount of the LIBOR Loan or BA Equivalent Loan to be prepaid and such LIBOR Loan or BA Equivalent Loan shall be repaid on the last day of the Interest Period or BA Equivalent Interest Period, as applicable, therefor in the required amount. Such deposit shall be held by the applicable Administrative Agent in a non-interest bearing deposit account established on terms reasonably satisfactory to such Administrative Agent. Such deposit shall constitute cash collateral for the LIBOR Loans or BA Equivalent Loans to be so prepaid, provided that the applicable Borrower may at any time direct that such deposit be applied to make the applicable payment required pursuant to this Section 4.3.
 
-103-

1.1. 4.4. Method and Place of Payment.
(a) (a) Subject to Section 2.18, all payments under this Agreement shall be made by the applicable Loan Party, without set-off, counterclaim or deduction of any kind, to the Administrative Agent for the ratable account of the Lenders entitled thereto (i) in the case of the payments under the U.S. Revolving Facility, not later than 2:00 p.m. (New York City time) and (ii) in the case of payments under the Canadian Revolving Facility, all payments in Dollars not later than 12:00 noon (New York City time) and all payments in Cdn. Dollars not later than 2:00 p.m. (New York City time), in each case, on the date when due and shall be made in immediately available funds at the Administrative Agent’sAgent’s Office for the applicable currency or at such other office as the Administrative Agent shall specify for such purpose by notice to the applicable Loan Party. All repayments or prepayments of any Revolving Loans, Swingline Loans and Agent Advances (whether of principal, interest or otherwise) hereunder shall be made in the currency in which such Revolving Loans, Swingline Loans and Agent Advances are denominated and all other payments under each Loan Document shall, unless otherwise specified in such Loan Document, be made in Dollars (in the case of the U.S. Revolving Facility) or Cdn. Dollars(in the case of the Canadian Revolving Facility). The Administrative Agents will thereafter cause to be distributed on the same day (if payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York City time) or, otherwise, on the next Business Day) like funds relating to the payment of principal or interest or other amounts ratably to the Lenders entitled thereto.
(a) (b) Any payments under this Agreement that are made later than 2:00 p.m. (New York City time) shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall be payable during such extension at the applicable rate in effect immediately prior to such extension.
1.1. 4.5. Net Payments.
(a) (a) Any and all payments made by or on behalf of any Loan Party under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any Indemnified Taxes; provided that if any Loan Party or Administrative Agent shall be required by applicable Requirements of Law to deduct or withhold any Indemnified Taxes from such payments, then (i) the sum payable by the applicable Loan Party shall be increased as necessary so that after making all required deductions and withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.5) the Administrative Agents, the Collateral Agent or any Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable Loan Party and the Administrative Agents shall make such deductions or withholdings and (iii) the applicable Loan Party and the Administrative Agents shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirements of Law. Whenever any Indemnified Taxes are payable by any Loan Party (or any Taxes are withheld by a Loan Party from payments made under this Agreement), as promptly as possible thereafter, such Loan Party shall send to the applicable Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by such Loan Party showing payment thereof.
For purposes of this Section 4.5, (x) any payments by any Administrative Agent to a Lender of any amounts received by such Administrative Agent from any Loan Party on behalf of such Lender shall be treated as a payment from the Loan Party to such Lender and (y) if a Lender is treated as a partnership or a qualified intermediary by a jurisdiction imposing an Indemnified Tax, any withholding or payment of such Indemnified Tax by the Lender in respect of any of such Lender’sLender’s partners, or any of the beneficial owners with respect to such qualified intermediary, shall be considered a withholding or payment of such Indemnified Tax by the applicable Loan Party.
(a) (b) The Borrowers shall timely pay and shall indemnify and hold harmless the Administrative Agents, each Collateral Agent and each Lender with regard to any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority). If any Borrower determines that a reasonable basis exists to claim a refund of the Other Taxes indemnified under this clause (b), the Collateral Agent or Lender shall, at the Borrower’sBorrower’s expense, reasonably cooperate with such Borrower in pursuing such refund, provided that no Collateral Agent or Lender shall be required to pursue the refund claim if such Agent or Lender in good faith discretion determines that to do so would be disadvantageous to it.
 
-104-

(a) (c) The Borrowers shall indemnify and hold harmless the Administrative Agents, the Collateral Agent and each Lender within 5 Business Days after written demand therefor, for the full amount of any Indemnified Taxes imposed on such Administrative Agent, the Collateral Agent or such Lender, as the case may be, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability delivered to the U.S. Borrowers by a Lender, the Administrative Agent or the Collateral Agent (as applicable) on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
(a) (d) Each Non-U.S. Lender with respect to the U.S. Revolving Facility, or any other Loan made to the U.S. Borrowers shall, to the extent it is legally eligible to do so, deliver to the U.S. Borrowers and the U.S. Administrative Agent on or prior to the date on which such Non-U.S. Lender becomes a U.S. Revolving Lender under this Agreement (and from time to time thereafter upon the request of the Loan Parties or the Administrative Agent, but only if such Non-U.S. Lender is legally eligible to do so), whichever of the following is applicable:
(i) (i) two duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E claiming eligibility for benefits of an income tax treaty to which the United States,
(i) (ii) two duly completed copies of Internal Revenue Service Form W-8ECI,
(i) (iii) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (A) a certificate substantially in the form of Exhibit K (any such certificate, a “U.S. Tax Compliance Certificate”) and (B) two duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E,
(i) (iv) to the extent a Non-U.S. Lender is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or participating Lender granting a participation), Internal Revenue Service Form W-8IMY, or successor applicable form, accompanied by a Form W-8ECI, W-8BEN, W-BEN-E U.S. Tax Compliance Certificate, Form W-9 or Form W-8IMY from each beneficial owner, as applicable (provided, that where a Non-U.S. Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners are claiming the portfolio interest exception, the U.S. Tax Compliance Certificate may be provided by the Non-U.S. Lender on behalf of the direct or indirect partners), and
(i) (v) any documentation required to enable the U.S. Borrowers and the U.S. Administrative Agent to comply with their obligations under Sections 1471 through 1474 of the Code and to determine whether any withholding is required.
To the extent it is legally eligible to do so, each Non-U.S. Lender shall deliver to the U.S. Parent Borrower and the U.S. Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or invalid and promptly after the occurrence of any event requiring a change in the most recent form previously delivered by it to the U.S. Parent Borrower or the Administrative Agent, or promptly notify the U.S. Parent Borrower and the Administrative Agent that it is unable to do so.
(a) (e) If any Lender, the Administrative Agent or the Collateral Agent, as applicable, determines, in its sole discretion, that it has received a refund of an Indemnified Tax or Other Tax for which a payment has been made by any Loan Party pursuant to this Agreement, which refund in the good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such payment made by such Loan Party, then the Lender, the Administrative Agent
 
-105-

or the Collateral Agent, as the case may be, shall reimburse such Loan Party for such amount (together with any interest received thereon) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse after-Tax position (taking into account expenses) than it would have been in if the payment had not been required; provided that such Loan Party, upon the request of the Lender, the Administrative Agent or the Collateral Agent, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent in the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental Authority. Neither the Lender, the Administrative Agent nor the Collateral Agent shall be obliged to disclose any information regarding its tax affairs or computations to any Loan Party in connection with this clause (e) or any other provision of this Section 4.5.
(a) (f) Each Lender and Agent with respect to the U.S. Revolving Facility, and any other Loan made to the U.S. Borrowers, that is a United States person under Section 7701(a)(30) of the Code shall, at the reasonable request of the U.S. Borrowers or the Administrative Agent, deliver to the U.S. Borrowers and the Administrative Agent two United States Internal Revenue Service Form W-9 (or substitute or successor form), properly completed and duly executed, certifying that such Lender or Agent is exempt from United States backup withholding.
(a) (g) The agreements in this Section 4.5 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(a) (h) For the avoidance of doubt, the term “Lender” shall, for purposes of this Section 4.5, include any Swingline Lender and any Letter of Credit Issuer.
1.1.4.6. [Reserved].
1.1. 4.7. Limit on Rate of Interest.
(a) (a) No Payment Shall Exceed Lawful Rate. Notwithstanding any other term of this Agreement, the Borrowers shall not be obliged to pay any interest or other amounts under or in connection with this Agreement or otherwise in respect of the Obligations in excess of the amount or rate permitted under or consistent with any applicable law, rule or regulation. For greater certainty, the term “interest in this Section 4.7 includes “interest” as defined in Section 427 of the Criminal Code (Canada).
(a) (b) Payment at Highest Lawful Rate. If any Borrower is not obliged to make a payment that it would otherwise be required to make, as a result of Section 4.7(a), such Borrower shall make such payment to the maximum extent permitted by or consistent with applicable laws, rules and regulations.
(a)(c) Adjustment if Any Payment Exceeds Lawful Rate. If any provision of this Agreement or any of the other Loan Documents would obligate any Borrower to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate that would be prohibited by any applicable law, rule or regulation, then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law, such adjustment to be effected, to the extent necessary, by reducing the amount or rate of interest required to be paid by such Borrower to the affected Lender under Section 2.8.
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if any Lender shall have received from any Borrower an amount in excess of the maximum permitted by any applicable law, rule or regulation, then such Borrower shall be entitled, by notice in writing to the applicable Administrative Agent to obtain reimbursement from that Lender in an amount equal to such excess, and pending such reimbursement, such amount shall be deemed to be an amount payable by that Lender to such Borrower.
 
-106-

SECTION 1. SECTION 5. Conditions Precedent to Restatement Effective Date
The effectiveness of the restatement of the Original Credit Agreement contemplated by this Agreement is subject to the satisfaction of the following conditions precedent.
1.1.5.1. Loan Documents. The U.S. Administrative Agent shall have received:
(a) (a) signature pages to this Agreement from the Borrowers and each Lender listed on Schedule A;
(a) (b) the U.S. Security Agreement, executed and delivered by a duly authorized officer of each Loan Party required to be a signatory thereto;
(c)(c) the Canadian Guarantee and Security Agreement, executed and delivered by a duly authorized officer of each Loan Party required to be a signatory thereto; and
(a) (c) a Notice of Borrowing meeting the requirements of Section 2.2.
1.1. 5.2. Legal Opinions. The Administrative Agents shall have received the following executed legal opinions, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) (i) executed legal opinion of Kirkland & Ellis LLP, counsel to the U.S. Parent Borrower and the other Loan Parties;
(i) (ii) executed legal opinion of Blake, Cassels and Graydon LLP, counsel to the Canadian Borrower and the Canadian Guarantors;
(i) (iii) executed legal opinion of Perkins Coie LLP special Washington counsel to certain of the Loan Parties; and
(i) (iv) executed legal opinion of Brownstein Hyatt Farber Schreck, LLP, special Nevada counsel to certain of the Loan Parties.
1.1. 5.3. Fees. All fees of the Administrative Agents and the Lenders and, to the extent required to be paid pursuant to Section 12.5, expenses of the Administrative Agents in connection with this Agreement, in each case, to the extent invoiced to the Borrowers, shall have been paid.
1.1. 5.4. Repayment. The Borrowers shall have repaid all Existing Canadian Loans and Existing U.S. Revolving Loans including all accrued interest and fees thereon on the Restatement Effective Date.
1.1.5.5. Certificates. Each Administrative Agent shall have received a certificate of each Loan Party, dated as of the Restatement Effective Date, to the effect that (i) the representations and warranties set forth in this Agreement and the other Loan Documents are true and correct in all material respects (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the Restatement Effective Date or on such earlier date, as the case may be, (ii) no Default or Event of Default shall have occurred and is continuing and no Default or Event of Default under this Agreement shall result from the transactions contemplated hereby to occur on the Restatement Effective Date and (iii) after giving effect to the consummation of the transactions contemplated hereby, the Borrowers and their Subsidiaries, on a consolidated basis, are Solvent.
 
-107-

1.1.5.6. Perfected Liens. The Collateral Agent shall have obtained a valid security interest in the Collateral covered by the Security Agreements (to the extent and with the priority contemplated therein and in the Intercreditor Agreement); and all documents, instruments, filings and recordations reasonably necessary in connection with the perfection and, in the case of the filings with the United States Patent and Trademark Office and the United States Copyright Office, protection of such security interests shall have been executed and delivered or made, and none of such Collateral shall be subject to any other pledges, security interests or mortgages except for Permitted Liens.
1.1.Secretary’s5.7. Secretary’s Certificate. The Administrative Agent shall have received a certificate from the U.S. Parent Borrower and each other Loan Party, dated the Restatement Effective Date, in substance reasonably satisfactory to the Administrative Agent, with appropriate insertions and attachments of resolutions or other actions, evidence or incumbency and the signature of authorized signatories and organizational documents, executed by a Responsible Officer and the Secretary or any Assistant Secretary or other authorized representative of such Loan Party.
1.1.5.8. Solvency. The Administrative Agent shall have received a certificate of the chief financial officer (or other comparable officer) of the U.S. Parent Borrower certifying the Solvency, after giving effect to this Agreement and the other transactions on the Restatement Effective Date, of the U.S. Parent Borrower and its Subsidiaries on a consolidated basis in form and substance reasonably acceptable to the Administrative Agent.
1.1.5.9. No Material Adverse Effect. Since December 31, 2017, there shall not have been any change, effect, event, development or occurrence that individually or in the aggregate has had or would be reasonably expected to have a Material Adverse Effect.
1.1.5.10. Patriot Act, etc. At least three days prior to the Restatement Effective Date, (x) the Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties mutually agreed in good faith is required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that has been reasonably requested in writing at least ten days prior to the Restatement Effective Date and (y) any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
1.1.5.11. Acquisition. The U.S. Parent Borrower shall have consummated the acquisition of Nexeo Solutions, LLC and its subsidiaries (the “Nexeo Acquisition”) prior to or substantially concurrently with the Restatement Effective Date.
1.1.5.12. Borrowing Base Certificate. The Administrative Agents shall have received a Borrowing Base Certificate prepared as of January 31, 2019 (inclusive of the assets acquired in the Nexeo Acquisition).
1.1.5.13. Financial Information. The Administrative Agents shall have received internal unaudited financial statements for the fiscal year ended December 31, 2018 for each of the U.S. Parent Borrower and Nexeo Solutions, LLC and their respective Subsidiaries.
 
-108-

SECTION 1. SECTION 6. Conditions Precedent to All Credit Events
The agreement of each Lender to make any Revolving Loan requested to be made by it or to issue or participate (other than pursuant to Section 2.4(f)(iii)) in Letters of Credit on any date after the Closing Date is subject to the satisfaction of the following conditions precedent:
1.1.6.1. No Default; Representations and Warranties. At the time of each Credit Event and also after giving effect thereto: (a) no Default or Event of Default shall have occurred and be continuing, and (b) all representations and warranties made by any Loan Party contained herein or in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Credit Event (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such credit extension or on such earlier date, as the case may be.
1.1.6.2. Notice of Borrowing. Prior to the making of each U.S. Revolving Loan, the U.S. Administrative Agent shall have received a U.S. Notice of Borrowing (whether in writing or by telephone) meeting the requirements of Section 2.2 and prior to the making of each Canadian Revolving Loan, the Canadian Administrative Agent shall have received a Canadian Notice of Borrowing (whether in writing or by telephone) meeting the requirements of Section 2.3.
1.1.6.3. Letter of Credit Request. With respect to the issuance of any Letter of Credit, the Letter of Credit Issuer shall have received a request completed to its satisfaction and conforming to the requirements set forth in Section 2.4(d), and such other certificates, documents and other information as the Letter of Credit Issuer may reasonably request.
The acceptance of the benefits of each Credit Event (other than, if applicable, any Agent Advances) after the Closing Date shall constitute a representation and warranty by each Loan Party to each of the Lenders that all the applicable conditions specified in Section 5 above have been satisfied as of that time.
SECTION 1. SECTION 7. Representations, Warranties and Agreements
In order to induce the Lenders to enter into this Agreement and to make the Loans or to issue or participate (other than pursuant to Section 2.4(f)(iii)) in Letters of Credit as provided for herein, each Borrower makes the following representations and warranties (subject, in the case of Non-Borrowing Base Foreign Guarantors, to the applicable Non-Borrowing Base Foreign Guarantor Security Documentation Principles (to the extent set forth therein)) to the Lenders, all of which shall survive the execution and delivery of this Agreement and the making of the Loans or issuance of Letters of Credit:
1.1.7.1. Financial Condition. (a)(a) (i) The audited consolidated balance sheets of the U.S. Parent Borrower as of December 31, 2018 and December 31, 2017 and the related consolidated statements of operations, equity and cash flows of the U.S. Parent Borrower reported on by and accompanied by unqualified reports from Ernst & Young LLP, and (ii) the unaudited consolidated balance sheets of the U.S. Parent Borrower and the related consolidated statements of operations and cash flows of the U.S. Parent Borrower for the quarter ended September 30, 2018, present fairly, in all material respects, the consolidated financial condition as at such dates, and the consolidated statements of operations and consolidated cash flows for the respective periods then ended, of the U.S. Parent Borrower. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP consistently applied throughout the periods covered thereby (except as approved by a Responsible Officer, and disclosed in any such schedules and notes).
(a)(b) [Reserved].
(a)(c) The Projections have been prepared by management of the U.S. Parent Borrower in good faith based upon assumptions believed by management to be reasonable at the time of preparation thereof (it being understood that such Projections, and the assumptions on which they were based, may or may not prove to be correct).
1.1.7.2. No Change; Solvent. Since December 31, 2018, there has been no development or event relating to or affecting any Loan Party which has had or would be reasonably expected to have a Material Adverse Effect. As of the Restatement Effective Date, after giving effect to the consummation of the transactions to be consummated on the Restatement Effective Date, the U.S. Parent Borrower, together with its Subsidiaries on a consolidated basis, is Solvent.
 
-109-

1.1.7.3. Corporate Existence; Compliance with Law. Each of the Loan Parties (a) is duly organized, validly existing and (to the extent applicable in the relevant jurisdiction) in good standing under the laws of the jurisdiction of its incorporation or formation, except (other than with respect to the Borrower), to the extent that the failure to be (to the extent applicable) in good standing would not reasonably be expected to have a Material Adverse Effect, (b) has the legal right to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, except to the extent that the failure to have such legal right would not be reasonably expected to have a Material Adverse Effect, (c) is duly qualified as a foreign corporation or limited liability company and (to the extent applicable in the relevant jurisdiction) in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, other than in such jurisdictions where the failure to be so qualified and (to the extent applicable) in good standing would not be reasonably expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law, except to the extent that the failure to comply therewith would not, in the aggregate, be reasonably expected to have a Material Adverse Effect. For the purposes of the Insolvency Regulation, the centre of main interests of any Person incorporated in the Netherlands, is situated in its jurisdiction of incorporation and it has no “establishment” (as that term is used in Article 2(10) of the Insolvency Regulation) in any other jurisdiction.
1.1.7.4. Corporate Power; Authorization; Enforceable Obligations. Each Loan Party has the corporate or other organizational power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of each Borrower, to obtain Loans and Letters of Credit hereunder, and each such Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of each Borrower, to authorize the Loans and Letters of Credit extended to it, if any, on the terms and conditions of this Agreement and any promissory notes requested hereunder. No consent or authorization of, filing with, notice to or other similar act by or in respect of, any Governmental Authority or any other Person is required to be obtained or made by or on behalf of any Loan Party in connection with the execution, delivery, performance, validity or enforceability of the Loan Documents to which it is a party or, in the case of each Borrower, with the Loans and Letters of Credit extended to it, if any, hereunder, except for (a) consents, authorizations, notices and filings described in Schedule 7.4 to this Agreement, all of which have been obtained or made prior to the Closing Date, (b) filings to perfect the Liens created by the Security Documents, and (c) consents, authorizations, notices and filings which the failure to obtain or make would not reasonably be expected to have a Material Adverse Effect. This Agreement has been duly executed and delivered by each Borrower, and each other Loan Document to which any Loan Party is a party will be duly executed and delivered on behalf of such Loan Party. This Agreement constitutes a legal, valid and binding obligation of each Borrower and each other Loan Document to which any Loan Party is a party when executed and delivered will constitute a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
1.1.7.5. No Legal Bar. The execution, delivery and performance of the Loan Documents by any of the Loan Parties, the Loans made and Letters of Credit issued hereunder and the use of the proceeds thereof (a) will not violate any Requirement of Law or Contractual Obligation of such Loan Party in any respect that would reasonably be expected to have a Material Adverse Effect, (b) will not result in, or require the creation or imposition of any Lien (other than Liens securing the Obligations or otherwise permitted hereby) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation and (c) will not violate any provision of the Organizational Documents of such Loan Party or any of the Restricted Subsidiaries, except (other than with respect to the Borrower) as would not reasonably be expected to have a Material Adverse Effect.
1.1.7.6. No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the U.S. Parent Borrower, threatened by or against the U.S. Parent Borrower or any of its Restricted Subsidiaries or against any of their respective properties or revenues, (a) except as described on Schedule 7.6 to this Agreement, which is so pending or threatened at any time on or prior to the Closing Date and relates to any of the Loan Documents or any of the transactions contemplated hereby or thereby or (b) which would be reasonably expected to have a Material Adverse Effect.
 
-110-

1.1.7.7. No Default. No Default or Event of Default has occurred and is continuing.
1.1.7.8. Ownership of Property; Liens . Each of the U.S. Parent Borrower and its Restricted Subsidiaries has good title in fee simple to, or a valid leasehold interest in, all its material real property located in the United States of America, and good title to, or a valid leasehold interest in, all its other material property located in the United States of America, except those for which the failure to have such good title or such leasehold interest would not be reasonably expected to have a Material Adverse Effect, and none of such real or other property is subject to any Lien, except for Liens permitted hereby (including Permitted Liens).
1.1.7.9. Intellectual Property. The U.S. Parent Borrower and each of its Restricted Subsidiaries owns beneficially, or has the legal right to use, all United States and foreign patents, patent applications, trademarks, trademark applications, trade names, copyrights, and rights in know-how and trade secrets necessary for each of them to conduct its business as currently conducted (the “Intellectual Property”) except for those the failure to own or have such legal right to use would not be reasonably expected to have a Material Adverse Effect. Except as provided on Schedule 7.9 to this Agreement, no claim has been asserted and is pending by any Person against the U.S. Parent Borrower or any of its Restricted Subsidiaries challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does the U.S. Parent Borrower know of any such claim, and, to the knowledge of the U.S. Parent Borrower, the use of such Intellectual Property by the U.S. Parent Borrower and its Restricted Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements which in the aggregate, would not be reasonably expected to have a Material Adverse Effect.
 
7.10.	Taxes.	
1.1.Taxes .(a) To the knowledge of the U.S. Parent Borrower, (1) the U.S. Parent Borrower and each of its Restricted Subsidiaries has filed or caused to be filed all material tax returns which are required to be filed by it and has paid (a) all Taxes shown to be due and payable on such returns and (b) all Taxes shown to be due and payable on any assessments of which it has received notice made against it or any of its property and all other Taxes imposed on it or any of its property by any Governmental Authority; and (2) no Tax Liens have been filed (except for Liens for Taxes not yet due and payable), and no claim is being asserted in writing, with respect to any such Taxes (in each case other than in respect of any such (i) Taxes with respect to which the failure to pay, in the aggregate, would not have a Material Adverse Effect or (ii) Taxes the amount or validity of which are currently being contested in good faith by appropriate proceedings diligently conducted and with respect to which reserves in conformity with GAAP have been provided on the books of the U.S. Parent Borrower or its Restricted Subsidiaries, as the case may be).
(b) As of the Amendment No. 1 Effective Date, no Dutch Loan Party is required to make any deduction or withholding for or on account of any Taxes from any payment it may make under any Loan Document to a Lender.
(c) As of the Amendment No. 1 Effective Date, each Dutch Loan Party is resident for tax purposes in the Netherlands only and does not have a permanent establishment or other taxable presence outside the Netherlands.
1.1.7.11. Federal Regulations. No part of the proceeds of any Extensions of Credit will be used for any purpose which violates the provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation X of the Board. If requested by any Lender or the Administrative Agent, the Borrowers will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, referred to in said Regulation U.
 
-111-

1.1.7.12. ERISA.
(a)(a) During the five year period prior to each date as of which this representation is made, or deemed made, with respect to any Plan, none of the following events or conditions, either individually or in the aggregate, has resulted or is reasonably likely to result in a Material Adverse Effect: (i) a Reportable Event, (ii) a failure to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not waived, (iii) any noncompliance with the applicable provisions of ERISA or the Code, (iv) a termination of a Single Employer Plan (other than a standard termination pursuant to Section 4041(b) of ERISA), (v) a Lien on the property of the U.S. Parent Borrower or its Restricted Subsidiaries in favor of the PBGC or a Plan, (vi) a complete or partial withdrawal from any Multiemployer Plan by the U.S. Parent Borrower or any Commonly Controlled Entity, (vii) the Insolvency of any Multiemployer Plan; or (viii) any transaction that resulted or could reasonably be expected to result in any liability to the U.S. Parent Borrower or any Commonly Controlled Entity under Section 4069 of ERISA or Section 4212(c) of ERISA.
(a)(b) With respect to any Foreign Plan, none of the following events or conditions exists and is continuing that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect: (i) substantial non-compliance with its terms or with the requirements of any applicable laws, statutes, rules, regulations and orders, (ii) failure to be maintained, where required, in good standing with applicable regulatory authorities, (iii) any obligation of the U.S. Parent Borrower or its Restricted Subsidiaries in connection with the termination or partial termination of, or withdrawal from, any Foreign Plan, (iv) any Lien on the property of the U.S. Parent Borrower or its Restricted Subsidiaries in favor of a Governmental Authority as a result of any action or inaction regarding a Foreign Plan, (v) for each Foreign Plan which is a funded or insured plan, failure to be funded or insured on an ongoing basis to the extent required by applicable non-U.S. law (using actuarial methods and assumptions which are consistent with the valuations last filed with the applicable Governmental Authorities), (vi) any facts that, to the best knowledge of the U.S. Parent Borrower or any of its Restricted Subsidiaries, exist that would reasonably be expected to give rise to a dispute that, or any pending or threatened disputes that, to the best knowledge of the U.S. Parent Borrower or any of its Restricted Subsidiaries, would reasonably be expected to result in a material liability to the U.S. Parent Borrower or any of its Restricted Subsidiaries concerning the assets of any Foreign Plan (other than individual claims for the payment of benefits); and (vii) failure to make all contributions in a timely manner to the extent required by applicable non-U.S. law.
(a)(c) The Canadian Borrower and the Canadian Guarantors are in compliance with the requirements of the PBA and other federal or provincial laws with respect to each Foreign Plan in Canada, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect. No fact or situation that may reasonably be expected to result in a Material Adverse Effect exists in connection with any Foreign Plan. No Foreign Plan Termination Event has occurred that would be reasonably likely to have a Material Adverse Effect. Except as previously disclosed to the Administrative Agents and the Lenders or as would not reasonably be likely to have a Material Adverse Effect (i) neither the Canadian Borrower nor any of the Canadian Guarantors would have any material liability in connection with its withdrawal from a Canadian Defined Benefit Plan that is a “multi-employer pension plan”, as defined under applicable pension standards legislation, (ii) the FSCO has not issued any default or other breach notices in respect of any Canadian Defined Benefit Plans and (iii) no lien has arisen, choate or inchoate, in respect of Canadian Borrower or its Subsidiaries or their property in connection with any Foreign Plan (save for contribution amounts not yet due). The Canadian Borrower has provided the Lenders with a copy of the actuarial valuation report for each Canadian Defined Benefit Plan most recently filed with the applicable Governmental Authorities.
(a)(d) No Borrower is, nor shall be (for so long as it is a borrower hereunder), a Benefit Plan.
1.1.7.13. Collateral. The Canadian Security Agreement, the U.S. Security Agreement and the other Security Documents in existence as of the Restatement Effective Date are, and upon execution and delivery thereof by the parties thereto, any additional Security Documents will be, effective to create (to the extent described therein) in favor of the Collateral Agent for the benefit of the applicable Secured Parties, a valid and enforceable security interest in or liens on the Collateral described therein, except as to enforcement, as may be limited by applicable domestic or foreign bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
 
-112-

When (a) all Filings (as defined in the Security Documents) have been completed, (b) all applicable Instruments, Chattel Paper and Documents (each as described therein) constituting Collateral a security interest in which is perfected by possession have been delivered to, and/or are in the continued possession of, the Collateral Agent, the Cash Flow Collateral Agent or the other applicable Collateral Representative, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the Intercreditor Agreement and, (c) all Deposit Accounts and Pledged Stock (each as defined in the U.S. Security Agreement) a security interest in which is required by the Security Documents to be or is perfected by “control” (as described in the Uniform Commercial Code as in effect in each applicable jurisdiction (in the case of Deposit Accounts) and the State of New York (in the case of Pledged Stock) from time to time) are under the “control” of the Collateral Agent, the Cash Flow Collateral Agent or the applicable Collateral Representative, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the Intercreditor Agreement, and (d) all filings or recordings are made in the appropriate offices of the applicable jurisdictions as may be required under the terms of the applicable Security Documents, the security interests and liens granted pursuant to the Security Documents shall constitute (to the extent described therein) a perfected security interest in (to the extent intended to be created thereby and required to be perfected under the Loan Documents), all right, title and interest of each pledgor or mortgagor (as applicable) party thereto in the Collateral described therein (excluding Commercial Tort Claims, as defined in the U.S. Security Agreement, other than such Commercial Tort Claims set forth on Schedule 6 thereto (if any)) with respect to such pledgor or mortgagor (as applicable). Notwithstanding any other provision of this Agreement, (i) capitalized terms that are used in this Section 7.13 and not defined in this Agreement are so used as defined in the applicable Security Document and (ii) the provisions of this Section 7.13 are subject, in the case of Non-Borrowing Base Foreign Guarantors, to the Non-Borrowing Base Foreign Guarantor Security Documentation Principles.
1.1.7.14. Investment Company Act; Other Regulations. No Borrower is required to be registered as an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act. No Borrower is subject to regulation under any federal or state statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness as contemplated hereby.
1.1.7.15. Subsidiaries. Schedule 7.15 to this Agreement sets forth all the Subsidiaries of the U.S. Parent Borrower at the Closing Date (after giving effect to the Transactions), the jurisdiction of their organization and the direct or indirect ownership interest of the U.S. Parent Borrower therein.
1.1.7.16. Purpose of Loans. The Borrowers will use the Term Loans, Revolving Loans, Swingline Loans and the Letters of Credit for general corporate purposes (including acquisitions).
1.1.7.17. Environmental Matters. Except as disclosed on Schedule 7.17 to this Agreement or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:
(a)(a) The U.S. Parent Borrower and its Restricted Subsidiaries: (i) are, and within the period of all applicable statutes of limitation have been, in compliance with all applicable Environmental Laws; (ii) hold all Environmental Permits (each of which is in full force and effect) required for any of their current operations or for any property owned, leased, or otherwise operated by any of them and reasonably expect to timely obtain without material expense all such Environmental Permits required for planned operations; (iii) are, and within the period of all applicable statutes of limitation have been, in compliance with all of their Environmental Permits; and (iv) believe they will be able to maintain compliance with Environmental Laws and Environmental Permits, including any reasonably foreseeable future requirements thereof.
(b)(b) Materials of Environmental Concern have not been transported, disposed of, emitted, discharged, or otherwise released or threatened to be released, to, at or from any real property presently or formerly owned, leased or operated by the U.S. Parent Borrower or any of its Restricted Subsidiaries or at any other location, which would reasonably be expected to (i) give rise to liability or other Environmental Costs of the U.S. Parent Borrower or any of its Restricted Subsidiaries under any applicable Environmental Law, or (ii) interfere with the planned or continued operations of the U.S. Parent Borrower and its Restricted Subsidiaries.
 
-113-

(c)(c) There is no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under any Environmental Law to which the U.S. Parent Borrower or any of its Restricted Subsidiaries is, or to the knowledge of the U.S. Parent Borrower or any of its Restricted Subsidiaries is reasonably likely to be, named as a party that is pending or, to the knowledge of the U.S. Parent Borrower or any of its Restricted Subsidiaries, threatened.
(d)(d) Neither the U.S. Parent Borrower nor any of its Restricted Subsidiaries has received any written request for information, or been notified that it is a potentially responsible party, under the federal Comprehensive Environmental Response, Compensation, and Liability Act or any similar Environmental Law, or received any other written request for information from any Governmental Authority with respect to any Materials of Environmental Concern.
(e)(e) Neither the U.S. Parent Borrower nor any of its Restricted Subsidiaries has entered into or agreed to any consent decree, order, or settlement or other agreement, nor is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral, or other forum, relating to compliance with or liability under any Environmental Law.
1.1.7.18. No Material Misstatements. The written information, reports, financial statements, exhibits and schedules furnished by or on behalf of the U.S. Parent Borrower to the Agents, the Other Representatives and the Lenders on or prior to the Restatement Effective Date in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto, taken as a whole, did not contain as of the Restatement Effective Date any material misstatement of fact and did not omit to state as of the Restatement Effective Date any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading in their presentation of the U.S. Parent Borrower and its Restricted Subsidiaries taken as a whole. It is understood that (a) no representation or warranty is made concerning the forecasts, estimates, pro forma information, projections and statements as to anticipated future performance or conditions, and the assumptions on which they were based or concerning any information of a general economic nature or general information about Borrowers’’ and their Subsidiaries’’ industry, contained in any such information, reports, financial statements, exhibits or schedules, except that, in the case of such forecasts, estimates, pro forma information, projections and statements, as of the date such forecasts, estimates, pro forma information, projections and statements were generated, (i) such forecasts, estimates, pro forma information, projections and statements were based on the good faith assumptions of the management of the U.S. Parent Borrower and (ii) such assumptions were believed by such management to be reasonable and (b) such forecasts, estimates, pro forma information, projections and statements, and the assumptions on which they were based, may or may not prove to be correct.
1.1.7.19. [Reserved].
1.1.7.20. Insurance. As of the Restatement Effective Date, the Loan Parties have all insurance required by Section 8.3 of this Agreement.
1.1. 7.21. Anti-Terrorism. The U.S. Parent Borrower and its Restricted Subsidiaries are in compliance with the Patriot Act, and none of the U.S. Parent Borrower and its Restricted Subsidiaries is a person on the list of “Specially Designated Nationals and Blocked Persons” or subject to the limitations and prohibitions under any other U.S. Department of Treasury’sTreasury’s Office of Foreign Asset Control regulation or executive order (“OFAC”), or is a “designated person”, “politically exposed foreign person” or “terrorist group” as described in any Canadian Economic Sanctions and Export Control Laws, in each case, except as would not reasonably be expected to have a Material Adverse Effect.
1.1.7.22. EEA Financial Institution. No Loan Party is an EEA Financial Institution.
SECTION 1. SECTION 8. Affirmative Covenants
Each Borrower hereby agrees (subject in the case of Non-Borrowing Base Foreign Guarantors, to the applicable Non-Borrowing Base Foreign Guarantor Security Documentation Principles (to the extent set forth therein)) that on the Closing Date and thereafter, until all Loans, together with interest and all other Obligations
 
-114-

(other than indemnification and other contingent Obligations in each case not then due and payable) hereunder, are paid in full, all Commitments are terminated and all Letters of Credit are terminated or collateralized in an amount equal to their face amount (or other arrangements are made with respect thereto reasonably satisfactory to the applicable Letter of Credit Issuer):
1.1.8.1. Information Covenants. The Borrowers will furnish to the U.S. Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice):
(a)(a) Annual Financial Statements. Not later than 90 days following the end of each Fiscal Year of the U.S. Parent Borrower ending after the Closing Date (or such longer period as may be permitted by the SEC if the U.S. Parent Borrower were then subject to SEC reporting requirements as a non-accelerated filer), a copy of the consolidated balance sheet of the U.S. Parent Borrower as at the end of such year and the related consolidated statements of operations, changes in equity and cash flows for such year, setting forth, in each case, in comparative form the figures for and as of the end of the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit (provided that such report may contain a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, if such qualification or exception is related to (i) an upcoming maturity date of any of the Facilities or the Cash Flow Credit Facility or (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of the U.S. Parent Borrower or its Subsidiaries on a future date in a future period), by the U.S. Parent Borrower’sBorrower’s independent auditor (it being agreed that the furnishing of the U.S. Parent Borrower’sBorrower’s or any Parent Entity’sEntity’s annual report on Form 10-K for such year, as filed with the SEC, will satisfy the U.S. Parent Borrower’sBorrower’s obligation under this Section 8.1(a) with respect to such year, including with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, so long as the report included in such Form 10-K does not contain any “going concern” or like qualification or exception (other than a “going concern” or like qualification or exception with respect to (i) an upcoming maturity date under any of the Facilities or the Cash Flow Credit Facility or (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of the U.S. Parent Borrower or its Subsidiaries on a future date in a future period);
(b)(b) Quarterly Financial Statements. Not later than 45 days following the end of the first three quarterly periods of each Fiscal Year of the U.S. Parent Borrower commencing with the fiscal quarter ending June 30, 2015 (or such longer period as may be permitted by the SEC if the U.S. Parent Borrower were then subject to SEC reporting requirements as a non-accelerated filer), the unaudited consolidated balance sheet of the U.S. Parent Borrower as at the end of such quarter and the related unaudited consolidated statements of operations and changes in cash flows of the U.S. Parent Borrower for such quarter and the portion of the Fiscal Year through the end of such quarter, setting forth in comparative form the figures for and as of the corresponding periods of the previous year in each case certified by a Responsible Officer of the U.S. Parent Borrower as being fairly stated in all material respects (subject to normal year end audit and other adjustments) (it being agreed that the furnishing of the U.S. Parent Borrower’sBorrower’s or any Parent Entity’sEntity’s quarterly report on Form 10-Q for such quarter, as filed with the SEC, will satisfy the U.S. Parent Borrower’sBorrower’s obligations under this Section 8.1(b) with respect to such quarter);
(c)(c) Unrestricted Subsidiary Information. To the extent applicable, concurrently with any delivery of consolidated financial statements referred to in Sections 8.1(a) and (b) above, related unaudited condensed consolidating financial statements and appropriate reconciliations reflecting the material adjustments necessary (as determined by the U.S. Parent Borrower in good faith) to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements;
(d)(d) Satisfaction of Financial Statement Delivery Requirements. All such financial statements delivered pursuant to Section 8.1(a) or (b) to (and, in the case of any financial statements delivered pursuant to Section 8.1(b) shall be certified by a Responsible Officer of the U.S. Parent Borrower to) fairly present in all material respects the financial condition of the U.S. Parent Borrower and its Subsidiaries in
 
-115-

conformity with GAAP and to be (and, in the case of any financial statements delivered pursuant to Section 8.1(b) shall be certified by a Responsible Officer of the U.S. Parent Borrower as being) in reasonable detail and prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods that began on or after the Closing Date (except as disclosed therein, and except, in the case of any financial statements delivered pursuant to Section 8.1(b), for the absence of certain notes and subject to normal year-end audit and other adjustments); and
(e)(e) Budgets. Within 90 days after the commencement of each fiscal year of the U.S. Parent Borrower (commencing with the fiscal year ending December 31, 2016), a budget of the U.S. Parent Borrower and the Subsidiaries for such fiscal year as customarily prepared by management of the U.S. Parent Borrower for its internal use consistent in scope with financial statements provided pursuant to Section 8.1(a), setting forth the principal assumptions upon which such budget is based.
(f) Officer’s(f) Officer’s Certificates. At the time of the delivery of the financial statements provided for in Sections 8.1(a) and (b), a certificate of an Authorized Officer of the U.S. Parent Borrower to the effect that to such Authorized Officer’sOfficer’s knowledge, no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth the calculations required to establish whether the U.S. Parent Borrower was in compliance with the provisions of Section 9.9 as at the end of such fiscal year or period, as the case may be (whether or not such covenant was in effect).
(g)(g) Notice of Default. As soon as possible after a Responsible Officer of the U.S. Parent Borrower knows thereof, the occurrence of any Default or Event of Default;
(h)(h) Notice of Material Adverse Effect. As soon as possible after a Responsible Officer of the U.S. Parent Borrower knows thereof, any default or event of default under any Contractual Obligation of the U.S. Parent Borrower or any of its Restricted Subsidiaries, other than as previously disclosed in writing to the Lenders, which would reasonably be expected to have a Material Adverse Effect;
(i)(i) Notice of Defaults under Other Agreements. As soon as possible after a Responsible Officer of the U.S. Parent Borrower knows thereof, the occurrence of (i) any default or event of default under the Senior Notes Indenture, (ii) any default or event of default under the Cash Flow Credit Facility or (iii) any payment default under any Additional Obligations Documents or under any agreement or document governing other Indebtedness, in each case relating to Indebtedness in an aggregate principal amount equal to or greater than $150.0 million;
(j)(j) Notice of Litigation. As soon as possible after a Responsible Officer of the U.S. Parent Borrower knows thereof, any litigation, investigation or proceeding affecting the U.S. Parent Borrower or any of its Restricted Subsidiaries that would reasonably be expected to have a Material Adverse Effect;
(k)(k) Notice of Certain ERISA Events. The following events, as soon as possible and in any event within 30 days after a Responsible Officer of the U.S. Parent Borrower or any of its Restricted Subsidiaries knows thereof: (i) the occurrence or expected occurrence of any Reportable Event (or similar event) with respect to any Single Employer Plan (or Foreign Plan), a failure to make any required contribution to a Single Employer Plan, Multiemployer Plan or Foreign Plan, the creation of any Lien on the property of the U.S. Parent Borrower or its Restricted Subsidiaries in favor of the PBGC, a Plan or a Foreign Plan (other than in respect of contributions not yet due to a Foreign Plan) or any withdrawal from, or the full or partial termination or Insolvency of, any Multiemployer Plan or Foreign Plan; or (ii) the institution of proceedings or the taking of any other formal action by the PBGC or the U.S. Parent Borrower or any of its Restricted Subsidiaries or any Commonly Controlled Entity or any Multiemployer Plan which would reasonably be expected to result in the withdrawal from, or the termination or Insolvency of, any Single Employer Plan, Multiemployer Plan or Foreign Plan; provided, however, that no such notice will be required under clause (i) or (ii) above unless the event giving rise to such notice, when aggregated with all other such events under clause (i) or (ii) above, would be reasonably expected to result in a Material Adverse Effect;
 
-116-

(l)(l) Environmental Notices. As soon as possible after a Responsible Officer of the U.S. Parent Borrower knows thereof, (i) any release or discharge by the U.S. Parent Borrower or any of its Restricted Subsidiaries of any Materials of Environmental Concern required to be reported under applicable Environmental Laws to any Governmental Authority, unless the U.S. Parent Borrower reasonably determines that the total Environmental Costs arising out of such release or discharge would not reasonably be expected to have a Material Adverse Effect, (ii) any condition, circumstance, occurrence or event not previously disclosed in writing to the Administrative Agent that would reasonably be expected to result in liability or expense under applicable Environmental Laws, unless the U.S. Parent Borrower reasonably determines that the total Environmental Costs arising out of such condition, circumstance, occurrence or event would not reasonably be expected to have a Material Adverse Effect, or would not reasonably be expected to result in the imposition of any lien or other material restriction on the title, ownership or transferability of any facilities and properties owned, leased or operated by the U.S. Parent Borrower or any of its Restricted Subsidiaries that would reasonably be expected to result in a Material Adverse Effect; and (iii) any proposed action to be taken by the U.S. Parent Borrower or any of its Restricted Subsidiaries that would reasonably be expected to subject the U.S. Parent Borrower or any of its Restricted Subsidiaries to any material additional or different requirements or liabilities under Environmental Laws, unless the U.S. Parent Borrower reasonably determines that the total Environmental Costs arising out of such proposed action would not reasonably be expected to have a Material Adverse Effect; and
(m)(m) Casualty Events. As soon as possible after a Responsible Officer of the U.S. Parent Borrower knows thereof, written notice of any loss, damage, or destruction to a significant portion of the Collateral, whether or not covered by insurance.
(n)(n) Foreign Plan Notices. Promptly, after the U.S. Parent Borrower or any of its Subsidiaries obtains knowledge thereof, notice of, with copies of any such documentation and notices as applicable, (i) any default in, or breach of, a Canadian Defined Benefit Plan that could reasonably be expected to result in a Material Adverse Effect; (ii) any action or inaction of a plan sponsor or administrator that could lead to a Foreign Plan Termination Event that could reasonably be expected to result in a Material Adverse Effect; (iii) receipt of any notice from, or any action of, FSCO, or other Governmental Authority that could reasonably be expected to lead to a Foreign Plan Termination Event; and (iv) copies of all actuarial valuations for each Canadian Defined Benefit Plan. Promptly upon receipt of each actuarial valuation prepared for each Canadian Defined Benefit Plan, Parent Borrower will deliver to the Administrative Agent a calculation of the Unfunded Current Liability, if any, under such Canadian Defined Benefit Plan as of the effective date of the applicable actuarial valuation.
(o)(o) Borrowing Base Certificate. On the 10th Business Day of each calendar month ending after the Restatement Effective Date (or ending in the calendar month in which the Restatement Effective Date occurs to the extent a Borrowing Base Certificate has not been provided for such month pursuant to the Original ABL Credit Agreement), a Borrowing Base Certificate certified as complete and correct in all material respects on behalf of each Borrower by an Authorized Officer of such Borrower (each, a “Monthly Borrowing Base Certificate”); provided that to the extent (i)  (i) there are no outstanding Borrowings of Loans and (ii) the aggregate amount of Letters of Credit outstanding does not exceed $25,000,000, in each case, for a period of at least 90 consecutive days, the Borrowers shall only be required to deliver a Borrowing Base Certificate for each of the U.S. Borrowing Base and Canadian Borrowing Base on the 10th Business Day following each calendar quarter (it being understood that if the Borrowers are then delivering a Borrowing Base Certificate on a quarterly basis, they shall deliver a Borrowing Base Certificate as of the most recently ended month prior to any Borrowing). In addition, (a) if the Combined Availability is less than or equal to 12.5% of the Combined Line Cap, a Borrowing Base Certificate showing U.S. Parent Borrower’sBorrower’s and the Canadian Borrower’sBorrower’s reasonable estimate (which shall be calculated in a consistent manner with the most recent Borrowing Base Certificates delivered pursuant to this Section 8.1(o)) of the U.S. Borrowing Base and the Canadian Borrowing Base, respectively, as of the close of business on the last day of the immediately preceding calendar week, unless the Administrative Agents otherwise agree, shall be furnished on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day) or (b) if any Specified Event of Default has occurred and is continuing, a Borrowing Base Certificate showing the U.S. Parent Borrower’sBorrower’s and the Canadian Borrower’sBorrower’s reasonable estimate (which shall be
 
-117-

calculated in a consistent manner with the most recent Borrowing Base Certificates delivered pursuant to this Section 8.1(o)) of the U.S. Borrowing Base and the Canadian Borrowing Base, respectively, as of the close of business on the last day of the immediately preceding calendar week, unless the Administrative Agents otherwise agree, shall be furnished on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day).
(p)(p) SEC Reports. Within five Business Days after the same are filed, copies of all financial statements and periodic reports which the U.S. Parent Borrower may file with the SEC or any successor or analogous Governmental Authority;
(q)(q) Other SEC Filings. Within five Business Days after the same are filed, copies of all registration statements and any amendments and exhibits thereto, which the U.S. Parent Borrower may file with the SEC or any successor or analogous Governmental Authority;
(r)(r) Additional Information. Promptly, such additional financial and other information as any Agent or the Required Lenders through the Administrative Agent may from time to time reasonably request;
(s)(s) Fixed GAAP Changes. Promptly upon reasonable request from the Administrative Agent calculations of Consolidated EBITDA and other Fixed GAAP Terms as reasonably requested by the Administrative Agent promptly following receipt of a written notice from the U.S. Parent Borrower electing to change the Fixed GAAP Date, which calculations shall show the calculations of the respective Fixed GAAP Terms both before and after giving effect to the change in the Fixed GAAP Date and identify the material change(s) in GAAP giving rise to the change in such calculations; and
(t) PATRIOT Act and Beneficial Ownership Regulation. Promptly following any request therefor, information and documentation reasonably requested by the Administrative Agents or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Proceeds of Crime Act.
Documents required to be delivered pursuant to this Section 8.1 may at the U.S. Parent Borrower’sBorrower’s option be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the U.S. Parent Borrower posts such documents, or provides a link thereto on the U.S. Parent Borrower’sBorrower’s (or any Parent Entity’sEntity’s) website on the Internet at the website address listed on Schedule 8.1 to this Agreement (or such other website address as the U.S. Parent Borrower may specify by written notice to the Administrative Agent from time to time); or (ii) on which such documents are posted on the U.S. Parent Borrower’sBorrower’s (or any Parent Entity’sEntity’s) behalf on an Internet or intranet website to which each Lender and the Administrative Agent have access (whether a commercial, third-party website (including any website maintained by the SEC) or whether sponsored by the Administrative Agent). Following the electronic delivery of any such documents by posting such documents to a website in accordance with the preceding sentence (other than the posting by the U.S. Parent Borrower of any such documents on any website maintained for or sponsored by the Administrative Agent), the U.S. Parent Borrower shall promptly provide the Administrative Agent notice of such delivery (which notice may be by facsimile or electronic mail) and the electronic location at which such documents may be accessed; provided that, in the absence of bad faith, the failure to provide such prompt notice shall not constitute a Default hereunder.
1.1. 8.2. Books, Records and Inspections.
(a) (a) The U.S. Parent Borrower will, and will cause each Restricted Subsidiary to, permit officers and designated representatives of the Administrative Agent or the Lenders to visit and inspect any of the properties or assets of the U.S. Parent Borrower and any such Restricted Subsidiary in whomever’swhomever’s possession to the extent that it is within such party’sparty’s control to permit such inspection, and to examine the books and records of the U.S. Parent Borrower and any such Restricted Subsidiary and discuss the affairs, finances and accounts of the U.S. Parent Borrower and of any such Restricted Subsidiary with, and be advised as to the same by, its and their officers and independent accountants, all at such reasonable times and intervals and to such reasonable extent as the Administrative Agent or the Lenders may reasonably request (and subject, in the case of any such meetings or
 
-118-

advice from such independent accountants, to such accountants’’ customary policies and procedures); provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the Lenders under this Section 8.2 and only two such visits per fiscal year of the U.S. Parent Borrower shall be at the U.S. Parent Borrower’sBorrower’s expense (and only to the extent such expense is reasonable); provided, further, that when an Event of Default exists, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the U.S. Parent Borrower at any time during normal business hours and upon reasonable advance notice; provided, further, that representatives of the U.S. Parent Borrower may be present during any such visits, discussions and inspections. Notwithstanding anything to the contrary in Section 8.1(r) or in this Section 8.2, none of the U.S. Parent Borrower or any Restricted Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or the Lenders (or their respective representatives) is prohibited by Law or any binding agreement or (iii) that is subject to attorney client or similar privilege or constitutes attorney work product.
(a) (b) At reasonable times during normal business hours and upon reasonable prior notice that either Administrative Agent requests, but only in connection with the visits and inspections provided for in clause (a) above, (i) the U.S. Parent Borrower and its Subsidiaries will grant access to such Administrative Agent (including employees of such Administrative Agent or any consultants, accountants, lawyers and appraisers retained by such Administrative Agent) to such Person’sPerson’s premises, books, records, Accounts and Inventory so that such Administrative Agent or an appraiser retained by such Administrative Agent may conduct an Inventory appraisal and (ii) such Administrative Agent may conduct (or engage third parties to conduct) such field examinations, verifications and evaluations (including environmental assessments) as such Administrative Agent may deem necessary or appropriate. All reasonable expenses caused by such appraisals, field examinations and other verifications and evaluations shall be at the sole expense of the Loan Parties; provided that absent the existence and continuation of an Event of Default (i) such Administrative Agent may conduct at the expense of the Loan Parties no more than one (1) such appraisal for Inventory in any calendar year and no more than one (1) such field examination in any calendar year and (ii) during any calendar year in which the Combined Availability is less than or equal to 17.5% of the Combined Line Cap, the Administrative Agents may conduct at the expense of the Loan Parties no more than two (2) such appraisals for Inventory of the Loan Parties and no more than two (2) such field examinations in respect of property of the Loan Parties in such calendar year and, in each case, all amounts chargeable to the applicable Borrowers under this Section 8.2(b) shall constitute Obligations that are secured by all of the applicable Collateral and shall be payable to the applicable Administrative Agents hereunder.
1.1. 8.3. Maintenance of Insurance. The Borrowers will, and will cause each of their Restricted Subsidiaries to (i) keep all property necessary in the business of the U.S. Parent Borrower and its Restricted Subsidiaries, taken as a whole, in good working order and condition, except where failure to do so would not reasonably be expected to have a Material Adverse Effect; (ii) use commercially reasonable efforts to maintain with financially sound and reputable insurance companies (or any Captive Insurance Subsidiary) insurance on, or self-insure, all property material to the business of the U.S. Parent Borrower and its Restricted Subsidiaries, taken as a whole, in at least such amounts and against at least such risks (but including in any event public liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business; (iii) furnish to the Administrative Agent, upon written request, information in reasonable detail as to the insurance carried; (iv) use commercially reasonable efforts to maintain property and liability policies that provide that in the event of any cancellation thereof during the term of the policy, either by the insured or by the insurance company, the insurance company shall provide to the secured party at least 30 days prior written notice thereof, or in the case of cancellation for non-payment of premium, ten days prior written notice thereof; (v) in the event of any material change in any of the property or liability policies referenced in the preceding clause (iv), use commercially reasonable efforts to provide the Administrative Agent with at least 30 days prior written notice thereof; and (vi) use commercially reasonable efforts to ensure, that subject to the Intercreditor Agreement and the Non-Borrowing Base Foreign Guarantor Documentation Principles, at all times the Collateral Agent for the benefit of the Secured Parties, shall be named as an additional insured with respect to liability policies maintained by the U.S. Parent Borrower and each other Loan Party and the Collateral Agent for the benefit of the Secured Parties, shall be named as loss payee with respect to the property insurance covering Inventory that constitutes ABL Priority Collateral maintained by the U.S. Parent Borrower and each Loan Party and in accordance with the Intercreditor Agreement as in effect on the date hereof; provided that, unless an Event of Default shall have occurred and be
 
-119-

continuing, (A) the Collateral Agent shall turn over to the Borrowers any amounts received by it as an additional insured or loss payee under any property insurance maintained by the U.S. Parent Borrower and its Subsidiaries and (B) the Collateral Agent agrees that the U.S. Parent Borrower and/or its applicable Subsidiary shall have the sole right to adjust or settle any claims under such insurance.
1.1. 8.4. Payment of Taxes. The U.S. Parent Borrower will, and will cause each of its Restricted Subsidiaries to, pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all taxes except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings diligently conducted and reserves in conformity with GAAP with respect thereto have been provided on the books of the U.S. Parent Borrower or any of its Restricted Subsidiaries, as the case may be, or except to the extent that failure to do so, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
1.1.8.5. Maintenance of Existence. The U.S. Parent Borrower will, and will cause each of its Restricted Subsidiaries to, preserve, renew and keep in full force and effect its existence and take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of the business of the U.S. Parent Borrower and its Restricted Subsidiaries, taken as a whole, except as otherwise permitted pursuant to Section 9.4 or 9.7, provided that the U.S. Parent Borrower and its Restricted Subsidiaries shall not be required to maintain any such rights, privileges or franchises and the U.S. Parent Borrower’sBorrower’s Restricted Subsidiaries (other than the Borrowers) shall not be required to maintain such existence, if the failure to do so would not reasonably be expected to have a Material Adverse Effect; and comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith, in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Each Person incorporated in the Netherlands shall maintain its centre of main interest in the Netherlands for the purposes of the Insolvency Regulation.
1.1. 8.6. Environmental Laws.
(a) (a) (i) The U.S. Parent Borrower will, and will cause each of its Restricted Subsidiaries to, comply substantially with, and require substantial compliance by all tenants, subtenants, contractors, and invitees with, all applicable Environmental Laws; (ii) obtain, comply substantially with and maintain any and all Environmental Permits necessary for its operations as conducted and as planned; and (iii) require that all tenants, subtenants, contractors, and invitees to obtain, comply substantially with and maintain any and all Environmental Permits necessary for their operations as conducted and as planned, with respect to any property leased or subleased from, or operated by the U.S. Parent Borrower or its Restricted Subsidiaries. For purposes of this Section 8.6(a), noncompliance shall not constitute a breach of this covenant, provided that, upon learning of any actual or suspected noncompliance, the U.S. Parent Borrower and any such affected Restricted Subsidiary shall promptly undertake and diligently pursue reasonable efforts, if any, to achieve compliance, and provided, further, that in any case such noncompliance would not reasonably be expected to have a Material Adverse Effect.
(a) (b) The U.S. Parent Borrower will, and will cause each of its Restricted Subsidiaries to, promptly comply, in all material respects, with all orders and directives of all Governmental Authorities regarding Environmental Laws, other than such orders or directives (i) as to which the failure to comply would not reasonably be expected to result in a Material Adverse Effect or (ii) as to which: (x) appropriate reserves have been established in accordance with GAAP; (y) an appeal or other appropriate contest is or has been timely and properly taken and is being diligently pursued in good faith; and (z) if the effectiveness of such order or directive has not been stayed, the failure to comply with such order or directive during the pendency of such appeal or contest would not reasonably be expected to have a Material Adverse Effect.
1.1. 8.7. [Reserved].
1.1. 8.8. Additional U.S. Borrowers, Canadian Guarantors, Non-Borrowing Base Foreign Guarantors and Grantors.
(a) (a) With respect to any Domestic Subsidiary or Canadian Subsidiary that is a Wholly Owned Subsidiary of a Loan Party (other than an Excluded U.S. Subsidiary or an Excluded Canadian Subsidiary) (iw) created or acquired (including, without limitation, upon the formation of any Subsidiary that is a Delaware Divided
 
-120-

LLCDivision Successor) subsequent to the Closing Date by a Loan Party, (iix) being designated as a Restricted Subsidiary, (iiiy ) ceasing to be an Immaterial Subsidiary, a Foreign Subsidiary Holdco or other Excluded U.S. Subsidiary or Excluded Canadian Subsidiary as provided in the applicable definition thereof after the expiry of any applicable period referred to in such definition or (ivz) that becomes a Domestic Subsidiary or Canadian Subsidiary as a result of a transaction pursuant to, and permitted by, Section 9.2 or 9.7, the U.S. Parent Borrower will promptly notify the Administrative Agent of such occurrence and if the Administrative Agent or the Required Lenders so request, promptly (i) cause the Loan Party that is requiredowns the Capital Stock of such new Domestic Subsidiary or Canadian Subsidiary to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected security interest (as and to the extent provided in the applicable Security Document) in thein the Capital Stock of such new Domestic Subsidiary or Canadian Subsidiary owned directly by such Loan Party, (x) if such Loan Party is organized in a jurisdiction in the United States or Canada (as and to the extent provided in the Security Documents) and to execute and deliver a Supplemental Agreement (as defined in the U.S. Security Agreement or Canadian Security Agreement, as applicable) pursuant to the applicable Security Document or (y) if such Loan Party is a Foreign Subsidiary, a new security document reasonably satisfactory to the Collateral Agent, subject to the Foreign Subsidiary Documentation Principles, (ii) deliver to the Collateral Agent or the applicable Collateral Representative, in accordance with the Intercreditor Agreement, the certificates (if any) representing such Capital Stock, together with undated stock powers, executed and delivered in blank by a duly authorized officer of the parent of such new Domestic Subsidiary or Canadian Subsidiary, and (iii) cause such new (A) Domestic Subsidiary to execute a U.S. Subsidiary Borrower Assumption Agreement and a supplement to the U.S. Security Agreement in order to become a U.S. Subsidiary Borrower under this Agreement and a guarantor and a grantor under the U.S. Security Agreement and provide all documentation and other information about the Loan Parties mutually agreed in good faith is required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, that has been reasonably requested in writing, (B) Canadian Subsidiary to execute a supplement to each of the Canadian Guarantee (or in the case of an initial Canadian Subsidiary (that is not the Canadian Borrower) the Canadian Guarantee itself) and the Canadian Security Agreement in order to become a Canadian Guarantor under the Canadian Guarantee and a grantor under the Canadian Security Agreement and (C) such Canadian Subsidiary or a Domestic Subsidiary to take all actions reasonably deemed by the Collateral Agent to be necessary or advisable to cause the Lien created by the applicable Security Document in such new Domestic Subsidiary’sSubsidiary’s or Canadian Subsidiary’sSubsidiary’s Collateral to be duly perfected in accordance with all applicable Requirements of Law (as and to the extent provided in the applicable Security Document), including the filing of financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent. Nothing in this Section 8.8 shall defer or impair the attachment or perfection of any security interest in any Collateral covered by any of the Security Documents which would attach or be perfected pursuant to the terms thereof without action by the U.S. Parent Borrower, any of its Restricted Subsidiaries or any other Person.
(b) The U.S. Parent Borrower may elect to cause (x) any Restricted Subsidiary that is a U.S. Subsidiary (including any Excluded U.S. Subsidiary that is a Restricted Subsidiary) that is not otherwise required to become a U.S. Borrower pursuant to clause (a) above to become a U.S. Borrower and cease to be an Excluded U.S. Subsidiary by executing and delivering a U.S. Subsidiary Borrower Assumption Agreement and a supplement to the U.S. Security Agreement (y) any Foreign Subsidiary (other than a U.S. Subsidiary or a Canadian Subsidiary), to become a Non-Borrowing Base Foreign Guarantor, and, if applicable, to cease to be an Excluded Subsidiary by executing and delivering a Foreign Loan Party Guaranty Agreement (or a supplement or joinder contemplated thereby); provided that (x) the U.S. Parent Borrower shall cause to be delivered all documentation and other information about such Subsidiary as shall be mutually agreed to be required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and (y) the jurisdiction of organization of such Non-Borrowing Base Foreign Guarantor shall be a jurisdiction that is reasonably acceptable to the Administrative Agent; provided further that at the time of such election (x) if such Subsidiary is a U.S. Subsidiary, all documents to be executed and all actions of the type contemplated by clause (a) above shall have been delivered or taken by such U.S. Subsidiary and the Loan Party that owns the Capital Stock of such U.S. Subsidiary and (y) if such Subsidiary is a Foreign Subsidiary, all documents to be executed and all actions of the type contemplated by the immediately succeeding sentence of this clause (b) below shall have been delivered or taken by such Foreign Subsidiary and the Loan Party that owns the Capital Stock of such Foreign Subsidiary.

-121-

(c) Subject in all cases to the Non-Borrowing Base Foreign Guarantor Documentation Principles, with respect to any Foreign Subsidiary that is a Non-Borrowing Base Foreign Guarantor, the U.S. Parent Borrower shall promptly (w) cause (to the extent required under the Non-Borrowing Base Foreign Guarantor Documentation Principles) the Loan Party that owns the Capital Stock of such Non-Borrowing Base Foreign Guarantor to execute and deliver the applicable Security Documents to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (as and to the extent provided in the applicable Security Documents) in the Capital Stock of such Non-Borrowing Base Foreign Guarantor owned by any Loan Party, (x) cause such Non-Borrowing Base Foreign Guarantor to execute and deliver the applicable Security Documents governed by the laws of the jurisdiction of organization of such Non-Borrowing Base Foreign Guarantor, (y) take all actions reasonably deemed by the Collateral Agent to be necessary or advisable to cause the Lien created by the applicable Security Documents in such new Non-Borrowing Base Foreign Guarantor’s Collateral and in the Capital Stock of such Non-Borrowing Base Foreign Guarantor to be duly perfected in accordance with the Non-Borrowing Base Foreign Guarantor Documentation Principles and (z) if requested by the Collateral Agent, cause to be delivered to the Collateral Agent, legal opinions.
(a)With(d) Subject in all cases of a Non-Borrowing Base Foreign Guarantor to the Non-Borrowing Base Foreign Guarantor Documentation Principles, with respect to any Foreign Subsidiary or Domestic Subsidiary that is a Non-Wholly Owned Subsidiary of a Loan Party created or acquired (including, without limitation, upon the formation of any Subsidiary that is a Delaware Divided LLCDivision Successor) subsequent to the Closing Date by the U.S. Parent Borrower or anya Loan Party, promptly notify the Administrative Agent of such occurrence and if the Administrative Agent or the Required Lenders so request, promptly (i) cause the Loan Party that is required to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected security interest (as and to the extent provided in the applicable Security Document) in the Capital Stock of such new Subsidiary to execute and deliver a Supplemental Agreement (as defined in the U.S. Security Agreement or Canadian Security Agreement, as applicable) pursuant to the applicable Security Document (other than to the extent such Capital Stock constitutes Excluded Assets pursuant to the applicable Security Document ) and (ii) to the extent reasonably deemed advisable by the Collateral Agent, deliver to the Collateral Agent or the applicable Collateral Representative, in accordance with the Intercreditor Agreement the certificates, if any, representing such Capital Stock, together with undated stock powers, executed and delivered in blank by a duly authorized officer of the relevant parent of such new Subsidiary and take such other action as may be reasonably deemed by the Collateral Agent to be necessary or desirable to perfect the Collateral Agent’sAgent’s security interest therein (in each case as and to the extent required by the applicable Security Document)(other than to the extent such Capital Stock constitutes Excluded Assets pursuant to the applicable Security Document); provided that in either case in no event shall more than 65.0% of each series of Capital Stock of any new Foreign Subsidiary owned directly by a Domestic Subsidiaryof a Loan Party organized in the United States be required to be so pledged. Subject in all cases of a Foreign Subsidiary to the Foreign Subsidiary Documentation Principles, promptly following the acquisition of any property by any Loan Party that is not automatically subject to a valid and perfected (or equivalent under foreign law) Lien in favor of the Collateral Agent for the benefit of the Secured Parties under the then existing Security Documents (in the case of (x) a Loan Party organized in the United States or Canada other than Excluded Assets and (y) in the case of any Loan Party organized outside of the United States or Canada, other than property that is not required to be Collateral pursuant to the exclusions set forth in the Non-Borrowing Base Foreign Guarantor Documentation Principles), promptly notify the Collateral Agent, and deliver such security documents and take such actions reasonably requested by the Collateral Agent to cause such assets to be subject to a valid and perfected (or equivalent under foreign law) Lien in favor of the Collateral Agent for the benefit of the Secured Parties, and to the extent possible under applicable law, such security documents and actions will be consistent with the existing Security Documents.
1.1. 8.9. [Reserved].
1.1. 8.10. Use of Proceeds. The Borrowers will use the Term Loans, Revolving Loans, Swingline Loans and the Letters of Credit for general corporate purposes (including acquisitions) and only for the purposes set forth in Section 7.16.
1.1. 8.11. Further Assurances.
(a)(a) The Borrowers will, and will cause each other Loan Party to, at its own expense, execute, acknowledge and deliver, or cause the execution, acknowledgement and delivery of, and thereafter register, file or record in an appropriate governmental office, any document or instrument reasonably deemed by the Collateral Agent to be necessary or desirable for the creation, perfection and priority and the continuation of the validity,
 
-122-

perfection and priority of the foregoing Liens or any other Liens created pursuant to the Security Documents (to the extent the Collateral Agent determines, in its reasonable discretion, that such action is required to ensure the perfection or the enforceability as against third parties of its security interest in such Collateral) in each case in accordance with, and to the extent required by, the applicable Security Document.
(a) (b) Notwithstanding anything to the contrary in this Agreement, (A) the foregoing requirements shall be subject to the terms of the Intercreditor Agreement and, in the event of any conflict with such terms, the terms of the Intercreditor Agreement shall control, (B) no security interest or lien is or will be granted pursuant to any Loan Document or otherwise in any right, title or interest of any of the U.S. Parent Borrower or any of its Domestic Subsidiaries or Canadian Subsidiaries in, and “Collateral” shall not include, any Excluded Asset, (C) except in connection with a Reallocated European Revolving Facility or Incremental European Revolving Facility and other than in respect of Capital Stock of Loan Parties, no Loan Party (other than a Non-Borrowing Base Foreign Guarantor)or any Affiliate thereof shall be required to take any action in any non-U.S. jurisdiction (other than Canada) or required by the laws of any non-U.S. jurisdiction (other than Canada) in order to create any security interests in assets located or titled outside of the U.S. (or Canada) or to perfect any security interests (it being understood that, except in connection with a European Revolving Facility or joinder of a Non-Borrowing Base Foreign Guarantor, there shall be no security agreements or, pledge agreements or other Security Documents governed under the laws of any non-U.S. jurisdiction (other than Canada), other than in respect of Capital Stock of Loan Parties)and, (D) nothing in this Section 8.11 shall require that any Subsidiary grant a Lien with respect to any property or assets in which such Subsidiary acquires ownership rights to the extent that the U.S. Parent Borrower and the Administrative Agent reasonably determine in writing that the costs or other consequences to the U.S. Parent Borrower or any of its Subsidiaries of the granting of such a Lien is excessive in view of the benefits that would be obtained by the Secured Parties and (E) the security interests and Liens to be granted by the Loan Parties that are not Domestic Subsidiaries or Canadian Subsidiaries shall be subject to the Non-Borrowing Base Foreign Guarantor Documentation Principles. For further certainty (and the Foreign Subsidiary Documentation Principles will be deemed to require), (x) in the event that a Foreign Subsidiary that is a Loan Party is incorporated in the United States, any state thereof or the District of Columbia, such Foreign Subsidiary shall be required to provide guarantees and security on substantially the same terms as the Loan Parties that are Domestic Subsidiaries and (y) in the event that a Loan Party that is incorporated in the United States, any state thereof or the District of Columbia owns Capital Stock in a Loan Party that is not incorporated in the United States, any state thereof or the District of Columbia, the Capital Stock of such Loan Party will be pledged pursuant to security documents governed by the laws of the place of organization of the Loan Party whose shares are being pledged.
1.1. 8.12. End of Fiscal Years. The U.S. Parent Borrower will, for financial reporting purposes, cause the U.S. Parent Borrower’sBorrower’s and each of its Subsidiaries’’ Fiscal Years to end on December 31st of each calendar year; provided that the U.S. Parent Borrower may, upon written notice to the U.S. Administrative Agent, change the financial reporting convention specified above to any other financial reporting convention reasonably acceptable to the U.S. Administrative Agent, in which case the U.S. Parent Borrower and the U.S. Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change in financial reporting.
1.1.8.13. Cash Management Systems.
(a) (a) The U.S. Borrowers and Canadian Loan Parties will maintain the cash management systems described below (the “Cash Management Systems”):
(i)(i)(x) the U.S. Borrowers will establish lock boxes (“U.S. Lock Boxes”) or, at the U.S. Administrative Agent’sAgent’s reasonable discretion, blocked accounts (“U.S. Blocked Accounts”) and the Canadian Borrower will, and will cause each Canadian Guarantor (other than Canadian Guarantors that have no business other than acting as holding companies) to, establish lock boxes (“Canadian Lock Boxes”) or, at the Canadian Administrative Agent’sAgent’s reasonable discretion, blocked accounts (“Canadian Blocked Accounts”), in each case listed on Schedule 8.13 to this Agreement) and at one or more banks that are reasonably acceptable to the Collateral Agent, (y) each Borrower shall request in writing and otherwise take commercially reasonable steps to provide that all Account Debtors with respect to Accounts that constitute Collateral forward payments directly to the respective Lock Boxes or Blocked Accounts and (z) each Borrower will, and will cause the Canadian Guarantors to deposit or cause to be
 
-123-

deposited promptly, and in any event no later than the third Business Day after the date of receipt thereof (subject to an additional extension of up to two Business Days with the consent of the applicable Administrative Agent), all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral into the appropriate Blocked Accounts. Until so deposited, all such payments shall be held by each U.S. Borrower and Canadian Loan Party for the benefit of the Administrative Agent and shall not be commingled with any other funds or property of any Loan Party. The U.S. Borrowers shall establish one or more concentration accounts in their names or in the name of the applicable Agent (with Bank of America or another bank reasonably acceptable to the U.S. Administrative Agent) (collectively, the “U.S. Concentration Account”) and the Canadian Borrower shall establish one or more concentration accounts in its name or in the name of the applicable Agent (with the Bank of Montreal or another bank reasonably acceptable to the Canadian Administrative Agent) (collectively, the “Canadian Concentration Account,” each of the U.S. Concentration Account and the Canadian Concentration Account is sometimes referred to as a “Concentration Account”), in each case that shall be designated as the Concentration Account for such Borrower(s) listed on Schedule 8.13 to this Agreement (as such Schedule may be updated from time to time in accordance with the provisions hereof).
(i) (ii) Each Borrower may maintain, in its name, one or more U.S. Designated Accounts or Canadian Designated Accounts. Each Borrower may also maintain, in its name, one or more accounts that (x) do not contain any funds that are proceeds of Accounts that otherwise constitute Collateral, (y) include funds that are proceeds of Accounts that otherwise constitute Collateral and that are not subject to a Blocked Account Agreement or (z) are agreed to by the Collateral Agent in its reasonable discretion (each a “Non-Controlled Account”).
(i) (iii) For the accounts of any U.S. Borrower or Canadian Loan Party designated as a Blocked Account and the Concentration Accounts and any U.S. Designated Accounts or Canadian Designated Accounts, a tri-party control account agreement or lockbox account agreement between the Collateral Agent, the depository bank at which the applicable account is held and the relevant Loan Party, in form and substance reasonably satisfactory to the Collateral Agent (each a “Blocked Account Agreement”) shall be delivered to the Collateral Agent which among other things will give control to the Collateral Agent, and such Blocked Account, Concentration Account, U.S. Designated Accounts or Canadian Designated Account, shall at all times, subject to clause (v) below be subject to a Blocked Account Agreement. Each such Blocked Account Agreement with respect to any Blocked Account shall provide, among other things, that from and after the date thereof the bank at which any such Blocked Account is maintained, agrees to forward immediately all amounts in each such account to the Concentration Account. In addition, any such Blocked Account Agreement shall provide, among other things, that at all times following the establishment of the Cash Management Systems pursuant to this Section 8.13(a), upon the occurrence and during the continuation of a Cash Dominion Event, the bank at which such account is maintained shall, upon receipt of notice by the Collateral Agent of such Cash Dominion Event, commence the process of daily sweeps from such accounts into the Concentration Account (it being understood that any such daily sweep in respect of any cash or other amount in U.S. Designated Accounts or Canadian Designated Accounts shall be subject to the rights of the Borrowers to transfer, apply or otherwise use the proceeds of any Loans hereunder for any purpose in accordance with the terms hereof by moving any cash or other amount on deposit in any U.S. Designated Accounts or Canadian Designated Accounts out of such account for any such purpose); provided that (a) any amounts in the Concentration Accounts reasonably identified (with reasonably detailed written support) to the Administrative Agent as not constituting Collateral will be distributed as directed by the Administrative Agent as requested by the Borrowers, including to one or more Non-Controlled Accounts and (b) the Collateral Agent shall not issue any such notice to any bank unless and until a Cash Dominion Event has occurred and is continuing.
(i) (iv) The Borrowers will not, and shall not permit any other U.S. Borrower or Canadian Loan Party to, transfer any funds out of any Blocked Account except to the Concentration Account. The balance from time to time standing to the credit of the Blocked Accounts shall be distributed as directed in accordance with the provisions of the Blocked Account Agreements. Except during the continuance of any Cash Dominion Event, the balance from time to time standing to the credit of the Concentration Account shall be distributed as directed by the Borrowers, including to one or more Non-
 
-124-

Controlled Accounts or to any other depository account. The Borrowers shall not, and shall not cause or permit any other Loan Party to, accumulate or maintain cash (other than cash that is not proceeds of any Collateral) in disbursement accounts or payroll accounts except in the ordinary course of business. Notwithstanding anything to the contrary, cash held in overnight deposit or investment accounts shall be deemed to be in the Concentration Account overnight.
(i)(v) So long as no Event of Default has occurred and is continuing, the Borrowers may amend Schedules 8.13(a) and (c) to this Agreement to add or replace a bank, the Concentration Account, any Blocked Account or any U.S. Designated Accounts or Canadian Designated Accounts; provided that (x) the applicable Administrative Agent shall have consented in writing in advance to the opening of such new or replacement account with the relevant bank (which consent shall not be unreasonably withheld, conditioned or delayed) and (y) prior to the time of the opening of such account, the applicable Borrower and such bank shall have executed and delivered to the Collateral Agent a tri-party agreement, in form and substance reasonably satisfactory to the Collateral Agent. Each Borrower shall, and shall cause each other CanadianLoan Party to, cease using any account to hold proceeds of Collateral promptly and in any event within 30 days (or such later date as the Administrative Agent may, in its sole reasonable discretion, consent to in writing) following notice from the applicable Administrative Agent to the Borrowers that the creditworthiness of the bank holding such account is no longer acceptable in the applicable Administrative Agent’sAgent’s reasonable credit judgment, or as promptly as practicable and in any event within 60 days (or such later date as the applicable Administrative Agent may, in its sole reasonable discretion, consent to in writing) following notice from the applicable Administrative Agent to the Borrowers that the operating performance, funds transfer or availability procedures or performance with respect to accounts or lockboxes of the bank holding such account or Administrative Agent’sAgent’s liability under any Blocked Account Agreement with such bank is no longer acceptable in the applicable Administrative Agent’sAgent’s reasonable credit judgment.
(i)(vi) The Concentration Account, the Blocked Accounts and the U.S. Designated Accounts and Canadian Designated Accounts (subject to the last two sentences of Section 8.13(a)(iii)) shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts (to the extent constituting proceeds of Accounts otherwise constituting Collateral) securing payment of the U.S. Obligations or Canadian Obligations, as applicable, and in which the applicable Borrower or other Canadian Loan Party shall have granted a Lien to the Collateral Agent pursuant to the applicable Security Document. The Borrowers shall use commercially reasonable efforts to ensure that all cash, checks and other similar items of payment in the Concentration Account and the Blocked Accounts are solely in respect of Accounts that otherwise constitute Collateral.
(i)(vii) All amounts deposited in the Concentration Account, after the applicable Administrative Agent exercises its respective control with respect to such Concentration Account, shall be applied (and allocated) by the applicable Administrative Agent in accordance with Section 4.3(d). In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Concentration Account.
(a) (b)(i) During the continuance of a Cash Dominion Event following the establishment of the Cash Management Systems pursuant to Section 8.13(a) as often as reasonably requested by the Administrative Agents, the Borrowers shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts and the Concentration Account, which shall identify, to the reasonable satisfaction of the Collateral Agent, the proceeds from the Collateral which were deposited into a Blocked Account and swept to the Concentration Account.
(ii)(ii) Within 3 Business Days of the occurrence of a Cash Dominion Event following the establishment of the Cash Management Systems pursuant to Section 8.13(a), the Borrowers shall deposit into the Concentration Account an amount equal to the entire amount of cash constituting Collateral held in any Non-Controlled Account.
 
-125-

Upon the occurrence and during the continuance of a Cash Dominion Event following the establishment of the Cash Management Systems pursuant to Section 8.13(a), the Concentration Account and each Blocked Account shall at all times be under control of the Collateral Agent. The Borrowers hereby acknowledge and agree that during the continuance of a Cash Dominion Event following the establishment of the Cash Management Systems pursuant to Section 8.13(a), (i) the Loan Parties have no right of withdrawal from the Concentration Accounts (subject to the proviso to the last sentence of Section 8.13(a)(iii)), (ii) the funds on deposit in the Concentration Accounts shall at all times be collateral security for all of the U.S. Obligations or the Canadian Obligations or the guarantees thereof, as applicable (other than to the extent such funds do not constitute proceeds of Accounts that are otherwise Collateral for such Obligations) and (iii) the funds on deposit in the Concentration Accounts shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 8.13, any Loan Party receives or otherwise has dominion and control of any proceeds or collections of Accounts that otherwise constitute Collateral outside of the Concentration Account, any Blocked Account and any U.S. Designated Account or Canadian Designated Account, such proceeds and collections shall be held by such Borrower or Restricted Subsidiary for the Collateral Agent and shall, not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such other fashion as such Borrower or Restricted Subsidiary may be instructed by the Collateral Agent.
1.1. 8.14. Post-Closing Requirements. Notwithstanding any provision herein or in any other Loan Document to the contrary, to the extent not actually delivered on or prior to the Restatement Effective Date, the Borrowers shall take such actions set forth below by the times specified below with respect to such actions, or such later time as the U.S. Administrative Agent may agree in its reasonable discretion. All conditions precedent, covenants and representations and warranties contained in this Agreement and the other Loan Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described below within the time periods required by this Section 8.14, rather than as elsewhere provided in the Loan Documents).
(a) (a) Within 90 days of the Restatement Effective Date, the Administrative Agents shall have received the results of a reasonably satisfactory field examination and appraisal for each of the U.S. Parent Borrower and its Subsidiaries and the assets acquired in connection with the Nexeo Acquisition;
(a) (b) Within 90 days of the Restatement Effective Date, the Administrative Agents shall have received, subject to the Intercreditor Agreement, the certificates (if any) representing the Capital Stock acquired in connection with the Nexeo Acquisition that constitutes Collateral, together with undated stock powers, executed and delivered in blank by a duly authorized officer of the parent of the applicable issuer thereof; and
(a) (c) Within 120 days of the Restatement Effective Date, the Borrowers shall have complied with Section 8.13(a)(iii) with respect to Accounts acquired in connection with the Nexeo Acquisition to the extent required thereby.
(a) (d) Within 120 days of the Restatement Effective Date, the Borrowers shall have complied with Section 8.13(a)(iii) with respect to the Concentration Accounts or shall have otherwise designated new Concentration Accounts to replace such accounts as Concentration Accounts in order to comply with Section 8.13(a)(iii) (or such other arrangements reasonably satisfactory to the Administrative Agents).
(a) (e) Within 30 days of the Restatement Effective Date, the Borrowers shall have delivered to the Administrative Agent insurance endorsements with respect to liability or property insurance policies as required by Section 8.3.
(a) (f) Within 7 days of the Restatement Effective Date, the Administrative Agents shall have received an executed Quebec legal opinion of Blake, Cassels and Graydon LLP, counsel to the Canadian Borrower and the Canadian Guarantors.
 
-126-

(a) (g) Within 30 days of the Restatement Effective Date, the Canadian Loan Parties shall use commercially reasonable efforts to deliver, or cause to be delivered, to the Agents, an estoppel or no-interest letter, in each case in form and substance reasonably satisfactory to the Agents, from each of the following secured parties in respect of each of the following registrations:

	Secured Party	  	Debtor	  	Registration Number(s)	
Wells Fargo Equipment Finance Company	  	Nexeo Solutions Canada Corp.	  	714958461
20160322 1437 5064 9088
 
714918474
20160321 1436 5064 9005		
				
GE VFS Canada Limited Partnership	  	Nexeo Solutions Canada Corp.	  	692995725
20140107 1341 5064 4997		
1.1. 8.15. Foreign Plans. The Canadian Borrower and the Canadian Guarantors shall cause each of its Foreign Plans to be administered in all respects in compliance with, as applicable, the PBA and all applicable laws (including regulations, orders and directives), and the terms of the Foreign Plans and any agreements relating thereto other than such non-compliance that could not reasonably be expected to result in a Material Adverse Effect. The Canadian Borrower and the Canadian Guarantors shall ensure that, to the extent such action or inaction could reasonably be expected to result in a Material Adverse Effect, (a) each of them does not breach its fiduciary responsibilities, if any, with respect to any Canadian Defined Benefit Plan, and (b) each of them as a Canadian Defined Benefit Plan sponsor or otherwise, shall not, nor shall they permit, the wind up and/or termination of any Canadian Defined Benefit Plan that has an Unfunded Current Liability without the consent of the Canadian Administrative Agent.
8.16. Fiscal Unity. Any fiscal unity (fiscale eenheid) for Dutch tax purposes in which a Loan Party is included shall consist of Loan Parties and/or Restricted Subsidiaries only.
8.17. Termination of Fiscal Unity. If, at any time, a Loan Party is a member of a fiscal unity (fiscale eenheid) for Dutch corporate income tax (vennootschapsbelasting) purposes and such fiscal unity is, in respect of that Loan Party, terminated (verbroken) or disrupted (beëindigd) as a result of or in connection with any Agent enforcing its rights under any Loan Document, such Loan Party shall, at the request of the Administrative Agent and together with the parent company (moedermaatschappij) or deemed parent company (aangewezen moedermaatschappij) of that fiscal unity, for no consideration and as soon as reasonably practicable, lodge a request with the relevant Governmental Authority to allocate and surrender any tax losses (within the meaning of Article 20 of the Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969)) to the Loan Party leaving that fiscal unity insofar such tax losses are attributable (toerekenbaar) to the Loan Party leaving that fiscal unity (within the meaning of Article 15af of the Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969)).
SECTION1. SECTION 9. Negative Covenants
Each Borrower hereby agrees that on the Closing Date and thereafter, until the Loans, together with interest and all other Obligations (other than indemnification and other contingent Obligations in each case not then due and payable) incurred hereunder, are paid in full, all Commitments are terminated and all Letters of Credit are terminated or cash collateralized in an amount equal to their face amount (or other arrangements are made with respect thereto reasonably satisfactory to the applicable Letter of Credit Issuer):
1.1.9.1. Limitation on Indebtedness.
(a) (a) The U.S. Parent Borrower will not, and will not permit any Restricted Subsidiary to, Incur any Indebtedness; provided, however, that the U.S. Parent Borrower or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00.
 
-127-

(a) (b) Notwithstanding the foregoing Section 9.1(a), the U.S. Parent Borrower and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) (i)(I) Indebtedness Incurred by the U.S. Parent Borrower and the other Loan Parties (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Indebtedness under the Cash Flow Credit Facility (and Refinancing Indebtedness in respect thereof) and Additional Obligations (and Refinancing Indebtedness in respect thereof) in a maximum principal amount for all such Indebtedness pursuant to this clause (i)(b) at any time outstanding not exceeding (A) $2,930.0 million, plus (B) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness,” in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (II) Indebtedness Incurred by the U.S. Borrowers (a) pursuant to the Cash Flow Credit Agreement, (b) constituting Additional Obligations, in an aggregate principal amount for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to clause (i) of the definition of “Maximum Incremental Facilities Amount” in the Cash Flow Credit Agreement as in effect on the Closing Date treating Additional Obligations, Refinancing Indebtedness, Rollover Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Section 9.1(b)(i)(II) in respect of Indebtedness Incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount” in the Cash Flow Credit Agreement as in effect on the Closing Date (and Refinancing Indebtedness Incurred pursuant to this Section 9.1(b)(i)(II) in respect of such Additional Obligations) as outstanding pursuant to such clause), together with Refinancing Indebtedness in respect of the Indebtedness described in subclauses (a), (b) (c) and (d) of this clause (II), plus, without duplication of incremental amounts included in the definition of “Refinancing Indebtedness,” the aggregate amount of all fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such Refinancing Indebtedness;
(i) (ii) Indebtedness (A) of any Restricted Subsidiary to the U.S. Parent Borrower or(B) of the U.S. Parent Borrower or any Restricted Subsidiary to any Restricted Subsidiary; provided that in the case of this Section 9.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the U.S. Parent Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Section 9.1(b)(ii);
(i) (iii)(A) Indebtedness represented by the Senior Notes, (B) any Indebtedness (other than the Indebtedness pursuant to this Agreement and the other Loan Documents described in Sections 9.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Closing Date and set forth on Schedule 9.1 to this Agreement and (C) any Refinancing Indebtedness Incurred in respect of any Indebtedness (or unutilized commitments) described in this Section 9.1(b)(iii) or Section 9.1(a);
(i) (iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the acquisition of Capital Stock of any Person, at any time outstanding pursuant to this clause shall not exceed an amount equal to the greater of $300.0 million and 5.0% of Consolidated Total Assets;
(i) (v) Indebtedness (A) supported by a letter of credit issued in compliance with this Section 9.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the U.S. Parent Borrower or any of its Restricted Subsidiaries;
(i) (vi)(A) Guarantees by the U.S. Parent Borrower or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the U.S. Parent Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the U.S. Parent Borrower or such Restricted Subsidiary, as the case may be, in violation of this Section 9.1), or (B) without limiting Section 9.6, Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the U.S. Parent Borrower or such Restricted Subsidiary, as the case may be, in violation of this Section 9.1);
 
-128-

(i) (vii) Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business (provided that such Indebtedness is extinguished in the ordinary course of business), or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or Person;
(i) (viii) Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the U.S. Parent Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an aggregate principal amount at any time outstanding not to exceed the greater of $250.0 million and 4.50% of Consolidated Total Assets or (I) Bank Products Obligations;
(i) (ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the U.S. Parent Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the U.S. Parent Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the U.S. Parent Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 9.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the U.S. Parent Borrower may classify such Indebtedness in whole or in part as Incurred under this Section 9.1(b)(ix);
(i) (x) Indebtedness of (A) the U.S. Parent Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the U.S. Parent Borrower or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into the U.S. Parent Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the U.S. Parent Borrower would have a Consolidated Total Leverage Ratio equal to or less than 5.00:1.00 or (2) the Consolidated Total Leverage Ratio of the U.S. Parent Borrower would equal or be less than the Consolidated Total Leverage Ratio of the U.S. Parent Borrower immediately prior to giving effect thereto; provided, further, that if, at the U.S. Parent Borrower’sBorrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
 
-129-

(i) (xi) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(i) (xii) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Section 9.1(a), and any Refinancing Indebtedness with respect thereto;
(i) (xiii) Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets;
(i) (xiv) Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the U.S. Parent Borrower or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets; and
(i) (xv) Indebtedness of any Foreign Subsidiary (other than a Canadian Subsidiary or a Loan Party) in an aggregate principal amount at any time outstanding not exceeding an amount equal to (I) the greater of (x) $400.0 million and (y) 7.0% of Foreign Consolidated Total Assets plus (II) an amount equal (but not less than zero) to (A) the Foreign Borrowing Base less the Foreign Borrowing Base as calculated on March 31, 2015 less (B) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) in excess of the amount set forth in the immediately preceding clause (A) plus (III) in the event of any refinancing of any Indebtedness Incurred under this clause (xv), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.;
(xvi) Indebtedness arising under a declaration of joint and several liability used for the purpose of article 2:403 of the Dutch Civil Code (Burgerlijk Wetboek, “DCC”) in respect of Dutch Loan Parties (and any residual liability under such declaration arising pursuant to article 2:404(2) DCC); and
(xvii) with due observance of Section 8.17, Indebtedness arising as a result of a fiscal unity (fiscale eenheid) for Dutch Tax purposes to the extent permitted by law.
(a) (c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 9.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 9.1) arising under any Guarantee, Lien or letter of credit, bankers’’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness Incurred pursuant to Section 9.1(b) meets the criteria of more than one of the types of Indebtedness described in Section 9.1(b), the U.S. Parent Borrower, in its sole discretion, shall classify and reclassify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Section 9.1(b) (including in part under one such clause and in part under another such clause); provided that (if the U.S. Parent Borrower shall so determine) any Indebtedness Incurred pursuant to Sections 9.1(b)(iv), 9.1(b)(xiii), 9.1(b)(xiv) or 9.1(b)(xv) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Section 9.1(a) from and after the first date on which the U.S. Parent Borrower or any Restricted Subsidiary could have Incurred such Indebtedness under Section 9.1(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under Section 9.1(a), the U.S. Parent Borrower, in its sole discretion, may classify and reclassify a portion of such Indebtedness as having been Incurred under Section 9.1(a) and the remainder of such Indebtedness as having been Incurred under Section 9.1(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of Indebtedness outstanding under any subclause of Section 9.1(b), including for purposes of any determination of the “Maximum Incremental Facilities Amount,” shall be determined after giving effect to the
 
-130-

application of proceeds of any such Indebtedness to refinance any such other Indebtedness, (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on a basket measured by reference to a percentage of Consolidated Total Assets at the time of Incurrence or Foreign Consolidated Total Assets at the time of Incurrence, and such refinancing would cause the percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, restriction to be exceeded if calculated based on the Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (vii) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on a basket measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the extent the principal amount of such newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing. Notwithstanding anything herein to the contrary, Indebtedness Incurred by the U.S. Parent Borrower on the Closing Date under the Cash Flow Credit Agreement shall be classified as Incurred under Section 9.1(b), and not under Section 9.1(a).
(a)(d) For purposes of determining compliance with any provision of Section 9.1(b) (or any category of Permitted Liens described in the definition thereof) measured by a dollar amount or by reference to a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, in each case, for the Incurrence of Indebtedness or Liens securing Indebtedness denominated in a foreign currency, the dollar equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness, provided that (x) the dollar equivalent principal amount of any such Indebtedness outstanding on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable provision of Section 9.1(b) (or category of Permitted Liens) measured by a dollar amount or be reference to a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such provision of Section 9.1(b) (or category of Permitted Liens) measured by a dollar amount or by reference to a percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (z) the dollar equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to this Agreement, the Cash Flow Credit Facility or the European ABL Facility shall be calculated based on the relevant currency exchange rate in effect on, at the U.S. Parent Borrower’sBorrower’s option, (A) the Closing Date, (B) any date on which any of the respective commitments under this Agreement shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (C) the date of such Incurrence. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
1.1.9.2. Limitation on Restricted Payments.
(a)(a) The U.S. Parent Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the U.S. Parent Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the U.S. Parent Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more
 
-131-

than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the U.S. Parent Borrower held by Persons other than the U.S. Parent Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the U.S. Parent Borrower or such Restricted Subsidiary makes such Restricted Payment the Payment Conditions would not be satisfied.
(a)(b) The provisions of Section 9.2(a) do not prohibit any of the following (each, a “Permitted Payment”):
(i)(i)(x) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Capital Stock of the U.S. Parent Borrower or any Junior Debt made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the issuance or sale of, Capital Stock of the U.S. Parent Borrower (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary) or a capital contribution to the U.S. Parent Borrower, in each case other than any Specified Equity Contribution, Excluded Contribution and Contribution Amounts;
(i)(ii) Except with respect to any minimum Combined Availability requirement set forth in the definition of “Payment Conditions,” any dividend paid or redemption made within 60 days after the date of declaration thereof or of the giving of notice thereof, as applicable, if at such date of declaration or the giving of such notice, such dividend or redemption would have complied with this Section 9.2;
(i)(iii) Investments or other Restricted Payments from the substantially concurrent receipt of Excluded Contributions;
(i)(iv) loans, advances, dividends or distributions by the U.S. Parent Borrower to any Parent Entity to permit any Parent Entity to repurchase or otherwise acquire its Capital Stock (including any options, warrants or other rights in respect thereof), or payments by the U.S. Parent Borrower to repurchase or otherwise acquire Capital Stock of any Parent Entity or the U.S. Parent Borrower (including any options, warrants or other rights in respect thereof), in each case from Management Investors (including any repurchase or acquisition by reason of the U.S. Parent Borrower or any Parent Entity retaining any Capital Stock, option, warrant or other right in respect of tax withholding obligations, and any related payment in respect of any such obligation), such payments, loans, advances, dividends or distributions not to exceed an amount (net of repayments of any such loans or advances) equal to $10.0 million; provided that any cancellation of Indebtedness owing to the U.S. Parent Borrower or any Restricted Subsidiary by any Management Investor in connection with any repurchase or other acquisition of Capital Stock (including any options, warrants or other rights in respect thereof) from any Management Investor shall not constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(i)(v) Restricted Payments in an aggregate amount not to exceed $100 million;
(i)(vi) Restricted Payments (including loans or advances) in an aggregate amount not to exceed an amount (net of repayments of any such loans or advances) equal to $50.0 million per annum;
(i)(vii) loans, advances, dividends or distributions to any Parent Entity or other payments by the U.S. Parent Borrower or any Restricted Subsidiary (A) to satisfy or permit any Parent Entity to satisfy obligations under the Management Agreements (B) pursuant to any Tax Sharing Agreement or (C) to pay or permit any Parent Entity to pay (but without duplication) any Parent Expenses or any Related Taxes;
 
-132-

(i)(viii) payments by the U.S. Parent Borrower, or loans, advances, dividends or distributions by the U.S. Parent Borrower to any Parent Entity to make payments, to holders of Capital Stock of the U.S. Parent Borrower or any Parent Entity in lieu of issuance of fractional shares of such Capital Stock;
(i)(ix) dividends or other distributions of, or Investments paid for or made with, Capital Stock, Indebtedness or other securities of Unrestricted Subsidiaries;
(i)(x) [Reserved];
(i)(xi) distributions or payments for purposes of avoiding the application of Section 163(e)(5) of the Code relating to Indebtedness of any U.S. Borrowers;
(i)(xii) distributions or payments of Special Purpose Financing Fees;
(i)(xiii) the declaration and payment of dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted Subsidiary, Incurred in accordance with the terms of Section 9.1; and
(i)(xiv) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Junior Debt made by exchange for, or out of the proceeds of the Incurrence of, (1) Refinancing Indebtedness Incurred in compliance with Section 9.1 or (2) new Indebtedness of the U.S. Parent Borrower, or a Restricted Subsidiary, as the case may be, Incurred in compliance with Section 9.1, so long as such new Indebtedness satisfies all requirements for “Refinancing Indebtedness” set forth in the definition thereof applicable to a refinancing of such Junior Debt;
provided that (A) in the case of Sections 9.2(b)(ii), (v) and (viii), the net amount of any such Permitted Payment shall be included in subsequent calculations of the amount of Restricted Payments, (B) in all cases other than pursuant to clause (A) immediately above, the net amount of any such Permitted Payment shall be excluded in subsequent calculations of the amount of Restricted Payments and (C) solely with respect to Section 9.2(b)(vi) , no Default or Event of Default shall have occurred and be continuing at the time of any such Permitted Payment after giving effect thereto. The U.S. Parent Borrower, in its sole discretion, may divide or classify any Investment or other Restricted Payment (or later divide, classify or reclassify in whole or in part in its sole discretion) as being made in part under one of the clauses or subclauses of this Section 9.2(b) (or, in the case of any Investment, one or more of the clauses or subclauses of the definition of “Permitted Investments”) and in part under one or more other such clauses or subclauses (or, as applicable, clauses or subclauses).
1.1.9.3. Limitation on Restrictive Agreements. The U.S. Parent Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on (i) the ability of the U.S. Parent Borrower or any of its Restricted Subsidiaries (other than any Foreign Subsidiaries (other than a Canadian Loan Party) or any Excluded U.S. Subsidiaries or Excluded Canadian Subsidiaries) to create, incur, assume or suffer to exist any Lien in favor of the Lenders in respect of obligations and liabilities under this Agreement or any other Loan Documents upon any of its property, assets or revenues constituting Collateral as and to the extent contemplated by this Agreement and the other Loan Documents, whether now owned or hereafter acquired or (ii) the ability of any Restricted Subsidiary to (x) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the U.S. Parent Borrower, (y) make any loans or advances to the U.S. Parent Borrower or (z) transfer any of its property or assets to the U.S. Parent Borrower (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will be deemed not to constitute such an encumbrance or restriction), except any encumbrance or restriction:
 
-133-

(a)(a) pursuant to an agreement or instrument in effect at or entered into on the Closing Date, this Agreement and the other Loan Documents, the Cash Flow Credit Facility, the Senior Notes Documents and, on and after the execution and delivery thereof, the Intercreditor Agreement and any Additional Obligations Documents;
(b)(b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged or consolidated with or into the U.S. Parent Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the U.S. Parent Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person or any other transaction entered into in connection with any such acquisition, merger or consolidation, as in effect at the time of such acquisition, merger, consolidation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation or transaction); provided that for purposes of this Section 9.3(b), if a Person other than the U.S. Parent Borrower is the Successor U.S. Parent Borrower with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the U.S. Parent Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor U.S. Parent Borrower;
(c)(c) pursuant to an agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in Section 9.3(a) or (b) or this Section 9.3(c) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the U.S. Parent Borrower);
(d)(d)(i) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset subject thereto, (ii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the U.S. Parent Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (iii) contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of the U.S. Parent Borrower or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the U.S. Parent Borrower or any Restricted Subsidiary, (v) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (vi) on cash or other deposits or net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (vii) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (viii) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the U.S. Parent Borrower or any Restricted Subsidiary in any manner material to the U.S. Parent Borrower or such Restricted Subsidiary, or (ix) pursuant to Hedging Obligations or Bank Products Obligations;
(e)(e) with respect to any agreement for the direct or indirect disposition of Capital Stock of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such disposition;
(f)(f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the U.S. Parent Borrower or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’sSubsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
 
-134-

(g)(g) pursuant to an agreement or instrument (i) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to Section 9.1 (x) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the U.S. Parent Borrower), or (y) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the U.S. Parent Borrower) and either (1) the U.S. Parent Borrower determines in good faith that such encumbrance or restriction will not materially affect the Borrower’sBorrower’s ability to create and maintain the Liens on the Collateral pursuant to the Security Documents and make principal or interest payments on the Loans or (2) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (ii) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary (other than a Canadian Loan Party) or (iii) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity;
(h)(h) any agreement relating to intercreditor arrangements and related rights and obligations, to or by which the Lenders and/or the Administrative Agent, the Collateral Agent or any other agent, trustee or representative on their behalf may be party or bound at any time or from time to time, and any agreement providing that in the event that a Lien is granted for the benefit of the Lenders another Person shall also receive a Lien, which Lien is permitted by Section 9.6; or
(i)(i) any agreement governing or relating to Indebtedness and/or other obligations and liabilities secured by a Lien permitted by Section 9.6 (in which case any restriction shall only be effective against the assets subject to such Lien, except as may be otherwise permitted under this Section 9.3).
1.1.9.4. Limitation on Sales of Assets and Subsidiary Stock.
(a)(a) The U.S. Parent Borrower will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition unless:
(i)(i) the U.S. Parent Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair market value of the shares and assets subject to such Asset Disposition as such fair market value (on the date a legally binding commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such Asset Disposition or any series of related Asset Dispositions involves aggregate consideration in excess of $100.0 million) in good faith by the U.S. Parent Borrower, whose determination shall be conclusive (including as to the value of all noncash consideration); and
(i)(ii) in the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value of $100.0 million or more, at least 75.0% of the consideration (excluding, in the case of each Asset Disposition (or series of related Asset Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) for such Asset Disposition, together with all other Asset Dispositions since the Closing Date (on a cumulative basis) received by the U.S. Parent Borrower or such Restricted Subsidiary is in the form of cash; provided that with respect to any such Asset Disposition of Accounts and/or Inventory with a fair market value of $10.0 million or more, an updated Borrowing Base Certificate shall be delivered to the Administrative Agent within five (5) Business Days (or such longer period as the Administrative Agent shall agree) of such Asset Disposition.
 
-135-

(a)(b) For the purposes of Section 9.4(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2) the assumption of Indebtedness of the U.S. Parent Borrower (other than Disqualified Stock of the U.S. Parent Borrower) or any Restricted Subsidiary and the release of the U.S. Parent Borrower or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the U.S. Parent Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Disposition, (4) securities received by the U.S. Parent Borrower or any Restricted Subsidiary from the transferee that are converted by the U.S. Parent Borrower or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the U.S. Parent Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received by the U.S. Parent Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any time outstanding equal to the greater of $150.0 million and 2.50% of Consolidated Total Assets (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).
1.1.9.5. Limitations on Transactions with Affiliates.
(a)(a) The U.S. Parent Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the U.S. Parent Borrower (an “Affiliate Transaction”) involving aggregate consideration in excess of $50.0 million unless (i) the terms of such Affiliate Transaction are not materially less favorable to the U.S. Parent Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate consideration in excess of $100.0 million the terms of such Affiliate Transaction have been approved by a majority of the Board of Directors. For purposes of this Section 9.5(a), any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in this Section 9.5(a) if (x) such Affiliate Transaction is approved by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(a)(b) The provisions of Section 9.5(a) will not apply to:
(i)(i) any Restricted Payment Transaction,
(i)(ii)(1) the entering into, maintaining or performance of any employment or consulting contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or any other similar arrangement for or with any current or former management member, employee, officer or director or consultant of or to the U.S. Parent Borrower, any Restricted Subsidiary or any Parent Entity heretofore or hereafter entered into in the ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar plans, programs or arrangements, (2) payments, compensation, performance of indemnification or contribution obligations, the making or cancellation of loans in the ordinary course of business to any such management members, employees, officers, directors or consultants, (3) any issuance, grant or award of stock, options, other equity related interests or other securities, to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors of the U.S. Parent Borrower or any of its Subsidiaries or any Parent Entity (as determined in good faith by the U.S. Parent Borrower, such Subsidiary or such Parent Entity), or (5) Management Advances and payments in respect thereof (or in reimbursement of any expenses referred to in the definition of such term),
(i)(iii) any transaction between or among any of the U.S. Parent Borrower, one or more Restricted Subsidiaries, or one or more Special Purpose Entities,
(i)(iv) any transaction arising out of agreements or instruments in existence on the Closing Date and set forth on Schedule 9.5 to this Agreement (other than any Management Agreements referred to in Section 9.5(b)(vii)), and any payments made pursuant thereto,
(i)(v) any transaction in the ordinary course of business on terms that are fair to the U.S. Parent Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the U.S. Parent Borrower, or are not materially less favorable to the U.S. Parent Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the U.S. Parent Borrower,
 
-136-

(i)(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the U.S. Parent Borrower or any Restricted Subsidiary and any Affiliate of the U.S. Parent Borrower controlled by the U.S. Parent Borrower that is a joint venture or similar entity,
(i)(vii)(1) the execution, delivery and performance of any Tax Sharing Agreement, any Management Agreements, and (2) payments to the Sponsors or any of their respective Affiliates (x) for any management, consulting, or advisory services or, in respect of financing, underwriting or placement services or other investment banking activities (if any), as may be approved by a majority of the Disinterested Directors, (y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are made pursuant to the Management Agreements or are approved by a majority of the Board of Directors in good faith, and (z) of all out-of-pocket expenses incurred in connection with such services or activities,
(i)(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, including the fees and out-of-pocket expenses of the Sponsors and their Affiliates,
(i)(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the U.S. Parent Borrower or Junior Capital or any capital contribution to the U.S. Parent Borrower, and
(i)(x) any investment by any Investor in securities of the U.S. Parent Borrower or any of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any Investor in connection therewith) so long as such securities are being offered generally to other investors (other than Investors) on the same or more favorable terms.
1.1.9.6. Limitation on Liens.
(a)(a) The U.S. Parent Borrower shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Lien (other than Permitted Liens) on any of its property or assets (including Capital Stock of any other Person), whether owned on the Closing Date or thereafter acquired, securing any Indebtedness (the “Initial Lien”) unless, in the case of Initial Liens on any asset or property other than Collateral, the Obligations are equally and ratably secured with (or on a senior basis to, in the case such Initial Lien secures any Junior Debt) the obligations secured by such Initial Lien for so long as such obligations are so secured. Any such Lien created in favor of the Obligations pursuant to the subclause in the preceding sentence requiring an equal and ratable (or senior, as applicable) Lien for the benefit of the Obligations will be automatically and unconditionally released and discharged upon (i) the release and discharge of the Initial Lien to which it relates, (ii) in the case of any such Lien in favor of any Guarantee of a Loan Party, upon the termination and discharge of such Guarantee in accordance with the terms thereof, hereof and of the Intercreditor Agreement, in each case, to the extent applicable or (iii) any sale, exchange or transfer (other than a transfer constituting a transfer of all or substantially all of the assets of the U.S. Parent Borrower that is governed by the provisions of Section 9.7) to any Person not an Affiliate of the U.S. Parent Borrower of the property or assets secured by such Initial Lien, or of all of the Capital Stock held by the U.S. Parent Borrower or any Restricted Subsidiary in, or all or substantially all the assets of, any Restricted Subsidiary creating such Initial Lien.
1.1.9.7. Limitation on Fundamental Changes. The U.S. Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of, all or substantially all its business units, assets or other properties (including, in each case, pursuant to a Delaware LLC Division), except that:
(a)(a) so long as no Event of Default would result therefrom, any Subsidiary of the U.S. Parent Borrower or any other Person (in each case, other than the Canadian Borrower) may be merged, amalgamated or consolidated with or into the U.S. Parent Borrower, provided that (i) except as permitted by subclause (ii) below, the U.S. Parent Borrower shall be the continuing or surviving corporation, (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation involving the U.S. Parent Borrower is not the U.S. Parent Borrower, the surviving Person shall be an entity organized or
 
-137-

existing under the laws of the United States, any state thereof or the District of Columbia (the U.S. Parent Borrower or such surviving Person, as the case may be, being herein referred to as the “Successor U.S. Parent Borrower”), (iii) any Successor U.S. Parent Borrower (if other than the U.S. Parent Borrower) shall expressly assume all the obligations of the U.S. Parent Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the U.S. Administrative Agent, (iv) each applicable Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Loan Documents confirmed that its obligations under the Loan Documents continue to apply to such Successor U.S. Parent Borrower’sBorrower’s obligations under this Agreement, (v) the Investment resulting from such merger or consolidation, shall be permitted by Section 9.2, and (vi) the Successor U.S. Parent Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger or consolidation complies with this Agreement (it being understood that if the foregoing are satisfied, the Successor U.S. Parent Borrower (if other than the U.S. Parent Borrower) will succeed to, and be substituted for, the U.S. Parent Borrower under this Agreement);
(b)(b) any Person (in each case, other than the U.S. Parent Borrower or the Canadian Borrower) may be merged, amalgamated or consolidated with or into the U.S. Parent Borrower or any one or more Restricted Subsidiaries of the U.S. Parent Borrower, provided that (i) either (x) except in the case of the U.S. Parent Borrower, such merger amalgamation or consolidation constitutes a disposition permitted by Section 9.4 or (y) the U.S. Parent Borrower or a Restricted Subsidiary shall be the continuing or surviving Person and the Investment resulting from such merger, amalgamation or consolidation is permitted by Section 9.2, (ii) in the case of any merger, amalgamation or consolidation in which a Loan Party is the surviving Person, such Loan Party shall execute any supplement to this Agreement, the Canadian Guarantee, the Foreign Loan Party Guaranty Agreement and the Security Documents, as applicable, in form and substance reasonably satisfactory to the Collateral Agent in order to preserve and protect the Liens on the Collateral securing the applicable Obligations and (iii) the U.S. Parent Borrower shall have delivered to the Administrative Agent an officers’’ certificate stating that such merger, amalgamation or consolidation complies with this Agreement; and
(c)(c) so long as no Event of Default would result therefrom, any Restricted Subsidiary of the U.S. Parent Borrower or any other Person (other than a U.S. Borrower) may be amalgamated with the Canadian Borrower, provided that (i) the Person formed by such amalgamation shall be an entity organized or existing under the laws of Canada or any province thereof (such Person being herein referred to as a “Successor Canadian Borrower”), (ii) (A) the Successor Canadian Borrower shall expressly assume all the obligations of the Canadian Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (B) each Loan Party (other than the Successor Canadian Borrower) shall have by a supplement to the Loan Documents confirmed that its obligations thereunder apply to the Successor Canadian Borrower’sBorrower’s obligations under this Agreement, (iii) the Investment resulting from such merger or consolidation shall be permitted by Section 9.4 and (iv) the Canadian Borrower shall have delivered to the Canadian Administrative Agent a certificate of an Authorized Officer stating that such merger or consolidation complies with this Agreement (it being understood that if the foregoing are satisfied, the Successor Canadian Borrower (if other than the Canadian Borrower) will succeed to, and be substituted for, the Canadian Borrower under this Agreement).
1.1.9.8. Limitation on Amendments. The U.S. Parent Borrower shall not and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(a)(a)(1) Amend, supplement, waive or otherwise modify any of the provisions of any Senior Notes Documents or Cash Flow Loan Documents in a manner that shortens the maturity date of such Indebtedness to a date prior to the Termination Date or provides for a shorter weighted average life to maturity than the weighted average life to maturity of the Cash Flow Term Loans at such time and (2) if an Event of Default under Section 10.1 or 10.5 is continuing, amend, supplement, waive or otherwise modify any of the provisions of any indenture, instrument or agreement evidencing Subordinated Obligations in a manner that (i) changes the subordination provisions of such Indebtedness or (ii) shortens the maturity date of such Indebtedness to a date prior to the Termination Date or provides for a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Cash Flow Term Loans; provided that, notwithstanding the foregoing, the provisions of this Section 9.8(a) shall not restrict or prohibit any refinancing of Indebtedness (in whole or in part) permitted pursuant to Section 9.1.
 
-138-

(b)(b) Amend, supplement, waive or otherwise modify the terms of any Additional Obligations or any Refinancing Indebtedness in respect of the foregoing or any indenture or agreement pursuant to which such Additional Obligations has been issued or incurred in any manner inconsistent with the requirements of the definition of “Refinancing Indebtedness,” assuming for purposes of this Section 9.8b) that such amendment, supplement, waiver or modification, mutatis mutandis, is a refinancing of such Additional Obligations or Refinancing Indebtedness, as applicable.
1.1.9.9. Consolidated Fixed Charge Coverage Ratio. The U.S. Parent Borrower will not permit the Consolidated Fixed Charge Coverage Ratio, as of the last day of each Test Period in which a Covenant Compliance Event has occurred and is continuing or at other times as indicated in this Agreement, to be less than 1.0 to 1.0.
For purposes of determining compliance with the foregoing Consolidated Fixed Charge Coverage Ratio covenant under this Section 9.9, any Specified Equity Contribution made during the period from the first day of the most recently ended fiscal quarter included in the relevant Test Period until the expiration of (i) with respect to a breach of the Consolidated Fixed Charge Coverage Ratio that occurs on the date of the Covenant Compliance Event, the date that is 10 days after such date or (ii) otherwise, the 10th day after the date on which financial statements are required to be delivered hereunder with respect to the relevant period will, at the request of the U.S. Parent Borrower, be included in the calculation of Consolidated EBITDA for any period of calculation which includes the fiscal quarter in which such Specified Equity Contribution was received by the Loan Parties, provided that (A) in each four consecutive fiscal quarter period, there shall be at least two fiscal quarters in respect of which no Specified Equity Contribution is made, (B) no more than five Specified Equity Contributions may be made during the term of this Agreement and (C) the amount of any Specified Equity Contribution shall be no greater than the amount required to cause the Loan Parties to be in compliance with the Consolidated Fixed Charge Coverage Ratio specified above on a pro forma basis, after giving effect to such Specified Equity Contribution.
1.1.9.10. Limitation on Lines of Business. The U.S. Parent Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any business, either directly or through any Restricted Subsidiary, except for those businesses of the same general type as those in which the U.S. Parent Borrower and its Restricted Subsidiaries are engaged in on the Closing Date or which are reasonably related thereto and any business related thereto.
1.1.9.11. Use of Proceeds. No Borrower will request any Loan or Letter of Credit, and no Borrower shall use, and each Loan Party shall procure that its Subsidiaries and its and their respective directors, officers, employees and agents shall not use, the proceeds of any Loan or Letter of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions, or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
SECTION 1. SECTION 10. Events of Default
Upon the occurrence of any of the following specified events (each an “Event of Default”):
1.1.10.1. Payments. Any Borrower shall (a) default in the payment when due of any principal of the Loans or any reimbursement of an LC Borrowing or (b) default, and such default shall continue for five Business Days or more days, in the payment when due of any interest on the Loans or fees owing hereunder or (c) default, and such default shall continue for 30 or more days, in the payment when due of any other amounts owing hereunder or under any other Loan Document.
 
-139-

1.1.10.2. Representations, Etc. Any representation, warranty or statement made or deemed made by any Loan Party herein or in any Loan Document or any certificate delivered or required to be delivered by it pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of which made or deemed made.
1.1.10.3. Covenants. Any Loan Party shall:
(a)(a) default in the due performance or observance by it of any term, covenant or agreement contained in Sections 8.1(g), 8.2(b) or Section 9;
(b)(b) default in the due performance or observance by it of any term, covenant or agreement contained in Section 8.1(o) that shall continue unremedied for a period of at least three Business Days; and
(c)(c) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in Section 10.1 or 10.2 or clause (a) or (b) of this Section 10.3) contained in this Agreement, any Security Document, any Guarantee and such default shall continue unremedied for a period of at least 30 days after receipt of written notice to the Borrowers from the Administrative Agent or the Required Lenders.
1.1.10.4. Default Under Other Agreements. Any Loan Party or any of its Restricted Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (excluding Indebtedness hereunder) in excess of $150.0 million, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness (excluding Indebtedness hereunder) referred to in clause (i) above or contained in any instrument or agreement evidencing, securing or relating thereto (other than a failure to provide notice of a default or an event of default under such instrument or agreement or default in the observance of or compliance with any financial maintenance covenant), or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice or lapse of time if required, such Indebtedness to become due prior to its stated maturity (an “Acceleration”; and the term “Accelerated” shall have a correlative meaning), and such time shall have lapsed and, if any notice (a “Default Notice”) shall be required to commence a grace period or declare the occurrence of an event of default before notice of Acceleration may be delivered, such Default Notice shall have been given and (in the case of the preceding clause (i) or (ii)) such default, event or condition shall not have been remedied or waived by or on behalf of the holder or holders of such Indebtedness (provided that the preceding clause (ii) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder or (y) any termination event or similar event pursuant to the terms of any Hedge Agreement); or (iii) in the case of any Indebtedness referred to in clause (i) above containing or otherwise requiring observance or compliance with any financial maintenance covenant, default in the observance of or compliance with such financial maintenance covenant such that such Indebtedness shall have been Accelerated and such Acceleration shall not have been rescinded.
1.1.10.5. Bankruptcy, Etc. If (i) the U.S. Parent Borrower, the Canadian Borrower or any Material Subsidiary of the U.S. Parent Borrower shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts (excluding, in each case, the solvent liquidation or reorganization of any Foreign Subsidiary (other than the Canadian Borrower) of the U.S. Parent Borrower), or (B) seeking appointment of a receiver, interim receiver, receivers, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the U.S. Parent Borrower, the Canadian Borrower or any Material Subsidiary of the U.S. Parent Borrower shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the U.S. Parent Borrower, the Canadian Borrower or any Material Subsidiary of the U.S. Parent Borrower, any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a period of 60 days; or (iii) there shall be commenced against the U.S. Parent Borrower, the Canadian Borrower or any Material Subsidiary of the U.S.
 
-140-

Parent Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the U.S. Parent Borrower, the Canadian Borrower or any Material Subsidiary of the U.S. Parent Borrower shall take any corporate or other similar organizational action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the U.S. Parent Borrower, the Canadian Borrower or any Material Subsidiary of the U.S. Parent Borrower shall be generally unable to, or shall admit in writing its general inability to, pay its debts as they become due
1.1.10.6. ERISA. (a) Any Plan shall fail to satisfy the minimum funding standard required for any plan year or part thereof or a waiver of such standard or extension of any amortization period is sought or granted under Section 412 of the Code; any Plan is or shall have been terminated or is the subject of termination proceedings under Section 4041(c) or Section 4042 of ERISA including the giving of written notice thereof; the PBGC has given written notice to the U.S. Parent Borrower of its intent to terminate any Plan or to appoint a trustee to administer any Plan or the occurrence of any event or condition which the U.S. Parent Borrower reasonably expects to constitute grounds under ERISA for the termination of or the appointment of a trustee to administer any Plan; any Borrower, any Subsidiary or any Commonly Controlled Entity has incurred or is likely to incur a liability to or on account of a Plan under Section 409, 502(i), 502(l), 4062, 4063, 4064 or 4069 of ERISA or Section 4971 or 4975 of the Code or to or on account of a Multiemployer Plan under Section 515, 4201 or 4204 of ERISA (including the giving of written notice thereof); (b) a Foreign Plan Termination Event shall occur; or there is an appointment by the appropriate Governmental Authority of a replacement administrator to administer any Canadian Defined Benefit Plan; or if any Canadian Defined Benefit Plan shall be terminated or a replacement administrator is appointed, or if the Canadian Borrower or any other Canadian Subsidiary is in default with respect to payments to a Canadian Defined Benefit Plan; or Canadian Borrower or any other Canadian Subsidiary completely or partially withdraws from a Foreign Plan which is a “multi-employer pension plan”, as defined under the applicable pension standards legislation and any such event may reasonably be expected to have a Material Adverse Effect; or any Lien arises (save for contribution amounts not yet due) in connection with any Foreign Plan; and (c) it is reasonably likely from any event or events set forth in clause (a) or (b) of this Section 10.6 that the imposition of a lien, the granting of a security interest, or a liability would result, and such lien, security interest or liability would reasonably be expected to have a Material Adverse Effect.
1.1.10.7. Guarantee. The Canadian Guarantee by any Canadian Guarantor or group of Canadian Guarantors constituting a Material Subsidiary or, the Non-Borrowing Base Foreign Guarantee by any Non-Borrowing Base Foreign Guarantor or group of Non-Borrowing Base Foreign Guarantors constituting a Material Subsidiary, or the U.S. Guarantee by any U.S. Borrower or, in each case, any material provision thereof shall cease to be in full force or effect with respect to any Canadian Guarantor or U.S. Borrower (other than pursuant to the terms hereof and thereof) or any Canadian Guarantor or U.S. Borrower shall deny or disaffirm in writing any such Canadian Guarantor’s or U.S. Borrower’sGuarantor’s material obligations under any such Canadian Guaranteeor, U.S. Guarantee or Non-Borrowing Base Foreign Guarantee, as applicable.
1.1.10.8. Security Documents. (i) The U.S. Security Agreement or Canadian Security Agreement shall, or any other Security Document covering a significant portion of the Collateral shall (at any time after its execution, delivery and effectiveness) cease for any reason to be in full force and effect (other than pursuant to the terms hereof or thereof), or any Loan Party which is a party to any such Security Document shall so assert in writing or (ii) the Lien created by any of the Security Documents shall cease to be perfected and enforceable in accordance with its terms or of the same effect as to perfection and priority purported to be created thereby with respect to any significant portion of the Collateral (other than in connection with any termination of such Lien in respect of any Collateral as permitted hereby or by any Security Document) and such failure of such Lien to be perfected and enforceable with such priority shall have continued unremedied for a period of twenty (20) days.
1.1.10.9. Judgments. One or more judgments or decrees shall be entered against the U.S. Borrower or any of its Restricted Subsidiaries involving in the aggregate at any time a liability (net of any insurance or indemnity payments actually received in respect thereof prior to or within 60 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) of $150.0 million or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof.
 
-141-

1.1.10.10. Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agents shall, upon the written request of the Required Lenders, by written notice to the U.S. Parent Borrower, take any or all of the following actions, without prejudice to the rights of the Administrative Agents to enforce their claims against the Borrowers, except as otherwise specifically provided for in this Agreement, (i) terminate the outstanding Commitments and/or (ii) declare the principal of and any accrued interest and fees in respect of all Loans and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; provided that, if an Event of Default specified in Section 10.5 shall occur with respect to the U.S. Parent Borrower, the result that would occur upon the giving of written notice by the Administrative Agent as specified shall occur automatically without the giving of any such notice.
With respect to any Letter of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to the preceding paragraph, the applicable Borrower(s) shall at such time deposit in a cash collateral account opened by the applicable Administrative Agent an amount in cash (and in the same currencies as the Letters of Credit) equal to the aggregate then undrawn and unexpired amount of such Letter of Credit. The Borrowers hereby grant to the applicable Administrative Agent, for the benefit of the Letter of Credit Issuers and the Letter of Credit Participants, a security interest in such cash collateral to secure all Obligations of such Borrowers in respect of such Letters of Credit under this Agreement and the other Loan Documents. Each Borrower shall execute and deliver to the Administrative Agent, for the account of the Letter of Credit Issuers and the Letter of Credit Participants, such further documents and instruments as the applicable Administrative Agent may at such time request to evidence the creation and perfection of such security interest in such cash collateral account. Amounts held in such cash collateral account shall be applied by the applicable Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit (or, in the case of the Canadian Borrower, all Canadian Letters of Credit) shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the Borrowers hereunder and under the other Loan Documents. After all Letters of Credit (or, in the case of the Canadian Borrower, all Canadian Letters of Credit) shall have expired or been fully drawn upon, all Letter of Credit Obligations shall have been satisfied, the balance, if any, in such cash collateral account shall be returned to the applicable Borrowers. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Lender in its capacity as a Secured Party or as beneficiary of any security granted pursuant to the Security Documents shall have any right to exercise remedies in respect of such security without the prior written consent of the Required Lenders.
In connection with any acceleration of the Obligations as contemplated by clause (ii) above, the Designated Obligations shall, automatically and with no further action required by any Administrative Agent, any Loan Party or any Lender, be converted into Dollars based on the Dollar Equivalent amount thereof, determined using the Spot Rate calculated as of the date of such acceleration and from and after such date all amounts accruing and owed to the Lenders in respect of such Designated Obligations shall accrue and be payable in Dollars at the rate otherwise applicable hereunder.
Any amount received by the Administrative Agent or the Collateral Agent from any U.S. Borrower or Non-Borrowing Base Foreign Guarantor or on account of any U.S. Collateral (other than Canadian Collateral) following any acceleration of the Obligations under this Agreement or any Event of Default with respect to the U.S. Parent Borrower under Section 10.5 (or received by any Lender in any proceeding with respect to any U.S. Borrower or Non-Borrowing Base Foreign Guarantor under Title 11 of the United States Code or any similar bankruptcy or insolvency proceeding under applicable law) shall be applied subject to the terms of the Intercreditor Agreement:
First, to payment of that portion of the Obligations constituting fees, indemnities, Expenses and other amounts (including fees, charges and disbursements of counsel to the U.S. Administrative Agent, Canadian Administrative Agent and the Collateral Agent and amounts payable under Section 12.5) payable to the U.S. Administrative Agent, Canadian Administrative Agent, the Collateral Agent, the Letter of Credit Issuers and the Revolving Lenders, each in its capacity as such;
 
-142-

Second, ratably to payment of that portion of the Obligations constituting accrued and unpaid interest on the U.S. Revolving Loans, U.S. Agent Advances, U.S. Swingline Loans and Letter of Credit Borrowings under U.S. Letters of Credit and accrued and unpaid U.S. Unused Line Fees and accrued and unpaid U.S. Letter of Credit Fees and Fronting Fees with respect to U.S. Letters of Credit and Reallocated European Revolving Loans, ratably among the U.S. Revolving Lenders, U.S. Swingline Lenders, U.S. Letter of Credit Issuers and European Revolving Lenders entitled thereto;
Third, ratably (i) to payment of that portion of the Obligations constituting the unpaid principal amount of the U.S. Revolving Loans, U.S. Agent Advances, U.S. Swingline Loans, Letter of Credit Borrowings under U.S. Letters of Credit and Reallocated European Revolving Loans, ratably among the U.S. Revolving Lenders, U.S. Swingline Lenders, U.S. Letter of Credit Issuers and European Revolving Lenders entitled thereto, (ii) solely up to the amount of any Bank Product Reserves with respect to the U.S. Borrowing Base, to payment of that portion of the Obligations consisting of Secured Cash Management Agreements and Secured Hedge Agreements for which such Reserves were established and (iii) to cash collateralize undrawn U.S. Letters of Credit in an amount equal to the aggregate undrawn amount thereof;
Fourth, ratably to payment of that portion of the Obligations constituting accrued and unpaid interest on the Canadian Revolving Loans, Canadian Agent Advances, Canadian Swingline Loans, Letter of Credit Borrowings under Canadian Letters of Credit, Incremental European Revolving Loans, any swingline loans or letter of credit borrowings under an Incremental European Revolving Facility, accrued and unpaid Canadian Unused Line Fees, accrued and unpaid Canadian Letter of Credit Fees and Fronting Fees with respect to Canadian Letters of Credit and any accrued and unpaid unused line fees or letter of credit fees under any Incremental European Revolving Facility, ratably among the Canadian Revolving Lenders, Canadian Swingline Lenders, Canadian Letter of Credit Issuers and Incremental European Revolving Lenders entitled thereto;
Fifth, ratably (i) to payment of that portion of the Obligations constituting the unpaid principal amount of the Canadian Revolving Loans, Canadian Agent Advances, Canadian Swingline Loans, Letter of Credit Borrowings under Canadian Letters of Credit, Incremental European Revolving Loans and any swingline loans or letter of credit borrowings under an Incremental European Revolving Facility, ratably among the Canadian Revolving Lenders, Canadian Swingline Lenders, Canadian Letter of Credit Issuers and Incremental European Revolving Lenders entitled thereto, (ii) solely up to the amount of any Bank Product Reserves with respect to the Canadian Borrowing Base or any borrowing base with respect to an Incremental European Revolving Facility, to payment of that portion of the Obligations consisting of Secured Cash Management Agreements and Secured Hedge Agreements for which such Reserves were established and (iii) to cash collateralize undrawn Canadian Letters of Credit and letters of credit under an Incremental European Revolving Facility in an amount equal to the aggregate undrawn amount thereof;
Sixth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Term Loans, ratably among the Term Lenders entitled thereto;
Seventh, to payment of that portion of the Obligations constituting the unpaid principal amount of the Term Loans, ratably among the Term Lenders entitled thereto;
Eighth, to payment of all other Obligations (including without limitation those arising from all other Secured Cash Management Agreements and Secured Hedge Agreements, ratably among the Secured Parties holding such Obligations; and
Last, the balance, if any, after all of the Obligations have been paid in full, to the Loan Parties or as otherwise required by laws.
 
-143-

Amounts used to cash collateralize the aggregate undrawn amount of Letters of Credit pursuant to clauses Third and Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as cash collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. Excluded Swap Obligations with respect to any Swap Guarantor shall not be paid with amounts received from such Swap Guarantor, but appropriate adjustments shall be made with respect to payments from other U.S. Borrowers or Non-Borrowing Base Foreign Guarantors to preserve the allocation to Obligations otherwise set forth above in this Section.
Any amount received by the Administrative Agents or the Collateral Agent from any Canadian Loan Party or on account of the Canadian Collateral following any acceleration of the Obligations under this Agreement or any Event of Default with respect to the U.S. Parent Borrower under Section 10.5 shall be applied:
First, to payment of that portion of the Canadian Obligations constituting fees, indemnities, Expenses and other amounts (including fees, charges and disbursements of counsel to the Canadian Administrative Agent and the Collateral Agent and amounts payable under Section 12.5) payable to the Canadian Administrative Agent, the Collateral Agent, the Canadian Letter of Credit Issuers and the Canadian Revolving Lenders, each in its capacity as such;
Second, ratably to payment of that portion of the Canadian Obligations constituting accrued and unpaid interest on the Canadian Revolving Loans, Canadian Agent Advances, Canadian Swingline Loans and Letter of Credit Borrowings under Canadian Letters of Credit and accrued and unpaid Canadian Unused Line Fees and accrued and unpaid Canadian Letter of Credit Fees and Fronting Fees with respect to Canadian Letters of Credit, ratably among the Canadian Revolving Lenders, Canadian Swingline Lenders and Canadian Letter of Credit Issuers entitled thereto;
Third, ratably (i) to payment of that portion of the Canadian Obligations constituting the unpaid principal amount of the Canadian Revolving Loans, Canadian Agent Advances, Canadian Swingline Loans and Letter of Credit Borrowings under Canadian Letters of Credit, ratably among the Canadian Revolving Lenders, Canadian Swingline Lenders and Canadian Letter of Credit Issuers entitled thereto, (ii) solely up to the amount of any Bank Product Reserves with respect to the Canadian Borrowing Base, to payment of that portion of the Canadian Obligations consisting of Secured Cash Management Agreements and Secured Hedge Agreements for which such Reserves were established and (iii) to cash collateralize undrawn Canadian Letters of Credit in an amount equal to the aggregate undrawn amount thereof;
Fourth, ratably to payment of that portion of the Obligations constituting accrued and unpaid interest on any European Revolving Loans, any swingline loans or letter of credit borrowings under a European Revolving Facility and any accrued and unpaid unused line fees or letter of credit fees under any European Revolving Facility, ratably among the European Revolving Lenders entitled thereto;
Fifth, ratably (i) to payment of that portion of the Obligations constituting the unpaid principal amount of any European Revolving Loans, any swingline loans or letter of credit borrowings under a European Revolving Facility, ratably among the European Revolving Lenders entitled thereto, (ii) solely up to the amount of any Bank Product Reserves with respect to the borrowing base applicable to a European Revolving Facility, to payment of that portion of the Obligations consisting of Secured Cash Management Agreements and Secured Hedge Agreements for which such Reserves were established and (iii) to cash collateralize undrawn letters of credit under a European Revolving Facility in an amount equal to the aggregate undrawn amount thereof;
Sixth, to payment of that portion of the Canadian Obligations constituting accrued and unpaid interest on the Term Loans, ratably among the Term Lenders entitled thereto;
Seventh, to payment of that portion of the Canadian Obligations constituting the unpaid principal amount of the Term Loans, ratably among the Term Lenders entitled thereto
 
-144-

Eighth, to payment of all other Canadian Obligations (including without limitation those arising from all other Secured Cash Management Agreements and Secured Hedge Agreements, ratably among the Canadian Secured Parties holding such Canadian Obligations; and
Last, the balance, if any, after all of the Canadian Obligations have been paid in full, to the Canadian Loan Parties or as otherwise required by laws.
Amounts used to cash collateralize the aggregate undrawn amount of Canadian Letters of Credit pursuant to clause Third above shall be applied to satisfy drawings under such Canadian Letters of Credit as they occur. If any amount remains on deposit as cash collateral after all Canadian Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Canadian Obligations, if any, in the order set forth above. Excluded Swap Obligations with respect to any Swap Guarantor shall not be paid with amounts received from such Swap Guarantor, but appropriate adjustments shall be made with respect to payments from other Canadian Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section.
SECTION 1. SECTION 11. The Agents
1.1.11.1. Appointment.
(a)(a) Each Lender hereby irrevocably designates and appoints the applicable Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents and irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to such Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Administrative Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Administrative Agent.
(a)(b) The Administrative Agents, the Swingline Lenders, the Letter of Credit Issuers and each Lender hereby irrevocably designate and appoint the Collateral Agent as the agent with respect to the Collateral, and each of the Administrative Agents, the Swingline Lenders, the Letter of Credit Issuers and each Lender irrevocably authorizes the Collateral Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein, or any fiduciary relationship with any of the Swingline Lenders, the Letter of Credit Issuers, the Administrative Agents or the Lenders, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Collateral Agent.
(a)(c) Without limiting the powers of the Collateral Agent, for the purposes of holding any hypothec granted to the Attorney (as defined below) pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Obligations by any Loan Party, each of the Secured Parties (to the extent a party hereto) hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to act as the hypothecary representative of the creditors as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the any Secured Party to the extent a party thereto and Loan Parties. Any person who becomes a Secured Party shall, by its execution of an Assignment and Acceptance Agreement, be deemed to have consented to and confirmed the
 
-145-

Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Party, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Section 11 also constitutes the substitution of the Attorney.
(a)(d) The Lead Arrangers and any Person named as a Co-Syndication Agent or Co-Documentation Agent on the cover of this Agreement, in their respective capacities as such, shall not have any obligations, duties or responsibilities under this Agreement but shall be entitled to all benefits of this Section 11.
1.1.11.2. Delegation of Duties. Each Administrative Agent and the Collateral Agent may each execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Neither any Administrative Agent nor the Collateral Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
1.1.11.3. Exculpatory Provisions. None of the Administrative Agents, the Collateral Agent, the Swingline Lender, the Letter of Credit Issuer, any other Agent or any of their officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except for its or such Person’sPerson’s own gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction in connection with its duties expressly set forth herein) or (b) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Borrower, any other Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by such Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder. None of the Administrative Agent, the Collateral Agent, the Swingline Lender, the Letter of Credit Issuer or any other Agent shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party.
1.1.11.4. Reliance by Agents. The Administrative Agents, the Swingline Lenders, the Letter of Credit Issuers and the Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or instruction believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to any Borrower), independent accountants and other experts selected by such Administrative Agent, Swingline Lender, Letter of Credit Issuer or the Collateral Agent. Each Administrative Agent may deem and treat the Lender specified in the Register with respect to any amount owing hereunder as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with such Administrative Agent. The Administrative Agents, the Swingline Lenders, the Letter of Credit Issuers and the Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agents, the Swingline Lenders, the Letter of Credit Issuers and the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.
1.1.11.5. Notice of Default. Neither the Administrative Agents nor the Collateral Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless such Administrative Agent or Collateral Agent has received notice from a Lender or a Borrower referring to this Agreement, describing such Default or Event of Default. In the event that an Administrative Agent receives such a notice, it shall give notice thereof to the Lenders and the Collateral Agent. The Administrative Agents shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required
 
-146-

Lenders, provided that unless and until the Administrative Agents shall have received such directions, the Administrative Agents may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as they shall deem advisable in the best interests of the Lenders except to the extent that this Agreement requires that such action be taken only with the approval of the Required Lenders or each of the Lenders, as applicable.
1.1.11.6. Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor the Collateral Agent nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent or Collateral Agent hereinafter taken, including any review of the affairs of any Borrower or any other Loan Party, shall be deemed to constitute any representation or warranty by the Administrative Agent or Collateral Agent to any Lender. Each Lender, Swingline Lender and Letter of Credit Issuer represents to the Administrative Agent and the Collateral Agent that it has, independently and without reliance upon the Administrative Agent, Collateral Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of each Borrower and other Loan Party and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent, Collateral Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrowers and any other Loan Party. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, neither the Administrative Agent nor the Collateral Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, assets, operations, properties, financial condition, prospects or creditworthiness of any Borrower or any other Loan Party that may come into the possession of the Administrative Agent or Collateral Agent any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates.
1.1.11.7. Indemnification. The Lenders agree to indemnify each Administrative Agent and the Collateral Agent, each in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their respective portions of the Aggregate Revolving Exposure in effect on the date on which indemnification is sought (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their respective portions of the Aggregate Revolving Exposure in effect immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (including at any time following the payment of the Loans) be imposed on, incurred by or asserted against any Agent in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by any Agent under or in connection with any of the foregoing, provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’sAgent’s gross negligence or willful misconduct as determined by a final judgment of a court of competent jurisdiction. The agreements in this Section 11.7 shall survive the payment of the Loans and all other amounts payable hereunder.
1.1.11.8. Agents in Their Individual Capacities. The Agents and their Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Borrower and any other Loan Party as though the Administrative Agent or such other Agent were not the Administrative Agent or such other Agent hereunder and under the other Loan Documents. With respect to the Loans made by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms “Lender” and “Lenders” shall include the Agents in their individual capacities.
 
-147-

11.9. Successor Agents. Subject to the appointment of a successor as set forth herein, (i) each Administrative Agent or the Collateral Agent may be removed by the U.S. Parent Borrower or the Required Lenders if such Agent, or a controlling affiliate of such Agent is a Defaulting Lender and (ii) each Administrative Agent and the Collateral Agent may resign as an Administrative Agent or Collateral Agent, respectively, in each case upon ten days’’ notice to the other Agents, the Lenders and the U.S. Parent Borrower, as applicable. If the Administrative Agent or the Collateral Agent shall be removed by the U.S. Parent Borrower or the Required Lenders pursuant to clause (i) above or if an Agent shall resign as Agent under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which such successor agent shall be subject to approval by the U.S. Parent Borrower; provided that such approval by the U.S. Parent Borrower in connection with the appointment of any successor Administrative Agent shall only be required so long as no Event of Default under Section 10.1 or 10.5 has occurred and is continuing; provided, further, that the U.S. Parent Borrower shall not unreasonably withhold its approval of any successor Agent if such successor is a commercial bank with a consolidated combined capital and surplus of at least $5,000,000,000. Upon the successful appointment of a successor agent, such successor agent shall succeed to the rights, powers and duties of the applicable Agent (including the rights, powers and duties of the Collateral Agent under the Parallel Debt), and the term “U.S. Administrative Agent,” “Canadian Administrative Agent,” or “Collateral Agent,” as applicable, shall mean such successor Agent effective upon such appointment and approval, and the former Agent’sAgent’s rights, powers and duties as such Agent shall be terminated, without any other or further act or deed on the part of such former Agent or any of the parties to this Agreement or any holders of the Loans. In connection with the appointment of a successor agent, the retiring Collateral Agent will reasonably cooperate in assigning its rights under the Parallel Debts to any such successor collateral agent and will reasonably cooperate in transferring all rights under any Dutch Security Document to such successor collateral agent (it being understood that any indemnities and other protections provided to the Collateral Agent under the Dutch Security Documents will continue to inure to the benefit of the retiring Collateral Agent as to any actions taken or omitted to be taken by it while it was Collateral Agent). After any retiring Agent’sAgent’s resignation or removal as Agent, the provisions of this Section 11 (including this Section 11.9) shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement and the other Loan Documents. The fees payable by the Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor.
11.10. Parallel Debt.
(a) Each Loan Party irrevocably and unconditionally undertakes to pay to the Collateral Agent amounts equal to its Corresponding Obligations as they may exist from time to time (each a “Parallel Debt”).
(b) Each Parallel Debt will be payable in the currency or currencies of the Corresponding Obligation and will become due and payable at the same time as the Corresponding Obligation becomes due and payable. An Event of Default in respect of the payment of the Corresponding Obligations shall constitute a default within the meaning of section 3:248 of the Dutch Civil Code with respect to the payment of the Parallel Debts without any notice being required.
(c) The rights of the Collateral Agent under each Parallel Debt are its own claims to receive payment from the Loan Parties, several and independent from the rights of the Secured Parties to receive payment of the Corresponding Obligations of the relevant Loan Party.
(d) An amount received by the Collateral Agent in discharge of a Parallel Debt will discharge the Corresponding Obligation in an equal amount.
(e) The aggregate amount outstanding under the Parallel Debts will never exceed the aggregate amount outstanding under the Corresponding Obligations.
(f) For the purpose of this Section 11.10, the Collateral Agent acts as the creditor of the Parallel Debts.
1.1.11.11. Withholding Tax. To the extent required by any applicable law, each Administrative Agent shall withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other authority of the United States or other jurisdiction asserts a claim that the Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason
 
-148-

(including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the applicable Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless each Administrative Agent (to the extent that such Agent has not already been reimbursed by any Borrower and without limiting the obligation of any Borrower to do so) for all amounts paid, directly or indirectly, by the Agent as tax or otherwise, including any interest, additions to tax or penalties thereto, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such tax were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agents to setoff any amounts owing to such Lender against any amounts owing to the Agents pursuant to this Section 11.10. For the avoidance of doubt the term “Lender” shall, for purposes of this Section 11.10, include any Swingline Lender and any Letter of Credit Issuer.
 
1.1.11.12.	Certain ERISA Matters.	
(a)(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and each Lead Arranger and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that at least one of the following is and will be true:
(i)(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’sLender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
(i)(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’sLender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(i)(iii)(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’sLender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement; or
(i)(iv) Such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(a)(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 Agents and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that none of the Administrative Agents is a fiduciary with respect to the assets of such Lender involved in such Lender’sLender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the 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).
 
-149-

SECTION 1. SECTION 12. Miscellaneous
1.1.12.1. Amendments and Waivers. Neither this Agreement nor any other Loan Document, nor any terms hereof or thereof, may be amended, supplemented or modified except in accordance with the provisions of this Section 12.1. The Required Lenders may (provided that no such written amendment, supplement, modification or waiver referred to below that is not signed by the U.S. Administrative Agent shall become effective until delivered to the U.S. Administrative Agent), or, with the written consent of the Required Lenders, the Administrative Agents and/or the Collateral Agent may (as applicable depending on the relevant Loan Document), from time to time, (a) enter into with the relevant Loan Party or Loan Parties written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agents and/or Collateral Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall directly (i) forgive or reduce any portion of any Loan or extend the scheduled repayment date of any principal of any Loan (which, for the avoidance of doubt, does not include payments pursuant to Section 4.3, it being understood that only the consent of the Required Lenders shall be necessary to waive any obligations of the Borrowers to make payments pursuant to Section 4.3) or reduce the stated rate (it being understood that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrowers to pay interest at the “default rate”), or forgive any portion, or extend the date for the payment, of any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or extend the final expiration date of any Lender’sLender’s Commitment, or increase the aggregate amount of the Commitments of any Lender, or amend or modify any provisions of Section 4.4(a) (with respect to the ratable allocation of any payments only) and 12.8(a), or amend or modify the definition of “Pro Rata Share,” or make any Loan, interest, fee or other amount payable in any currency other than expressly provided herein, in each case without the written consent of each Lender directly and adversely affected thereby, or (ii) amend, modify or waive any provision of this Section 12.1 or reduce the percentages specified in the definition of the term “Required Lenders,” consent to the assignment or transfer by any Borrower of its rights and obligations under any Loan Document to which it is a party (except as permitted pursuant to Section 9.3) or alter the order of application set forth in Section 10, in each case without the written consent of each Secured Party directly and adversely affected thereby, or (iii) amend, modify or waive any provision of Section 11 without the written consent of the then-current Administrative Agents and Collateral Agent, or (iv) release all or substantially all of the U.S. Subsidiary Borrowers from their obligations under this Agreement or the U.S. Guarantee, the Canadian Guarantors under the Canadian Guarantee or the Non-Borrowing Base Foreign Guarantors under the Non-Borrowing Base Foreign Guarantee, as applicable (except as expressly permitted by the Canadian Guarantee, the Foreign Loan Party Guaranty Agreement or this Agreement including without limitation, pursuant to a transaction resulting in payments made pursuant to Section 4.2 or not prohibited by Section 9.4) or release all or substantially all of the Collateral under the Security Documents (except as expressly permitted by the Security Documents or this Agreement) without the prior written consent of each Lender, or (v) amend Section 2.7 so as to permit Interest Period intervals greater than six months without regard to availability to Lenders or amend or modify the definition of “Alternative Currency”, without the written consent of each Lender directly and adversely affected thereby, or (vi) change the definition of the terms “U.S. Borrowing Base,” “Canadian Borrowing Base,” “Availability”, “Canadian Availability,” “U.S. Availability” or any component definition thereof or similar term if as a result thereof the amounts available to be borrowed by any Borrowers would be increased, without the written consent of the Supermajority Lenders, provided that the foregoing shall not limit the discretion of the Administrative Agents to change, establish or eliminate any Reserves without the consent of any Lenders, or (vii) affect the rights or duties of any Letter of Credit Issuer under this Agreement or any Letter of Credit issued or to be issued by it unless in writing and signed by such Letter of Credit Issuer in addition to the Lenders otherwise required herein, or (viii) affect the rights or duties of any Swingline Lender under this Agreement unless in writing and signed by such Swingline Lender in addition to the Lenders otherwise required herein. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the affected Lenders and shall be binding upon the Loan Parties, such Lenders, the Administrative Agents and all future holders of the affected Commitments or Loans. In the case of any waiver, the Borrowers, the Lenders and the Administrative Agents shall be restored to their former
 
-150-

positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing, it being understood that no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Notwithstanding any of the foregoing, (i) the Administrative Agent, acting in its sole reasonable discretion, and the Borrowers may (without the consent of any Lender) amend or supplement this Agreement and the other Loan Documents to cure any ambiguity, defect or inconsistency or to make a modification of a minor, consistency or technical nature or to correct a manifest error and (ii) only the consent of the parties referenced in Section 2.1(c) and Section 2.15(c) shall be required to give effect to any amendments to establish a Reallocated European Revolving Facility pursuant to Section 2.1(c) or establish Commitment Increases or Incremental European Revolving Commitments pursuant to Section 2.15.
The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Loan Parties on any Collateral shall be automatically released (i) in the case of all Loan Parties, in full, upon payment in full of the Obligations under this Agreement (other than indemnification and other contingent obligations for which no claim has been asserted) and the Termination Date with respect to all Facilities, (ii) in the case of the Canadian Loan Parties, in full, upon payment in full of the Canadian Obligations under this Agreement (other than indemnification and other contingent obligations for which no claim has been asserted) and the Termination Date with respect to all Canadian Revolving Facility, (iii) upon the sale or other disposition of such Collateral (including as part of or in connection with any other sale or other disposition permitted hereunder) to any Person other than another Loan Party (or, in the case of a sale by a U.S. Borrower, another U.S. Borrower) to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (iv) to the extent such Collateral is comprised of property leased to a Loan Party, upon termination or expiration of such lease, (v) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be required in accordance with this Section 12.1), (vi) to the extent the property constituting such Collateral is owned by any (A) U.S. Subsidiary Borrower or Canadian Guarantor, upon the release of such U.S. Subsidiary Borrower from its obligations under this Agreement and the U.S. Guaranteeor, (B) Canadian Guarantor, upon release of such Canadian Guarantor from its obligations under the Canadian Guarantee (or (C) Non-Borrowing Base Foreign Guarantor, upon release of such Non-Borrowing Base Foreign Guarantor from its obligations under the Foreign Loan Party Guaranty Agreement (in each case as set forth below) (it being understood that any such disposed of U.S. Subsidiary Borrower or Canadian Guarantor shall be released from all of its obligations under the Loan Documents in connection therewith) and (vii) as required to effect any sale or other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents. In addition to the foregoing, the Collateral Agent, in its reasonable discretion and without the prior written authorization of any Lender, may (i) release Liens granted to the Collateral Agent, for the benefit of the Secured Parties, on Collateral valued in an aggregate amount not in excess of $15,000,000 per fiscal year of the U.S. Parent Borrower and (ii) release any Lien on fee owned real property. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those being released) upon (or obligations (other than those being released) of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral except to the extent otherwise released in accordance with the provisions of the Loan Documents. Additionally, the Lenders hereby irrevocably agree that the U.S. Subsidiary Borrowers and, the Canadian Guarantors and the Non-Borrowing Base Foreign Guarantors shall be released from their obligations hereunder, under the U.S. Guarantee or under, the Canadian Guarantee or the Foreign Loan Party Guaranty Agreement, as applicable, upon consummation of any transaction permitted under this agreement resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary. The Lenders hereby authorize the Administrative Agents and the Collateral Agent, as applicable, to execute and deliver any instruments, documents, and agreements necessary or desirable to evidence and confirm the release of any U.S. Subsidiary Borrower, Canadian Guarantor, Non-Borrowing Base Foreign Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender. The Lenders and the other Secured Parties agree (including for purposes of Section 2.5(e) of the Intercreditor Agreement) that no fee owned real property shall be required to be subject to a Lien in favor of the Collateral Agent pursuant to this Agreement.
1.1.12.2. Notices. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document shall be in writing (including by facsimile transmission). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
 
-151-

(a)(a) if to the Borrowers, the Administrative Agents, the Swingline Lender, the Letter of Credit Issuers or the Collateral Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 12.2 to this Agreement or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
(b)(b) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Borrowers, the applicable Administrative Agent and the Collateral Agent.
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, three (3) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail, when delivered; provided that notices and other communications to the applicable Administrative Agent or the Lenders pursuant to Sections 2.3, 2.6, 2.9 and 4.1 shall not be effective until received.
1.1.12.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any Administrative Agent, the Collateral Agent, Letter of Credit Issuer or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
1.1.12.4. Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Revolving Loans hereunder.
1.1.12.5. Payment of Expenses. The Borrowers agree (a) to pay or reimburse the Agents and the Other Representatives for (1) all their reasonable and documented out-of-pocket costs and expenses incurred in connection with (i) the syndication of the Facilities and the development, preparation, execution and delivery of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, (ii) the consummation and administration of the transactions (including the syndication of the Facilities) contemplated hereby and thereby and (iii) efforts to monitor the Facilities (including the reasonable and documented fees and costs for appraisals and field examinations to the extent required by Section 8.2 and the preparation of reports related thereto in each calendar year) and verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose of any of the Collateral, and (2) the reasonable and documented fees and disbursements of one firm of counsel solely in its capacity as counsel to the Agents (plus one additional firm of counsel in Canada and in any other jurisdiction where a borrower under a European Revolving Facility is organized), and such other special or local counsel, consultants, advisors, appraisers and auditors whose retention (other than during the continuance of an Event of Default) is approved by the Borrower, (b) to pay or reimburse each Lender, each Lead Arranger, each Letter of Credit Issuer and the Agents for all their reasonable costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, including the fees and disbursements of counsel to the Agents and the Lenders, (c) to pay, indemnify, or reimburse each Lender, each Lead Arranger, each Letter of Credit Issuer and the Agents for, and hold each Lender, each Lead Arranger, each Letter of Credit Issuer and the Agents harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, any stamp, documentary, excise and other similar taxes, if any, which may be payable or determined to be payable in connection with the execution,
 
-152-

delivery or enforcement of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify or reimburse each Lender, each Lead Arranger, each Agent (and any sub-agent thereof), each Letter of Credit Issuer and each Related Party of any of the foregoing Persons (each, an “Indemnitee”) for, and hold each Indemnitee harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (in the case of fees and disbursements of counsel, limited to one firm of counsel for all Indemnities and, if necessary, one firm of local counsel in each appropriate jurisdiction, in each case for all Indemnities (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the U.S. Parent Borrower of such conflict and thereafter, after receipt of the U.S. Parent Borrower’sBorrower’s consent (which shall not be unreasonably withheld), retains its own counsel, of another firm of counsel for such affected Indemnitee) arising out of or relating to any actual or prospective claim, litigation, investigation or proceeding, whether based on contract, tort or any other theory, brought by a third party or by any Borrower or any other Loan Party and regardless of whether any Indemnitee is a party thereto, with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or Letters of Credit, the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the U.S. Parent Borrower or any of its Restricted Subsidiaries or any of the property of the U.S. Parent Borrower or any of its Restricted Subsidiaries, (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided that the Borrowers shall not have any obligation hereunder to any Lead Arranger, any Other Representative, any Agent (or any sub-agent thereof), any Letter of Credit Issuer or any Lender (or any Related Party of any such Lead Arranger, Other Representative, Agent (or any sub-agent thereof), Letter of Credit Issuer or Lender) with respect to Indemnified Liabilities arising from (i) the gross negligence, bad faith or willful misconduct of such Lead Arranger, Other Representative, Agent (or any sub-agent thereof), Letter of Credit Issuer or Lender (or any Related Party of such Lead Arranger, Other Representative, Agent (or any sub-agent thereof), Letter of Credit Issuer or Lender), as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision, (ii) a material breach of the Loan Documents by such Lead Arranger, Other Representative, Agent (or any sub-agent thereof), Letter of Credit Issuer or Lender (or any Related Party of such Lead Arranger, Other Representative, Agent (or any sub-agent thereof), Letter of Credit Issuer or Lender), as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision or (iii) claims against such Indemnitee or any Related Party brought by any other Indemnitee that do not involve claims arising from the actions of any Loan Party or claims against any Lead Arranger, Other Representative, Letter of Credit Issuer or Agent in its capacity as such. Neither the Borrowers nor any Indemnitee shall be liable for any indirect, special, punitive or consequential damages hereunder; provided that nothing contained in this sentence shall limit the Borrowers’’ indemnity or reimbursement obligations under this Section 12.5 to the extent such indirect, special, punitive or consequential damages are included in any third party claim in connection with which such Indemnitee is entitled to indemnification hereunder. All amounts due under this Section 12.5 shall be payable not later than 30 days after written demand therefor. Statements reflecting amounts payable by the Loan Parties pursuant to this Section 12.5 shall be submitted to the address of the U.S. Parent Borrower set forth in Section 12.2, or to such other Person or address as may be hereafter designated by the U.S. Parent Borrower in a notice to the U.S. Administrative Agent. Notwithstanding the foregoing, except as provided in Sections 12.5(b) and (c) above, the Borrowers shall have no obligation under this Section 12.5 to any Indemnitee with respect to any tax, levy, impost, duty, charge, fee, deduction or withholding imposed, levied, collected, withheld or assessed by any Governmental Authority. The agreements in this Section 12.5 shall survive repayment of the Loans and all other amounts payable hereunder.
1.1.12.6. Successors and Assigns; Participations and Assignments.
(a) (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 expressly permitted by Section 9.3, no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the applicable Administrative Agent and each Lender (and any attempted assignment or transfer by any 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 12.6. 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 clause (c) of this Section 12.6) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agents, the Collateral Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
-153-

(a) (i) (b)(i) Subject to the conditions set forth in clause (b)(ii) below, any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it and other participations in extensions of credit thereunder) with the prior written consent (such consent not be unreasonably withheld or delayed; it being understood that, without limitation, the U.S. Parent Borrower shall have the right to withhold or delay its consent to any assignment if, in order for such assignment to comply with applicable law, any Borrower would be required to obtain the consent of, or make any filing or registration with, any Governmental Authority) of:
(A) (A) the U.S. Parent Borrower (which consent shall not be unreasonably withheld or delayed), provided that no consent of the U.S. Parent Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender (unless increased costs including payments under Section 2.10, 2.11 or 4.5 would result therefrom unless an Event of Default under Section 10.1 or Section 10.5 has occurred and is continuing), an Approved Fund or, if an Event of Default under Section 10.1 or Section 10.5 has occurred and is continuing, any other assignee; provided, further, that consent to an assignment by the Borrowers shall be deemed to have been given if the U.S. Parent Borrower does not expressly withhold consent thereto within 10 Business Days of a Lender requesting in writing such consent from the Borrowers; and
(A) (B) the applicable Administrative Agent (which consent shall not be unreasonably withheld or delayed).
Notwithstanding the foregoing, no such assignment shall be made to (i) the U.S. Parent Borrower, any Sponsor or any of their respective Affiliates, (ii) a Defaulting Lender or (iii) a natural person.
(ii)(ii) Assignments shall be subject to the following additional conditions:
(A) (C) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’sLender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000, and increments of $1,000,000 in excess thereof or, unless each of the U.S. Parent Borrower and the applicable Administrative Agent otherwise consents (which consents shall not be unreasonably withheld or delayed), provided that no such consent of the U.S. Parent Borrower shall be required if a Default or an Event of Default under Section 10.1 or Section 10.5 has occurred and is continuing; provided, further, that contemporaneous assignments to a single assignee made by Affiliates of Lenders and related Approved Funds shall be aggregated for purposes of meeting the minimum assignment amount requirements stated above;
(A) (D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’sLender’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’sLender’s rights and obligations in respect of one Class of Commitments or Loans;
(A) (E) the parties to each assignment shall execute and deliver to the applicable Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee in the amount of $3,500; provided that an Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment;
(A) (F) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire in a form approved by the Administrative Agent (the “Administrative Questionnaire”); and
 
-154-

(A) (G) no assignment shall be effective unless and until such assignment is recorded in the Register.
(iii)(iii) Subject to acceptance and recording thereof pursuant to clause (b)(iv) of this Section 12.6, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’sLender’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 2.10, 2.11, 4.5 and 12.5); provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’sLender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 12.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (c) of this Section 12.6.
(iv)(iv) Each Administrative Agent, acting for this purpose as an agent of the applicable Borrowers, shall maintain at the Administrative Agent’sAgent’s Office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal and interest amounts of the Loans and fees owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). Further, each Register shall contain the name and address of the applicable Administrative Agent and the lending office through which each such Person acts under this Agreement. The entries in the Register shall be conclusive absent manifest error, and the Borrowers, each Administrative Agent, the Collateral 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 Borrowers, the Collateral Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v)(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’sassignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in clause (b) of this Section 12.6 and any written consent to such assignment required by clause (b) of this Section 12.6, the applicable Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register.
(a) (i) (c)(i) Any Lender may, without the consent of any Borrower or any Administrative Agent, sell participations to one or more banks or other entities (each, a “Participant”) in all or a portion of such Lender’sLender’s rights and obligations under this Agreement (including all or a portion of its Commitments), provided that (A) such Lender’sLender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’sLender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document, provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in clause (i) of the proviso to Section 12.1 that affects such Participant. Subject to clause (c)(ii) of this Section 12.6, the Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.10, 2.11 and 4.5 (subject to the requirements and limitations of those Sections) and had acquired its interest by assignment pursuant to clause (b) of this Section 12.6. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.8(b) (subject to the requirements and limitations of the Section). Each Lender that sells participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal and interest amount of each Participant’sParticipant’s interest in the Revolving Loans held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such Revolving Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary.
 
-155-

(ii)(ii) A Participant shall not be entitled to receive any greater payment under Section 2.10, 2.11 or 4.5 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant except to the extent that the entitlement to any greater payment results from any Change in Law after the Participant becomes a Participant, unless the sale of the participation to such Participant is made with the Borrowers’’ prior written consent (which consent shall not be unreasonably withheld).
(a) (d) Any Lender may, without the consent of any Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other “central” bank, and this Section 12.6 shall not apply to any such pledge or assignment of a security interest, provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. In order to facilitate such pledge or assignment, the Borrowers hereby agree that, upon request of any Lender at any time and from time to time after any Borrower has made its initial borrowing hereunder, each Borrower shall provide to such Lender, at such Borrower’sBorrower’s own expense, a promissory note, in form reasonably satisfactory to the Administrative Agent and the U.S. Parent Borrower, evidencing the Loans owing to such Lender.
(a) (e) If the Borrowers wish to replace all of the Loans or Commitments hereunder with ones having different terms, they shall have the option, with the consent of the Administrative Agents and subject to any required prepayment notice to the Lenders, instead of prepaying the Loans or reducing or terminating the Commitments, to require the Lenders to assign all of the Loans and Commitments to the applicable Administrative Agent or its designees. Pursuant to any such assignment, all Loans and Commitments shall be purchased at par, accompanied by payment of any accrued interest thereon and any amounts owing pursuant to Section 2.11. By receiving such purchase price, the Lenders shall automatically be deemed to have assigned all of the Loans and Commitments pursuant to the terms of an Assignment and Acceptance, and accordingly no other action by such Lenders shall be required in connection therewith. The provisions of this paragraph are intended to facilitate the maintenance of the perfection and priority of existing security interests in the Collateral during any such replacement.
(a) (f) Subject to Section 12.16, the Borrowers authorize each Lender to disclose to any Transferee and any prospective Transferee any and all financial information in such Lender’sLender’s possession concerning a Borrower and its Affiliates that has been delivered to such Lender by or on behalf of such Borrower and its Affiliates pursuant to this Agreement or that has been delivered to such Lender by or on behalf of such Borrower and its Affiliates in connection with such Lender’sLender’s credit evaluation of such Borrower and its Affiliates prior to becoming a party to this Agreement.
(a) (g) The words “execution,” “signed,” “signature” and words of like import in any Assignment and Acceptance shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(a) (h) The Canadian Administrative Agent, the Canadian Letter of Credit Issuer, the Canadian Swingline Lenders and the Canadian Revolving Lenders each represent and warrant that it is a Qualified Canadian Lender as of the Restatement Effective Date (it being understood and agreed that, notwithstanding the foregoing, HSBC Bank USA, National Association shall constitute a Canadian Revolving Lender hereunder and it is not resident in Canada and is not deemed to be resident in Canada for purposes of the Income Tax Act (Canada) and deals at arm’s length with each Canadian Loan Party for purposes of the Income Tax Act (Canada)).
(a) (A) (i)(A) Where at any time an interest (including a participation) in a Canadian Obligation becomes held by a Lender or other Person that is not a Qualified Canadian Lender including, for the avoidance of doubt, by reason of the holder of any interest or participation in a Canadian Obligation ceasing to be a Qualified Canadian Lender, the Canadian Administrative Agent shall forthwith deliver to the Canadian Borrower a notice in writing stating that an interest in such Canadian Obligation is held by a Person that is not a Qualified Canadian Lender and the jurisdiction of residence for tax purposes of such Lender. Such notice shall be delivered to the Canadian Borrower no later than 5 Business Days prior to the date on which the Canadian Borrower is first obligated to make a payment in respect of the Canadian Obligation for the benefit of a Person who is not a Qualified Canadian Lender.
 
-156-

(B)(B) Where at any time the interest (including a participation) of a Lender or Person described in Section 12.6(b)(i)(A) changes, the Canadian Administrative Agent shall forthwith deliver to the Canadian Borrower an additional notice in writing stating whether an interest in such Canadian Obligation is held by a Person that is not a Qualified Canadian Lender and the jurisdiction of residence for tax purposes of such Lender. Such notice shall be delivered to the Canadian Borrower no later than 5 Business Days prior to the date on which the Canadian Borrower is first obligated to make a payment in respect of the Canadian Obligation for the benefit of a Person who is not a Qualified Canadian Lender.
(a) (j) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrowers and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Letter of Credit Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its applicable percentage of the Revolving Commitments of the applicable class. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
1.1.12.7. Replacements of Lenders Under Certain Circumstances. (a)(a) The Borrowers shall be permitted to replace any Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.10 or 4.5, (b) is affected in the manner described in Section 2.10(a)(iv) and as a result thereof any of the actions described in such Section is required to be taken or (c) becomes a Defaulting Lender, with a replacement bank or other financial institution, provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be continuing at the time of such replacement, (iii) the Borrowers shall repay (or the replacement bank or institution shall purchase, at par) all Loans and other amounts (other than any disputed amounts), pursuant to Section 2.10, 2.11 or 4.5, as the case may be) owing to such replaced Lender prior to the date of replacement, (iv) the replacement bank or institution, if not already a Lender, and the terms and conditions of such replacement, shall be reasonably satisfactory to the Administrative Agent, (v) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 12.6 (provided that the applicable Borrowers shall be obligated to pay the registration and processing fee referred to therein) and (vi) any such replacement shall not be deemed to be a waiver of any rights that the Borrowers, any Administrative Agent or any other Lender shall have against the replaced Lender.
(a) (b) If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, discharge or termination that pursuant to the terms of Section 12.1 requires the consent of all of the Lenders affected and with respect to which the Required Lenders shall have granted their consent, then provided no Event of Default then exists, the Borrowers 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 Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent, provided that: (a) all Obligations of the Borrowers due and payable to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment, and (b) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon. In connection with any such assignment, the Borrowers, the Administrative Agents, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 12.6;
 
-157-

provided that the failure by such Non-Consenting Lender to execute and deliver an Assignment and Acceptance shall not impair the validity of the removal of such Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’sLender’s Commitments and outstanding Loans and participations in L/C Obligations and Swingline Loans pursuant to this Section 12.7 shall nevertheless be effective without the execution by such Non-Consenting Lender of an Assignment and Acceptance and shall be recorded in the Register.
1.1.12.8. Adjustments; Set-off.
(a) (a) If any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of its Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 10.5, or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender’sLender’s Loans, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of each such other Lender’sLender’s Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest; provided, further, that with respect to any amount received from (i) any Foreign Subsidiary (or any Subsidiary of a Foreign Subsidiary) (other than a Non-Borrowing Base Foreign Guarantor) that would otherwise be subject to the foregoing provisions of this Section 12.8, such Lender shall only purchase participations in Canadian Obligations or (ii) the U.S. Parent Borrower or any Subsidiary that is not a Foreign Subsidiary (or a Subsidiary of a Foreign Subsidiary) (other than a Non-Borrowing Base Foreign Guarantor) that would otherwise be subject to the foregoing provisions of this Section 12.8, such Lender shall only purchase participations in U.S. Obligations.
(a) (b) After the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to any Borrower, any such notice being expressly waived by each Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by any Borrower hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of such Borrower; provided that the amount received by any Lender from any Excluded U.S. Subsidiary or a Foreign Subsidiary (other than a Non-Borrowing Base Foreign Guarantor) as a result of this Section 12.8(b) may only be applied to the Canadian Obligations. Each Lender agrees promptly to notify such Borrower (and the U.S. Parent Borrower, if other) and the Administrative Agent after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application; provided, further, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.18 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the Letter of Credit Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Letter of Credit Issuer or their respective Affiliates may have. Each Lender and the Letter of Credit Issuer agrees to notify the Borrowers and 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.
1.1.12.9. Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrowers and the Administrative Agent.
 
-158-

1.1.12.10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
1.1.12.11. Integration. This Agreement and the other Loan Documents represent the agreement of the Borrowers, the Collateral Agent, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by any Borrower, the Administrative Agent, the Collateral Agent nor any Lender relative to subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
1.1.12.12. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT IF THE LAWS OF ANY JURISDICTION OTHER THAN NEW YORK SHALL GOVERN IN REGARD TO THE VALIDITY, PERFECTION OR EFFECT OF PERFECTION OF ANY LIEN OR IN REGARD TO PROCEDURAL MATTERS AFFECTING ENFORCEMENT OF ANY LIENS IN COLLATERAL, SUCH LAWS OF SUCH OTHER JURISDICTIONS SHALL CONTINUE TO APPLY TO THAT EXTENT.
1.1.12.13. Submission to Jurisdiction; Waivers. Each Borrower irrevocably and unconditionally:
(a)(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party (other than the Dutch Security Documents), or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York and appellate courts from any thereof; provided that nothing in this Agreement or in any other Loan Document shall affect any right that any Agent, any Lender or any Letter of Credit Issuer may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Borrower or any other Loan Party or their respective properties in the courts of any jurisdiction;
(b)(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c)(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person at its address set forth on Schedule 12.2 to this Agreement at such other address of which the Administrative Agent shall have been notified pursuant to Section 12.2 to this Agreement;
(d)(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
(e)(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 12.13 any special, exemplary, punitive or consequential damages; and
(f) acknowledges and accepts that, if a party is represented by an attorney in connection with the signing and/or execution of this Agreement or any other agreement, deed or document referred to in this Agreement or made pursuant to this Agreement, and the power of attorney is governed by the laws of the Netherlands, that the existence and extent of the attorney’s authority and the effects of the attorney’s exercise or purported exercise of its authority shall be governed by the laws of the Netherlands.
 
-159-

The Loan Parties designate the U.S. Parent Borrower as process agent (the “Process Agent”). Service may be made by mailing (by registered or certified mail, postage prepaid) or delivering a copy of such process to such Person in care of the Process Agent at the Process Agent’sAgent’s above address, and such Person hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, each Borrower irrevocably consents to the service of any and all process in any such action or proceeding by the mailing (by registered or certified mail, postage prepaid) of copies of such process to the Process Agent or such Person at its address specified in Section 12.2. Each Borrower 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.
1.1.12.14. Acknowledgments. The Borrowers hereby acknowledge that:
(a)(a) they have been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents;
(b)(b) neither any Agent nor any Other Representative or Lender has any fiduciary relationship with or duty to the Borrowers arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Agents, Other Representatives and Lenders, on the one hand, and the U.S. Parent Borrower, on the other hand, in connection herewith or therewith is solely that of creditor and debtor;
(c)(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby and thereby among the Lenders or among the Borrowers and the Lenders; and
(d)(d) the Agents, the Other Representatives, the Lenders, and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers and their respective Affiliates, and none of the Agents, Other Representatives or the Lenders has any obligation to disclose any of such interests to the Borrowers or their respective Affiliates
1.1.12.15. WAIVERS OF JURY TRIAL. EACH BORROWER, EACH AGENT AND EACH LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
1.1.12.16. Confidentiality. Each Agent, each Letter of Credit Issuer and each Lender agrees to keep confidential any information (a) provided to it by or on behalf of the U.S. Parent Borrower or any of its Subsidiaries pursuant to or in connection with the Loan Documents or (b) obtained by such Lender based on a review of the books and records of the U.S. Parent Borrower or any of its Subsidiaries; provided that nothing herein shall prevent any Agent, Lender or Letter of Credit Issuer from disclosing any such information (i) to any Agent, any Other Representative, any Letter of Credit Issuer or any other Lender, (ii) to any Transferee, or prospective Transferee or any creditor or any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the U.S. Parent Borrower and its obligations which agrees to comply with the provisions of this Section 11.1612.16 pursuant to a written instrument (or electronically recorded agreement from any Person listed above in this clause (ii), in respect to any electronic information (whether posted or otherwise distributed on any Platform)) for the benefit of the U.S. Parent Borrower (it being understood that each relevant Agent, Lender or Letter of Credit Issuer shall be solely responsible for obtaining such instrument (or such electronically recorded agreement)), (iii) to its Affiliates and the employees, officers, partners, directors, agents, attorneys, accountants and other professional advisors of it and its Affiliates, provided that such Agent, Lender or Letter of Credit Issuer shall inform each such Person of the agreement under this Section 12.16 and take reasonable actions to cause compliance by any such Person referred to in this clause (iii) with this agreement (including, where appropriate, to cause any such Person to acknowledge its agreement to be bound by the agreement under this Section 12.16), (iv) upon the request or demand of any Governmental Authority having jurisdiction over such Agent, Letter of Credit Issuer or Lender or its affiliates or to the extent required in response to any order of any court or other Governmental Authority or as shall otherwise be required pursuant to any Requirement of Law, provided that, other than with respect to any disclosure to any bank regulatory authority, such Agent, Letter of Credit Issuer or Lender shall, unless
 
-160-

prohibited by any Requirement of Law, notify the U.S. Parent Borrower of any disclosure pursuant to this clause (iv) as far in advance as is reasonably practicable under such circumstances, (v) which has been publicly disclosed other than in breach of this Agreement, (vi) in connection with the exercise of any remedy hereunder, under any Loan Document or under any Secured Cash Management Agreement or Secured Hedge Agreement, (vii) in connection with periodic regulatory examinations and reviews conducted by the National Association of Insurance Commissioners or any Governmental Authority having jurisdiction over such Agent, Letter of Credit Issuer or Lender or its affiliates (to the extent applicable), (viii) in connection with any litigation to which such Agent, Letter of Credit Issuer or Lender (or, with respect to any Secured Cash Management Agreement or Secured Hedge Agreement, any Secured Party party thereto) may be a party subject to the proviso in clause (iv) above, (ix) with U.S. Parent Borrower’sBorrower’s consent and (x) if, prior to such information having been so provided or obtained, such information was already in an Agent’sAgent’s , Letter of Credit Issuer’s or a Lender’sIssuer’s or a Lender’s possession on a non-confidential basis without a duty of confidentiality to the U.S. Parent Borrower being violated. Notwithstanding any other provision of this Agreement, any other Loan Document or any Assignment and Acceptance, the provisions of this Section 12.16 shall survive with respect to each Agent, Letter of Credit Issuer and Lender until the second anniversary of such Agent or Lender ceasing to be an Agent, Letter of Credit Issuer or a Lender, respectively. In addition, the Administrative Agent may provide information regarding the Facilities to serve providers providing administrative and ministerial services solely in connection with the syndication and administration of the Facilities on a confidential basis; provided that, except with respect to information which has been publicly disclosed other than in breach of this Agreement, the Administrative Agent shall inform each such Person of the agreement under this Section 12.16 and take reasonable actions to cause compliance by any such Person with this agreement (including, where appropriate, to cause any such Person to acknowledge its agreement to be bound by the agreement under this Section 12.16). In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.
(a) (a) Each Lender acknowledges that any such information referred to in Section 12.16(a), and any information (including requests for waivers and amendments) furnished by the U.S. Parent Borrower or the Administrative Agent pursuant to or in connection with this Agreement and the other Loan Documents, may include material non-public information concerning the U.S. Parent Borrower, the other Loan Parties and their respective Affiliates or their respective securities. Each Lender represents and confirms that such Lender has developed compliance procedures regarding the use of material non-public information; that such Lender will handle such material non-public information in accordance with those procedures and applicable law, including United States federal and state securities laws; and that such Lender has identified to the Administrative Agent a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and applicable law.
1.1.12.17. Direct Website Communications.
(a) (a) Any Borrower may, at its option, provide to the Administrative Agent any information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (A) relates to a request for a new, or a conversion of an existing, borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (B) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (C) provides notice of any default or event of default under this Agreement or (D) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit thereunder (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to the Administrative Agent to the Administrative Agent at https://clients.bankofamericabusinesscapital.com. Nothing in this Section 12.17 shall prejudice the right of the Borrowers, the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
 
-161-

(a) (b) The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (A) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’sLender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (B) that the foregoing notice may be sent to such e-mail address.
(a) (c) The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the other Agents will make available to the Lenders materials and/or information provided by or on behalf of the Borrowers 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 Borrowers or their securities) (each, a “Public Lender”). Each of the Borrowers hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that do not contain any material non-public information and that may be distributed to the Public Lenders and that (x) 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 and (y) by marking Borrower Materials “PUBLIC,” such Borrower shall be deemed to have authorized the Administrative Agent and the other Agents to make such Borrower Materials available through a portion of the Platform designated “Public Investor.” Notwithstanding the foregoing or any other provision of this Agreement to the contrary, neither any Borrower nor any of its Related Parties shall be liable, or responsible in any manner, for the use by any Agent, any Lender, any Participant or any of their Related Parties of the Borrower Materials. In addition, it is agreed that (i) to the extent any Borrower Materials constitute confidential information, they shall be subject to the confidentiality provisions of Section 12.16 and (ii) the Borrowers shall be under no obligation to designate any Borrower Materials as “PUBLIC.”
(a) (d) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) 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 ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties” and each, an “Agent Party”) have any liability to any Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Borrower’sBorrower’s or the Administrative Agent’sAgent’s transmission of Borrower Materials through the internet, except to the extent the liability of any Agent Party resulted from such Agent Party’sParty’s (or any of its Related Parties’’) gross negligence, bad faith or willful misconduct or material breach of the Loan Documents.
1.1.12.18. USA PATRIOT Act. Each Lender hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and all applicable amendments thereto (the “Patriot Act”) and the Proceeds of Crime Act, it is required to obtain, verify and record information that identifies each Borrower, which information includes, but is not limited to, the name and address of the Borrowers and other information that will allow such Lender to identify the Borrowers in accordance with the Patriot Act and the Proceeds of Crime Act.
Each Loan Party acknowledges that, pursuant to the Patriot Act and other applicable anti-money laundering, anti-terrorist financing, government sanction and “know your client” laws (collectively, including any guidelines or orders thereunder, “AML Legislation”), the Lenders may be required to obtain, verify and record information regarding the Loan Parties and their respective directors, authorized signing offers, direct or indirect shareholders or other Persons in control of the Loan Parties, and the transactions contemplated hereby. Each Loan Party shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Lender or any prospective assignee or participant of a Lender, any Letter of Credit Issuer or any Agent, in order to comply with any applicable AML Legislation, whether now or hereafter in existence.
 
-162-

If the Administrative Agents have ascertained the identity of any Loan Party or any authorize signatories of the Parties for the purposes of applicable AML Legislation, then the Administrative Agents:
(i)(i) shall be deemed to have done so as an agent for each Lender, and this Agreement shall constitute a “written agreement” in such regard between each Lender and the applicable Administrative Agent within the meaning of the applicable AML Legislation; and
(i) (ii) shall provide to each Lender copies of all information obtained in such regard without any representation or warranty as to its accuracy or completeness.
Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of the Lenders agrees that neither the Administrative Agents nor any other Agent has any obligation to ascertain the identity of the Loan Parties or any authorized signatories of the Loan Parties on behalf of any Lender, or to confirm the completeness or accuracy of any information it obtains from any Loan Party or any such authorized signatory in doing so.
1.1.12.19. Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the each Borrower in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from any Borrower in the Agreement Currency, such 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 such Borrower (or to any other Person who may be entitled thereto under applicable law).
1.1.12.20. Intercreditor Agreement. The Loan Parties and the Secured Parties (to the extent a party hereto) acknowledge that the exercise of certain of the Collateral Agent’sAgent’s and the Administrative Agent’sAgent’s rights and remedies hereunder may be subject to, and restricted by, the provisions of the Intercreditor Agreement. Except as specified herein, nothing contained in the Intercreditor Agreement shall be deemed to modify any of the provisions of this Agreement and the other Loan Documents, which, as among the Loan Parties and the Secured Parties shall remain in full force and effect.
1.1.12.21. Joint and Several Liability of U.S. Borrowers. All Revolving Loans, Agent Advances and Swingline Loans, upon funding, shall be deemed to be jointly funded to and received by the U.S. Borrowers and all Letters of Credit, upon issuance, shall be deemed to be jointly issued for the account of each U.S. Borrower. Each U.S. Borrower is jointly and severally liable under this Agreement for all of the Obligations, regardless of the manner or amount in which proceeds of any Loans or under any Secured Hedge Agreement or Secured Cash Management Agreements are used, allocated, shared or disbursed by or among the Borrowers themselves, or the manner in which any Administrative Agent and/or any other Secured Party accounts for such Loans or other Obligations on its books and records. Each U.S. Borrower shall be liable for all amounts due to the Administrative Agents and/or any Lender from any Borrower under this Agreement, regardless of which Borrower actually receives Loans or other credit extensions hereunder or the amount of such Loans and credit extensions received or the manner in which the such Administrative Agent and/or such Lender accounts for such Loans or other credit extensions on its books and records. Each U.S. Borrower’sBorrower’s Obligations with respect to Loans and other credit extensions made to it, and such U.S. Borrower’sBorrower’s Obligations arising as a result of the joint and several liability of such U.S. Borrower hereunder with respect to Loans made to the other Borrowers hereunder shall be separate and distinct obligations, but all such Obligations shall be primary obligations of such Borrower.
 
-163-

The Borrowers acknowledge and expressly agree with the Administrative Agents and each Lender that the joint and several liability of each U.S. Borrower is required solely as a condition to, and is given solely as inducement for and in consideration of, credit or accommodations extended or to be extended under the Loan Documents to any or all of the other Borrowers and is not required or given as a condition of credit extensions to such U.S. Borrower. Each U.S. Borrower’sBorrower’s Obligations under this Agreement shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the release of any other U.S. Borrower pursuant to Section 12.1 or the validity or enforceability, avoidance, or subordination of the Obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the Obligations of any other Borrower, (ii) the absence of any attempt to collect the Obligations from any other Borrower, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance, or granting of any indulgence by an Agent and/or any Lender with respect to any provision of any instrument evidencing the Obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to an Agent and/or any Lender, (iv) the failure by an Agent and/or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of any other Borrower, (v) an Agent’sAgent’s and/or any Lender’sLender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of an Agent’sAgent’s and/or any Lender’sLender’s claim(s) for the repayment of the Obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to any U.S. Borrower’sBorrower’s Obligations arising as a result of the joint and several liability of the U.S. Borrowers hereunder with respect to Loans or other credit extensions made to any of the other Borrowers hereunder, such U.S. Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender. Upon any Event of Default, the Agents may proceed directly and at once, without notice, against any U.S. Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each U.S. Borrower consents and agrees that the Agents shall be under no obligation to marshal any assets in favor of any U.S. Borrower or against or in payment of any or all of the Obligations. Notwithstanding anything to the contrary in the foregoing, none of the foregoing provisions of this Section 12.21 shall apply to any Person released from its Obligations as a U.S. Subsidiary Borrower in accordance with Section 12.1.
1.1.12.22. Contribution and Indemnification Among the U.S. Borrowers. Each U.S. Borrower is obligated to repay the Obligations as a joint and several obligor under this Agreement. To the extent that any U.S. Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another U.S. Borrower hereunder or other Obligations incurred directly and primarily by any other U.S. Borrower (an “Accommodation Payment”), then the U.S. Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other U.S. Borrowers in an amount, for each of such other U.S. Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other U.S. Borrower’sBorrower’s Allocable Amount (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the U.S. Borrowers. As of any date of determination, the “Allocable Amount” of each U.S. Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such U.S. Borrower hereunder without (a) rendering such U.S. Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such U.S. Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such U.S. Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification, and reimbursement under this Section shall be subordinate in right of payment to the prior payment in full of the Obligations. The provisions of this Section shall, to the extent expressly inconsistent with any provision in any Loan Document, supersede such inconsistent provision.
 
-164-

1.1.12.23. Agency of the U.S. Parent Borrower for Each Other U.S. Borrower. Each of the U.S. Subsidiary Borrowers irrevocably appoints the U.S. Parent Borrower as its agent for all purposes relevant to this Agreement, including the giving and receipt of notices and execution and delivery of all documents, instruments, and certificates contemplated herein (including, without limitation, execution and delivery to the Administrative Agents of Borrowing Base Certificates and Notices of Borrowing) and all modifications hereto. Any acknowledgment, consent, direction, certification, or other action which might otherwise be valid or effective only if given or taken by all or any of the U.S. Borrowers or acting singly, shall be valid and effective if given or taken only by the U.S. Parent Borrower, whether or not any of the other Borrowers join therein, and the Administrative Agents and the Lenders shall have no duty or obligation to make further inquiry with respect to the authority of the U.S. Parent Borrower under this Section 12.23; provided that nothing in this Section 12.23 shall limit the effectiveness of, or the right of the Agents and the Lenders to rely upon, any notice (including without limitation a Notice of Borrowing), document, instrument, certificate, acknowledgment, consent, direction, certification or other action delivered by any Borrower pursuant to this Agreement.
1.1.12.24. Express Waivers by U.S. Borrowers in Respect of Cross-Guaranties and Cross-Collateralization. Each U.S. Borrower agrees as follows:
(a)(a) Each U.S. Borrower hereby waives: (i) notice of acceptance of this Agreement; (ii) notice of the making of any Loans, the issuance of any Letter of Credit or any other financial accommodations made or extended under the Loan Documents or the creation or existence of any Obligations; (iii) notice of the amount of the Obligations, subject, however, to such U.S. Borrower’sBorrower’s right to make inquiry of the U.S. Administrative Agent to ascertain the amount of the Obligations at any reasonable time; (iv) notice of any adverse change in the financial condition of any other Borrower or of any other fact that might increase such U.S. Borrower’sBorrower’s risk with respect to such other Borrower under the Loan Documents; (v) notice of presentment for payment, demand, protest, and notice thereof as to any promissory notes or other instruments among the Loan Documents; and (vi) all other notices (except if such notice is specifically required to be given to such U.S. Borrower hereunder or under any of the other Loan Documents to which such U.S. Borrower is a party) and demands to which such U.S. Borrower might otherwise be entitled.
(b)(b) Each U.S. Borrower hereby waives the right by statute or otherwise to require an Agent or any Lender to institute suit against any other U.S. Borrower or to exhaust any rights and remedies which an Agent or any Lender has or may have against any other U.S. Borrower. Each U.S. Borrower further waives any defense arising by reason of any disability or other defense of any other U.S. Borrower (other than the defense of payment in full) or by reason of the cessation from any cause whatsoever of the liability of any such U.S. Borrower in respect thereof.
(c)(c) Each U.S. Borrower hereby waives and agrees not to assert against any Agent, any Lender, or any Letter of Credit Issuer: (i) any defense (legal or equitable) other than a defense of payment, set-off, counterclaim, or claim which such U.S. Borrower may now or at any time hereafter have against any other Borrower or any other party liable under the Loan Documents; (ii) any defense, set-off, counterclaim, or claim of any kind or nature available to any other Borrower (other than a defense of payment) against any Agent, any Lender, or any Letter of Credit Issuer, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any security therefor; (iii) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Agent, any Lender, or any Letter of Credit Issuer under any applicable law; (iv) the benefit of any statute of limitations affecting any other Borrower’sBorrower’s liability hereunder.
(d)(d) Each U.S. Borrower consents and agrees that, without notice to or by such U.S. Borrower and without affecting or impairing the obligations of such Borrower hereunder, the Agents may (subject to any requirement for consent of any of the Lenders to the extent required by this Agreement), by action or inaction: (i) compromise, settle, extend the duration or the time for the payment of, or discharge the performance of, or may refuse to or otherwise not enforce the Loan Documents; (ii) release all or any one or more parties to any one or more of the Loan Documents or grant other indulgences to any other Borrower in respect thereof; (iii) amend or modify in any manner and at any time (or from time to time) any of the Loan Documents; or (iv) release or substitute any Person liable for payment of the Obligations, or enforce, exchange, release, or waive any security for the Obligations.
 
-165-

(e)(e) Each U.S. Borrower represents and warrants to the Agents and the Lenders that such Borrower is currently informed of the financial condition of all other Borrowers and all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each U.S. Borrower further represents and warrants that such Borrower has read and understands the terms and conditions of the Loan Documents. Each U.S. Borrower agrees that neither the Agents, any Lender, nor any Letter of Credit Issuer has any responsibility to inform any U.S. Borrower of the financial condition of any other Borrower or of any other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.
1.1.12.25. Canadian Borrower’sBorrower’s Obligations Several and Not Joint. The Canadian Borrower will not have any obligations with respect to U.S. Obligations.
1.1.12.26. Eligible Contract Participants. Notwithstanding any provision hereof or in any other Loan Document to the contrary, in the event that any Canadian Guarantor is not an “eligible contract participant” as such term is defined in Section 1(a)(18) of the Commodity Exchange Act, as amended, at the time (i) any transaction is entered into under a Hedge Agreement or (ii) such Canadian Guarantor becomes a Loan Party hereunder, the Canadian Obligations of such Canadian Guarantor shall not include, only to the extent and for so long as the Canadian Obligations of such Canadian Guarantor shall be prohibited from including such transactions under the Commodity Exchange Act, (x) in the case of clause (i) above, such transaction and (y) in the case of clause (ii) above, any transactions outstanding under any Hedge Agreements as of the date such Canadian Guarantor becomes a Canadian Guarantor hereunder.
1.1.12.27. Keepwell. The U.S. Parent Borrower hereby absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such the U.S. Parent Borrower’sBorrower’s obligations and undertakings under this Section 12.27 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount) and without limitation of the foregoing, the U.S. Parent Borrower hereby absolutely, unconditionally and irrevocably guarantees the payment and performance by each Specified Loan Party of its obligations under the Loan Documents with respect to all Swap Obligations. The obligations and undertakings of the U.S. Parent Borrower under this Section 12.27 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. The U.S. Parent Borrower intends this Section 12.27 to constitute, and this Section 12.27 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
1.1.12.28. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(b)(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) (i) a reduction in full or in part or cancellation of any such liability;
 
-166-

(i) (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(i) (iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
12.29. Notification of Dutch Pledge over Intercompany Receivables. The Collateral Agent hereby notifies each Loan Party of the pledge created by Univar Netherlands Holding B.V. (the “Pledgor”), pursuant to the Dutch Security Agreement, over all present and future rights of the Pledgor against any Loan Party “Intercompany Receivables”). Each Loan Party is deemed to acknowledge and confirm (i) that it has received notification of the pledge in favor of the Collateral Agent over the Intercompany Receivables owed by it to the Pledgor, and (ii) it consents to the pledge over the Intercompany Receivables it owes from time to time to the Pledgor.
12.30. Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 12.30, the following terms have the following meanings:
“ BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“ Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“ Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D)
 
-167-

[Signature Pages Intentionally Omitted]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.

UNIVAR INC., as U.S. Parent Borrower	

By:	 		
	 	 	
	 	Name:	
	 	Title:	
	
[U.S. SUBSIDIARY BORROWERS], as U.S. Subsidiary Borrowers	
		
By:	 		
	 	 	
	 	Name:	
	 	Title:	
	
UNIVAR CANADA LTD., as Canadian Borrower	
By:	 		
	 	 	
	 	Name:	
	 	Title:	
	
BANK OF AMERICA, N.A., as U.S. Administrative Agent, Collateral Agent and as a Letter of Credit Issuer	
By:	 		
	 	 	
	 	Name:	
	 	Title:	
	
BANK OF AMERICA, as Canadian Administrative Agent and as a Letter of Credit Issuer	
By:	 		
	 	 	
	 	Name:	
	 	Title:	

S-3

			
[LENDER NAMES], as a Lender	
		
By:	 		
	 	 	
	 	Name:	
	 	Title:	
 
S-2

Exhibit 99.1

 
PRESS RELEASE	  		
	  	 
FOR ADDITIONAL INFORMATION:
Investor Relations
Heather Kos
+1 844-632-1060
IR@univar.com	
	  	 
Media Relations
Dwayne Roark
+1 331-777-6031
mediarelations@univar.com	
Univar Solutions Announces Closing of $500 Million Senior Notes and $400 Million Term Loan
Downers Grove, ILL., November 22, 2019—Univar Solutions Inc. (NYSE: UNVR) (“Univar Solutions” or the “Company”), a leading global chemical and ingredient distributor and provider of value-added services, announced today that its wholly-owned subsidiary, Univar Solutions USA Inc. (“Univar Solutions USA”), has closed an offering of $500.0 million of 5.125% senior notes due 2027 (the “Notes”) in a private offering. The sale of the Notes was completed on November 22, 2019. The Notes are senior unsecured obligations of Univar Solutions USA and are guaranteed by the Company and certain of its domestic subsidiaries.
The Company also entered into a new USD term loan B facility (the “Term B-5 Loan Facility”) in an amount of $400.0 million, which was incurred by Univar Solutions USA and Univar Netherlands Holding B.V. (“Univar Netherlands”), as co-borrowers. The new Term B-5 Loan Facility will exist in conjunction with the Company’s existing Term B-3 loan facility and Term B-4 loan facility (collectively with the Term B-5 Loan Facility, the “Senior Term Facilities”). The Senior Term Facilities are senior secured obligations of Univar Solutions USA and Univar Netherlands and are guaranteed by the Company and certain of its subsidiaries.
The Company further entered into the First Amendment to the Amended and Restated ABL Credit Agreement in connection with the incurrence of the new Term B-5 Loan Facility and the addition of Univar Netherlands as co-borrower.
The Company is using the net proceeds from the Notes offering, together with cash on hand and the proceeds of the borrowing under the new Term B-5 Loan Facility, to (i) redeem all of Univar Solutions USA’s 6.75% senior notes due 2023 (the “Existing Notes”), (ii) repay all the outstanding amount of the existing Euro term B-2 loan facility (the “Existing EUR Term Loan”), (iii) repay $100.0 million of the outstanding amount of the Company’s existing five year senior secured ABL credit facility (the “Existing US ABL Facility”) and (iv) pay any related fees and expenses incurred in connection with the foregoing. As of the date of the pricing of the Notes, the outstanding aggregate principal amount of the Existing Notes, the Existing EUR Term Loan and the Existing US ABL Facility was $400 million, €350 million and $236 million, respectively.
The Company expects to save over $20.0 million in annual pre-tax cash interest expense and foreign exchange hedging costs as a result of this debt refinancing transaction, which pays for the related one-time transaction costs in about a year. In addition, the new Term B-5 Loan Facility will mature in 2026, as compared to 2024 for the Existing EUR Term Loan and the Existing US ABL Facility, and the new Notes will mature in 2027, as compared to 2023 for the Existing Notes.

The Notes and related guarantees were offered only to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), or, outside the United States, to persons other than “U.S. persons” in compliance with Regulation S under the Securities Act. This press release does not constitute an offer to sell or the solicitation of an offer to buy the Notes and related guarantees. Any offers of the Notes and related guarantees were made only by means of a private offering memorandum. The Notes and related guarantees have not been registered under the Securities Act, or the securities laws of any other jurisdiction, and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
About Univar Solutions Inc.
Univar Solutions Inc. (NYSE: UNVR) is a leading global chemical and ingredient distributor and provider of value-added services to customers across a wide range of industries. With the industry’s largest private transportation fleet and North American sales force, a vast supplier network, deep market and regulatory knowledge, world-class formulation and recipe development, unparalleled logistics know-how, and industry-leading digital tools, Univar Solutions is a committed ally to customers and suppliers, helping them anticipate, navigate, and leverage meaningful growth opportunities.
Note Regarding Forward-Looking Statements
This press release includes “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements are subject to known and unknown risks and uncertainties, many of which may be beyond our control. We caution you that the forward-looking information presented in this press release is not a guarantee of future events, and that actual events may differ materially from those made in or suggested by the forward-looking information contained in this press release. In addition, forward-looking statements generally can be identified by the use of forward-looking terminology such as “may,” “plan,” “seek,” “comfortable with,” “will,” “expect,” “intend,” “estimate,” “anticipate,” “believe” or “continue” or the negative thereof or variations thereon or similar terminology. A discussion of other factors that could cause results to vary is included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, June 30, 2019 and September 30, 2019 and other reports filed with the Securities and Exchange Commission. Any forward-looking information presented herein is made only as of the date of this press release, and we do not undertake any obligation to update or revise any forward-looking information to reflect changes in assumptions, the occurrence of unanticipated events, or otherwise.
 
2