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): January 31, 2020

AMNEAL PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)

 
					
Delaware	 	001-38485	 	32-0546926	
(State or other jurisdiction
of incorporation)	 	(Commission
File Number)	 	(IRS Employer
Identification No.)	
400 Crossing Blvd
Bridgewater, NJ 08807
(Address of Principal Executive Offices)
(908) 947-3120
(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (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	
Class A Common Stock, par value $0.01 per share	 	AMRX	 	New York Stock Exchange	
Indicate by check mark whether the registrant is an emerging growth company as defined in 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.  ☐

 

Introductory Note
On January 31, 2020 (the “Closing Date”), Rondo Acquisition LLC (“Rondo”), a newly-formed Delaware limited liability company and wholly-owned subsidiary of Amneal Pharmaceuticals, Inc., a Delaware corporation (the “Company”), consummated the previously-announced acquisition pursuant to a definitive equity purchase agreement dated December 10, 2019 (the “Purchase Agreement”) of approximately 65% of AvKARE Inc., a Tennessee corporation (“AvKARE”), and Dixon-Shane, LLC d/b/a R&S Northeast LLC, a Kentucky limited liability company (“R&S Northeast” and together with AvKARE, the “Target”), for approximately $255 million, paid in cash at or in connection with the closing, including proceeds from the Facilities (as defined below) entered into at closing, as well as through the issuance of approximately $44.2 million in long-term promissory notes to the Target’s shareholders (the “Sellers Notes”) (the “Acquisition”). The Target was acquired and is held by Rondo through its ownership of Rondo Partners, LLC, a Delaware limited liability company (“Rondo Partners”), which is an indirect owner of the Target after consummation of the Acquisition.
The Sellers Notes issued at the closing of the Acquisition accrue interest at a rate of 5% per annum, not compounded, until June 30, 2025. The Sellers Notes are subject to prepayment at the option of the obligor, without premium or penalty, and mandatory payment commencing on June 30, 2025 and on June 30 of each calendar year thereafter if certain financial targets are achieved. Additionally, the Sellers Notes automatically become payable upon the earlier to occur of (x) a sale or change of control of the obligor or (y) January 31, 2030.
Pursuant to the terms of the Purchase Agreement, and contemporaneously with the consummation of certain of the transactions contemplated therein, the Company has (i) obtained senior secured first lien credit facilities in an aggregate principal amount of $210 million, as described in more detail below, and (ii) issued $44.2 million in Sellers Notes.
 
Item 1.01	Entry into a Material Definitive Agreement.	
The information provided in the Introductory Note of this Current Report on Form 8-K is incorporated by reference into this Item 1.01.
Operating Agreement
In connection with the consummation of the Acquisition, Rondo entered into an Amended and Restated Operating Agreement of Rondo Partners (the “Operating Agreement”) by and among Rondo, Rondo Partners and certain shareholders of the Target (the “Rollover Sellers”) that contributed cash received at the closing in exchange for ownership interests in Rondo Partners equal to approximately 35% in the aggregate. Rondo currently owns approximately 65% of the ownership interests in Rondo Partners. Rondo Partners is governed by a board of managers, comprised of three managers, two of which are designated by Rondo and one of which is designated by the Rollover Sellers. The Operating Agreement contains customary restrictive covenants applicable to the Rollover Sellers and provides the Rollover Seller with approval rights with respect to certain extraordinary matters.
Credit Agreement
Also on January 31, 2020, Rondo Intermediate Holdings, LLC, a Delaware limited liability company (the “Borrower”), and Rondo Holdings, LLC, a Delaware limited liability company (“Holdings”), both newly-formed subsidiaries of Rondo, entered into a Revolving Credit and Term Loan Agreement (the “Credit Agreement”) with several banks and other financial institutions and lenders from time to time party thereto (the “Lenders”) and Truist Bank, as the administrative agent for the Lenders (the “Administrative Agent”) and as issuing bank (the “Issuing Bank”). SunTrust Robinson Humphrey, Inc., BofA Securities, Inc., RBC Capital Markets and City National Bank are the joint lead arrangers.
The Credit Agreement provides for senior secured first lien credit facilities in an aggregate principal amount equal to $210 million (the “Facilities”) consisting of (i) a senior secured first lien revolving credit facility with commitments in an aggregate principal amount of $30 million (the “Revolving Commitment”) and (ii) a senior secured first lien term loan facility in an aggregate principal amount of $180 million (the “Term Loan Commitment”). Loans made

under either Facility may be either Base Rate Loans or Eurodollar Loans (each as defined in the Credit Agreement), at the election of the Borrower.
Interest Rate
Loans made at the Base Rate (as defined below) (each a “Base Rate Loan”) bear interest at a fluctuating rate per annum equal to the highest of (a) the rate of interest which the Administrative Agent announces from time to time as its prime lending rate, (b) the Federal Funds Rate plus 0.5% per annum, (c) the Adjusted LIBO Rate (as defined in the Credit Agreement) determined on a daily basis for an interest period of 1 month, plus 1.00% per annum, and (d) 0.00% per annum (the rate equal to the highest of these, the “Base Rate”) plus the Applicable Margin (as defined in the Credit Agreement).
Loans made at the Eurodollar Rate (as defined below) (each a “Eurodollar Rate Loan”) bear interest at a rate equal to (i) the LIBOR rate per annum on loans with a comparable maturity, divided by (ii) a percentage equal to 1.00% minus the then-stated maximum rate of all reserve requirements applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (the “Eurodollar Rate”) plus the Applicable Margin. If the LIBOR rate on loans with a comparable maturity is not available, Eurodollar Rates will instead bear interest at the rate per annum that is the average of such Eurodollar Rate Loans offered by the London interbank market to the Administrative Agent, divided by the percentage equal in clause (ii) above.
The Applicable Margin is determined on the basis of the Borrower’s Total Net Leverage Ratio (as defined in the Credit Agreement). If an Event of Default (as defined in the Credit Agreement) occurs under the Credit Agreement, the Lenders have the option of electing to increase the interest rate to a rate per annum equal to 200 basis points above the otherwise applicable interest rate for Eurodollar Loans or Base Rate Loans, as applicable (the “Default Rate”).
Fees
The daily unused portion of the Revolving Commitment is subject to an unused line fee ranging from 0.25% to 0.5% per annum, and letters of credit issued by the Issuing Bank carry a fee ranging from 2.25% to 3.25% per annum. Both such fees are determined on the basis of the Borrower’s Total Net Leverage Ratio. In addition, the Borrower also pays the Issuing Bank a fronting fee, which accrues at 0.25% per annum on the daily average amount of the Issuing Bank’s exposure related to (i) undrawn amounts on issued letters of credit and (ii) the aggregate amount of disbursements on issued letters of credit that have not been reimbursed by the Borrower. The Issuing Bank also charges its other standard fees in connection with the issuance of letters of credit. If the Lenders elect to increase the interest rate on any Loans to the Default Rate, the rate per annum used to calculate the letter of credit fee also increases by 200 basis points.
Amortization and Maturity
On the earlier of (i) January 31, 2025, and (ii) the date when the principal on all Term Loans becomes due and payable (the “Maturity Date”), the Borrower must pay the Lenders the entire outstanding principal amount under all Loans and any accrued and unpaid interest thereon. The Borrower must make quarterly payments of $2.25 million to the Administrative Agent on the principal amount of the Term Loans beginning with the fiscal quarter ending June 30, 2020.
The Borrower may prepay a borrowing made under either credit facility at any time, without premium or penalty. Prepayments may be made on Eurodollar Rate Loans upon three business days’ prior written notice to the Administrative Agent, and prepayments may be made on Base Rate Loans upon one business day’s prior written notice to the Administrative Agent. The Borrower may make partial prepayments of any loan only in amounts that would be permitted in the case of an advance of such Eurodollar Rate Loan or Base Rate Loan, as applicable.
Security Instruments
Pursuant to a Guaranty and Security Agreement, dated as of January 31, 2020 (the “Guaranty and Security Agreement”), by and among the Borrower, Holdings, AvKARE, R&S Northeast (together, the “Loan Parties”) and

the Administrative Agent, all of the Borrower’s obligations under the Credit Agreement are secured by a first-priority lien on and security interest in substantially all of the tangible and intangible assets of the Loan Parties, including intellectual property and all of the equity interests in the Borrower and the Target.
Representations, Warranties, Covenants and Events of Default
The Credit Agreement contains certain representations and warranties, affirmative covenants, negative covenants, financial covenants, and conditions that are customarily required for similar financings. The affirmative covenants, among other things, require the Borrower to undertake various reporting and notice requirements, maintain insurance, comply with all applicable laws and use the proceeds of all loans consistent with the manners contemplated by the Credit Agreement. The negative covenants restrict or limit the ability of the Borrower and its Subsidiaries to, among other things and subject to certain exceptions contained in the Credit Agreement, incur new indebtedness, create liens on assets, engage in certain fundamental corporate changes (such as certain mergers or acquisitions), or make certain Investments or Restricted Payments (each as defined in the Credit Agreement), engage in certain transactions with Affiliates (as defined in the Credit Agreement), and violate anti-corruption laws. In addition, the Borrower must, at all times prior to the Maturity Date and calculated as of the last day of each fiscal quarter, (i) maintain a Total Net Leverage Ratio of less than or equal to 4.50 to 1.00, and (ii) maintain an Interest Coverage Ratio (as defined in the Credit Agreement) of greater than or equal to 2.00 to 1.00.
The Credit Agreement also contains certain customary Events of Default (as defined in the Credit Agreement) which include, among others, non-payment of principal, interest, or fees, violation of covenants, inaccuracy of representations and warranties, bankruptcy and insolvency events, material judgments, events constituting a change of control and the cessation of any applicable intercreditor agreements between the Lenders and other creditors of the Borrower. The occurrence of an Event of Default may result in, among other things, the acceleration of the Borrower’s obligations under the Credit Agreement such that the outstanding principal and interest thereon is immediately due and payable in whole or in part, and/or the election of the Lenders to increase interest rates on all outstanding loans to the Default Rate.
Incremental Facilities
The Credit Agreement permits the Borrower to enter into an agreement with one or more Lenders to increase the aggregate Revolving Commitments and/or add one or more term loan facilities or to increase the aggregate amount of any existing term loans, so long as the aggregate principal amount of any such incremental facilities do not exceed the Incremental Cap (as defined in the Credit Agreement). Incremental increases to the aggregate Revolving Commitments may not exceed $20 million.
Other Related Matters
The foregoing descriptions of the Operating Agreement, the Credit Agreement, and the Guaranty and Security Agreement (together, the “Agreements”) are not complete and are qualified in their entirety by reference to the Loan Agreements, copies of each of which are filed as Exhibits 2.1, 2.2, and 2.3, respectively, to this Current Report on Form 8-K.
The representations, warranties, and covenants contained in the Agreements were made solely for purposes of such documents and as of specific dates, were made solely for the benefit of the parties to the applicable documents, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Agreements and such other documents instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to stockholders. The Company’s stockholders are not third-party beneficiaries under the Agreements and should not rely on the representations, warranties, and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company, the Borrower, Holdings, AvKARE, R&S Northeast or any other affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Agreements, which subsequent information may or may not be fully reflected in the Company’s public disclosure.

Item 2.01	Completion of Acquisition or Disposition of Assets.	
The information provided in the Introductory Note and Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
 
Item 2.03	Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.	
The information provided in the Introductory Note and Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
 
Item 9.01	Exhibits.	
(a) Financial Statements of Business Acquired
The Company intends to file financial statements of the business acquired for the periods specified in Rule 3-05(b) of Regulation S-X within the time period permitted by Item 9.01 of Form 8-K.
(b) Pro Forma Financial Information.
The Company intends to file the pro forma financial information required pursuant to Article 11 of Regulation S-X within the time period permitted by Item 9.01 of Form 8-K.
(d) Exhibits
See the Exhibit Index below, which is incorporated by reference herein.
EXHIBIT INDEX

	Exhibit No.	  	Description	
			
2.1	  	Amended and Restated Operating Agreement of Rondo Partners, LLC.		
			
2.2	  	Revolving Credit and Term Loan Agreement, dated as of January  31, 2020, by and among Rondo Intermediate Holdings and LLC and Rondo Holdings, LLC, the lenders from time to time party thereto, and Truist Bank, as Administrative Agent.		
			
2.3	  	Guaranty and Security Agreement, dated as of January 31, 2020, by and among Rondo Intermediate Holdings, LLC, and Rondo Holdings, LLC, AvKARE, R&S Northeast, and the Administrative Agent.		

SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

February 3, 2020	 	AMNEAL PHARMACEUTICALS, INC.	
			
	 	By:	 	/s/ Todd P. Branning	
	 		 	Name:	 	Todd P. Branning	
	 		 	Title:	 	Senior Vice President and Chief Financial Officer	

Exhibit 2.1
EXECUTION
AMENDED AND RESTATED OPERATING AGREEMENT
OF
RONDO PARTNERS, LLC
Dated as of January 31, 2020
THE UNITS EVIDENCED AND GOVERNED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS BY REASON OF THEIR ISSUANCE IN TRANSACTIONS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS. THE UNITS EVIDENCED AND GOVERNED BY THIS AGREEMENT MUST BE HELD INDEFINITELY UNLESS (A) A SUBSEQUENT DISPOSITION THEREOF IS REGISTERED UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS OR IS EXEMPT FROM REGISTRATION THEREUNDER AND (B) THE OTHER RESTRICTIONS ON TRANSFER OF SUCH MEMBERSHIP INTERESTS CONTAINED IN THIS AGREEMENT ARE COMPLIED WITH IN CONNECTION WITH SUCH SUBSEQUENT DISPOSITION.

CONTENTS

ARTICLE I. DEFINED TERMS	  	 	1	 	
			
Section 1.1	 	Definitions	  	 	1	 	
		
ARTICLE II. FORMATION AND TERM	  	 	2	 	
			
Section 2.1	 	Formation	  	 	2	 	
Section 2.2	 	Name	  	 	2	 	
Section 2.3	 	Term	  	 	2	 	
Section 2.4	 	Registered Office and Registered Agent	  	 	2	 	
Section 2.5	 	Principal Place of Business	  	 	2	 	
Section 2.6	 	Qualification in Other Jurisdictions	  	 	2	 	
		
ARTICLE III. PURPOSE, POWERS AND OPERATION OF THE COMPANY	  	 	2	 	
			
Section 3.1	 	Purpose	  	 	2	 	
Section 3.2	 	Powers of the Company	  	 	3	 	
Section 3.3	 	No State-Law Partnership	  	 	3	 	
		
ARTICLE IV. UNITS; CAPITAL CONTRIBUTIONS; CAPITAL CALLS; CAPITAL ACCOUNTS	  	 	3	 	
			
Section 4.1	 	Units.	  	 	3	 	
Section 4.2	 	Members and Capital Contributions	  	 	4	 	
Section 4.3	 	Member’s Interest	  	 	4	 	
Section 4.4	 	Status of Capital Contributions	  	 	4	 	
Section 4.5	 	Capital Accounts	  	 	5	 	
Section 4.6	 	Withdrawals and Returns of Capital	  	 	5	 	
Section 4.7	 	Advances	  	 	5	 	
Section 4.8	 	Creditors Not Benefited	  	 	5	 	
		
ARTICLE V. MEMBERS	  	 	5	 	
			
Section 5.1	 	Powers of Members	  	 	5	 	
Section 5.2	 	Limited Liability of Members	  	 	5	 	
Section 5.3	 	Waiver of Corporate Opportunity	  	 	6	 	
Section 5.4	 	Restrictive Covenants	  	 	6	 	
Section 5.5	 	Additional Members	  	 	9	 	
		
ARTICLE VI. BOARD OF MANAGERS; OFFICERS	  	 	9	 	
			
Section 6.1	 	General; Authority	  	 	9	 	
Section 6.2	 	Managers	  	 	9	 	
Section 6.3	 	Board Meetings	  	 	10	 	
Section 6.4	 	Voting	  	 	11	 	
 
i

							
Section 6.5	 	Officers	  	 	13	 	
		
ARTICLE VII. DISTRIBUTIONS	  	 	13	 	
			
Section 7.1	 	Distributions Generally	  	 	13	 	
Section 7.2	 	Distribution Allocations	  	 	14	 	
Section 7.3	 	Tax Distribution	  	 	14	 	
Section 7.4	 	Withholding	  	 	14	 	
Section 7.5	 	Distributions In-Kind	  	 	15	 	
		
ARTICLE VIII. ALLOCATIONS	  	 	15	 	
			
Section 8.1	 	Allocation of Net Income and Net Loss	  	 	15	 	
Section 8.2	 	Regulatory Allocations	  	 	15	 	
Section 8.3	 	Tax Allocations	  	 	16	 	
Section 8.4	 	Other Provisions	  	 	17	 	
Section 8.5	 	Binding Effect	  	 	17	 	
		
ARTICLE IX. ADMISSION OF AND WITHDRAWAL BY MEMBERS; TRANSFERS; CERTAIN RIGHTS OF MEMBERS	  	 	17	 	
			
Section 9.1	 	No Withdrawal of Members; Inactive Members	  	 	17	 	
Section 9.2	 	Transfers by Members	  	 	18	 	
Section 9.3	 	Preemptive Rights	  	 	20	 	
Section 9.4	 	Drag-Along Right	  	 	21	 	
Section 9.5	 	Tag-Along Rights	  	 	23	 	
Section 9.6	 	Class B Member Liquidity Right	  	 	24	 	
Section 9.7	 	Class B Common Units Call Right	  	 	26	 	
Section 9.8	 	Change of Control	  	 	26	 	
		
ARTICLE X. BOOKS AND RECORDS	  	 	27	 	
			
Section 10.1	 	Financial Information	  	 	27	 	
Section 10.2	 	Accounting Method	  	 	28	 	
		
ARTICLE XI. TAX MATTERS	  	 	28	 	
			
Section 11.1	 	Preparation of Tax Returns	  	 	28	 	
Section 11.2	 	Tax Matters	  	 	28	 	
Section 11.3	 	Taxation as Partnership	  	 	29	 	
		
ARTICLE XII. LIABILITY AND INDEMNIFICATION	  	 	29	 	
			
Section 12.1	 	Liability	  	 	29	 	
Section 12.2	 	Indemnification	  	 	30	 	
		
ARTICLE XIII. DISSOLUTION, LIQUIDATION AND TERMINATION	  	 	32	 	
			
Section 13.1	 	Dissolution	  	 	32	 	
 
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Section 13.2	 	Notice of Dissolution	  	 	32	 	
Section 13.3	 	Liquidation	  	 	32	 	
Section 13.4	 	Termination	  	 	33	 	
Section 13.5	 	Claims of the Members	  	 	33	 	
		
ARTICLE XIV. COVENANTS OF THE MEMBERS; CONFIDENTIALITY	  	 	33	 	
			
Section 14.1	 	Nondisclosure	  	 	33	 	
Section 14.2	 	Future Financing	  	 	34	 	
		
ARTICLE XV. MISCELLANEOUS	  	 	34	 	
			
Section 15.1	 	Amendments	  	 	34	 	
Section 15.2	 	Representations and Warranties of all Members	  	 	35	 	
Section 15.3	 	Notices	  	 	35	 	
Section 15.4	 	Failure to Pursue Remedies	  	 	36	 	
Section 15.5	 	Specific Enforcement	  	 	36	 	
Section 15.6	 	Cumulative Remedies	  	 	36	 	
Section 15.7	 	Binding Effect	  	 	36	 	
Section 15.8	 	Interpretation	  	 	37	 	
Section 15.9	 	Severability	  	 	37	 	
Section 15.10	 	Counterparts	  	 	37	 	
Section 15.11	 	Waiver	  	 	37	 	
Section 15.12	 	Further Assurances	  	 	37	 	
Section 15.13	 	Entire Agreement	  	 	37	 	
Section 15.14	 	Treatment for Tax Purposes	  	 	37	 	
Section 15.15	 	Governing Law	  	 	37	 	
Section 15.16	 	Section Titles	  	 	38	 	
Section 15.17	 	Assignment of Company’s Rights to Third Party Lender	  	 	38	 	
Section 15.18	 	Spousal Consent	  	 	38	 	
		
Schedule A	 	Units	 	
		
Exhibit A	 	Defined Terms	 	
		
Exhibit B	 	Joinder Agreement	 	
		
Exhibit C	 	Spousal Consent	 	

iii

AMENDED AND RESTATED OPERATING AGREEMENT
OF
RONDO PARTNERS, LLC
This Amended and Restated Operating Agreement of Rondo Partners, LLC, a Delaware limited liability company (the “Company”), is made as of January 31, 2020 (this “Agreement”), by and among the Company, Rondo Acquisition LLC, a Delaware limited liability company (“Amneal”), the Darren Thomas Shirley Business Trust (the “DTS Trust”), the Steve Shirley Business Trust (the “SS Trust” and, together with the DTS Trust, the “Rollover Sellers”), and each other Person who after the date hereof becomes a Member and a party to this Agreement by executing a Joinder Agreement.
WHEREAS, the Company was previously governed by the Operating Agreement of the Company, dated as of January 7, 2020 (the “Initial Agreement”);
WHEREAS, (i) the Company is the sole member of, and owner of all of the issued and outstanding equity interests in, Rondo Top Holdings, LLC, a Delaware limited liability company (“Rondo Top Holdings”), (ii) Rondo Top Holdings is the sole member of, and owner of all of the issued and outstanding equity interests in, Rondo Holdings, LLC, a Delaware limited liability company (“Rondo Holdings”), (iii) Rondo Holdings is the sole member of, and owner of all of the issued and outstanding equity interests in, Rondo Intermediate Holdings, LLC, a Delaware limited liability company (“Rondo Intermediate Holdings”), and (iv) Rondo Intermediate Holdings is the sole member of, and owner of all of the issued and outstanding equity interests in, Dixon-Shane, LLC d/b/a R&S Northeast LLC, a Kentucky limited liability company, and AvKARE, LLC, a Tennessee limited liability company (each, a “Company Entity” and together, the “Company Entities”);
WHEREAS, Amneal, the Company Entities, the Rollover Sellers and the other parties thereto previously entered into that certain Equity Purchase Agreement, dated as of December 10, 2019 (the “Purchase Agreement”), pursuant to which, among other things, Amneal agreed to purchase the Purchased Equity (as defined in the Purchase Agreement) upon the terms and subject to the conditions set forth in the Purchase Agreement; and
WHEREAS, the parties hereto desire to amend and restate the Initial Agreement in its entirety and enter into this Agreement in order to set forth their binding agreement as to the affairs of the Company, the conduct of its business and certain rights with respect to the relationship among the parties hereto.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I.
DEFINED TERMS
Section 1.1 Definitions. Unless the context otherwise requires, capitalized terms shall have the meanings ascribed to such terms on Exhibit A.
 
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ARTICLE II.
FORMATION AND TERM
Section 2.1 Formation. The Company was formed under the laws of the State of Delaware on January 7, 2020 as a Delaware limited liability company by the execution and filing of the Certificate with the Secretary of State of the State of Delaware under and pursuant to the Delaware Act. The Board of Managers shall cause to be executed all necessary certificates and documents, and shall make all such filings and recordings, and shall cause to be done all other acts as may be necessary or appropriate from time to time to comply with all requirements for the continued existence and operation of a limited liability company in the State of Delaware. The rights, powers, duties, obligations and liabilities of the Members (in their respective capacities as such) shall be determined pursuant to the Delaware Act and this Agreement. To the extent that the rights, powers, duties, obligations and liabilities of any Member (in such Member’s capacity as such) are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Delaware Act, control.
Section 2.2 Name. The name of the Company shall be “Rondo Partners, LLC”. The business of the Company may be conducted upon compliance with all applicable laws under any other name designated by the Board of Managers.
Section 2.3 Term. The term of the Company commenced on the date of the filing of the Certificate with the office of the Secretary of State of the State of Delaware and will continue until dissolution in accordance with Article XIII of this Agreement.
Section 2.4 Registered Office and Registered Agent. The Board of Managers shall designate a registered agent and office within the State of Delaware. At any time, the Board of Managers may designate an alternate registered office or registered agent.
Section 2.5 Principal Place of Business. The principal place of business of the Company shall be at such place as the Board of Managers may designate from time to time, which need not be in the State of Delaware, and the Company shall maintain its books and records at such principal place of business. The Company may have such other offices (within or without the State of Delaware) as the Board of Managers may designate from time to time.
Section 2.6 Qualification in Other Jurisdictions. The Company will be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business in which such qualification, formation or registration is required or desirable.
ARTICLE III.
PURPOSE, POWERS AND OPERATION OF THE COMPANY
Section 3.1 Purpose. The Company was formed to carry on any lawful business, purpose or activity as the Board of Managers may determine. The Company shall possess and may exercise all of the powers and privileges granted by the Delaware Act or by any other applicable law, together with any powers incidental thereto, which are necessary or convenient for
 
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the conduct, promotion or attainment of the business, purposes or activities of the Company. Notwithstanding anything herein to the contrary, nothing set forth herein shall be construed as authorizing the Company to possess any purpose or power, or to do any act or thing, forbidden by law to be done by a limited liability company formed under the laws of the State of Delaware.
Section 3.2 Powers of the Company. Subject to the provisions of this Agreement, (a) the Company was formed for the purpose of engaging in any activity permitted under applicable law, (b) the Company may, execute, deliver and perform any and all contracts and engage in all activities and transactions necessary or advisable to carry out the foregoing purpose, all without any further act, vote or approval of any Member, and (c) the Board of Managers may authorize any Person (including any Member or Officer) to execute, deliver and perform any contract and engage in all activities and transactions necessary or advisable to carry out the foregoing purpose on behalf of the Company.
Section 3.3 No State-Law Partnership. The Members intend that the Company shall not constitute or be treated as a partnership (including a limited partnership) or joint venture, and that no Member or Officer shall be a partner or joint venturer of any other Member or Officer, for any purposes other than federal, and if applicable, state and local income tax purposes, and this Agreement shall not be construed to the contrary. Notwithstanding the immediately preceding sentence, the Members intend that the Company shall be treated as a partnership for federal tax and, if applicable, state and local income tax purposes, and each Member and the Company shall file all tax returns, and otherwise take all tax and financial reporting positions, in a manner consistent with such treatment. Neither the Members nor the Company shall make any election under Treasury Regulations §301.7701-3, or any comparable provisions of state or local law, to treat the Company as an entity other than a partnership for federal tax or state or local income tax purposes.
ARTICLE IV.
UNITS; CAPITAL CONTRIBUTIONS; CAPITAL CALLS; CAPITAL ACCOUNTS
Section 4.1 Units.
(a) Classes. The Units may be divided into separate and distinct classes of Units in the Company (each, a “Class” of Units), each of which shall carry the rights, preferences, and privileges as set forth herein. The Company may issue Class A Common Units (the “Class A Common Units”) and Class B Common Units (the “Class B Common Units” and collectively with the Class A Common Units, the “Common Units”). The Class A Common Units shall initially be issued solely to Amneal and the Class B Common Units shall initially be issued solely to the Rollover Sellers. Each holder of Common Units shall be entitled to one vote per Common Unit on all matters presented to or requiring a vote of the Members.
(b) Additional Units. Subject to the terms of this Agreement, the Board of Managers may issue additional Units from time to time, which may be subject to such vesting schedules, if any, as the Board of Managers shall determine at the time of such issuance. Subject to the terms of this Agreement, the Company is authorized to issue restricted Units, Unit appreciation rights, phantom Units, and other securities convertible, exchangeable or exercisable
 
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for Units, on such terms as may be determined by the Board of Managers or a duly authorized committee thereof.
Section 4.2 Members and Capital Contributions. As of the date hereof, the name, address, Capital Contributions of, and the number and class Units held by, and the Common Percentage Interest and Class B Percentage Interest, as applicable, of, each Member are set forth on Schedule A attached hereto, as the same may be amended or supplemented from time to time in accordance with the terms of this Agreement. No additional Capital Contributions by any Member shall be required in respect of their Units after the issuance thereof without the consent of such Member.
Section 4.3 Member’s Interest.
(a) Interests in the Company shall be represented solely by units of limited liability company interest (each a “Unit”). The rights, preferences, powers, qualifications, limitations and restrictions of the Units shall be as set forth in this Agreement (as may be amended from time to time).
(b) The Units shall be issued in non-certificated form. As of the effective date of this Agreement, the Company and the Members have not elected that any Units in the Company be securities governed by Article 8 of the Uniform Commercial Code as in effect in the State of Delaware or be evidenced by any certificates, and no Units in the Company are evidenced by any certificates.
(c) A Member’s Units will for all purposes be personal property. A Member has no interest in specific property of the Company.
Section 4.4 Status of Capital Contributions.
(a) Except as otherwise expressly provided or permitted in this Agreement, no Member shall have any right to the return of such Member’s Capital Contribution, or any other amounts or capital from the Company, nor shall any Member have any right to receive any property from the Company other than cash, except as otherwise provided in this Agreement. Further, no return of a Member’s Capital Contributions will be made hereunder if such distribution would violate applicable law. Under circumstances requiring a return of any Capital Contributions, no Member will have the right to demand or receive property other than cash, except as may be specifically provided in this Agreement.
(b) No Member will receive any interest, salary or drawing with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company or otherwise in its capacity as a Member, except as otherwise specifically provided in this Agreement, provided, that, nothing herein shall be construed to preclude any Member from serving the Company or any Company Entity in any other capacity and receiving reasonable compensation for such service. No provision set forth in this Agreement shall be construed as conferring upon any Member the right to employment by the Company.
 
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Section 4.5 Capital Accounts. A Capital Account shall be established and maintained for each Member in accordance with the terms of this Agreement.
Section 4.6 Withdrawals and Returns of Capital. No Member shall be entitled to withdraw or receive any return of, or demand the return of, its Capital Contribution, or any other assets or capital, from the Company, including any property or cash, except as otherwise expressly provided in this Agreement. No Member shall have priority over any other Member as to the return of the amount of its Capital Contribution to the Company on its liquidation, other than as set forth in this Agreement.
Section 4.7 Advances. If any Member advances or loans any funds to the Company in excess of its Capital Contributions, (a) the amount of such advance will neither increase its Capital Account nor entitle it to any increase in its share of the distributions of the Company, (b) any such advance will be payable and collectible only out of Company Assets, and the other Members will not be personally obligated to repay any part thereof, and (c) such Member will not have or acquire, as a result of making such advance or loan, any direct or indirect interest in the profits, capital or property of the Company, other than as a creditor.
Section 4.8 Creditors Not Benefited. The provisions of this Agreement are intended to benefit only the Company, the Board of Managers, the Members and their respective permitted successors and assigns and the Indemnified Persons. It is not intended that these provisions benefit, and such provisions are not enforceable by, any creditors of the Company, the trustee in bankruptcy of the Company or any other Persons (other than the members of the Board of Managers, the Members and their respective permitted successors and assigns and the Indemnified Persons).
ARTICLE V.
MEMBERS
Section 5.1 Powers of Members. Except as otherwise specifically provided by this Agreement or required by the Delaware Act, no Member, acting solely in the capacity of a Member, is an agent of the Company nor does any Member, unless expressly and duly authorized in writing to do so by the Board of Managers, have any power or authority to bind or act on behalf of the Company in any way, to pledge its credit, to execute any instrument on its behalf or to render it liable for any purpose. Without limiting the generality of the foregoing and except as required by the Delaware Act, this Agreement or the Certificate, (a) no Member shall have the power to participate in the management of the Company and (b) the Members shall not be entitled to vote on any matter. To the extent a vote of, or consent by, “members” is required under the Delaware Act, or is otherwise sought by the Company, each Member holding Common Units shall be entitled to one vote per Common Unit on all matters to be so voted on.
Section 5.2 Limited Liability of Members.
(a) Except for any indemnification obligations under the Purchase Agreement, no Member shall have any personal liability whatsoever in its capacity as a Member, whether to the Company, to any of the Members or to the creditors of the Company, for the debts, liabilities, contracts or any other obligations of the Company or for any losses of the Company. A Member
 
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shall be liable only to make the initial Capital Contributions in accordance with Section 4.2 and to return distributions distributed to such Member to the extent required by the Delaware Act and other applicable law if such distributions were made in violation thereof. Except as otherwise set forth in this Agreement, a Member shall not be required to lend any funds to the Company or to repay to the Company, any Member or any creditor of the Company all or any portion of any negative amount of such Member’s Capital Account.
(b) Any return or repayment of a Member’s Capital Contribution and any payment in respect of the Member’s interest in the Company and any other amounts that may be due to a Member from the Company shall be made only from the Company Assets to the extent available therefor.
Section 5.3 Waiver of Corporate Opportunity. The Company and each of the Members acknowledge and agree that (a) the Company and each Class B Member hereby renounces any interest or expectancy in an Excluded Business Opportunity, (b) the corporate opportunity doctrine (or any analogous doctrine) under applicable Delaware and federal statutes shall not apply with respect to the Class A Members or any of their Affiliates, directors, managers, officers, employees, or holders of their or their Affiliates’ respective Equity Securities and (c) no Class A Member (or Class A Manager) nor any of their Affiliates, directors, managers, officers, employees or holders of their or their Affiliates’ respective Equity Securities shall have any obligation to communicate or offer any Excluded Business Opportunity to the Company or any Member and may pursue any Excluded Business Opportunity solely for its own account.
Section 5.4 Restrictive Covenants.
(a) For so long as any Class B Member (such Members, the “Restricted Parties”) or any such Class B Member’s Permitted Transferee owns a direct or indirect beneficial interest in the Company, whether as indirect owners of a Member or otherwise, and for three (3) years following the date on which such Member or such Permitted Transferee or such Member ceases to own such an interest in the Company (such period with respect to each Restricted Party, the “Restricted Period”), such Restricted Party shall not, and shall cause its respective Affiliates, members, shareholders and trustees not to, directly or indirectly, (except in service of the Company or its Affiliates, including the Company Entities), (i) manage, operate, control or in any capacity, engage in or have any direct or indirect ownership interest in, (ii) sponsor, advise, provide funding to or otherwise assist any other Person to engage in or (iii) permit its name to be used in connection with any business in North America (the “Restricted Territory”) which is engaged, either directly or indirectly, in the Restricted Business; provided, that (A) the passive beneficial ownership (as defined in Section 13(d) of the Exchange Act) of less than 2% of the outstanding equity securities of a publicly-held corporation that is engaged in a Restricted Business within the Restricted Territory, (B) the ownership and operation of a logistics services company operating in the pharmaceutical industry or the sale of medical surgical and laboratory consumables and supplies, durable medical equipment and other non-pharmaceutical items, (C) the ownership of and operation of the business of Apace KY LLC, a Kentucky limited liability company d/b/a Apace Packaging LLC, in substantially the same manner and scope as such business is currently conducted, and (D) any of those activities listed on Schedule 7.07 of the Purchase Agreement, shall not be deemed, solely by reason thereof, a violation of this Schedule 5.4(a). For purposes of this Agreement, the term “engage in” includes any direct or indirect interest in any enterprise,
 
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whether as a stockholder, member, partner, joint venturer, franchisor, franchisee, owner, investor, agent, employee executive, consultant or otherwise or rendering any direct or indirect service or assistance to any Person.
(b) Each Restricted Party covenants that for so long as it owns a direct or indirect beneficial interest in the Company, whether as indirect owners of a Member or otherwise, and for two (2) years following the date on which such Member ceases to own such an interest in the Company, such Restricted Party shall not (except in the furtherance of the Restricted Parties duties as an employee of the Company or any of its Affiliates), directly or indirectly, individually or on behalf of any other Person, (i) solicit, aid or induce any employee, representative or agent of the Company’s and its subsidiaries’ and affiliates’ (collectively, the “Company Group”) to leave such employment or retention or to accept employment with or render services to or with any other Person, firm, corporation or other entity unaffiliated with the Company Group or hire or retain any such employee, representative or agent, or take any action to materially assist or aid any other person, firm, corporation or other entity in identifying, hiring or soliciting any such employee, representative or agent, other (x) than any such employee, representative or agent whose employment has been terminated by the Company Group and (y) his personal assistant(s), (ii) solicit, aid or induce (or attempt to do any of the foregoing) directly or indirectly, any current or prospective customer of the Company Group with whom the Restricted Party substantially dealt with at any time during the last two years of the Class B Member’s status as a Member of the Company to purchase goods or services then sold in connection with the Company’s business from another person, firm, corporation or other entity or assist or aid any other persons or entity in identifying or soliciting any such customer or (iii) interfere in any manner with the relationship of the Company Group and any of its vendors. An employee, representative or agent shall be deemed covered by this Section 5.4(b) while so employed or retained by the Company Group and for six months thereafter. Anything to the contrary herein notwithstanding, the following shall not be deemed a violation of this Section 5.4(b): (A) the Restricted Party’s solicitation of the Company Group’s customers and/or vendors in connection with, and directly related to, his engaging in a business that complies with Section 5.4(a); (B) the Restricted Party’s responding to an unsolicited request for an employment reference regarding any former employee of the Company Group from such former employee, or from a third party, by providing a reference setting forth his personal views about such former employee; or (C) if an entity with which the Restricted Party is associated hires or engages any employee of the Company Group, if the Restricted Party was not, directly or indirectly, involved in hiring or identifying such person as a potential recruit or assisting in the recruitment of such employee. For purposes hereof, the Restricted Party shall be deemed to have been involved “indirectly” in soliciting, hiring or identifying an employee only if the Restricted Party (x) directs a third party to solicit or hire the employee, (y) identifies an employee to a third party as a potential recruit or (z) aids, assists or participates with a third party in soliciting or hiring an employee.
(c) The Company, the Restricted Parties and the other Members mutually agree that it is in the interest of all parties for the Restricted Parties to enter into the restrictive covenants set forth in this Section 5.4 to, among other things, protect the legitimate business interests of the Company and the Members. The Company, the Restricted Parties and the Members further acknowledge and agree that (i) the Company would not have entered into this Agreement or the Purchase Agreement but for the restrictive covenants of the Restricted Parties set forth in this Section 5.4, (ii) such restrictive covenants have been made by the Restricted Parties in order to
 
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induce the Company to enter into this Agreement and the Purchase Agreement and (ii) each Restricted Party, as applicable, recognizes and agrees that such Restricted Party can comply with the restrictive covenants contained in this Section 5.4 and still find gainful employment without violating the agreements and covenants contained herein. For the avoidance of doubt, the provisions of this Section 5.4 are not intended to, and shall not, result in any modification of the covenants contained in the Purchase Agreement or any other agreement entered into between any Restricted Party and any Company Entity, and, in this regard, to the extent any of the covenants in this Agreement overlap with the covenants contained in the Purchase Agreement or any such agreement, the provision that is more restrictive upon the Restricted Party shall control.
(d) The Company, the Restricted Parties and the other Members acknowledge and agree that: (i) the time, scope, and other provisions of this Section 5.4 have been specifically negotiated by sophisticated commercial parties and specifically hereby agree that such time, scope and other provisions are reasonable and necessary under the circumstances; and (ii) if, at any time, despite the express agreement of the parties hereto, a court of competent jurisdiction holds pursuant to a final judgment that any portion of this Section 5.4 is unenforceable because any of the restrictions therein are unreasonable, or for any other reason, such decision shall not affect the validity or enforceability of any of the other provisions of this Agreement, and the maximum restrictions of time or scope reasonable under the circumstances, as determined by such court, will be substituted for any such restrictions that are held unenforceable.
(e) The Company, the Restricted Parties and the other Members acknowledge and agree that any breach by any Restricted Party of any of the provisions of this Section 5.4 may cause irreparable damage to the Members and the Company, the exact amount of which may be difficult to ascertain, and the remedies at law for any such breach may be inadequate. Accordingly, each Member and the Company shall be entitled, in addition to any other rights or remedies existing in its favor, to obtain injunctive relief restraining any actual or threatened breach of this Section 5.4 and to have this Section 5.4 specifically enforced without need to post bond and to recover their reasonable attorneys’ fees and costs incurred thereby, it being agreed that any actual or threatened breach of this Section 5.4 would cause irreparable injury and that money damages would not provide an adequate remedy.
(f) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 5.4 is invalid or unenforceable, the parties hereto agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed. The provisions of this Section 5.4 shall be in addition to, and not in limitation of, any other similar provisions to which any Restricted Party is bound or may be bound in the future. The covenants contained in this Section 5.4 and each provision thereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. If any court holds any of the restrictions or covenants contained
 
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in this Section 5.4 to be unenforceable by reason of their breadth or scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the right of the Company to the relief provided in this Section 5.4 in the courts of any other jurisdiction within the geographic scope of such restrictions and covenants.
(g) The Company shall be entitled to provide a copy of this Section 5.4 and any terms incorporated herein to any Person that the Company reasonably believes may be employing or retaining the services of any Restricted Party in violation of this Section 5.4.
(h) For the avoidance of doubt, the foregoing restrictions shall not apply to the operation of any Company Entity following the date hereof pursuant to the terms of this Agreement or any other agreement to which any Company Entity is a party.
Section 5.5 Additional Members. Subject to Section 9.3, the parties hereto agree that as a condition precedent to the issuance by the Company of any Units to any Person other than a Member, the Company shall require such Person to execute a Joinder Agreement substantially in the form attached hereto as Exhibit B (a “Joinder Agreement”) and thereby enter into and become a party to this Agreement.
ARTICLE VI.
BOARD OF MANAGERS; OFFICERS
Section 6.1 General; Authority. Subject to the restrictions contained in this Agreement, the Board of Managers will manage the Company in accordance with this Agreement and will have full, exclusive and complete discretion, power and authority to manage, control, administer and operate the business and affairs of the Company, to make all decisions affecting the business and affairs of the Company and to take all such actions as the Board of Managers deems necessary or appropriate to accomplish the purpose of the Company as set forth herein. All action required or permitted to be taken by the Company may be taken by the Board of Managers or by or at the direction of one or more Officers of the Company appointed pursuant to the provisions hereof, who will be subject to the supervision, direction and control of the Board of Managers. The Board of Managers will have the power and authority to direct the Officers to, and the Officers will upon such direction by the Board of Managers, take such action as the Board of Managers deems proper, convenient or advisable to carry on the business and purposes of the Company and to exercise any and all of the powers of the Company set forth in Section 3.2 and, consistent with such direction, will have the authority to bind the Company. The Board of Managers shall manage the Company in accordance with applicable law.
Section 6.2 Managers.
(a) Designation Rights. The Board of Managers shall be comprised of three Managers (which number may be modified by the vote of the Board of Managers). Two Managers (the “Amneal Managers”) shall be elected by a Majority in Interest of the Class A Members, and shall initially be Chirag Patel and Todd Branning. One Manager (the “Class B Manager”) shall be elected by a Majority in Interest of the Class B Members and shall initially be Steve Shirley. Each Manager shall be a “manager” of the Company for all purposes of the Delaware Act. The Board of Managers may elect a Chairman, who shall initially be Chirag Patel.
 
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(c) Resignation; Removal. Any Manager may resign at any time upon written notice to the Company. Such resignation shall be effective upon receipt thereof by the Company or at such time as may be specified in the notice of resignation. Each Class A Manager may only be removed with the vote of a Majority in Interest of the Class A Members. The Class B Manager may only be removed (i) with the vote of a Majority in Interest of the Class B Members or (ii) for Cause by the Class A Managers. If any Class B Manager is removed as an officer of the Company, then the Class B Members shall remove such Class B Manager as a Manager of the Company and appoint a replacement Class B Manager to the Board of Managers.
(d) Vacancies. In the event that a vacancy is created on the Board of Managers at any time by the death, disability, retirement, resignation or removal (with or without Cause) of a Manager, then the class of Members that elected such Manager shall have the right to elect a replacement Manager to fill such vacancy at any time and from time to time.
(e) Compensation of Managers. Unless otherwise determined by the Board of Managers, Managers shall not be entitled to compensation from the Company for their services as a Manager. The Company shall reimburse all Managers for their reasonable travel, lodging and meal expenses in connection with their attendance at meetings of the Board of Managers and any committees thereof.
(f) Limitation of Liability. Except as otherwise prohibited by applicable law and subject to the provisions of this Section 6.20, neither the Board of Managers nor any Manager shall be liable, responsible or accountable for damages or otherwise to the Company or any Member for any action taken or failure to act within the scope of the authority conferred on the Board of Managers or the Managers by this Agreement, by applicable law or by the Members.
(g) No Exclusive Duty to Company. Except as otherwise provided in this Agreement or any other agreement entered into between any Company Entity and the applicable Manager, no Manager, in such capacity, is required to manage the Company as such Manager’s sole and exclusive function, and each Manager may have other business interests and may engage in other activities in addition to those relating to the Company, except where such interests or activities are inconsistent with this Agreement or the Manager’s duties and responsibilities under Delaware law. Neither the Company nor any Member has any right, by virtue of this Agreement, to share or participate in such other investments or activities of any Manager or to the income or proceeds derived therefrom. Notwithstanding the foregoing, a Manager that is also an officer of a Company Entity may be subject to certain covenants as may be included in such individual’s employment agreement with a Company Entity or otherwise.
Section 6.3 Board Meetings.
(a) Board Meetings. Meetings of the Board of Managers shall take place from time to time, but not less frequently than once each fiscal quarter. Meetings of the Board may be held at such place or places as shall be determined from time to time by resolution of the Board of Managers or, in the case of a special meeting of the Board of Managers, by the Person(s) calling the meeting as provided herein. Special meetings of the Board of Managers may be called by any Manager. Written notice of every meeting of the Board of Managers or any committees thereof shall be given to each Manager at least five calendar days prior to the date of such meeting. Such
 
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notice need not state the purpose or purposes of, nor the business to be transacted at, such meeting, except as may otherwise be required by law or provided for in this Agreement. Notice of any meeting of the Board of Managers may be given personally, by mail, courier, electronic mail or other reasonably appropriate written means. Notice of a meeting need not be given to any Manager who signs a waiver of notice or a consent to holding the meeting or a consent in lieu of meeting or an approval of the minutes of a meeting, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice. At all meetings of the Board of Managers, business shall be transacted in such order as shall from time to time be determined by a chairman selected by a majority of the Board of Managers in attendance at such meeting.
(b) Quorum. The presence (either in person or by proxy) of at least two Managers shall constitute a quorum for the transaction of the business of the Board of Managers at any meeting of the Board of Managers.
(c) Minutes. The decisions and resolutions of each meeting of the Board of Managers shall be reported in minutes, which shall state the date and place of the meeting, the Managers present, the resolutions put to a vote and the results of the voting. The minutes shall be filed in the minute book of the Company at the principal place of business of the Company. The chairman of each meeting shall appoint a Person to act as secretary of each meeting of the Board of Managers, which person shall take the minutes of such meeting. A copy of the minutes shall be provided to each Manager upon request.
(d) Action by Consent of the Board of Managers. Any action required or permitted to be taken at a meeting of the Board of Managers may be taken without a meeting if a majority of the Managers consent thereto in writing. Any consent satisfying the provisions of this Section 6.3(d) shall have the same effect as a vote of the members of the Board of Managers at a duly convened meeting of the Board of Managers. The consents shall be filed in the minute book of the Company at the principal place of business of the Company.
(e) Telephone Conference. Managers may participate in a meeting of the Board of Managers or any committee thereof through the use of conference telephone or similar communications equipment; provided, that all of the Managers participating in such meeting can communicate with each other. Participation in a meeting pursuant to this Section 6.3(e) shall constitute presence at the meeting for all purposes.
(f) Committees. The Board of Managers may, from time to time, by enabling resolutions adopted by the Board of Managers, designate one or more committees. Any such committee, to the extent provided in the enabling resolution and until dissolved by the Board of Managers, shall have and may exercise any or all of the authority of the Board of Managers. At every meeting of any such committee, the presence of a majority of all the members thereof shall constitute a quorum, and the affirmative vote of a majority of the members of such committee present shall be necessary for the adoption of any resolution. The Board of Managers may dissolve any committee at any time.
Section 6.4 Voting.
 
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(a) Voting. Except as set forth in Section 6.3(d) or Section 6.4(b), the actions and decisions of the Board of Managers shall be determined at meetings of the Board of Managers at which a quorum is present by the vote of a majority of the Managers (which, other than with respect to Extraordinary Matters, for the avoidance of doubt, shall consist of two Managers). Each Manager that has been appointed shall have one vote. Except for Extraordinary Matters, all policies and other matters to be decided by the Board of Managers shall be determined by a majority vote of the members of the Board of Managers present at a meeting at which a quorum is presented.
(b) Extraordinary Matters. Notwithstanding anything to the contrary set forth in this Agreement, the Company shall not (and shall cause its subsidiaries not to) take any of the following actions without the approval of (i) the Class B Managers or (ii) at least a Majority in Interest of the Class B Members (each, an “Extraordinary Matter”):
(i) amending this Agreement to the extent such amendment would have a disproportionate and adverse effect on any Class B Member;
(ii) issuing any additional Class B Units (other than issuing Class B Units to existing Class B Members in connection with an equity offering in accordance with Section 9.3);
(iii) incurrence of aggregate indebtedness by the Company or the Company Entities in excess of an amount equal to five times (5x) the Company’s EBITDA for the prior four (4) fiscal quarters;
(iv) entering into any arrangement or transaction between, or the payment of any fees or costs from, the Company or any Company Entity, on the one hand, and any Class A Member or any Affiliate of a Class A Member, on the other hand, other than (A) ordinary course commercial transactions and (B) any future issuances of equity or convertible securities by the Company, subject to the preemptive rights set forth in Section 9.3, in either case on terms that are no less favorable to the Company than would be obtained in a comparable arm’s-length transaction with an unaffiliated third party;
(v) selling or transferring any Company Entity or any business units or divisions from either Company Entity to any Affiliate of Amneal;
(vi) assigning any rights in specific property of the Company or any Company Entity for other than bona fide company purposes of the Company or any Company Entity;
(vii) forming any subsidiaries of the Company other than whole owned limited liability company subsidiaries;
(viii) selling, contributing or otherwise issuing any Common Units to any Affiliate, unless such Common Units are sold or contributed at a value per Unit determined pursuant to a valuation obtained from an appraisal firm selected by the Class B Manager;
 
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(ix) dissolving, winding-up or liquidating the Company or initiating a bankruptcy proceeding involving the Company or any of its subsidiaries;
(x) permitting any Company Entity to issue equity securities;
(xi) permitting the Company to loan any funds to any Person;
(xii) causing any Company Entity to engage in any of the above actions; or
(xiii) agreeing or committing to do any of the foregoing.
Section 6.5 Officers.
(a) General. The Company may have such officers as the Board of Managers shall from time to time determine (collectively, the “Officers”). Any number of offices may be held by the same Person. Officers need not be Members, Managers or residents of the State of Delaware. Nothing contained herein nor shall the ownership of any Units confer upon any Person the right to employment or to remain in the employ of the Company. Nothing contained in this Section 6.5(a) shall be deemed to limit or otherwise abridge any rights or obligations to which the Company or an Officer may be subject pursuant to the terms of any employment, management or other similar agreement.
(b) Appointment of Officers. The Board of Managers shall have the sole power to designate Officers. Any Officers so designated shall have such authority and perform such duties as the Board of Managers may, from time to time, delegate to them by written resolution of the Board of Managers. The Board of Managers may assign titles to particular Officers. Each Officer shall hold office for the term for which he or she is elected or until he or she shall resign or shall have been removed in the manner hereinafter provided.
(c) Resignation/Removal. Any Officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein or, if no time be specified, at the time of its receipt by the Board of Managers. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Subject to the terms of any applicable employment agreement, any Officer may be removed as such, either with or without Cause, at any time by the Board of Managers.
ARTICLE VII.
DISTRIBUTIONS
Section 7.1 Distributions Generally. Subject to the other provisions of this Article VII, the Board of Managers shall distribute Net Cash Available for Distribution when and as determined by the Board of Managers; provided, however, that following exercise of the Put Right, the Board of Managers shall use commercially reasonable efforts to utilize all available free cash flow to satisfy the priority distribution right set forth in Section 7.2(c) below. Notwithstanding anything to the contrary contained in this Agreement, the Company, and the Board of Managers on behalf of the Company, shall not be required to make a distribution to any Member if such
 
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distribution would violate the Act, applicable law or the terms of any contractual arrangement entered into by the Company.
Section 7.2 Distribution Allocations.
(a) Interim Distributions. Subject to Section 7.1, Section 7.2(b), Section 7.3 and Section 7.4, Net Cash Available for Distribution will be distributed to the Common Members pari passu in accordance with their respective Common Percentage Interests.
(b) Deemed Liquidation Event Distributions. Subject to Section 7.1, Section 7.3 and Section 7.4, net proceeds of a Deemed Liquidation Event will be distributed (i) first, to the Common Members in accordance with their respective Common Percentage Interests until they have received pursuant to Section 7.2(a) and this Section 7.2(b)(i) an amount equal to such Member’s Capital Contributions and (ii) thereafter to the Common Members in accordance with their respective Common Percentage Interests. If any amount to be distributed pursuant to this Section 7.2 is insufficient to pay the total amount payable under any priority level, such amount shall be distributed within such priority level to the Members in proportion to their claim under such priority level.
(c) Priority Distribution. Notwithstanding the foregoing, in the event that the Put Right is exercised pursuant to Section 9.6, the Electing Class B Members shall receive a priority distribution of the Put Price prior to any additional distribution pursuant to Section 7.2(a) or Section 7.2(b) in proportion to their respective Class B Percentage Interests until the Put Price is distributed in full.
Section 7.3 Tax Distributions. With respect to any tax period (or the portion thereof) ending after the date hereof, the Company shall, on each Tax Distribution Date, make Distributions to all Members pro rata, in accordance with each Member’s Common Percentage Interest, an amount of cash pursuant to this Section 7.3 until each Member has received an amount at least equal to its Assumed Tax Liability. To the extent that any Member would not otherwise receive its Common Percentage Interest of the aggregate tax Distributions to be paid pursuant to this Section 7.3 on any Tax Distribution Date, the tax Distributions to such Member shall be increased to ensure that all Distributions made pursuant to this Section 7.3 are made pro rata in accordance with such Member’s Common Percentage Interest.
Section 7.4 Withholding. The Company is authorized to withhold from distributions, or with respect to allocations, to the Members and to pay over to any federal, state, local or other governmental authority any amounts required to be so withheld pursuant to the Code or other applicable provisions of any federal, state or local law. All amounts withheld pursuant to the Code or any provision of any state or local tax with respect to any payment, distribution or allocation to the Company or the Members shall be treated as amounts distributed to the Members pursuant to this Article VII for all purposes under this Agreement. Each Member shall indemnify and hold harmless the Company for all taxes (including interest, penalties and additions to tax) relating to amounts received by such Member from the Company that were required to have been withheld by the Company under applicable law.
 
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Section 7.5 Distributions In-Kind. No right is given to any Member to demand and receive property other than cash. Distributions made prior to the liquidation of the Company will only take the form of cash or marketable Securities. Upon liquidation of the Company, the Board of Managers will endeavor to make distributions as described in the preceding sentence, but distributions may also include non-marketable Securities, with prior notice to the Members, and such distributions may, at the direction of each Member, be made directly to the Member or indirectly through the use of a liquidating trust or other entity.
ARTICLE VIII.
ALLOCATIONS
Section 8.1 Allocation of Net Income and Net Loss.
(a) Net Income and Net Loss and items thereof shall be determined and allocated with respect to each Fiscal Year of the Company as of the end of such Fiscal Year and at any time the Gross Asset Values of Company Assets are adjusted pursuant to clause (b) or clause (c) of the definition thereof, and more often as required hereby or by the Code.
(b) Subject to the other provisions of this Article VIII, Net Income and Net Loss for any Fiscal Year or other period shall be allocated in a manner such that the Capital Account balances of each of the Members shall be equal to (i) the amount that each Member would have been entitled to receive pursuant to Section 7.2 if the Company were liquidated at such time and liquidating distributions were governed by Section 7.2 (and taking into account, for purposes of this Section 8.1, the effect of Section 7.3), assuming that all Company Assets were sold for cash equal to their respective Gross Asset Values and all Company liabilities were satisfied (limited with respect to each Nonrecourse Liability to the Gross Asset Value of the Company Assets securing such liability), minus (ii) such Member’s share of Company Minimum Gain and Member Minimum Gain, computed immediately before the hypothetical sale of Company Assets.
Section 8.2 Regulatory Allocations. Notwithstanding the foregoing provisions of this Article VIII, the following special allocations shall be made in the following order of priority:
(a) Minimum Gain Chargeback. If there is a net decrease in Company Minimum Gain during a Company taxable year, then each Member shall be allocated items of Company income and gain for such taxable year (and, if necessary, for subsequent years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulations Section 1.704-2(g)(2). This Section 8.2(a) is intended to comply with the minimum gain chargeback requirement of Treasury Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.
(b) Member Minimum Gain Chargeback. If there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Debt during any Company taxable year, each Member who has a share of the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such taxable year (and, if necessary, subsequent years) in an amount equal to such Member’s share of the net decrease in Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in
 
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accordance with the provisions of Treasury Regulations Section 1.704-2(i)(3). This Section 8.2(b) is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement of Treasury Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) Qualified Income Offset. If any Member unexpectedly receives an adjustment, allocation, or distribution of the type contemplated by Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of income and gain shall be allocated to all such Members (in proportion to the amounts of their respective Adjusted Capital Account Deficits) in an amount and manner sufficient to eliminate their respective Adjusted Capital Account Deficits as quickly as practicable. It is intended that this Section 8.2(c) qualify and be construed as a “qualified income offset” within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(d).
(d) Limitation on Allocation of Net Loss. If the allocation of Net Loss to a Member as provided in Section 8.1 hereof would create or increase an Adjusted Capital Account Deficit, there shall be allocated to such Member only that amount of Net Loss as will not create or increase an Adjusted Capital Account Deficit (a “Deficit Member”). The Net Loss that would, absent the application of the preceding sentence, otherwise be allocated to such Member shall be allocated to the other Members in accordance with their relative Common Percentage Interests, subject to the limitations of this Section 8.2(d). If any Net Loss is so allocated to a Member, that Member subsequently shall be allocated all Net Income which would otherwise have been allocated to a Deficit Member but for this sentence, until the aggregate amount of Net Income so allocated equals the aggregate amount of Net Loss allocated to the Member pursuant to the preceding sentence.
(e) Nonrecourse Deductions and Member Nonrecourse Deductions. The Nonrecourse Deductions for each taxable year of the Company shall be allocated to the Members in proportion to their Common Percentage Interests. The Member Nonrecourse Deductions shall be allocated each year to the Member that bears the economic risk of loss (within the meaning of Treasury Regulations Section 1.752-2) for the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable.
(f) Curative Allocation. The allocations set forth in Section 8.2(a), 8.2(b), 8.2(c), 8.2(d), and 8.2(e) hereof (the “Regulatory Allocations”) are intended to comply with certain requirements of Treasury Regulations Sections 1.704-1(b) and 1.704-2(i). Notwithstanding the provisions of Section 8.1(b), the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Members so that, to the extent possible, the net amount of such allocations of other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred.
Section 8.3 Tax Allocations.
(a) Except as provided in Section 8.3(b) hereof, for income tax purposes under the Code and the Treasury Regulations, each Company item of income, gain, loss and deduction shall be allocated among the Members in the same manner as the Company’s correlative item of “book” income, gain, loss or deduction is allocated pursuant to this Article VIII.
 
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(b) Tax items with respect to a Company Asset that is contributed to the Company with a Gross Asset Value that varies from its basis in the hands of the contributing Member immediately preceding the date of contribution shall be allocated among the Members for income tax purposes pursuant to Treasury Regulations promulgated under Code Section 704(c) so as to take into account such variation. The Company shall account for such variation under the “remedial method” provided for under Code Section 704(c) and the applicable Treasury Regulations, unless a different method is chosen by the Board of Managers. If the Gross Asset Value of any Company Asset is adjusted subsequent to its contribution pursuant to the definition of “Gross Asset Value,” subsequent allocations of income, gain, loss and deduction with respect to such Company Asset shall take account of any variation between the adjusted basis of such Company Asset for federal income tax purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and the Treasury Regulations promulgated thereunder using any method approved under Code Section 704(c) and the applicable Treasury Regulations as chosen by the Board of Managers. Allocations pursuant to this Section 8.3(b) are solely for purposes of federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Net Income, Net Loss and any other items or distributions pursuant to any provision of this Agreement.
Section 8.4 Other Provisions.
(a) For any Fiscal Year during which Units are transferred among the Members or to another Person, the portion of the Net Income, Net Loss and other items of income, gain, loss, deduction and credit that are allocable with respect to such Units shall be apportioned between the transferor and the transferee under any method allowed pursuant to Section 706 of the Code and the applicable Treasury Regulations as determined by the Board of Managers.
(b) For purposes of determining a Member’s proportional share of the Company’s “excess nonrecourse liabilities” within the meaning of Treasury Regulations Section 1.752-3(a)(3), each Member’s interest in income and gain shall be such Member’s Common Percentage Interest.
(c) If an interest in the Company is transferred, or distribution of Company Assets is made to a Member, the Company may, in the discretion of the Board of Managers, file an election pursuant to Section 754 of the Code to cause the basis of Company Assets to be adjusted for federal income tax purposes as provided by Sections 734 and 743 of the Code.
Section 8.5 Binding Effect. All allocations, calculations, distributions and determinations made by the Board of Managers or its independent public accountants in accordance with this Agreement shall be final and binding on all Members.
ARTICLE IX.
ADMISSION OF AND WITHDRAWAL
BY MEMBERS; TRANSFERS; CERTAIN RIGHTS OF MEMBERS
Section 9.1 No Withdrawal of Members; Inactive Members. No Member shall be entitled to withdraw from the Company or receive any return of, or demand the return of, its Capital Contribution, or any other assets or capital, from the Company, including any property other than
 
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cash in respect of its Units, except as set forth in this Agreement or upon the liquidation of the Company or as otherwise approved by the Board of Managers in its discretion. Notwithstanding the foregoing, if a Member Transfers all of such Member’s Units in compliance with this Article IX, then such Member will cease to be a Member of the Company.
Section 9.2 Transfers by Members.
(a) Certain Prohibitions. Except as expressly provided in this Article IX, no Member may Transfer all or any part of such Member’s Units without the prior written consent of a majority of the Managers of the Board of Managers, other than a Transfer (i) to a Permitted Transferee of such Member or (ii) pursuant to Section 9.4 or Section 9.5. Any such Transfer as to which the Board of Managers has consented may only be made upon compliance with Section 9.2(b). In furtherance of the foregoing, no Member shall issue, or permit any of its direct or indirect members or shareholders to issue or Transfer, any of the Equity Securities in such Member (or direct or indirect member or shareholder of such Member) (which shall include any voting or economic interest in such Member) to any other Person, other than a Transfer to (A) a Permitted Transferee of such Member or (B) pursuant to Section 9.4 or Section 9.5, without the prior written consent of the Board of Managers.
(b) Conditions to Transfer. Any purported Transfer by a Member must satisfy the following additional conditions (any one or more of which may be waived by the Board of Managers): (i) the transferor or transferee of the Units must undertake to pay all expenses incurred by the Company in connection therewith; (ii) the Company must receive from the Person to whom such Transfer is to be made a Joinder Agreement executed by or on behalf of such Person and such other documents, instruments, opinions, and certificates as may reasonably be requested by the Board of Managers pursuant to which such transferee will become bound by this Agreement with respect to the Units so Transferred; (iii) such Member must Transfer the transferred Units in such transaction to one or more transferees, each of which is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act; and (iv) such Transfer must not cause the Company to lose its status as a partnership for federal income tax purposes. Notwithstanding any provision hereof to the contrary, no sale or other disposition of an interest in the Company may be made except in compliance with all federal, state and other applicable laws, including federal and state securities laws.
(c) Nonconforming Transfers Void. Any actual or purported Transfer of the Units of any Member that does not comply with the provisions of this Section 9.2 shall be void ab initio and of no force and effect and shall not bind the Company. The Company will incur no liability for distributions made to any transferor prior to compliance with this Section 9.2 with respect to the Units that are the subject of any such actual or purported Transfer.
(d) Permitted Transfers. The Transfer by any Class B Member of all or any portion of its Units to a Permitted Transferee shall be permitted without the necessity of obtaining the approval of the Board of Managers, so long as such Transfer complies with Section 9.2(b) and such Class B Member delivers to the Board of Managers a written notice of such Transfer at least ten days prior to effecting such Transfer; provided that any Transfer to any Permitted Transferee shall not be deemed to reduce or otherwise alter the Restricted Period applicable to such Class B Member’s obligations under Section 5.4. For the avoidance of doubt, a Class B Member (and its
 
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Permitted Transferees) shall not be deemed to be a Permitted Transferee of another Class B Member (and its Permitted Transferees) solely as a result of the fact that both Persons are Class B Members.
(e) Legend. Each Member hereby acknowledges that, if certificates of the Company’s Equity Securities are ever issued, federal securities laws and the securities laws of the state in which the Member resides or works may require the placement of certain restrictive legends upon the Equity Securities issued, and each Member hereby consents to the placing of any such legends upon certificates evidencing the Equity Securities as the Company, or its counsel, may reasonably deem necessary; provided, however, that any such legend or legends shall be removed when no longer applicable. Any and all certificates now or hereafter issued evidencing the Company’s Equity Securities shall have endorsed upon them legends substantially as follows:
“OWNERSHIP OF THIS CERTIFICATE, THE UNITS EVIDENCED BY THIS CERTIFICATE AND ANY INTEREST THEREIN ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER APPLICABLE LAW AND UNDER AGREEMENTS WITH THE COMPANY, INCLUDING THE AMENDED AND RESTATED OPERATING AGREEMENT OF THE COMPANY AND INCLUDING RESTRICTIONS ON SALE, ASSIGNMENT, HYPOTHECATION, TRANSFER, PLEDGE OR OTHER DISPOSITION.” THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH AGREEMENT, INCLUDING WITHOUT LIMITATION, THE TRANSFER RESTRICTIONS AND FORCED SALE PROVISIONS CONTAINED THEREIN.”
“THE UNITS ARE SUBJECT TO THE COMPANY’S RIGHT TO REPURCHASE AND CERTAIN OBLIGATIONS TO SELL UNDER THE AMENDED AND RESTATED OPERATING AGREEMENT BETWEEN THE UNITHOLDER AND THE COMPANY, A COPY OF WHICH IS AVAILABLE FOR REVIEW AT THE OFFICE OF THE SECRETARY OF THE COMPANY.”
Such certificates shall also bear such legends and shall be subject to such restrictions on transfer as may be necessary to comply with all applicable federal and state securities laws and regulations. Nothing contained herein shall require the delivery of any certificate to any Member at any time when the Company Equity Securities are not certificated.
(f) Securities Law Compliance.
(i) No Member shall effect any Transfer of Company Equity Securities unless such Transfer is made pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and, in either case, in compliance with all applicable state securities laws. The Company shall not cause or permit the Transfer of any Company Equity Securities to be made on its books (or on any register of securities maintained on its behalf) unless the Transfer is permitted by, and has been made in
 
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accordance with the terms of this Agreement and all applicable federal and state securities laws. Any attempted Transfer in violation of the terms hereof shall be null and void ab initio and of no effect. In connection with any Transfer of Company Equity Securities by a Member, the Company may, in its sole discretion, request an opinion in form and substance reasonably satisfactory to the Board of counsel to such Member reasonably satisfactory to the Company stating that such transaction is exempt from registration under the Securities Act and in compliance with applicable state securities laws.
(ii) From and after the date hereof, and until such time as such securities have been sold to the public pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from such registration, all certificates (if any) representing Company Equity Securities that are held by any Unitholder shall bear a legend which shall state the following:
“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND NO INTEREST HEREIN MAY BE SOLD, OFFERED, ASSIGNED, DISTRIBUTED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING ANY SUCH TRANSACTION OR (B) THE COMPANY RECEIVES AN OPINION IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY STATING THAT SUCH TRANSACTION IS EXEMPT FROM SUCH REGISTRATION AND IN COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES LAWS OR (C) THE COMPANY AND ITS COUNSEL ARE OTHERWISE SATISFIED THAT SUCH TRANSACTION IS EXEMPT FROM SUCH REGISTRATION AND IN COMPLIANCE WITH ALL STATE SECURITIES LAWS.”
Nothing contained herein shall require the delivery of any certificate to any Member at any time when the Units are not certificated.
Section 9.3 Preemptive Rights. Subject to the terms and conditions of this Section 9.3 and applicable securities laws, if the Company issues, offers or sells any new Securities (the “Issuance”) to a Person, the Company shall offer such Securities to the Members in accordance with their respective Common Percentage Interests and the following provisions:
(a) Not fewer than ten calendar days prior to the Company’s closing and consummation of the Issuance, the Company shall give written notice (the “Preemptive Offer Notice”) to each Member stating (i) the number of new Securities issued, offered, sold or to be issued, offered or sold (the “New Securities”) and (ii) the price, terms, preferences and rights, if any, upon which it proposes to issue, offer or sell such Securities. For the avoidance of doubt, nothing shall prevent the Company from offering such New Securities to the Members promptly following the issuance or grant of such New Securities; provided, that any New Securities issued or sold in connection with such issuance shall be disregarded for purposes of calculating each
 
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Member’s Common Percentage Interest at such time (but not for subsequent determinations) so as to achieve the same economic effect as if such offer would have been made prior to such sale.
(b) By written notification to the Company within ten calendar days after the Preemptive Offer Notice is delivered, each Member may elect to purchase or otherwise acquire, at the price and on the terms specified in the Preemptive Offer Notice, up to such Member’s Common Percentage Interest of the New Securities. In the event any Member does not purchase all of its Common Percentage Interest of the New Securities (a “Non-Participating Member”), the Class A Members shall have the right to purchase the New Securities not purchased by the Non-Participating Member on a pro-rata basis based on their respective ownership of the Class A Common Units or in any other manner they may unanimously agree upon. The closing of any sale pursuant to this Section 9.3 shall occur before the later of (i) 15 days of the date that the Preemptive Offer Notice is given and (ii) the date of initial issuance, offer or sale of the New Securities.
(c) The Company may, during the 120-day period following the expiration of the five calendar day period provided in Section 9.3(b), issue, offer or sell to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Preemptive Offer Notice (i) such portion of the New Securities which a Member does not have the right to purchase pursuant to this Section 9.3 and (ii) any New Securities that a Member does not elect to purchase pursuant to this Section 9.3. If the Company does not consummate such issuance or sale of the New Securities within such 120-day period, the preemptive rights provided pursuant to this Section 9.3 shall be deemed to be revived and such New Securities shall not be issued, offered or sold unless first reoffered to the Members in accordance with this Section 9.3.
(d) The preemptive rights set forth in this Section 9.3 shall not be applicable to (and for the avoidance of any doubt, New Securities shall not include) (i) Securities issued to third-party lenders in connection with any arms’-length transaction approved by the Board of Managers and providing debt financing for the Company, or (ii) Securities issued in connection with a bona fide acquisition by the Company of another Person that is not an Affiliate of the Company or any Member.
Section 9.4 Drag-Along Right.
(a) Subject to Section 9.4(b), if a Class A Member (the “Dragging Member”) proposes to Transfer to one or more third parties that are not Affiliates of such Class A Member (collectively, the “Drag-Along Purchaser”), in a single transaction or a series of transactions, a number of Units representing at least a majority of the Class A Common Units, the Dragging Member shall have the right (a “Drag-Along Right”) to require each other Member (the “Dragged Members”) to (i) take all action necessary or appropriate in order to cause or enable the Dragging Member or the Company, as applicable, to effect such transaction and (ii) Transfer a corresponding percentage of such Dragged Members’ Units to the Drag-Along Purchaser on the same terms and conditions, for the same per Unit consideration and at the same time as the Units being sold by the Dragging Member (a transaction described above, a “Drag-Along Sale”).
(b) In order to exercise a Drag-Along Right, the Dragging Member shall notify each Dragged Member of the principal terms and conditions of the proposed Drag-Along Sale at least 30 days prior to the consummation of the proposed Drag-Along Sale. Each Dragged Member
 
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will take all actions reasonably requested by the Dragging Member in connection with the consummation of such Drag-Along Sale. In furtherance of and not in limitation of the foregoing, in connection with a Drag-Along Sale, each Dragged Member shall (i) consent to and raise no objections against the Drag-Along Sale or the process pursuant to which it was arranged, (ii) waive any appraisal rights and other similar rights and (iii) execute all documents reasonably required to complete the Drag-Along Sale on the same terms and conditions as the Dragging Member. No Dragged Member shall be required to provide any representations, warranties or indemnities in connection with any Drag-Along Sale, other than customary (including with respect to qualifications) several (and not joint) representations, warranties and indemnities, and then only to the extent that the Dragging Member provides similar representations, warranties and indemnities (except that in the case of representations, warranties, and indemnities pertaining specifically to the Dragging Member, each Dragged Member shall make the comparable representations, warranties, and indemnities pertaining specifically to such Dragged Member). Any indemnification obligations in a Drag-Along Sale shall be provided by the Members pro rata based on the consideration received by each Member and, with respect to each Member, shall be limited to the net proceeds received by such Member.
(c) The reasonable professional advisor fees and expenses of the Dragging Member incurred in connection with a Drag-Along Sale and for the benefit of all Members (it being understood that costs incurred by or on behalf of Dragging Member for its sole benefit will not be considered to be for the benefit of all Members) and, to the extent not paid or reimbursed by the Company, such fees and expenses shall be borne by all Members on a pro rata basis, based on the consideration received by each Member.
(d) For the purposes of clarity, the Members acknowledge and agree that a Drag-Along Sale shall be a Deemed Liquidation Event, and the proceeds from any such Drag-Along Sale and the aggregate consideration to be received by the Members shall be allocated pursuant to the order and priority set forth in Section 7.2(b).
(e) In no manner shall this Section 9.4 be construed to grant to any Member any dissenters rights or appraisal rights or give any Member any right to vote in any transaction structured as a merger or consolidation (it being understood that the Members hereby expressly waive rights under Section 18-210 of the Delaware Act (entitled “Contractual Appraisal Rights”) in connection with any Deemed Liquidation Event or any other transaction of the Company that would give rise to such rights, and the Members hereby grant to the Board of Managers the sole right to approve or consent to any merger or consolidation of the Company whatsoever without approval or consent of the Members, whether or not such merger or consolidation is a Deemed Liquidation Event.
(f) In lieu of exercise of the Drag-Along Right, the Company may redeem all Class B Units immediately prior to the Drag-Along Sale for the same price per Unit being received by the holders of Class A Units (after taking into account the redemption of the Class B Units).
(g) Power of Attorney.
(i) Each Dragged Member hereby constitutes and appoints each Class A Member, and any successor-in-interest of a Class A Member, as such Dragged Member’s
 
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true and lawful attorney-in-fact, with full power of substitution, for it and in its name, place and stead, from time to time to (1) make, enter, execute, deliver and file any and all agreements, instruments, certificates or other documents to effect the rights of the Dragging Member under this Section 9.4 and (2) take any further action which said attorney-in-fact shall consider necessary or convenient in connection with any of the foregoing, hereby giving said attorney-in-fact full power and authority to do and perform each and every act and thing whatsoever requisite and necessary to be done in and about the foregoing as fully as such Dragged Member might or could do if personally present, and hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof, so long as said acts are in accordance with the terms of this Agreement.
(ii) The foregoing grant of authority set forth in clause (i) of this Section 9.4(g) (1) is a special power of attorney coupled with an interest, is irrevocable and shall survive the death, incompetence, bankruptcy, dissolution or liquidation of any Dragged Member; (2) may be exercised by the Class A Members for each Dragged Member by the signature of any Class A Member or by listing all of the Dragged Members executing any agreement, instrument, certificate or other document with the single signature of any Class A Member as attorney-in-fact for all of them; and (3) shall survive the Transfer by any Dragged Member of all or any part of its Equity Securities in the Company, except that where the transferee or assignee thereof is admitted as a substituted Member as to all of such Equity Security, this power of attorney shall survive the delivery of such Transfer for the sole purpose of enabling such attorney-in-fact to make, enter, execute, deliver and file any such agreement, instrument, certificate or other document necessary to effect such substitution.
Section 9.5 Tag-Along Rights.
(a) If at any time one or more Members (the “Tag Sellers”) propose to Transfer Units representing 10% or more (taking into account prior Transfers of Units by the Tag Sellers) of the Units owned by the Tag Sellers to one or more third parties (any such third party is referred to as the “Tag-Along Purchaser”), prior to such Transfer, the Tag Sellers shall (i) obtain a bona fide arm’s-length written offer (the “Tag-Along Offer”) from the Tag-Along Purchaser for the purchase of such Units and (ii) give written notice of the proposed Transfer (the “Tag-Along Notice”) to the Class B Members. The Tag-Along Notice shall be accompanied by a copy of the Tag-Along Offer. The Tag-Along Notice shall identify (A) the Tag-Along Purchaser, (B) the number of Units each Class B Member may sell to the Tag-Along Purchaser as determined in accordance with Section 9.5(b), (C) the price per Unit being offered by the Tag-Along Purchaser for the such Units (the “Tag-Along Price”) and (D) all other material terms and conditions of the Tag Along Offer.
(b) For a period of ten calendar days following delivery of the Tag-Along Notice (the “Tag-Along Period”), each Class B Member shall have the irrevocable right to accept the Tag-Along Offer, exercisable by delivery of a written notice of acceptance (the “Tag-Along Acceptance”) on the terms and conditions specified in the Tag-Along Offer for up to such Class B Member’s Class B Percentage Interest (on a fully-diluted basis) of the Units proposed to be Transferred by the Tag Sellers.
 
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(c) If any Class B Member elects to accept the Tag-Along Offer by delivering a Tag-Along Acceptance before the expiration of the Tag-Along Period, the Tag Sellers shall use all commercially reasonable efforts to cause the Tag-Along Purchaser to agree to acquire all of the applicable Units included in such Tag-Along Acceptances (the “Tag-Along Units”) upon the same terms and conditions set forth in the Tag-Along Notice. If the Tag-Along Purchaser is unwilling or unable to acquire all of Tag-Along Units upon such terms, then the Tag Sellers may elect either to cancel such sale or to proceed with such sale by reducing the number of Units to be sold pursuant to the Tag-Along Notice and the number of Tag-Along Units to be sold pursuant to the Tag-Along Acceptances such that the total number of Units to be sold by the Tag Sellers, on the one hand, and the total number of Tag-Along Units to be sold by the applicable Class B Members, on the other hand, shall each be reduced by being multiplied by a fraction, the numerator of which is equal to the total number of Units the Tag-Along Purchaser is willing to purchase and the denominator of which is equal to the aggregate of the total number of Units proposed to be sold by the Tag Sellers and the total number of Tag-Along Units proposed to be sold by the applicable Class B Members. Within 15 Business Days after the end of the Tag-Along Period, the Tag Sellers shall notify the applicable Class B Members of the number of Units beneficially owned by such Class B Members that will be included in the sale and also how many Units the Tag Sellers are selling compared to the total number of Units being sold. No Class B Member shall be required to provide any representations, warranties or indemnities in connection with any Tag-Along Acceptance, other than customary (including with respect to qualifications) several (and not joint) representations, warranties and indemnities, and then only to the extent that the Tag Sellers provide similar representations, warranties and indemnities (except that in the case of representations, warranties, and indemnities pertaining specifically to the Tag Sellers, each applicable Class B Member shall make the comparable representations, warranties, and indemnities pertaining specifically to itself). Any indemnification obligations in a sale of Tag-Along Units shall be pro rata based on the consideration received by the Members and limited to the net proceeds received by each Member.
(d) The fees and expenses of the Tag Sellers incurred in connection with a Tag-Along Offer and for the benefit of all Members participating in the Tag-Along Offer (it being understood that costs incurred by or on behalf of Tag Sellers for their sole benefit will not be considered to be for the benefit of all Members participating in the Tag-Along Offer), to the extent not paid or reimbursed by the Company, shall be shared by all Members participating in the Tag-Along Offer on a pro rata basis, based on the consideration received by each Member.
(e) The Tag-Along Purchaser shall have 90 days, commencing on the day following the expiration of the Tag-Along Period, in which to purchase from the Tag Sellers and the applicable Class B Members, the number of Units as determined pursuant to this Section 9.5. If at the end of such 90-day period the Tag-Along Purchaser has not completed the purchase of all the Units proposed to be sold in accordance with the terms and conditions set forth in the Tag-Along Notice, the provisions of this Section 9.5 shall continue to be in effect with respect to all such Units as if no Tag-Along Notice had been given with respect thereto.
Section 9.6 Class B Member Liquidity Right.
(a) During each Put Period, the Class B Members shall have the right (the “Put Right”) to require Amneal or the Company to purchase, and Amneal or the Company, as
 
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applicable, shall purchase (with such purchasing entity determined at the sole discretion of Amneal), up to one third (1/3) of the aggregate number of Class B Common Units (the “Put Class B Common Units”) held by such Class B Members (the “Exercising Class B Members”), for a purchase price per Class B Unit calculated based on the enterprise value of the Company equal to (i) five and a half times (5.5x) the aggregate EBITDA of the Company and its subsidiaries for the immediately preceding Fiscal Year less the amount of net indebtedness of the Company and its subsidiaries as of the end of the immediately preceding Fiscal Year extrapolated from the Company’s audited financial statements, divided by (ii) the number of outstanding Common Units (the “Put Price”); provided that the Put Right shall only be exercisable pursuant to this Section 9.6(a) if each of the Put Right Conditions have been satisfied for the applicable calendar year of the Put Measurement Period. For purposes of clarification, assuming the Put Right Conditions have been satisfied in each Put Period beginning on January 1, 2026, then the Put Class B Common Units that Amneal shall be required to purchase over such three Put Periods shall be equal to up to one hundred percent (100%) of the aggregate number of Class B Common Units held by the Exercising Class B Members. Amneal will be entitled to receive customary representations and warranties from the Exercising Class B Members regarding such purchase, including with respect to the due authorization, execution and delivery of any agreement entered into in connection with such purchase, its authority to enter into such agreement and consummate the transactions contemplated thereby without the consent or approval of any other Person, title to the Put Class B Common Units and the absence of any liens or other limitation or restriction on such Put Class B Common Units or the Transfer thereof. At the closing of the purchase of the Put Class B Common Units, the Exercising Class B Members shall deliver the certificates, if any, evidencing the number of Put Class B Common Units to be purchased by Amneal, accompanied by interest powers duly endorsed in blank or duly executed instruments of transfer, and any other documents that are reasonably necessary or requested by Amneal in order to transfer to Amneal good title to the Put Class B Common Units to be transferred, free and clear of all pledges, security interests, liens, charges, encumbrances, equities, claims and options of whatever nature other than those imposed under this Agreement. Notwithstanding anything in this Agreement to the contrary, the Put Price shall be calculated by excluding the impact of outstanding Common Units that were issued (i) after the end of the last fiscal quarter used in calculating the EBITDA component of the Put Price and (ii) in exchange for cash proceeds that are used directly or indirectly to fund the payment of the Put Price.
(b) The Exercising Class B Members shall give to Amneal, the Company and the other Class B Members written notice of their intention to exercise the Put Right, which notice shall include the number of Class B Common Units with respect to which the Put Right is being exercised, the Put Price and documentation with respect to the determination thereof (the “Put Right Exercise Notice”). Such other Class B Members shall have five days from the date the Put Right Exercise Notice is received to deliver written notice to Amneal and the Exercising Class B Members of such Class B Member’s intention to exercise the Put Right with respect to up to one third (1/3) of their respective Class B Common Units at the Put Price set forth in the Put Right Exercise Notice, and if such notice is delivered, any such other Class B Member shall be considered an Exercising Class B Member and the relevant Class B Common Units shall be included in the Put Class B Common Units for purposes of this Section 9.6. The Put Price shall be payable by Amneal as a priority distribution pursuant to Section 7.2(c).
 
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Section 9.7 Class B Common Units Call Right. At any time following the date hereof, Amneal shall have the right, but not the obligation (the “Call Right”), to require the Class B Members to sell, and the Class B Members shall sell, some or all of the aggregate Class B Common Units (the “Called Class B Common Units”) held by such Class B Members, for a purchase price calculated based on the enterprise value of the Company equal to five and a half times (5.5x) the aggregate EBITDA of the Company and its subsidiaries for the prior four (4) fiscal quarters, less the amount of net indebtedness of the Company and its subsidiaries (the “Call Price”); provided that the Class B Members shall have the one time right to defer the exercise of the Call Right and corresponding purchase of the Called Class B Common Units until the subsequent calendar year following the year in which the Call Right was exercised. Any such purchase of Called Class B Common Units shall be pro rata with respect to all Class B Members. Amneal will be entitled to receive customary representations and warranties from the Class B Members regarding such purchase, including with respect to the due authorization, execution and delivery of any agreement entered into in connection with such purchase, its authority to enter into such agreement and consummate the transactions contemplated thereby without the consent or approval of any other Person, title to the Called Class B Common Units and the absence of any liens or other limitation or restriction on such Called Class B Common Units or the Transfer thereof. At the closing of the purchase of the Called Class B Common Units, the Class B Members shall deliver the certificates, if any, evidencing the number of Called Class B Common Units to be purchased by Amneal, accompanied by interest powers duly endorsed in blank or duly executed instruments of transfer, and any other documents that are reasonably necessary or requested by Amneal in order to transfer to Amneal good title to the Called Class B Common Units to be transferred, free and clear of all pledges, security interests, liens, charges, encumbrances, equities, claims and options of whatever nature other than those imposed under this Agreement. Amneal shall give to the Class B Members and the Company written notice of its intention to exercise the Call Right, which notice shall include the number of Class B Common Units with respect to which the Call Right is being exercised, the Call Price and documentation with respect to the determination thereof. The Call Price shall be payable by Amneal in immediately available funds to a bank account or bank accounts designated by the Class B Members. Notwithstanding anything in this Agreement to the contrary, the Call Price shall be calculated by excluding the impact of outstanding Common Units that were issued (i) after the end of the last fiscal quarter used in calculating the EBITDA component of the Call Price and (ii) in exchange for cash proceeds that are used directly or indirectly to fund the payment of the Call Price.
Section 9.8 Change of Control.
(a) Class B Common Units Redemption Upon Change of Control.
(i) Upon the occurrence of a Change in Control Event, the Company or its successor in interest shall redeem in full all of the outstanding Class B Common Units for a price per unit equal to such Class B Common Unit’s pro rata portion of the net equity value received for all of the Company’s Common Units as a result of such Change in Control Event (the “Change in Control Consideration”); provided that the Board of Managers, in its sole discretion, shall have the right to cause Amneal instead of the Company to purchase such Class B Common Units in lieu of a redemption. A “Change in Control Event” shall mean the occurrence of any of the following: (i) a sale of assets representing fifty percent (50%) or more of the net book value and of the fair market value
 
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of the Company’s consolidated assets (in a single transaction or in a series of related transactions); (ii) a merger or consolidation involving the Company or any subsidiary of the Company after the completion of which the equityholders of the Company immediately prior to the completion of such merger or consolidation beneficially own, directly or indirectly, outstanding voting Securities representing less than fifty percent (50%) of the combined voting power of the surviving entity in such merger or consolidation; or (iii) an acquisition by any Person or group other than in a merger or consolidation of the type referred to in subsection (ii), of beneficial ownership of outstanding voting Securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company (in a single transaction or series of related transactions).
(ii) The Company or its successor in interest shall deliver written notice to each Class B Member (a “Notice of Occurrence of Change in Control Event”) within five (5) days after the occurrence of a Change in Control Event, specifying that a Change in Control Event has occurred, the material facts and circumstances of such Change in Control Event, the redemption date (no more than ten (10) days following delivery of notice, the “Change in Control Redemption Date”), the Change in Control Consideration, the place at which payment may be obtained and calling upon such holder to surrender to the Company, in the manner and at the place designated, his, her or its certificate or certificates representing the shares to be redeemed (the “Change in Control Redemption Notice”). Upon receipt of a Notice of Occurrence of Change in Control Event, on or after the Change in Control Redemption Date, each Class B Member shall surrender to the Company the certificate or certificates, if any, representing such Class B Common Units, in the manner and at the place designated in the Change in Control Redemption Notice, and thereupon the Change in Control Consideration shall be payable to the Person whose name appears on such certificate or certificates as the owner thereof, if such Class B Common Units are certificated, and each surrendered certificate shall be cancelled. If such Class B Common Units are not certificated, the Change in Control Consideration shall be payable to the Person whose name appears on the books and records of the Company as the holder of the Class B Common Units being redeemed pursuant to this Section 9.8(b).
(b) No Further Rights. From and after any redemption of Class B Common Units pursuant to this Section 9.8, all rights of the holders of Class B Common Units, as applicable, designated for redemption (except the right to receive the Change in Control Consideration) shall cease with respect to the Units to be redeemed, and such Units shall not thereafter be transferred on the books of the Company or its successor in interest or be deemed to be outstanding for any purpose whatsoever.
ARTICLE X.
BOOKS AND RECORDS
Section 10.1 Financial Information.
(a) The Members shall have access to the information contemplated by Section 18-305 of the Delaware Act.
 
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(b) Upon the request of any Class B Member, the Company shall deliver, or cause to be delivered to the Class B Members as soon as reasonably practicable:
(i) after the end of each fiscal year of the Company or any Company Entity, an audited consolidated balance sheet of the Company and its subsidiaries as of the last day of such fiscal year and the related statements of income and cash flow for such fiscal year;
(ii) after the end of the each fiscal quarter, an unaudited consolidated balance sheet of the Company and its subsidiaries as of the last day of such fiscal quarter and the related statements of income and cash flow for that portion of such fiscal year then ending;
(iii) after the end of the each fiscal month, reasonable interim financial information for such fiscal month; and
(iv) any information provided to the lenders of the Company or any of its Subsidiaries.
Section 10.2 Accounting Method. For both financial and tax reporting purposes and for purposes of determining profits and losses, the books and records of the Company will be kept in accordance with generally accepted accounting principles in the United States, consistently applied by Amneal, and will reflect all Company transactions and be appropriate for the Company’s business.
ARTICLE XI.
TAX MATTERS
Section 11.1 Preparation of Tax Returns. The Tax Matters Representative will arrange for the preparation and timely filing of all returns relating to Company income, gains, losses, deductions and credits, as necessary for federal, state and local income tax purposes and will provide the Members with applicable Form Schedules K-1 within 180 days following the end of the Fiscal Year of the Company.
Section 11.2 Tax Matters.
(a) Amneal is hereby designated as the partnership representative of the Company for purposes of the Partnership Tax Audit Rules (in such role, the “Tax Matters Representative”). In addition, (i) the Class A Members, acting through a Majority in Interest of the Class A Members, are hereby authorized to (A) designate any other eligible Person selected by the Class A Members as the Tax Matters Representative, and (B) take, or cause the Company to take, such other actions as may be necessary or advisable pursuant to Treasury Regulations or other guidance to ratify the designation of Amneal (or any eligible Person selected by the Majority in Interest of the Class A Members) as the Tax Matters Representative; and (ii) each Member hereby consents to the initial designation of Amneal as the Tax Matters Representative and agrees to take such other actions as may be requested by the Tax Matters Representative to ratify, or confirm its consent to, such initial designation and any future change in the designation of the Tax
 
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Matters Representative. In such capacity, the Tax Matters Representative shall have all of the rights, authority and power, and shall be subject to all of the obligations, of a tax matters partner and partnership representative to the extent provided in the Code and the Treasury Regulations, and is authorized and required to represent the Company in connection with any administrative Proceeding at the Company level with the Internal Revenue Service relating to the determination of any item of Company income, gain, loss, deduction or credit for federal income tax purposes.
(b) The Members acknowledge and agree that it is the intention of the Members to minimize any obligations of the Company to pay taxes and interest in connection with any audit of the Company, including, if the Tax Matters Representative so determines, by means of elections under Section 6226 of the Code and/or the Members filing amended returns under Section 6225(c)(2) of the Code. The Members agree to cooperate in good faith, including by timely providing information reasonably requested by the Tax Matters Representative and making elections and filing amended returns reasonably requested by the Tax Matters Representative, and by paying any applicable taxes, interest and penalties, to give effect to the preceding sentence. The Company shall make any payments it may be required to make under the Revised Partnership Audit Procedures and, in the Tax Matters Representative’s reasonable discretion, allocate any such payment among the current or former Members of the Company for the “reviewed year” to which the payment relates in a manner that reflects the current or former Members’ respective interests in the Company for that year and any other factors taken into account in determining the amount of the payment. To the extent payments are made by the Company on behalf of or with respect to a current Member in accordance with this Section 11.2, such amounts shall, at the election of the Tax Matters Representative, (i) be applied to and reduce the next distribution(s) otherwise payable to such Member under this Agreement or (ii) be paid by the Member to the Company within 30 days of written notice from the Tax Matters Representative requesting the payment. In addition, if any such payment is made on behalf of or with respect to a former Member, that Member shall pay over to the Company an amount equal to the amount of such payment made on behalf of or with respect to it within 30 days of written notice from the Tax Matters Representative requesting the payment. Any cost or expense incurred by the Tax Matters Representative in connection with its duties, including the preparation for or pursuance of administrative or judicial proceedings, will be paid by the Company.
(c) The provisions contained in this Section 11.2 shall survive the dissolution of the Company and the withdrawal of any Member or the Transfer of any Member’s interest in the Company and shall apply to any current or former Member.
Section 11.3 Taxation as Partnership. The Company shall at all times be treated as a partnership for federal and state income tax purposes, and neither the Board of Managers nor the Members shall change such classification without the prior written consent of each Member.
ARTICLE XII.
LIABILITY AND INDEMNIFICATION
Section 12.1 Liability.
(a) Except as otherwise provided by the Delaware Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, will be solely the
 
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debts, obligations and liabilities of the Company, and no Indemnified Person will be obligated personally for any such debt, obligation or liability of the Company solely by reason of being an Indemnified Person.
(b) Except as otherwise expressly required by the Delaware Act or applicable law, neither the Board of Managers nor any Member will have any liability, whether to the Company, the Board of Managers, to any of the other Members or to the creditors of the Company, for (i) any loss suffered by the Company or any other Member that arises out of any investment or other action or omission of any other Indemnified Person if such action or omission did not constitute breach of fiduciary duty, gross negligence, intentional misconduct or fraud or (ii) the debts, liabilities, contracts or other obligations of the Company. Notwithstanding the foregoing, an Indemnified Person will be liable to the Company and the other Indemnified Persons for such Indemnified Person’s material breach of his, her or its express obligations under this Agreement and any payments expressly required to be made by such Indemnified Person pursuant to this Agreement.
Section 12.2 Indemnification.
(a) Agreement to Indemnify. The Company will, to the fullest extent permitted by applicable law, indemnify and hold harmless each Indemnified Person against all claims, liabilities and expenses of whatever nature (“Claims”) relating to activities undertaken in connection with or in relation to the Company or this Agreement, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and attorneys’, accountants’ and other professionals’ fees and expenses and all other expenses reasonably incurred in the defense, prosecution or preparation for the defense or prosecution of, or preparing to testify as a witness in connection with, any such Claim (all of such amounts covered by this Section 12.2 are referred to as “Losses”) imposed upon or reasonably incurred by such Indemnified Person in connection with the defense, prosecution or other disposition of any action, suit, arbitration or other proceeding (a “Proceeding”), whether civil, criminal, administrative or investigative, before any court, administrative body or arbitrator in which such Indemnified Person may be or may have been involved, as a party or otherwise, or with which such Indemnified Person may be or may have been threatened, except with respect to any matter as to which such Indemnified Person did not act in good faith and in the reasonable belief that such Indemnified Person’s action was in or not opposed to the best interests of the Company or constituted gross negligence, intentional misconduct or fraud. No indemnification will be payable pursuant to this Section 12.2 to an Indemnified Person:
(i) against any liability incurred by reason of conduct that has been finally determined (without right to further appeal) to be Disabling Conduct by such Indemnified Person;
(ii) in respect of any action by or in the right of the Company against such Indemnified Person if such Indemnified Person is adjudged to be liable to the Company unless and only to the extent that the court in which such Proceeding was brought determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such Indemnified Person is fairly and reasonably entitled to indemnity for such expenses which such court or arbitrator deems proper; and
 
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(iii) in respect of any Proceeding brought or maintained by such Indemnified Person against the Company, the Board of Managers or any Member or such Member’s Affiliates.
The termination of any Proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent will not, of itself, create a presumption that such Indemnified Person was guilty of Disabling Conduct or that such Person did not act in good faith, and in a manner such Indemnified Person reasonably believed to be in or not opposed to the best interests of the Company or that such Indemnified Person had reasonable cause to believe that its conduct was unlawful.
(b) Certain Determinations. All determinations that the applicable standards of conduct have been met for indemnification under this Section 12.2 will be made by the Board of Managers in the good-faith exercise of their judgment; provided, however, that if the determination is being made with respect to an Indemnified Person who is also a member of, or has a representative on, the Board of Managers, such Person or their representative shall not participate in such determination by the Board of Managers.
(c) Advancement of Monies. In the discretion of the Board of Managers, expenses incurred by an Indemnified Person in connection with any Claim that may be subject to a right of indemnification hereunder may be advanced by the Company prior to the final disposition thereof upon the Company’s receipt of an undertaking by or on behalf of the Indemnified Person to repay such amount to the Company if it is determined ultimately that the Indemnified Person is not entitled to be indemnified hereunder in respect of such Claim.
(d) Reimbursement. To the extent that any Indemnified Person has been successful on the merits or otherwise in defense of a Claim referred to in this Section 12.2 hereof or an action by or in the right of the Company, the Company will indemnify such Indemnified Person against all expenses actually and reasonably incurred by such Indemnified Person in connection therewith.
(e) Notice of Claims, etc. Promptly after receipt by an Indemnified Person of notice of the commencement of any Claim or threatened Claim referred to in this Section 12.2, such Indemnified Person must, if a claim for indemnification in respect thereof is to be made against the Company, give written notice to the Company of such Claim; provided, however, that the failure of any Indemnified Person to give notice as provided herein will not relieve the Company of its obligations under this Section 12.2, except to the extent that the Company is prejudiced by such failure to give notice. Subject to any attorney-client privilege or similar consideration, each Indemnified Person must keep the Board of Managers apprised of the progress and status of any such Claim. Subject to any attorney-client privilege or similar consideration, the Board of Managers will furnish to each Member such information concerning any such Claim to which such Member is a party as such Member may from time to time reasonably request.
(f) Participation in Defense. In case any Proceeding is brought against any Indemnified Person for which such Person is seeking indemnity hereunder, the Company will be entitled to participate in and to assume the defense thereof to the extent that the Board of Managers in their discretion may determine, with counsel reasonably satisfactory to such Indemnified
 
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Person, unless in the opinion of independent counsel to such Indemnified Person a conflict of interest exists or may reasonably be expected to arise between the Company and such Indemnified Person. After the Company so assumes the defense thereof, the Company will not be liable for expenses subsequently incurred by the Indemnified Person in connection with the defense thereof. Without the consent of the Indemnified Person, the Company will not consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect of such Claim. If the Company does not elect to assume the defense of an Indemnified Person, such Indemnified Person may not enter into any settlement for which he, she or it seeks to be indemnified under this Agreement without the consent of the Board of Managers.
(g) Limitation on Indemnification. The indemnification to be provided by the Company pursuant to this Section 12.2 will only be recoverable out of the assets of the Company.
(h) Amendment; Modification; Repeal. Any amendment, modification, or repeal of this Section 12.2 shall be shall be prospective only and shall not in any way affect the rights of any Indemnified Person under this Section 12.2 as in effect immediately prior to such amendment, modification, or repeal with respect to matters occurring, in whole or in part, prior to such amendment, modification, or repeal, regardless of when claims relating to such matters may arise or be asserted.
(i) Survival. The provisions of this Section 12.2 will not survive the termination of the Company and the final distribution of its assets as a result thereof, and following such termination, neither any Member nor any Indemnified Person will have any claim for indemnification hereunder against any Member or against or with respect to any assets or properties distributed to such Member at any time. Except in connection with the termination of the Company and the final distribution of its assets as a result thereof, the provisions of this Section 12.2 will survive in favor of any Indemnified Person following termination of this Agreement.
ARTICLE XIII.
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution. The Company will be dissolved and its affairs will be wound up upon the occurrence of any of the following events:
(a) the entry of a decree of judicial dissolution under Section 18-802 of the Delaware Act; or
(b) subject to Section 6.4(b), the Board of Managers’ consent to dissolve the Company.
Section 13.2 Notice of Dissolution. Upon the dissolution of the Company, the Board of Managers will promptly notify the Members of such dissolution.
Section 13.3 Liquidation. Upon dissolution of the Company, subject to Section 13.4 below, the Board of Managers, as liquidating trustee, will immediately commence to wind up the Company’s affairs; provided, however, that a reasonable time will be allowed for the orderly
 
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liquidation of the assets of the Company and the satisfaction of liabilities to creditors so as to enable the Members to minimize the normal losses attendant upon a liquidation. The cash proceeds from the liquidation of Company Assets shall be applied or distributed by the Company in the following order:
(a) first, to the creditors of the Company (including the Board of Managers and any Members that are creditors to the extent permitted by law), in satisfaction of liabilities of the Company other than liabilities for distributions to Members pursuant to Section 17-604 of the Delaware Act, and as reasonable reserves therefor;
(b) second, to Members and former Members in satisfaction of liabilities, if any, for distributions pursuant to Section 17-604 of the Delaware Act, and as reasonable reserves therefor; and
(c) third, to the Members in accordance with Section 7.2(b).
Section 13.4 Termination. The Company will terminate when all of the assets of the Company have been distributed in the manner provided for in this Article XIII, and the Certificate will have been cancelled in the manner required by the Delaware Act.
Section 13.5 Claims of the Members. Members and former Members may look solely to the Company’s assets for the return of their Capital Contributions, and if the assets of the Company remaining after payment of or due provision for all debts, liabilities and obligations of the Company are insufficient to return such Capital Contributions, the Members and former Members will have no recourse against the Company or any other Member.
ARTICLE XIV.
COVENANTS OF THE MEMBERS; CONFIDENTIALITY
Section 14.1 Nondisclosure.
(a) Each Member acknowledges that such Member will have access to confidential and proprietary information of the Company Entities and their respective Affiliates, including statistical, personal and client information, historical and financial information, business strategies, operating data, organizational and cost structures, pricing information, technology, know-how, processes, software, patient databases, contracts and other proprietary information (collectively, “Confidential Information”). Notwithstanding the foregoing, “Confidential Information” shall not include information (i) which is or becomes part of the public knowledge or literature, not as a result of any breach of the provisions of this Agreement or (ii) which is lawfully disclosed, without any restriction on additional disclosure, to the receiving Person by a third party who is free lawfully to disclose the same.
(b) Except as required by law or judicial order, no Member shall at any time, directly or indirectly, use Confidential Information in any way (including for such Member’s own private or commercial purposes) or disclose Confidential Information to, or discuss Confidential Information with, any other Person; provided, however, that notwithstanding the foregoing, (i) the Members shall be permitted to use Confidential Information in connection with the evaluation of
 
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such Member’s direct or indirect investment in the Company and (ii) the Members shall be permitted to disclose Confidential Information (A) to those directors, managers, members, officers, employees or agents of the Company Entities and their respective Affiliates whose access to such information is reasonably necessary in connection with the operation of the Company Entities as contemplated under this Agreement and any other agreements to which any Company Entity is a party and (B) with respect to each Member, those directors, managers, members, officers, employees, agents or limited partners of such Member and their tax, financial, legal, accounting and similar advisors whose access to such information is reasonably necessary in connection with the operation of such Member, and with respect to the Class A Members, their potential investors and financing sources; provided that the party disclosing any Confidential Information pursuant to clause (ii)(B) shall be (I) required to inform the Person to whom such information is disclosed that such Confidential Information is subject to this Section 14.1 and that such Person is responsible to comply with this Section 14.1 as if such Person was a Member and (II) responsible for any use or disclosure by such Person of the Confidential Information that would be in violation of this Section 14.1 if such Member had so used or disclosed such Confidential Information.
(c) Each Member acknowledges and agrees that the Company and other Members may be harmed irreparably by a violation of this Section 14.1, that the Company’s remedies at law for any breach or threat of breach of the provisions of this Section 14.1 shall be inadequate, and that the Company shall be entitled to an injunction or injunctions to prevent breaches of this Section 14.1 and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which the Company may be entitled at law or in equity. Each Member hereby agrees to waive any requirement for the securing or posting of any bond in connection with such remedy. The provisions of this Section 14.1 shall survive any termination of this Agreement and the date on which such Member ceases to be a Member.
Section 14.2 Future Financing. Each of the Members hereby agrees to use the Member’s reasonable best efforts to cooperate with the Company, and take any actions reasonably necessary, in connection with any future debt financing by the Company approved by the Board of Managers, including any restructuring, diligence or other actions required in connection with such financing.
ARTICLE XV.
MISCELLANEOUS
Section 15.1 Amendments. Subject to Section 6.4(b)(i), any amendment to this Agreement will be adopted and be effective as an amendment hereto if approved by the Board of Managers; provided, however, that no amendment will be made, and any such purported amendment will be void and ineffective, to the extent the result thereof would be to: (a) cause the Company to be treated as anything other than a partnership for purposes of United States income taxation without the consent of all the Members or (b) amend this Section 15.1 without the consent of all the Members. The Board of Managers shall provide to all Members a copy of any amendments to this Agreement as soon as practicable after adoption. Notwithstanding the foregoing in this Section 15.1, the Board of Managers shall have the right, without the consent of the Members, to amend or modify this Agreement to reflect Transfers, new or additional issuances, including new or additional Units, or modifications of the terms of existing or future Units and the
 
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addition of new Members, in each case, conducted in accordance with the terms of this Agreement, and any corresponding modifications of Unit ownership set forth on Schedule A.
Section 15.2 Representations and Warranties of all Members. Each Member, severally and not jointly, represents and warrants to the Company and the other Members as follows:
(a) The performance of this Agreement by such Member will not violate (i) any provision of the certificate or articles of incorporation, bylaws, operating agreement, partnership agreement or other organizational documents of such Member (if applicable), (ii) any provision of applicable law or regulation, any order of any court or other agency of government, or (iii) any provision of any indenture, agreement or other instrument to which such Member or any of such Member’s properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument.
(b) This Agreement constitutes the legal, valid and binding obligation of such Member, enforceable against such Member in accordance with its terms.
(c) Such Member has such knowledge and experience in financial and business matters that such Member is capable of evaluating the merits and risks of such Member’s investment in the Units acquired by such Member.
(d) Such Member is acquiring the Units being acquired by such Member for such Member’s own account and not for, or as the nominee of, any other Person and for investment, and not with a view to the distribution thereof in violation of the Securities Act and the rules and regulations promulgated thereunder or applicable state securities laws.
(e) Such Member understands that (i) the Units being acquired by it have not been registered under the Securities Act or applicable state securities laws by reason of their issuance by the Company in a transaction exempt from the registration requirements of the Securities Act and applicable state securities laws and (ii) such Units must be held by such Member indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities laws or is exempt from registration.
(f) Such Member possesses the financial resources to bear the risk of economic loss with respect to the Units being acquired by such Member hereunder.
(g) Such Member will not, directly or indirectly, offer, sell, pledge, Transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Units acquired by it except in compliance with the Securities Act and all applicable state securities laws.
Section 15.3 Notices. All notices provided for in this Agreement must be in writing, duly signed by the party giving such notice, and must be delivered, mailed or e-mailed (and if e-mailed, with a copy sent by reputable overnight courier service (charges prepaid) as follows):
 
35

(a) If given to the Company or the Board of Managers, at the Company’s mailing address set forth below:
Rondo Partners, LLC
400 Crossing Boulevard, 3rd Floor
Bridgewater, NJ 08807
Attn: General Counsel
Email: legaldept@amneal.com
With a copy, which alone shall not constitute notice, to:
Morgan, Lewis & Bockius LLP
502 Carnegie Center
Princeton, New Jersey 08540
Attn: Steven M. Cohen
Email: steven.cohen@morganlewis.com
(b) If to any Member, to the address of such Member set forth on Schedule A.
Each proper notice shall be effective upon any of the following: (i) personal delivery to the recipient, (ii) when sent by email to the recipient, with a copy sent by reputable overnight courier service (charges prepaid), one calendar day after being sent by such courier service, or (iii) one calendar day after being sent to the recipient by reputable overnight courier service (charges prepaid).
Section 15.4 Failure to Pursue Remedies. The failure of any party to seek redress for violation of, or to insist upon the strict performance of, any provision of this Agreement will not prevent a subsequent act, which would have originally constituted a violation from having the effect of an original violation.
Section 15.5 Specific Enforcement. Each party hereto acknowledges and agrees that each party hereto will be irreparably damaged in the event any of the provisions of this Agreement are not performed by the parties in accordance with their specific terms or are otherwise breached. Accordingly, it is agreed that each of the Company and each Member shall be entitled to an injunction to prevent breaches of this Agreement, and to specific enforcement of this Agreement and its terms and provisions in any action instituted in any court or before any arbiter.
Section 15.6 Cumulative Remedies. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party will not preclude or waive such party’s right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.
Section 15.7 Binding Effect. This Agreement will be binding upon and inure to the benefit of all of the parties and, to the extent permitted by this Agreement, their successors, legal representatives and assigns.
 
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Section 15.8 Interpretation. Throughout this Agreement, nouns, pronouns and verbs will be construed as masculine, feminine, neuter, singular or plural, whichever is applicable. All references herein to “Articles,” “Sections” and paragraphs refer to corresponding provisions of this Agreement. The headings and subheadings in this Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof. Whenever the context may require in this Agreement or any Exhibit hereto, any pronoun shall include the corresponding masculine, feminine and neuter forms. When utilized in this Agreement or any Exhibit hereto, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation”; (b) the words “hereof,” “herein,” and “hereunder” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement; and (c) the word “or” shall not be deemed to be exclusive.
Section 15.9 Severability. The invalidity or unenforceability of any particular provision of this Agreement will not affect the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision were omitted.
Section 15.10 Counterparts. This Agreement may be executed in any number of counterparts (which may be delivered electronically) with the same effect as if all parties hereto had signed the same document. All counterparts will be construed together and will constitute one instrument.
Section 15.11 Waiver. No rights or remedies hereunder shall be waived except as approved by the Board of Managers in writing. Any waiver given for breach or default will be effective only for the breach or default which it addresses and will not be deemed a waiver of any other breach or default.
Section 15.12 Further Assurances. Each Member agrees to execute any additional documents and to perform any additional acts as are, or become, necessary or convenient to carry out the purposes of this Agreement.
Section 15.13 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the formation of, and the terms and conditions relating to the management, operation, business and affairs of, the Company, and supersedes all prior oral and written, and all contemporaneous oral, understandings, negotiations and agreements with respect to the subject matter hereof.
Section 15.14 Treatment for Tax Purposes. The Members and the Company will take all reasonable actions, including the amendment of this Agreement and the execution of other documents, as may be reasonably required to qualify for and receive treatment as a partnership for United States federal, state and local tax purposes.
Section 15.15 Governing Law; Jurisdiction. This Agreement and the rights of the parties hereunder will be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies will be governed by such laws without regard to principles of conflict of laws. In the event of a direct conflict between the provisions of this Agreement and any mandatory provision of the Delaware Act, the applicable provision of the Delaware Act shall control. Any
 
37

Proceeding under or with respect to this Agreement, shall be brought in any court of competent jurisdiction in the State of Delaware and each of the Company and the Members hereby submits to the exclusive jurisdiction of such courts for the purpose of any such Proceeding. Each of the Company and the Members hereby irrevocably waives any objections which it may now or hereafter have to the laying of the venue of any Proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in the State of Delaware, and hereby further irrevocably waives any claim that any such Proceeding brought in any such court has been brought in any inconvenient forum.
Section 15.16 Section Titles. Section titles and headings are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text hereof.
Section 15.17 Assignment of Company’s Rights to Third Party Lender. Notwithstanding any other provision in this Agreement, any of the rights of the Company hereunder may be collaterally assigned to any third-party lender to the Company without the consent of the Members or otherwise (notwithstanding any provisions of such letter agreement to the contrary).
Section 15.18 Spousal Consent. Any Member who is married at the time such Person executes this Agreement shall, as a condition to being admitted to the Company as a Member and/or as a condition to being entitled to receive any Units or other interest under this Agreement or in respect of the Company, be required to obtain his or her spouse’s signature to the Spousal Consent in the form of Exhibit C. Any Person who executes this Agreement but does not provide an executed Spousal Consent hereby represents and warrants to the Company that such Person does not have a spouse. Any Person who marries after being admitted to the Company as a Member shall be required to obtain his or her spouse’s signature to the Spousal Consent in the form of Exhibit C within 30 days after the date of such marriage.
[The remainder of this page has been intentionally left blank]
 
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above stated.

THE COMPANY:	
	
RONDO PARTNERS, LLC	
		
By:	 	/s/ Chirag Patel	
	 	Name: Chirag Patel	
	 	Title:   President and CEO	
	
AMNEAL:	
	
RONDO ACQUISITION LLC	
		
By:	 	/s/ Chirag Patel	
	 	Name: Chirag Patel	
	 	Title:   President and CEO	
Signature Page to Amended and Restated Operating Agreement of Rondo Partners, LLC

 
			
ROLLOVER SELLERS:	
	
THE DARREN THOMAS SHIRLEY BUSINESS TRUST	
		
By:	 	/s/ Darren Thomas Shirley	
	 	Name: Darren Thomas Shirley
Title:   Trustee	
	
THE STEVE SHIRLEY BUSINESS TRUST	
		
By:	 	/s/ Steve Shirley	
	 	Name: Steve Shirley
Title:   Trustee	
Signature Page to Amended and Restated Operating Agreement of Rondo Partners, LLC

Exhibit A
Defined Terms
“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:
(a) any amounts that such Member is obligated to restore pursuant to this Agreement or is deemed to be obligated to restore pursuant to Treasury Regulations Section 1.704-1(b)(2)(ii)(c) or pursuant to the penultimate sentence of either of Treasury Regulations Sections 1.704-2(i)(5) or 1.704-2(g)(1) shall be treated as added back to the Member’s Capital Account Deficit; and
(b) the items described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) shall be treated as reducing the Member’s Capital Account for the purpose of computing such deficit, and shall increase the Adjusted Capital Account Deficit.
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
“Affiliate” with reference to any Person means any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, or owns greater than 50% of the voting power in, such Person, and the term “Affiliated” shall have a correlative meaning. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning set forth in the Preamble, as amended, modified, supplemented or restated from time to time.
“Assumed Tax Liability” means, with respect to any Member at any Tax Distribution Date, an amount equal to (1) the amount of federal, state, local and foreign income taxes (including any applicable estimated taxes) for such taxable year, determined taking into account the character of income and loss allocated as it affects the Assumed Tax Rate, that the Board of Managers estimates in good faith would be due from such Member as of the relevant Tax Distribution Date, (i) assuming such Member were an individual who earned solely the items of income, gain, deduction, loss, and/or credit allocated to such Member pursuant to Article V, (ii) taking into account adjustments and allocations under Sections 704(c), 734 and 743 of the Code and applicable limitations on the deductibility of capital losses and the effect of deductions under Section 199A of the Code, and (iii) assuming that such Member is subject to tax at the Assumed Tax Rate or (2) such lower amount that such Member shall establish for such Tax Distribution Date by providing written notice thereof to the Board of Managers at least five (5) Business Days prior to such Tax Distribution Date. The Board of Managers shall reasonably determine the Assumed Tax Liability for each Member based on such assumptions as the Board of Managers in good faith deems reasonably necessary.
 
Exhibit A-1

“Board of Managers” means the Board of Managers designated by the Members pursuant to Article VI.
“Business Day” means a day other than a Saturday, Sunday or other day on which banks located in Delaware are authorized or required by law to close.
“Capital Account” means the capital account maintained for each Member on the Company’s books and records in accordance with the following provisions:
(a) To each Member’s Capital Account there shall be added (i) such Member’s Capital Contributions, (ii) such Member’s allocable share of Net Income and any items in the nature of income or gain that are specially allocated to such Member pursuant to Article VIII or other provisions of this Agreement, and (iii) the amount of any Company liabilities assumed by such Member or which are secured by any property distributed to such Member.
(b) From each Member’s Capital Account there shall be subtracted (i) the amount of cash and the Gross Asset Value of any Company Assets (other than cash) distributed to such Member pursuant to any provision of this Agreement (for the avoidance of doubt, excluding any payment of principal and/or interest to such Member pursuant to the terms of a loan made by the Member to the Company), (ii) such Member’s allocable share of Net Loss and any other items in the nature of deductions, expenses or losses that are specially allocated to such Member pursuant to Article VIII or other provisions of this Agreement, and (iii) liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company.
(c) In the event any Units are Transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the Transferor to the extent it relates to the Transferred Units.
(d) In determining the amount of any liability for purposes of clauses (a) and (b) above, there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Treasury Regulations.
The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Sections 1.704-1(b) and 1.704-2 and shall be interpreted and applied in a manner consistent with such Treasury Regulations. In the event that the Board of Managers determines that it is prudent to modify the manner in which the Capital Accounts, or any additions or subtractions thereto, are computed in order to comply with such Treasury Regulations, the Board of Managers may make such modification. The Board of Managers shall also make (i) any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of Company capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(q), and (ii) any appropriate modifications in the event that unanticipated events might otherwise cause this Agreement not to comply with Treasury Regulations Sections 1.704-1(b) and 1.704-2.
“Capital Contribution” means, with respect to any Member, the aggregate amount of money or other property (net of any liabilities) contributed (or deemed contributed) to the
 
Exhibit A-2

Company in accordance with this Agreement with respect to such Member’s Units, in each case, as set forth on Schedule A, as may be amended from time to time.
“Cause” means any of the following as determined in good faith by the Board of Managers:
(i) a Person’s conviction of or plea of guilty or nolo contendere to a felony or a misdemeanor involving material dishonesty;
(ii) a Person’s willful misconduct in the performance of his duties hereunder (including theft, fraud, embezzlement, and securities law violations) that results, or would reasonably be expected to result, in material economic or reputational harm to the Company;
(iii) a Person’s violation of the Company’s Code of Business Conduct or other written policies made available to such Person that results, or would reasonably be expected to result, in material economic or reputational harm to the Company;
(iv) any breach by the Person of such Person’s covenants under Section 5.4; or
(vi) any material breach by the Person of any provision of this Agreement which breach is not cured, to the extent susceptible to cure, within 15 business days after the Board of Managers has provided the Person with written notice thereof specifying such violation.
For purposes of the definition of “Cause”, no act or failure to act on the part of a Person shall be considered “willful,” unless done, or omitted to be done, in bad faith or without reasonable belief that his action or omission was in, or not opposed to, the best interest of the Company (including their reputation). For the avoidance of doubt, no act or failure to act on the part of the Person based upon the direction or advice of legal counsel to the Company shall be deemed to constitute Cause hereunder.
“Certificate” means the Certificate of Formation of the Company and any and all amendments thereto and restatements thereof filed on behalf of the Company with the office of the Secretary of State of the State of Delaware pursuant to the Delaware Act.
“Class A Member” means a Member that holds Class A Common Units.
“Class B Member” means a Member that holds Class B Common Units.
“Class B Percentage Interest” means, with respect to each Class B Member, an amount equal to the product of (a) the quotient obtained by dividing (i) the number of Class B Common Units owned of record by such Member by (ii) the aggregate number of issued and outstanding Class B Common Units at such time, and (b) 100, expressed as a percentage.
“Code” means the U.S. Internal Revenue Code of 1986, as previously or hereafter amended.
“Common Member” means each of the Class A Members and the Class B Members.
 
Exhibit A-3

“Common Percentage Interest” means, with respect to each Common Member, an amount equal to the product of (a) the quotient obtained by dividing (i) the number of Common Units owned of record by such Member by (ii) the aggregate number of issued and outstanding Common Units at such time, and (b) 100, expressed as a percentage.
“Company Assets” means all direct and indirect interests in real and personal property owned by the Company from time to time, and shall include both tangible and intangible property (including cash and including the Company’s right to receive Capital Contributions hereunder).
“Company Minimum Gain” has the meaning specified in Treasury Regulations Section 1.704-2(b)(2), and the amount of Company Minimum Gain, as well as any net increase or decrease in Company Minimum Gain, shall be determined in accordance with the rules of Treasury Regulations Section 1.704-2(d).
“Deemed Liquidation Event” shall mean a sale of Units, merger or consolidation of the Company (other than one in which Members immediately prior to such merger or consolidation beneficially own a majority by voting power of the outstanding Equity Securities of the surviving or acquiring entity) or a sale, lease, Transfer or other disposition of all or substantially all of the assets of the Company.
“Delaware Act” means the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et seq., as amended from time to time and any successor statute thereto.
“Depreciation” means, for each Fiscal Year, an amount equal to the depreciation, amortization or other cost recovery deduction allowable for federal income tax purposes with respect to an asset for such Fiscal Year; provided, however, that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such Fiscal Year, Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction with respect to such asset for such Fiscal Year bears to such beginning adjusted tax basis; and, provided, further, that if such beginning adjusted tax basis is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board of Managers.
“Disabling Conduct” means any conduct in relation to the Company or any of its Affiliates, which pursuant to the Delaware Act may not legally be indemnified.
“EBITDA” means earnings before interest, tax, depreciation and amortization, as determined in accordance with GAAP as applied to prepare the Company’s audited financial statements.
“Equity Securities” means any common, preferred or other capital stock of, or any general or limited partnership interests or limited liability company interests in, or any right to participate in the profit and losses of, any Person and any warrants, rights, convertible securities or options to purchase, subscribe for or to convert any Security evidencing debt for any of the foregoing or for any such warrant, right, convertible security or option.
 
Exhibit A-4

“Excluded Business Opportunity” means any matter, transaction or interest that is presented to or acquired, created or developed by, or which otherwise comes into the possession of, a Class A Member, a Class A Manager, a Class B Member or a Class B Manager, other than an ordinary course business opportunity taken by Apace KY LLC, a Kentucky limited liability company d/b/a Apace Packaging LLC, or AvMEDICAL, LLC that is not in the Restricted Business.
“Fair Market Value” means the value per Unit determined pursuant to a valuation obtained from Duff & Phelps, KPMG, Deloitte or BDO or another qualified accounting firm, in each case to be selected by the Board of Managers; provided that such valuation shall not include any minority discount.
“Fiscal Year” means (a) the period commencing upon the formation of the Company and ending on December 31, 2020 or (b) any subsequent 12-month period commencing on January 1 and ending on December 31.
“Gross Asset Value” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset on the date of contribution, as determined by the Board of Managers.
(b) The Gross Asset Values of all Company Assets immediately prior to the occurrence of any event described in subsections (i) through (iv) hereof shall be adjusted to equal their respective gross fair market values, as determined by the Board of Managers, as of the following times:
(i) the acquisition of an interest in the Company by a new or existing Member in exchange for more than a de minimis Capital Contribution, if the Board of Managers reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company;
(ii) the distribution by the Company to a Member of more than a de minimis amount of Company Assets as consideration for an interest in the Company, if the Board of Managers reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company;
(iii) the issuance of an interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company, if the Board of Managers reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company;
(iv) the liquidation of the Company within the meaning of Treasury Regulations Section 1.704 1(b)(2)(ii)(g); and
 
Exhibit A-5

(v) at such other times as the Board of Managers shall reasonably determine necessary or advisable in order to comply with Treasury Regulations Sections 1.704 1(b) and 1.704-2.
(c) The Gross Asset Value of any Company Asset distributed to a Member shall be the gross fair market value of such asset on the date of distribution as determined by the Board of Managers.
(d) The Gross Asset Values of Company Assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this clause (d) to the extent that the Board of Managers reasonably determines that an adjustment pursuant to clause (b) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (d).
(e) If the Gross Asset Value of an asset has been determined or adjusted pursuant to paragraphs (a), (b) or (d) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Income and Net Loss (and not the depreciation, amortization or other cost recovery deductions allowable with respect to that asset for federal income tax purposes).
“Indemnified Person” means, with respect to any act or omission that gives rise to a claim for indemnification under Article XII of this Agreement, (a) the Board of Managers, each accountant, attorney and other agent of the Board of Managers, (b) any of the Officers of the Company and (c) the Members and their Affiliates.
“Lien” means, as to any Person, any mortgage, lien, pledge, adverse claim, charge, security interest or other encumbrance in, or any interest or title of any vendor, lessor, lender or other secured party to or of such person under any conditional sale or other title retention agreement or capital lease with respect to, any property or asset owned or held by such Person, or the signing or filing of a financing statement which names such Person as debtor, or the signing of any security agreement authorizing any other party as the secured party thereunder to file any financing statement.
“Majority in Interest” means those Members who have, at the time of determination thereof, a majority of the outstanding Units or specific class of Units, as the case may be.
“Manager” means a member of the Board of Managers.
“Member” means, at a specific time, a Person holding Units who has acquired such Units in accordance with the provisions hereof, acting in the capacity of a member of the Company, and “Members” means, at such specific time, all of such Persons, collectively, acting in their capacities as members of the Company.
“Member Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt
 
Exhibit A-6

were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulations Section 1.704-2(i).
“Net Cash Available for Distribution” means all cash available for distribution by the Company (other than Capital Contributions), as determined in the good faith discretion of the Board of Managers in excess of amounts retained by the Company for other purposes, including: (a) to pay Company expenses and for anticipated liabilities, (b) to fund reserves, (c) to fund anticipated payments on indebtedness of the Company, (d) to fund any anticipated acquisitions and (e) to pay any required tax withholdings; provided that, with respect to clauses (b) and (d), the Board of Managers shall take into account the Company’s obligation to make Tax Distributions.
“Net Income” or “Net Loss” means an amount equal to the Company’s taxable income or loss with respect to applicable investments or activity, determined in accordance with the principles of Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction or expense required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments, it being the intention not to duplicate any item of income or loss:
(a) any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be taken into account in computing such Net Income or Net Loss;
(b) any expenditures of the Company described in Code Section 705(a)(2)(B), or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be taken into account in computing such Net Income or Net Loss;
(c) in the event the Gross Asset Value of any Company Asset is adjusted pursuant to subparagraph (b) or subparagraph (c) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income or Net Loss;
(d) loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;
(e) to the extent an adjustment to the adjusted tax basis of any Company Asset pursuant to Code Section 734(b) is required pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Income or Net Loss;
(f) in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation; and
 
Exhibit A-7

(g) notwithstanding any other provision of this definition of Net Income or Net Loss, any items which are specially allocated pursuant to Article VIII hereof shall not be taken into account in computing Net Income or Net Loss.
The amounts of the items of Company income, gain, loss, deduction or expense available to be specially allocated pursuant to Article VIII hereof shall be determined by applying rules analogous to those set forth in this definition of Net Income or Net Loss.
“Nonrecourse Debt” has the meaning set forth in Section 1.704-2(b)(4) of the Treasury Regulations.
“Nonrecourse Deduction” has the meaning specified in Treasury Regulations Sections 1.704-2(b)(1) and 1.704-2(c).
“Nonrecourse Liability” has the meaning specified in Treasury Regulations Sections 1.704-2(b)(3) and 1.752-1(a)(2).
“Partnership Tax Audit Rules” means Code Sections 6621 through 6241, as amended by the Bipartisan Budget Act of 2015, together with any subsequent amendments thereto, Treasury Regulations promulgated thereunder, and published administrative interpretations thereof and any similar provision of state or local laws.
“Percentage Interest” means, with respect to each Member, an amount equal to the product of (a) the quotient obtained by dividing (i) the number of Units owned of record by such Member by (ii) the aggregate number of issued and outstanding Units at such time, and (b) 100, expressed as a percentage.
“Permitted Transferee” means, with respect to any Person, (a) the holders of the Equity Securities of such Person, (b) for estate planning purposes, the spouse and descendants (whether natural or adopted) of such Person, and (c) any trust, partnership, limited liability company or similar vehicle established and maintained solely for the benefit of (or the sole members or partners of which are) such Person, such Person’s spouse and/or such Person’s descendants (whether natural or adopted); provided, however, with respect to a Class A Member, “Permitted Transferee” shall also include any Affiliate (including any fund or similar entity of which such Person serves as an investment advisor, manager or in a similar capacity) of such Class A Member and any potential co-investors or other financing sources.
“Person” means a company, a corporation, an association, a partnership, a limited liability company, an organization, a joint venture, a trust or other legal entity, an individual, a government or political subdivision thereof or a governmental agency.
“Portfolio Company” means any Person in which the Company makes, directly or indirectly, an investment (including any debt or equity investment).
“Put Measurement Period” means the calendar year prior to the commencement of the Put Period.
 
Exhibit A-8

“Put Period” means the 30-day period after delivery of the Company’s audited financial statements in each calendar year beginning with 2026 calendar year.
“Put Right Conditions” means, with respect to any applicable calendar year, (a) annual aggregate EBITDA of the Company and its subsidiaries is greater than $75,000,000 during the Put Measurement Period, and (b) the Company has available free cash flow, as determined by the Board of Managers, after taking into account all liabilities and obligations relating to outstanding indebtedness of the Company and its subsidiaries.
“Restricted Business” means the manufacturing, packaging, repackaging, marketing labeling and distributing in the Restricted Territory of pharmaceutical products or any additional business activities in which any Company Entity participates during the period the Class B Member in question holds any equity interest in the Company.
“Securities” means capital stock, limited or general partnership interests, limited liability company interests, bonds, notes, debentures and other obligations, investment contracts and other instruments or evidences of indebtedness commonly referred to as securities and any rights, warrants and options related thereto.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute thereto.
“Tax Distribution Date” means any date that is two Business Days prior to the date on which estimated federal income tax payments are required to be made by corporate taxpayers and the due date for federal income tax returns of corporate taxpayers (without regard to extensions).
“Transfer” means to directly or indirectly, sell, transfer, assign, convey, pledge, mortgage, encumber, hypothecate or otherwise dispose of or suffer the creation of an interest in or Lien on any Equity Security, including by merger, consolidation, recapitalization, redemption, or an exchange.
“Treasury Regulations” means the permanent and temporary regulations promulgated by the U.S. Treasury Department under the Code, as such regulations may be amended from time to time.
The following terms have the meanings assigned to such terms in the Sections of the Agreement set forth below:

Amneal	  	Preamble	
Called Class B Common Units	  	Section 9.7(a)	
Call Price	  	Section 9.7(a)	
Call Right	  	Section 9.7(a)	
Change in Control Consideration	  	Section 9.8(b)(i)	
Change in Control Event	  	Section 9.8(b)(i)	
Change in Control Redemption Date	  	Section 9.8(b)(ii)	
Change in Control Redemption Notice	  	Section 9.8(b)(ii)	
Claims	  	Section 12.2(a)	
 
Exhibit A-9

			
Class	  	Section 4.1(a)	
Class A Common Units	  	Section 4.1(a)	
Class A Managers	  	Section 6.2(a)	
Class B Common Units	  	Section 4.1(a)	
Class B Manager	  	Section 6.2(a)	
Common Units	  	Section 4.1(a)	
Company	  	Preamble	
Company Entities	  	Preamble	
Confidential Information	  	Section 14.1(a)	
Deficit Member	  	Section 8.2(d)	
Drag-Along Right	  	Section 9.4(a)	
Drag-Along Sale	  	Section 9.4(a)	
Dragged Member	  	Section 9.4(a)	
Dragging Member	  	Section 9.4(a)	
DTS Trust	  	Preamble	
Exercising Class B Members	  	Section 9.6(a)	
Extraordinary Matter	  	Section 6.4(b)	
Initial Agreement	  	Preamble	
Issuance	  	Section 9.3	
JBS Trust	  	Preamble	
Joinder Agreement	  	Section 5.7	
New Securities	  	Section 9.3(a)	
Non-Participating Member	  	Section 9.3(b)	
Notice of Occurrence of Change in Control Event	  	Section 9.8(b)(ii)	
Officers	  	Section 6.5(a)	
Preemptive Offer Notice	  	Section 9.3(a)	
Proceeding	  	Section 12.2(a)	
Purchase Agreement	  	Preamble	
Put Class B Common Units	  	Section 9.6(a)	
Put Price	  	Section 9.6(a)	
Put Right	  	Section 9.6(a)	
Put Right Exercise Notice	  	Section 9.6(b)	
Regulatory Allocations	  	Section 8.2(f)	
Representative	  	Preamble	
Restricted Parties	  	Section 5.4(a)	
Restricted Period	  	Section 5.4(a)	
Rollover Sellers	  	Preamble	
Rondo Holdings	  	Preamble	
Rondo Intermediate Holdings	  	Preamble	
Rondo Top Holdings	  	Preamble	
SS Trust	  	Preamble	
Tag-Along Acceptance	  	Section 9.5(b)	
Tag-Along Notice	  	Section 9.5(a)	
Tag-Along Offer	  	Section 9.5(a)	
Tag-Along Period	  	Section 9.5(b)	
 
Exhibit A-10

			
Tag-Along Price	  	Section 9.5(a)	
Tag-Along Purchaser	  	Section 9.5(a)	
Tag-Along Units	  	Section 9.5(c)	
Tax Matters Representative	  	Section 11.2(a)	
Tag Sellers	  	Section 9.5(a)	
Unit	  	Section 4.3(a)	
 
Exhibit A-11

Exhibit 2.2
EXECUTION VERSION
REVOLVING CREDIT AND TERM LOAN AGREEMENT
dated as of January 31, 2020
among
RONDO INTERMEDIATE HOLDINGS, LLC
as Borrower,
RONDO HOLDINGS, LLC,
as Holdings,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
TRUIST BANK
as Administrative Agent

SUNTRUST ROBINSON HUMPHREY, INC.,
BOFA SECURITIES, INC.,
RBC CAPITAL MARKETS
and
CITY NATIONAL BANK,
as Joint Bookrunners and Joint Lead Arrangers

TABLE OF CONTENTS

 	 	 	  	Page	 	
ARTICLE I DEFINITIONS; CONSTRUCTION	  	 	1	 	
			
Section 1.1.	 	Definitions	  	 	1	 	
Section 1.2.	 	Classifications of Loans and Borrowings	  	 	45	 	
Section 1.3.	 	Accounting Terms and Determination	  	 	45	 	
Section 1.4.	 	Terms Generally	  	 	46	 	
Section 1.5.	 	Limited Condition Transaction	  	 	46	 	
Section 1.6.	 	Divisions	  	 	47	 	
Section 1.7.	 	Pro Forma Calculations	  	 	47	 	
Section 1.8.	 	Leverage Ratios	  	 	49	 	
Section 1.9.	 	Certain Determinations	  	 	49	 	
Section 1.10.	 	Cashless Roll	  	 	49	 	
Section 1.11.	 	Currency Generally	  	 	49	 	
		
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS	  	 	49	 	
			
Section 2.1.	 	General Description of Facilities	  	 	49	 	
Section 2.2.	 	Revolving Loans	  	 	50	 	
Section 2.3.	 	Procedure for Revolving Borrowings	  	 	50	 	
Section 2.4.	 	Reserved	  	 	50	 	
Section 2.5.	 	Term Loan Commitments; Procedure for Term Loan Borrowings	  	 	50	 	
Section 2.6.	 	Funding of Borrowings	  	 	51	 	
Section 2.7.	 	Interest Elections	  	 	51	 	
Section 2.8.	 	Optional Reduction and Termination of Commitments	  	 	52	 	
Section 2.9.	 	Repayment of Loans	  	 	53	 	
Section 2.10.	 	Evidence of Indebtedness	  	 	54	 	
Section 2.11.	 	Optional Prepayments	  	 	55	 	
Section 2.12.	 	Mandatory Prepayments	  	 	55	 	
Section 2.13.	 	Interest on Loans	  	 	58	 	
Section 2.14.	 	Fees	  	 	58	 	
Section 2.15.	 	Computation of Interest and Fees	  	 	59	 	
Section 2.16.	 	Inability to Determine Interest Rates	  	 	59	 	
Section 2.17.	 	Illegality	  	 	60	 	

							
Section 2.18.	 	Increased Costs	  	 	61	 	
Section 2.19.	 	Funding Indemnity	  	 	62	 	
Section 2.20.	 	Taxes	  	 	62	 	
Section 2.21.	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	  	 	66	 	
Section 2.22.	 	Letters of Credit	  	 	67	 	
Section 2.23.	 	Increase of Commitments; Additional Lenders	  	 	71	 	
Section 2.24.	 	Mitigation of Obligations	  	 	76	 	
Section 2.25.	 	Replacement of Lenders	  	 	76	 	
Section 2.26.	 	Defaulting Lenders	  	 	76	 	
Section 2.27.	 	Refinancing Term Loans	  	 	79	 	
Section 2.28.	 	Extensions of Term Loans	  	 	80	 	
		
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT	  	 	82	 	
			
Section 3.1.	 	Conditions to Effectiveness	  	 	82	 	
Section 3.2.	 	Conditions to Each Credit Event	  	 	85	 	
Section 3.3.	 	Delivery of Documents	  	 	85	 	
		
ARTICLE IV REPRESENTATIONS AND WARRANTIES	  	 	85	 	
			
Section 4.1.	 	Existence; Power	  	 	86	 	
Section 4.2.	 	Organizational Power; Authorization	  	 	86	 	
Section 4.3.	 	Governmental Approvals; No Conflicts	  	 	86	 	
Section 4.4.	 	Financial Statements	  	 	86	 	
Section 4.5.	 	Litigation and Environmental Matters	  	 	87	 	
Section 4.6.	 	Compliance with Laws and Agreements	  	 	87	 	
Section 4.7.	 	Investment Company Act	  	 	87	 	
Section 4.8.	 	Taxes	  	 	87	 	
Section 4.9.	 	Margin Regulations	  	 	87	 	
Section 4.10.	 	ERISA	  	 	88	 	
Section 4.11.	 	Ownership of Property; Insurance	  	 	88	 	
Section 4.12.	 	Disclosure	  	 	89	 	
Section 4.13.	 	Labor Relations	  	 	89	 	
Section 4.14.	 	Subsidiaries	  	 	90	 	
Section 4.15.	 	Solvency	  	 	90	 	
Section 4.16.	 	[Reserved]	  	 	90	 	
 
ii

							
Section 4.17.	 	Collateral Documents	  	 	90	 	
Section 4.18.	 	Healthcare Laws	  	 	91	 	
Section 4.19.	 	OFAC and USA Patriot Act	  	 	91	 	
Section 4.20.	 	Anti-Corruption Laws	  	 	91	 	
Section 4.21.	 	Use of Proceeds	  	 	91	 	
		
ARTICLE V AFFIRMATIVE COVENANTS	  	 	91	 	
			
Section 5.1.	 	Financial Statements and Other Information	  	 	92	 	
Section 5.2.	 	Notices of Material Events	  	 	94	 	
Section 5.3.	 	Existence; Conduct of Business	  	 	95	 	
Section 5.4.	 	Compliance with Laws	  	 	95	 	
Section 5.5.	 	Payment of Obligations	  	 	95	 	
Section 5.6.	 	Books and Records	  	 	95	 	
Section 5.7.	 	Visitation and Inspection	  	 	95	 	
Section 5.8.	 	Maintenance of Properties; Insurance	  	 	96	 	
Section 5.9.	 	Use of Proceeds; Margin Regulations	  	 	96	 	
Section 5.10.	 	Additional Subsidiaries and Collateral	  	 	96	 	
Section 5.11.	 	Additional Real Estate; Leased Locations	  	 	97	 	
Section 5.12.	 	Further Assurances	  	 	98	 	
Section 5.13.	 	Anti-Corruption Laws	  	 	99	 	
Section 5.14.	 	Post-Closing Matters	  	 	99	 	
		
ARTICLE VI FINANCIAL COVENANTS	  	 	99	 	
			
Section 6.1.	 	Total Net Leverage Ratio	  	 	99	 	
Section 6.2.	 	Reserved	  	 	99	 	
Section 6.3.	 	Interest Coverage Ratio	  	 	99	 	
Section 6.4.	 	Specified Equity Contribution	  	 	100	 	
		
ARTICLE VII NEGATIVE COVENANTS	  	 	100	 	
			
Section 7.1.	 	Indebtedness	  	 	100	 	
Section 7.2.	 	Liens	  	 	103	 	
Section 7.3.	 	Fundamental Changes	  	 	106	 	
Section 7.4.	 	Investments, Loans	  	 	107	 	
Section 7.5.	 	Restricted Payments	  	 	110	 	
Section 7.6.	 	Sale of Assets	  	 	112	 	
 
iii

							
Section 7.7.	 	Transactions with Affiliates	  	 	115	 	
Section 7.8.	 	Restrictive Agreements	  	 	116	 	
Section 7.9.	 	Business of Holdings	  	 	116	 	
Section 7.10.	 	Hedging Transactions	  	 	116	 	
Section 7.11.	 	Amendment to Material Documents	  	 	116	 	
Section 7.12.	 	Certain Indebtedness	  	 	117	 	
Section 7.13.	 	Accounting Changes	  	 	117	 	
Section 7.14.	 	Government Regulation	  	 	117	 	
Section 7.15.	 	Business of the Borrower and its Restricted Subsidiaries	  	 	117	 	
Section 7.16.	 	Sanctions	  	 	117	 	
Section 7.17.	 	Anti-Corruption Laws	  	 	118	 	
		
ARTICLE VIII EVENTS OF DEFAULT	  	 	118	 	
			
Section 8.1.	 	Events of Default	  	 	118	 	
Section 8.2.	 	Application of Proceeds from Collateral	  	 	120	 	
		
ARTICLE IX THE ADMINISTRATIVE AGENT	  	 	121	 	
			
Section 9.1.	 	Appointment of the Administrative Agent	  	 	121	 	
Section 9.2.	 	Nature of Duties of the Administrative Agent	  	 	122	 	
Section 9.3.	 	Lack of Reliance on the Administrative Agent	  	 	122	 	
Section 9.4.	 	Certain Rights of the Administrative Agent	  	 	123	 	
Section 9.5.	 	Reliance by the Administrative Agent	  	 	123	 	
Section 9.6.	 	The Administrative Agent in its Individual Capacity	  	 	123	 	
Section 9.7.	 	Successor Administrative Agent	  	 	123	 	
Section 9.8.	 	Withholding Tax	  	 	124	 	
Section 9.9.	 	The Administrative Agent May File Proofs of Claim	  	 	124	 	
Section 9.10.	 	Authorization to Execute Other Loan Documents	  	 	125	 	
Section 9.11.	 	Collateral and Guaranty Matters	  	 	125	 	
Section 9.12.	 	Documentation Agent; Syndication Agent	  	 	125	 	
Section 9.13.	 	Right to Realize on Collateral and Enforce Guarantee	  	 	125	 	
Section 9.14.	 	Secured Bank Product Obligations and Hedging Obligations	  	 	126	 	
		
ARTICLE X MISCELLANEOUS	  	 	126	 	
			
Section 10.1.	 	Notices	  	 	126	 	
Section 10.2.	 	Waiver; Amendments	  	 	129	 	
 
iv

							
Section 10.3.	 	Expenses; Indemnification	  	 	131	 	
Section 10.4.	 	Successors and Assigns	  	 	133	 	
Section 10.5.	 	Governing Law; Jurisdiction; Consent to Service of Process	  	 	138	 	
Section 10.6.	 	WAIVER OF JURY TRIAL	  	 	138	 	
Section 10.7.	 	Right of Set-off	  	 	139	 	
Section 10.8.	 	Counterparts; Integration	  	 	139	 	
Section 10.9.	 	Survival	  	 	139	 	
Section 10.10.	 	Severability	  	 	140	 	
Section 10.11.	 	Confidentiality	  	 	140	 	
Section 10.12.	 	Interest Rate Limitation	  	 	140	 	
Section 10.13.	 	Waiver of Effect of Corporate Seal	  	 	141	 	
Section 10.14.	 	USA Patriot Act; Beneficial Ownership Regulation	  	 	141	 	
Section 10.15.	 	No Advisory or Fiduciary Responsibility	  	 	141	 	
Section 10.16.	 	Location of Closing	  	 	141	 	
Section 10.17.	 	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	  	 	142	 	
Section 10.18.	 	Acknowledgement Regarding Any Supported QFCs	  	 	142	 	
Section 10.19.	 	Payments Set Aside	  	 	143	 	
 
v

						
	Schedules	  	 	  	 	
				
Schedule I	  	-	  	Commitment Amounts		
 
vi

REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “Agreement”) is made and entered into as of January 31, 2020, by and among RONDO INTERMEDIATE HOLDINGS, LLC, a Delaware limited liability company (the “Borrower”), RONDO HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), several banks and other financial institutions and lenders from time to time party hereto (the “Lenders”) and TRUIST BANK, in its capacity as administrative agent for the Lenders (the “Administrative Agent”) and as issuing bank (the “Issuing Bank”).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Equity Purchase Agreement (the “Closing Date Purchase Agreement”), dated as of December 10, 2019, by and among Rondo Acquisition LLC, a Delaware limited liability company (“Rondo Acquisition”), AvKARE, Inc., a Tennessee corporation (“AvKare, Inc.”), Dixon-Shane, LLC d/b/a R&S Northeast LLC, a Kentucky limited liability company (“R&S Northeast”, and together with AvKare, Inc., the “Target”) and the sellers party thereto (the “Sellers”), Rondo Acquisition has agreed to indirectly purchase a majority of the issued and outstanding Capital Stock of AvKare and a majority of the issued and outstanding Capital Stock of R&S Northeast as set forth and described therein (the “Closing Date Acquisition”);
WHEREAS, in connection with the foregoing, the Borrower has requested that the Lenders (a) establish a $30,000,000 revolving credit facility in favor of, and (b) make term loans in an aggregate principal amount equal to $180,000,000 to, the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the Lenders and the Issuing Bank, to the extent of their respective Commitments as defined herein, are willing severally to establish the requested revolving credit facility and letter of credit subfacility in favor of, and severally to make the term loans to, the Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1. Definitions. In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined):
“Acceptable Intercreditor Agreement” shall mean an intercreditor agreement or subordination agreement, as applicable, that is reasonably satisfactory to the Administrative Agent and the Borrower.
“Account Control Agreement” shall mean any tri-party agreement by and among a Loan Party, the Administrative Agent and a depositary bank or securities intermediary at which such Loan Party maintains a controlled account, in each case in form and substance reasonably satisfactory to the Administrative Agent.
“Acquisition” shall mean (a) any Investment by the Borrower or any of its Restricted Subsidiaries in any other Person, pursuant to which such Person shall become a Restricted Subsidiary of

the Borrower or any of its Restricted Subsidiaries or shall be merged with the Borrower or any of its Restricted Subsidiaries or (b) any acquisition by the Borrower or any of its Restricted Subsidiaries of the assets of any Person (other than a Restricted Subsidiary of the Borrower) that constitute all or substantially all of the assets of such Person or a division or business unit of such Person, whether through purchase, merger or other business combination or transaction. With respect to a determination of the amount of an Acquisition, such amount shall include all consideration (including any deferred payments) set forth in the applicable agreements governing such Acquisition as well as the assumption of any Indebtedness in connection therewith.
“Additional Lender” shall have the meaning set forth in Section 2.23.
“Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a Eurodollar Loan, (i) the rate per annum equal to the London interbank offered rate for deposits in U.S. Dollars appearing on Reuters screen page LIBOR 01 (or on any successor or substitute page of such service or any successor to such service, or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 A.M. (London time) (the “Screen Rate”) two (2) Business Days prior to the first day of such Interest Period, with a maturity comparable to such Interest Period, divided by (ii) a percentage equal to 1.00% minus the then stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves and without benefit of credits for proration, exceptions or offsets that may be available from time to time) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D); provided, that if the rate referred to in clause (i) above is not available at any such time for any reason, then the rate referred to in clause (i) shall instead be the interest rate per annum, as determined by the Administrative Agent, to be the arithmetic average of the rates per annum at which deposits in U.S. Dollars in an amount equal to the amount of such Eurodollar Loan are offered by major banks in the London interbank market to the Administrative Agent at approximately 11:00 A.M. (London time), two (2) Business Days prior to the first day of such Interest Period (provided that, notwithstanding the foregoing, the Adjusted LIBO Rate shall be deemed not to be less than 0.00% per annum at any time).
“Administrative Agent” shall have the meaning set forth in the introductory paragraph hereof.
“Administrative Questionnaire” shall mean, with respect to each Lender, an administrative questionnaire in the form provided by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender.
“Affiliate” shall mean, as to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person. For the purposes of this definition, “Control” shall mean the power, directly or indirectly, to direct or cause the direction of the management and policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlled by” and “under common Control with” have the meanings correlative thereto.
“Aggregate Revolving Commitment Amount” shall mean the aggregate principal amount of the Aggregate Revolving Commitments from time to time.
“Aggregate Revolving Commitments” shall mean, collectively, all Revolving Commitments of all Lenders at any time outstanding.
 
2

“Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the “Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such Lender (or such Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.
“Applicable Margin” shall mean, as of any date, with respect to interest on all Loans outstanding on such date, the letter of credit fee or the unused line fee, as the case may be, the percentage per annum determined by reference to the applicable Total Net Leverage Ratio in effect on such date as set forth in the pricing grid below (the “Pricing Grid”); provided that a change in the Applicable Margin resulting from a change in the Total Net Leverage Ratio shall be effective on the second Business Day after the Borrower delivers each of the financial statements required by Section 5.1(a) and (b) and the Compliance Certificate required by Section 5.1(c); provided, further, that if at any time the Borrower shall have failed to deliver such financial statements and such Compliance Certificate when so required, the Applicable Margin shall, after expiration of the ten (10) day cure period set forth in Section 8.1(d) and following written notice by the Administrative Agent to the Borrower, be at Level I as set forth in the Pricing Grid until such time as such financial statements and Compliance Certificate are delivered, at which time the Applicable Margin shall be determined as provided above. Notwithstanding the foregoing, the Applicable Margin from the Closing Date through the date of delivery of the financial statements required by Section 5.1(b) and the Compliance Certificate required by Section 5.1(c) to be delivered for the Fiscal Quarter ending March 31, 2020 shall be at Level II as set forth in the Pricing Grid. In the event that any financial statement or Compliance Certificate delivered hereunder is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin based upon the Pricing Grid (the “Accurate Applicable Margin”) for any period that such financial statement or Compliance Certificate covered, then (i) the Borrower shall immediately deliver to the Administrative Agent a correct financial statement or Compliance Certificate, as the case may be, for such period, (ii) the Applicable Margin shall be adjusted such that after giving effect to the corrected financial statement or Compliance Certificate, as the case may be, the Applicable Margin shall be reset to the Accurate Applicable Margin based upon the Pricing Grid for such period and (iii) the Borrower shall immediately pay to the Administrative Agent, for the account of the Lenders, the accrued additional interest and additional commitment fee owing as a result of such Accurate Applicable Margin for such period. The provisions of this definition shall not limit the rights of the Administrative Agent and the Lenders with respect to Section 2.13(c) or Article VIII.
Pricing Grid

	Pricing Level	  	Total Net Leverage Ratio	  	Applicable
Margin for
Eurodollar
Loans and
Letter of
Credit Fees	 	Applicable
Margin for
Base Rate
Loans	 	Applicable
Margin for
Unused Line
Fee	
I	  	Greater than or equal to 3.50:1.00	  	3.25%
per annum	 	2.25%
per annum	 	0.50%
per annum		
II	  	Less than 3.50:1.00 but greater than or equal to 3.00:1.00	  	3.00%
per annum	 	2.00%
per annum	 	0.40%
per annum		
 
3

									
III	  	Less than 3.00:1.00 but greater than or equal to 2.50:1.00	  	2.75%
per annum	 	1.75%
per annum	 	0.35%
per annum	
IV	  	Less than 2.50:1.00 but greater than or equal to 2.00:1.00	  	2.50%
per annum	 	1.50%
per annum	 	0.30%
per annum	
V	  	Less than 2.00:1.00	  	2.25%
per annum	 	1.25%
per annum	 	0.25%
per annum	
“Approved 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 of its business and that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit A attached hereto or any other form approved by the Administrative Agent.
“Attributable Indebtedness” shall mean, on any date, in respect of any Capital Lease Obligation of any Person, the capitalized amount thereof that would appear as a liability on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“Auto Extension Letter of Credit” shall have the meaning set forth in Section 2.22(a).
“Available Amount” shall mean, as of any date of determination, an amount, not less than zero, determined on a cumulative basis equal to (without duplication) (i) $10,000,000 plus (ii) the remainder of (A) the amount (determined on a cumulative basis) of Excess Cash Flow for the Fiscal Year ending on December 31, 2021 and each completed Fiscal Year thereafter that is not required to be applied as a mandatory prepayment under Section 2.12(c) minus (B) the aggregate amount by which the required prepayment of Term Loans pursuant to Section 2.12(c) for any Fiscal Year has been reduced by operation of proviso to such Section 2.12(c) (it being understood for the avoidance of doubt that, solely for purposes of this definition, Excess Cash Flow for any Fiscal Year shall be deemed to be zero until the financial statements required to be delivered pursuant to Section 5.1(a) for such Fiscal Year, and the related Compliance Certificate required to be delivered pursuant to Section 5.1(c) for such Fiscal Year, have been received by the Administrative Agent), plus (iii) 100% of the aggregate amount of contributions to the common capital of the Borrower or the net proceeds of the issuance of Qualified Capital Stock of Holdings (or any direct or indirect parent thereof) contributed as common equity to the capital of the Borrower, received in cash and Cash Equivalents after the Closing Date and Not Otherwise Applied (other than any amount designated as a Specified Equity Contribution) plus (iv) an amount equal to any Returns in cash and Cash Equivalents actually received by the Borrower or any Restricted subsidiary in respect of any Investments made pursuant to Section 7.4(aa) and Not Otherwise Applied (up to the amount of the original Investment and excluding Returns from any Unrestricted Subsidiary that represent a Tax distribution) plus (v) an amount equal to Retained Declined Proceeds minus (vi) any Investment made pursuant to Section 7.4(aa), any Restricted Payments made pursuant to Section 7.5(r) and any payments made pursuant to Section 7.12(iv) during the period commencing on the Closing Date and ending on such date of determination.
 
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“Availability Period” shall mean the period from the Closing Date to but excluding the Revolving Commitment Termination Date.
“AvKare” shall mean AvKARE, LLC, a Tennessee limited liability company that is successor by conversion to AvKare, Inc.
“AvKare Seller Notes” shall have the meaning set forth in the Closing Date Purchase Agreement.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” shall mean with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank Product Obligations” shall mean, collectively, all obligations and other liabilities of any Loan Party to any Bank Product Provider arising with respect to any Bank Products.
“Bank Product Provider” shall mean any Person that, at the time it provides any Bank Product to any Loan Party (or, if earlier, on the Closing Date), (i) is a Lender or an Affiliate of a Lender and (ii) except when the Bank Product Provider is Truist Bank and its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged, in writing, by the Borrower of the existence of such Bank Product. In no event shall any Bank Product Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Bank Products except that each reference to the term “Lender” in Article IX and Section 10.3(b) shall be deemed to include such Bank Product Provider and in no event shall the approval of any such person in its capacity as Bank Product Provider be required in connection with the release or termination of any security interest or Lien of the Administrative Agent.
“Bank Products” shall mean any of the following services provided to any Loan Party by any Bank Product Provider: (a) any treasury or other cash management services, including deposit accounts, automated clearing house (ACH) origination and other funds transfer, depository (including cash vault and check deposit), zero balance accounts and sweeps, return items processing, controlled disbursement accounts, positive pay, lockboxes and lockbox accounts, account reconciliation and information reporting, payables outsourcing, payroll processing, trade finance services, investment accounts and securities accounts, and (b) card services, including credit cards (including purchasing cards and commercial cards), prepaid cards, including payroll, stored value and gift cards, merchant services processing, and debit card services.
“Base Rate” shall mean for any day a fluctuating rate per annum equal to the highest of (i) the rate of interest which the Administrative Agent announces from time to time as its prime lending rate, as in effect from time to time, (ii) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%) per annum, (iii) the Adjusted LIBO Rate determined on a daily basis for an Interest Period of one (1) month, plus one percent (1.00%) per annum and (iv) zero percent (0.00%) per annum (any changes in such rates to be effective as of the date of any change in such rate). The Administrative Agent’s prime lending rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent may make commercial loans or other loans at rates of interest at, above, or below the Administrative Agent’s prime lending rate. Any change in the Base Rate due to a change in the prime lending rate, Federal Funds Rate or the Adjusted LIBO Rate shall
 
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be effective from and including the effective date of such change in the prime lending rate, Federal Funds Rate or the Adjusted LIBO Rate, respectively.
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
“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.
“Borrower” shall have the meaning set forth in the introductory paragraph hereof.
“Borrowing” shall mean a borrowing consisting of Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
“Business Day” shall mean any day other than (i) a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close and (ii) if such day relates to a Borrowing of, a payment or prepayment of principal or interest on, a conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any of the foregoing, any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
“Capital Expenditures” shall mean, for any period, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of the Borrower and its Restricted Subsidiaries and (b) Capital Lease Obligations incurred by the Borrower and its Restricted Subsidiaries during such period.
“Capital Lease Obligations” of any Person shall mean, at the time of determination, all obligations of such Person to pay rent or other amounts under any lease of real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP (excluding the footnotes thereto), and, for the purposes hereof, the amount of such obligations shall be the capitalized amount thereof at such time determined in accordance with GAAP.
“Capital Stock” shall mean, with respect to any Person, all shares, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Exchange Act) of such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities); provided that any instrument evidencing Indebtedness convertible or exchangeable for Capital Stock shall not be deemed to be Capital Stock unless and until such instrument is so converted or exchanged.
“Cash Collateralize” shall mean, in respect of any obligations, to provide and pledge (as a first priority perfected security interest) cash collateral for such obligations in Dollars with the Administrative Agent pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent (and “Cash Collateralized” and “Cash Collateralization” have the corresponding meanings).
 
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“Cash Equivalents” shall mean:
(i) Dollars;
(ii) readily marketable direct obligations of the United States or any agency thereof or readily marketable obligations guaranteed by the United States or any agency thereof, in each case, with maturities not exceeding two years;
(iii) time deposits, eurodollar time deposits, certificates of deposit and money market deposits, in each case, with maturities not exceeding one year from the date of acquisition thereof, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any commercial bank that (a) is a Lender or (b)(1) is organized under the laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development and is a member of the Federal Reserve System and (2) has combined capital and surplus of at least $250.0 million (or the foreign currency equivalent thereof) (any such bank in the foregoing clauses (a) or (b) being an “Approved Bank”);
(iv) repurchase obligations for underlying securities of the types described in clauses (ii) and (iii) above and clause (vi) below entered into with a bank meeting the qualifications described in clause (iii) above;
(v) commercial paper or variable or fixed rate notes maturing not more than one year after the date of acquisition issued by an Approved Bank (or by the direct parent company thereof) or by a corporation (other than structured investment vehicles and other corporations used in structured financing transactions) rated at least “P-1” by Moody’s or “A-1” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);
(vi) securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, or by any political subdivision or taxing authority thereof, having one of the two highest rating categories obtainable from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized rating agency);
(vii) marketable short-term money market and similar highly liquid funds having a rating of at least “P-2” or “A-2” from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized rating agency);
(viii) Investments in money market funds with average maturities of 12 months or less from the date of acquisition that are rated at least “Aaa3” by Moody’s and “AAA” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);
(ix) instruments equivalent to those referred to in clauses (i) through (viii) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above customarily utilized by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction; and
(x) shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (i) through (ix) above.
 
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“Change in Control” shall mean the occurrence of one or more of the following events: (a) prior to the occurrence of a Qualified IPO, (i) any sale, lease, exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Borrower to any Person or “group” (within the meaning of the Exchange Act and the rules of the Securities and Exchange Commission thereunder in effect on the date hereof), or (ii) the Permitted Holders cease to own and control, directly or indirectly, beneficially and of record, at least 50.1% of the outstanding shares of the Capital Stock of Holdings, (b) after the occurrence of a Qualified IPO, (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than the Permitted Holders are or shall at any time become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 35% or more on a fully diluted basis of Holding’s (or its direct or indirect parent’s) Capital Stock and the Permitted Holders shall own, directly or indirectly, less than such “person” or “group” of Holdings’ Capital Stock or (ii) any sale, lease, exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Borrower to any Person or “group” (within the meaning of the Exchange Act and the rules of the Securities and Exchange Commission thereunder in effect on the date hereof), or (c) Holdings ceases to own and control, directly or indirectly, 100% of the outstanding shares of the Capital Stock of the Borrower.
“Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty, or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) of any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives 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.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or each of the Loans comprising such Borrowing, is a Revolving Loan or a Term Loan and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or a Term Loan Commitment.
“Closing Date” shall mean January 31, 2020.
“Closing Date Acquisition” shall have the meaning set forth in the recitals.
“Closing Date Refinancing” shall mean the repayment of debt and termination of the commitments under all existing third party Indebtedness of the Target (other than Permitted Surviving Company Debt) and release of all guarantees, Liens and security interests related thereto.
“Closing Date Purchase Agreement” shall have the meaning set forth in the recitals.
“Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time.
“Collateral” shall mean a Loan Party’s interest in all tangible and intangible property, real and personal, of any Loan Party that is or purports to be the subject of a Lien in favor of the Administrative
 
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Agent to secure the whole or any part of the Obligations or any Guarantee thereof, and shall include, without limitation, all casualty insurance proceeds and condemnation awards with respect to any of the foregoing.
“Collateral Access Agreement” shall mean each landlord waiver or bailee agreement granted to, and in form and substance reasonably acceptable to, the Administrative Agent.
“Collateral Documents” shall mean, collectively, the Guaranty and Security Agreement, any Real Estate Documents, the Account Control Agreements, all Copyright Security Agreements, all Patent Security Agreements, all Trademark Security Agreements, all Collateral Access Agreements and all other instruments and agreements now or hereafter securing or perfecting the Liens securing the whole or any part of the Obligations or any Guarantee thereof, all UCC financing statements, fixture filings and stock powers, and all other documents, instruments, agreements and certificates executed and delivered by any Loan Party to the Administrative Agent and the Lenders in connection with the foregoing.
“Commitment” shall mean a Revolving Commitment or a Term Loan Commitment or any combination thereof (as the context shall permit or require).
“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.
“Compliance Certificate” shall mean a certificate from the chief financial officer of the Borrower in the form of, and containing the certifications set forth in, the certificate attached hereto as Exhibit 5.1(c).
“Consolidated EBITDA” shall mean, for the Borrower and its Restricted Subsidiaries for any period, an amount equal to the sum of (i) Consolidated Net Income for such period plus (ii) except with respect to clauses (F)(3) and (H) below, to the extent deducted (and not added back or excluded) in determining Consolidated Net Income for such period, and without duplication, (A) consolidated interest expense determined in accordance with GAAP (including, without limitation, amortization or writeoff of debt discount), (B) income tax expense determined on a consolidated basis in accordance with GAAP, (C) depreciation and amortization determined on a consolidated basis in accordance with GAAP, (D) the amount of any compensation charge or expense as the result of any grant or repurchase of Capital Stock or Capital Stock equivalents to or from employees, officers, directors or consultants, (E) fees, charges, expenses and other amounts incurred in connection with or as a result of the closing of this Agreement, the Closing Date Purchase Agreement and any future amendments, modifications, waivers or other similar transactions in connection with this Agreement (whether or not consummated), (F) (1) the amount of any restructuring, severance, relocation, consolidation, integration, remediation or similar items or reserves in such period (whether or not characterized as such in accordance with GAAP), including items or reserves incurred or taken in connection with the Closing Date Acquisition, Permitted Acquisitions and other Investments permitted hereunder after the Closing Date, (2) the amount of costs relating to signing, retention and completion bonuses, relocation expenses, recruiting expenses, costs and expenses incurred in connection with any strategic or new initiatives, transition costs, consolidation and closing costs for facilities, business optimization expenses and new systems design and implementation costs, and (3) the amount of “run-rate” cost savings, operating expense reductions and cost synergies related to the Closing Date Acquisition, any Specified Transaction or any other restructuring, cost saving initiative or other similar initiative that are projected by such Person in good faith to result from actions taken, committed to be taken or expected to be taken no later than 18 months after the consummation of the Closing Date Acquisition, such Specified Transaction or applicable restructuring or similar initiative (which amounts will be determined by such Person in good faith and calculated on a Pro Forma Basis as though such amounts had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such action, in an aggregate amount, with respect to this clause (F), not to exceed 25% of
 
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Consolidated EBITDA (calculated after adding back any amounts pursuant to this clause (F)) for the Borrower and its Restricted Subsidiaries in any four Fiscal Quarter period, (G) any costs or expenses incurred in such period pursuant to or in connection with or resulting from any management equity plan, profits interest or stock option plan or any other management or employee benefit plan or agreement or any post-employment benefit plans or agreements or any grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other similar rights or any stock subscription, stockholders or partnership agreement, (H) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such cash receipts were deducted in the calculation of Consolidated EBITDA pursuant to clause (iii) below for any previous period and not added back, (I) any non-cash charges or expenses reducing Consolidated Net Income for such period (provided that if any such non-cash item represents an accrual or reserve for potential cash items in any future period, (1) such Person may determine not to add back such non-cash item in the current period and (2) to the extent such Person does decide to add back such non-cash item, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period), (J) all charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of Capital Stock held by officers or employees of such Person in connection with the Transactions and all losses, charges and expenses related to payments made to holders of options or other derivative Capital Stock in the common equity of such Person or any direct or indirect parent thereof in connection with, or as a result of, any distribution being made to the holders of Capital Stock of such Person or any direct or indirect parent thereof, which payments are being made to compensate such option holders as though they were holders of the Capital Stock of such Person at the time of, and entitled to share in, such distribution, (K) the amount of any expenses paid on behalf of any member of the board of directors or reimbursable to such member of the board of directors, (L) all judgments, liabilities, obligations, damages of any kind, including liquidated damages, settlement amounts, losses, fines, costs, fees, expenses (including reasonable attorneys’ fees and disbursements), penalties and interest and other charges or expenses in connection with any lawsuit or other proceeding against such Person and its Restricted Subsidiaries; provided, that the amounts added back pursuant to this clause (L) shall not exceed 15% of Consolidated EBITDA prior to giving effect to any add-backs pursuant to this clause (L)), (M) earn-outs and contingent consideration obligations and adjustments in respect thereof, payments in respect of dissenting shares, and purchase price adjustments, made by such Person during such period, in each case, in connection with an Investment or Acquisition permitted hereunder, (N) [reserved], (O) any non-recurring or unusual charges, expenses or losses and (P) other adjustments consistent with Regulation S-X; minus (iii) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income (and in the same proportion) and without duplication, (A) the aggregate amount of all non-cash items increasing Consolidated Net Income (other than (i) the accrual of revenue or recording of receivables in the ordinary course of business and (ii) the reversal of any accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash items with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period) for such period and (B) any non-recurring or unusual gains; provided that, notwithstanding the foregoing, Consolidated EBITDA for the Fiscal Quarters ending September 30, 2019, June 30, 2019, March 31, 2019 and December 31, 2018, shall be the amounts corresponding to such Fiscal Quarters set forth on Schedule 1.1(a), as such amounts may be adjusted pursuant to adjustments on a Pro Forma Basis permitted by this Agreement.
“Consolidated First Lien Debt” shall mean as of any date, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured on a “first priority” basis by a Lien on any property of the Borrower or its Restricted Subsidiaries.
 
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“Consolidated Interest Expense” shall mean, with respect to any Person for any period, the sum of:
(a) the total consolidated interest expense of the Borrower and its Restricted Subsidiaries paid in cash during such period determined on a consolidated basis in accordance with GAAP; plus
(b) all cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Capital Stock of such Person or any Restricted Subsidiary of such Person made during such period.
“Consolidated Net Income” shall mean, for the Borrower and its Restricted Subsidiaries for any period, the net income (or loss) of the Borrower and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from Consolidated Net Income (to the extent otherwise included therein), without duplication, (i) any extraordinary gains or losses (as defined in GAAP as in effect prior to FASB No. 2015-07), (ii) any net after-tax gains or losses attributable to write-ups or write-downs of assets or the sale of assets (other than the sale of inventory in the ordinary course of business), (iii) the minority interest in the net income (or loss) of each Restricted Subsidiary that is not a Wholly Owned Subsidiary, (iv) the net income for such period of any Person that is not a Subsidiary of the Borrower, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, except to the extent of the amount of dividends or distributions that are actually paid in cash or Cash Equivalents to the Borrower or a Restricted Subsidiary thereof in respect of such period, (v) the net income of any Restricted Subsidiary of such Person that is not a Guarantor, and is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or distributions or the making of other distributions, to the extent of such restriction or limitation, (vi) the net income (or loss) of any other Person arising prior to such other Person becoming a Restricted Subsidiary of such Person or merging or consolidating into such Person or its Restricted Subsidiaries, (vii) gains or losses from the early extinguishment, cancellation or repurchase of Indebtedness, (viii) any net gain (or loss) from disposed, abandoned or discontinued operations and (ix) any net gain (or loss) realized upon the sale or other disposition of any asset (including pursuant to any sale and leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by a Responsible Officer or the board of directors of the Borrower).
“Consolidated Total Assets” shall mean, as of any date, the total assets of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, determined based upon the most recent financial statements delivered pursuant to Section 5.1(a) or (b), as applicable, immediately prior to the date of determination.
“Consolidated Total Debt” shall mean, as of any date of determination, the aggregate principal amount of Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP, consisting only of (i) Indebtedness for borrowed money (excluding any such Indebtedness owed to the Borrower or any of its Restricted Subsidiaries), (ii) Indebtedness obligations evidenced by bonds, promissory notes or other similar debt instruments, (iii) to the extent not cash collateralized, obligations under letters of credit solely to the extent of any drawn amounts thereunder that have not been reimbursed, (iv) obligations in respect of Capital Lease Obligations and purchase money Indebtedness and (v) Indebtedness of the type referred to in clauses (i) through (iv) hereof of any other person that is unconditionally guaranteed by the Borrower or any Restricted Subsidiary, provided that Consolidated Total Debt shall not include any indebtedness in respect of (a) any qualified receivables financing or factoring arrangement, (b) any letter of credit, except to the extent of unreimbursed obligations in respect of drawn letters of credit or (c) Hedging Obligations.
 
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“Consolidated Total Secured Debt” shall mean, as of any date, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a Lien on any property of the Borrower or its Restricted Subsidiaries.
“Contractual Obligation” of any Person shall mean any provision of any security issued by such Person or of any agreement, instrument or undertaking (other than a Loan Document) under which such Person is obligated or by which it or any of the property in which it has an interest is bound.
“Controlling Member” shall mean Amneal Pharmaceuticals, LLC.
“Copyright” shall have the meaning assigned to such term in the Guaranty and Security Agreement.
“Copyright Security Agreement” shall mean any Copyright Security Agreement executed by a Loan Party owning registered Copyrights or applications for Copyrights in favor of the Administrative Agent for the benefit of the Secured Parties.
“Covered Entity” shall mean any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” shall have the meaning set forth in Section 10.18.
“Credit Agreement Refinancing Indebtedness” shall mean secured or unsecured Indebtedness of the Borrower in the form of Term Loans, provided, that:
(1) such Indebtedness is incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, Indebtedness (“Credit Agreement Refinanced Debt”) that consists of Term Loans, Revolving Loans (or unused Revolving Commitments) or other Credit Agreement Refinancing Indebtedness;
(2) such Indebtedness is in an original aggregate principal amount not greater than the principal amount of the Credit Agreement Refinanced Debt (plus (a) the amount of unpaid, accrued or capitalized interest, penalties, premiums (including tender premiums), defeasance costs and other similar amounts payable with respect thereto, (b) underwriting discounts, fees, commissions, costs, expenses and other similar amounts payable with respect to such Credit Agreement Refinancing Indebtedness and (c) any unfunded Commitments thereunder);
(3) (a) the Weighted Average Life to Maturity of such Indebtedness is equal to or longer than the remaining Weighted Average Life to Maturity of the Credit Agreement Refinanced Debt, and (b) the final maturity date of such Credit Agreement Refinancing Indebtedness may not be earlier than the maturity date of the applicable Credit Agreement Refinanced Debt;
(4) such Indebtedness (other than Credit Agreement Refinancing Indebtedness that is revolving in nature) may participate on a pro rata basis (only to the extent such Credit Agreement Refinancing Indebtedness is secured on a pari passu basis with the Term Loans made on the Closing Date and not subordinated in right of payment) or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary and mandatory prepayments hereunder;
 
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(5) such Indebtedness will rank pari passu or junior in right of payment to the Credit Agreement Refinanced Debt;
(6) such Indebtedness is not secured by any assets or property that does not constitute Collateral (subject to customary exceptions for cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender);
(7) such Indebtedness is not guaranteed by any Person other than a Guarantor;
(8) if such Indebtedness is secured:
(a) it shall be secured on a pari passu basis with, or on a junior basis to, the Liens that secure the Obligations;
(b) the security agreements relating to such Indebtedness are substantially similar to or the same as the applicable Collateral Documents (as determined in good faith by the Borrower); and
(c) if such Indebtedness is secured by a pari passu or junior lien, a representative acting on behalf of the holders of such Indebtedness has become party to or is otherwise subject to the provisions of an Acceptable Intercreditor Agreement;
(9) such Credit Agreement Refinancing Indebtedness that is revolving in nature shall not require commitment reductions prior to the maturity date of the Credit Agreement Refinanced Debt;
(10) any payments, borrowings, participations and commitment reductions shall be made pro rata as between the Revolving Commitments and any Credit Agreement Refinancing Indebtedness in the form of revolving loans or revolving commitments in accordance with the aggregate principal amounts thereof, respectively;
(11) such Credit Agreement Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, and all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid substantially concurrently with the issuance, incurrence or obtaining of such Credit Agreement Refinancing Indebtedness;
(12) (A) if the Credit Agreement Refinanced Debt is subordinated in right of payment or security to the Obligations, then any Credit Agreement Refinancing Indebtedness shall be subordinated in right of payment to, or to the Liens securing, the Obligations, applicable, on the same basis (and, if the Credit Agreement Refinanced Debt is secured, then any Credit Agreement Refinanced Indebtedness in respect thereof also may be unsecured) pursuant to a customary subordination agreement or provisions reasonably satisfactory to the Administrative Agent, and (B) if the Credit Agreement Refinanced Debt is unsecured, then any Credit Agreement Refinancing Indebtedness shall be unsecured; and
(13) the terms and conditions of such Indebtedness (a) are substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Indebtedness than, those applicable to such Credit Agreement Refinanced Debt (except for covenants applicable only to periods after the latest Maturity Date of the existing Term Loans at the time of incurrence) and (b) solely to the extent that any terms and conditions applicable to any such Credit Agreement Refinancing Indebtedness are not substantially the same as, or are materially more restrictive on the Borrower and the Restricted Subsidiaries than, those then applicable to the Credit Agreement Refinanced Debt, shall otherwise reflect customary market terms and conditions, including with respect to high yield debt securities to the extent applicable, at the time of such incurrence of such Credit Agreement Refinancing Indebtedness (provided that a certificate
 
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of a Responsible Officer delivered to the Administrative Agent at least five (5) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Credit Agreement Refinancing Indebtedness, together with a reasonably detailed description of the material covenants and events of default of such Credit Agreement Refinancing Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (13) shall be conclusive evidence that such Indebtedness satisfies this clause (13) unless the Administrative Agent notifies the Borrower within such five (5) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (13) will not apply to (v) terms addressed in the preceding clauses (1) through (12), (w) interest rate, rate floors, fees, funding discounts and other pricing terms, (x) redemption, prepayment or other premiums, or (y) optional prepayment or redemption terms; provided further that the Borrower will promptly deliver to the Administrative Agent final copies of the definitive credit documentation relating to such Indebtedness (unless the Borrower is bound by a confidentiality obligation with respect thereto, in which case the Borrower will deliver a reasonably detailed description of the material terms and conditions of such Indebtedness in lieu thereof).
“Current Assets” shall mean, with respect to any Person, all assets of such Person as of any date of determination, that would, in accordance with GAAP be classified on a consolidated balance sheet of such Person as current assets at such date of determination, but excluding cash, Cash Equivalents and debts due from Affiliates.
“Current Liabilities” shall mean, with respect to any Person as of any date of determination, all liabilities of such Person that would, in accordance with GAAP, be classified on a consolidated balance sheet as current liabilities of such Person as of such date of determination, and in any event including all Indebtedness payable on demand or within one year from such date of determination without any option on the part of the obligor to extend or renew beyond such year and all accrual for federal or other taxes based on or measured by income and payable within such year, but excluding the current portion of long-term debt required to be paid within one year and the aggregate outstanding principal balance of the Revolving Loans; provided, however, that the current portion of any deferred fee liability and loss contract liability shall be excluded therefrom.
“Debtor Relief Laws” shall mean the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined Proceeds” shall have the meaning set forth in Section 2.12(d).
“Default” shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Default Interest” shall have the meaning set forth in Section 2.13(c).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” shall mean, subject to Section 2.26(c), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically
 
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identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any Issuing Bank in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, after the date hereof (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership 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) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.26(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank and each Lender.
“Disqualified Capital Stock” shall mean any Capital Stock that, by its terms (or by the terms of any other instrument, agreement or Capital Stock into which it is convertible or for which it is exchangeable), or upon the occurrence of any event or condition (i) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder or beneficial owner thereof (other than solely for Qualified Capital Stock), in whole or in part, (iii) provides for the scheduled payments of dividends, distributions or other Restricted Payments in cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other obligation, instrument, agreement, or Capital Stock that would meet any of the conditions in clauses (i), (ii), or (iii) of this definition, in each case, prior to the date that is one hundred eighty days after the Maturity Date.
“Disqualified Lenders” means (i) certain banks, financial institutions and other investors designated in writing by the Borrower to the Lead Arrangers on or prior to December 10, 2019, (ii) competitors of the Borrower and its Restricted Subsidiaries that have been specified in writing to the Administrative Agent from time to time, (iii) in the case of clauses (i) and (ii), any of their Affiliates (other than Affiliates that are bona fide lending Affiliates) that are (A) specified in writing to the Administrative Agent from time to time or (B) clearly identifiable on the basis of such Affiliate’s name; it being understood that any subsequent designation of a Disqualified Lender shall not apply retroactively to disqualify any person that has been assigned, or taken a participation in, any Loans.
“Division” shall mean, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons with the dividing Person either continuing or terminating its existence as part of the division including as contemplated under Section 18-217 of the Delaware Limited
 
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Liability Act for limited liability companies formed under Delaware law or any analogous action taken pursuant to any applicable law with respect to any corporation, limited liability company, partnership or other entity. The word “Divide”, when capitalized shall have correlative meaning.
“Documentation Agent” shall have the meaning set forth in Section 9.12.
“Dollar(s)” and the sign “$” shall mean lawful money of the United States.
“Domestic Subsidiary” shall mean each Restricted Subsidiary of the Borrower that is organized under the laws of the United States or any state or district thereof.
“Earn-Out Obligations” shall mean any earnout obligation or similar deferred or contingent obligation of the Borrower or any of its Restricted Subsidiaries incurred or created in connection with a Permitted Acquisition.
“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.
“Environmental Indemnity” shall mean each environmental indemnity made by each Loan Party with Real Estate required to be pledged as Collateral in favor of the Administrative Agent for the benefit of the Secured Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent.
“Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters.
“Environmental Liability” shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural resource damages, penalties or indemnities), of the Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (i) any actual or alleged violation of any Environmental Law, (ii) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (iii) any actual or alleged exposure to any Hazardous Materials, (iv) the Release or threatened Release of any Hazardous Materials or (v) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Contribution” shall mean the cash equity contribution (with such cash contribution to be in the form of common equity or Qualified Capital Stock) made on the Closing Date, directly or
 
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indirectly, by the Controlling Member to Holdings (and Holdings shall promptly contribute such proceeds to the common equity of the Borrower).
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended and in effect from time to time, and any successor statute thereto and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” shall mean any person that for purposes of Title I or Title IV of ERISA or Section 412 of the Code would be deemed at any relevant time to be a “single employer” or otherwise aggregated with the Borrower or any of its Subsidiaries under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.
“ERISA Event” shall mean (i) any “reportable event” as defined in Section 4043 of ERISA with respect to a Plan (other than an event as to which the PBGC has waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043 the requirement of Section 4043(a) of ERISA that it be notified of such event); (ii) any failure to make a required contribution to any Plan that would result in the imposition of a lien or other encumbrance or the provision of security under Section 430 of the Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance, there being or arising any “unpaid minimum required contribution” or “accumulated funding deficiency” (as defined or otherwise set forth in Section 4971 of the Code or Part 3 of Subtitle B of Title 1 of ERISA), whether or not waived, or any filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code or Section 303 of ERISA with respect to any Plan or Multiemployer Plan, or that such filing may be made, or any determination that any Plan is, or is expected to be, in at-risk status under Title IV of ERISA; (iii) any incurrence by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any liability under Title IV of ERISA with respect to any Plan or Multiemployer Plan (other than for premiums due and not delinquent under Section 4007 of ERISA); (iv) any institution of proceedings, or the occurrence of an event or condition which would reasonably be expected to constitute grounds for the institution of proceedings by the PBGC, under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (v) any incurrence by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan, or the receipt by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any notice that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; (vi) any receipt by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any notice, or any receipt by any Multiemployer Plan from the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (vii) engaging in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA; or (viii) any filing of a notice of intent to terminate any Plan if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, any filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan, or the termination of any Plan under Section 4041(c) of ERISA.
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.
“Event of Default” shall have the meaning set forth in Section 8.1.
 
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“Excess Cash Flow” shall mean, without duplication, with respect to any Fiscal Year of the Borrower and its Restricted Subsidiaries,
 
(1)	the sum, without duplication of:	
 
 	(a)	Consolidated Net Income for such Fiscal Year; plus	
 
 	(b)	all non-cash charges of the Borrower or any Restricted Subsidiary that were deducted in calculating such Consolidated Net Income for such Fiscal Year; plus	
 
 	(c)	decreases in Working Capital of the Borrower for such period, if any (other than any such decreases arising from acquisitions or dispositions (other than in the ordinary course of business) by the Borrower and the Restricted Subsidiaries completed during such Fiscal Year or the application of purchase accounting); plus	
 
 	(d)	an amount equal to the aggregate net non-cash loss on dispositions (other than in the ordinary course of business) by the Borrower and the Restricted Subsidiaries during such Fiscal Year (other than dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; plus	
 
 	(e)	the amount deducted as tax expense in determining Consolidated Net Income to the extent in excess of cash taxes paid in such period, plus	
 
 	(f)	cash receipts in respect of any Hedging Transaction during such period to the extent not otherwise included in such Consolidated Net Income; plus	
 
 	(g)	cash income or gains (actually received in cash) excluded from the calculation of Consolidated Net Income for such period pursuant to the definition thereof; less	
 
(2)	the sum, without duplication, of:	
 
 	(a)	an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (but excluding any non-cash credit to the extent representing the reversal of an accrual or reserve described in clause (1)(b) above) and cash charges excluded by virtue of clauses (i) through (ix) of the definition of “Consolidated Net Income”; plus	
 
 	(b)	without duplication of amounts deducted from Excess Cash Flow in pursuant to clause (k) below in prior Fiscal Years, the amount of Capital Expenditures or acquisitions of intellectual property rights accrued or made in cash during such period to the extent financed with Internally Generated Cash; plus	
 
 	(c)	the aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (1) the principal component of payments in respect of Capital Lease Obligations, (2) the amount of any scheduled repayment of Term Loans pursuant to Section 2.9 and (3) any mandatory prepayment of Term Loans pursuant to Section 2.12(a) to the extent required due to a disposition that resulted in an increase in Consolidated Net Income and not in excess of such increase) to the extent such prepayments or repayments are funded with Internally Generated Cash or not made in reliance on any basket calculated by reference to the Available Amount, excluding (1) any prepayment of revolving loans to the extent there is not an equivalent permanent reduction	
 
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 	in commitments thereunder and (2) all other prepayments of Term Loans and Revolving Loans; plus	
 
 	(d)	an amount equal to the aggregate net non-cash gain on dispositions by the Borrower and the Restricted Subsidiaries during such Fiscal Year (other than dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income and the net cash loss on dispositions to the extent otherwise added back or excluded in arriving at Consolidated Net Income; plus	
 
 	(e)	increases in Working Capital for such period (other than any such increases arising from acquisitions or dispositions (other than in the ordinary course of business) by the Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting); plus	
 
 	(f)	cash payments by the Borrower and the Restricted Subsidiaries actually made during such period to the extent financed with Internally Generated Cash in respect of long-term liabilities or long-term assets of the Borrower and the Restricted Subsidiaries (other than Indebtedness) to the extent such payments are not expensed during such period or are not deducted in calculating Consolidated Net Income for such period (and so long as there has not been any reduction in respect of such payments in arriving at Consolidated Net Income for such period); plus	
 
 	(g)	without duplication of amounts deducted pursuant to clauses (h), (i) and (k) below in prior periods, cash payments made by the Borrower and its Restricted Subsidiaries in respect of Investments (other than Investments in Cash Equivalents and intercompany Investments among the Borrower and its Restricted Subsidiaries) permitted under this Agreement (including Permitted Acquisitions) made during such period to the extent that such Investments were financed with Internally Generated Cash, not deducted in calculating Consolidated Net Income and not made in reliance on any basket calculated by reference to the Available Amount; plus	
 
 	(h)	cash payments made by the Borrower in respect of Restricted Payments (other than Restricted Payments received by the Borrower or any Restricted Subsidiary pursuant to Section 7.5(b)) actually paid (and permitted to be paid) during such period, in each case to the extent such Restricted Payments were financed with Internally Generated Cash and not made in reliance on any basket calculated by reference to Available Amount; plus	
 
 	(i)	the aggregate amount of cash expenditures actually made by the Borrower and its Restricted Subsidiaries during such period to the extent financed with Internally Generated Cash (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such Fiscal Year or are not deducted in calculating Consolidated Net Income (and so long as there has not been any reduction in respect of such expenditures in arriving at Consolidated Net Income for such period); plus	
 
 	(j)	to the extent financed with Internally Generated Cash and such amounts were not deducted in calculating Consolidated Net Income for such period, the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower or any of the Restricted Subsidiaries during such period that are made in connection with any prepayment of any principal of Indebtedness to the extent such prepayment of principal reduced Excess Cash Flow pursuant to clause (2)(c) above; plus	
 
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 	(k)	without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries within 365 days after the end of such period pursuant to binding contracts (to the extent financed with Internally Generated Cash, the “Contract Consideration”) entered into prior to or during such period relating to Investments, cash Capital Expenditures or acquisitions of intellectual property rights to be consummated; provided that, to the extent the aggregate amount actually utilized to finance such Investments, Capital Expenditures or acquisitions of intellectual property rights during any period is less than the Contract Consideration that reduced Excess Cash Flow for the prior period, the amount of such shortfall shall be added to the calculation of Excess Cash Flow for such period; plus	
 
 	(l)	the amount of cash taxes paid in such period or payable (without duplication) in such period (including, for the avoidance of doubt, distributions made pursuant to Section 10 of the Holdings LLC Agreement), to the extent such payments exceed the amount of tax expense deducted in calculating Consolidated Net Income for such period; plus	
 
 	(m)	cash expenditures actually made in cash in respect of any Hedging Transaction during such Fiscal Year to the extent not deducted in calculating Consolidated Net Income.	
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended and in effect from time to time.
“Excluded Property” shall have the meaning set forth in the Guaranty and Security Agreement.
“Excluded Subsidiary” shall mean any:
(a) Immaterial Subsidiary;
(b) Subsidiary that is not a Wholly Owned Subsidiary of the Borrower or a Subsidiary Guarantor;
(c) Unrestricted Subsidiary;
(e) Foreign Subsidiary;
(e) direct or indirect Domestic Subsidiary of a Foreign Subsidiary;
(f) Subsidiary that is prohibited or restricted by applicable law or by a binding contractual obligation (including any Contractual Obligation) existing on the Closing Date or at the time of the Acquisition or creation of such Subsidiary (and not incurred in contemplation of such Acquisition or creation) from providing a Guarantee or if such Guarantee would require consent, approval, license or authorization of or from a Governmental Authority or a third party (other than a Loan Party or a controlled Affiliate of a Loan Party) unless such consent, approval, license or authorization has been received or such notice has been provided and any waiting period applicable to such notice has expired without adverse action by the applicable Governmental Authority;
(g) special purpose securitization vehicle (or similar entity) including any receivables subsidiary or like special purpose entity;
(h) Subsidiary that is a not-for-profit organization;
 
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(i) captive insurance subsidiary;
(k) Subsidiary with respect to which, in the reasonable judgment of the Borrower in consultation with the Administrative Agent, the providing of a Guarantee would result in material adverse tax consequences as reasonably determined in good faith by the Borrower and the Administrative Agent; and
(l) Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent, in consultation with the Borrower, the cost or other consequences (including any material adverse tax consequences) of providing a Guarantee would be excessive in view of the benefits to be obtained by the Lenders therefrom;
provided that the Borrower, in its sole discretion, may cause any Domestic Subsidiary that otherwise qualifies as an “Excluded Subsidiary” to become a “Subsidiary Guarantor” by causing such Restricted Subsidiary to comply with the requirements set forth in Section 5.10 (whether or not such Section would otherwise be applicable to such Restricted Subsidiary) and thereafter such Domestic Subsidiary will not constitute an “Excluded Subsidiary” unless and until the Borrower elects otherwise.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty and Security Agreement of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty and Security Agreement of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal or unlawful.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.25) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.20 and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Extended Term Loans” shall have the meaning set forth in Section 2.28(a).
“Extension” shall have the meaning set forth in Section 2.28(a).
“Extension Amendment” shall have the meaning set forth in Section 2.28(b).
 
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“Extension Offer” shall have the meaning set forth in Section 2.28(a).
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Rate” shall mean, for any day, the rate per annum calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate, or, if no such rate is published, the average rate per annum, as determined by the Administrative Agent, quoted for overnight Federal Funds transactions last available prior to such day; provided that if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Fee Letter” shall mean that certain Agency Fee Letter, dated as of December 10, 2019, by and among Rondo Acquisition, the Administrative Agent and the Lead Arrangers.
“First Lien Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated First Lien Debt as of such date, net of Unrestricted Cash of the Borrower and its Restricted Subsidiaries in an aggregate amount not to exceed $20,000,000 to (b) Consolidated EBITDA as of the last day of the most recently ended Test Period, prior to such date of determination.
“Fiscal Quarter” shall mean any fiscal quarter of the Borrower.
“Fiscal Year” shall mean any fiscal year of the Borrower.
“Fixed Incremental Amount” means (i) $75,000,000 minus (ii) the aggregate outstanding principal amount of all Incremental Facilities and/or Incremental Equivalent Debt incurred or issued in reliance on this definition.
“Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended or modified from time to time.
“Foreign Lender” shall mean (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
“Foreign Person” shall mean any Person that is not a U.S. Person.
“Foreign Subsidiary” shall mean each Restricted Subsidiary of the Borrower that is not a Domestic Subsidiary.
“GAAP” shall mean generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.3.
 
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“Governmental Authority” shall mean the government of the United States, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” of or by any Person (the “guarantor”) shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or obligation; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor” shall mean each of Holdings and the Subsidiary Loan Parties.
“Guaranty and Security Agreement” shall mean the Guaranty and Security Agreement, dated as of the date hereof and substantially in the form of Exhibit B, made by the Loan Parties in favor of the Administrative Agent for the benefit of the Secured Parties.
“Healthcare Laws” shall mean laws of the U.S. Food and Drug Administration, the U.S. Drug Enforcement Administration, the Federal Trade Commission, the U.S. Centers for Medicare and Medicaid Services and other Governmental Authorities that are concerned with or regulate the marketing, promotion, sale, use, preclinical and clinical development, handling and control, storage, safety, efficacy, reliability, testing (including stability testing), processing, manufacturing, packaging, labeling, repackaging, relabeling, expiration dating, importation, distribution, or price reporting of or is concerned with products imported, manufactured, testing, stored, distributed, sold, packaged, repackaged, labeled, relabeled, or marketed by the Borrower and its Restricted Subsidiaries or regulates public health care programs.
“Healthcare Permits” shall mean all permits, licenses, franchises, approvals, authorizations, certificates and consents required to be obtained pursuant to Healthcare Laws.
“Hazardous Materials” shall mean all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hedging Obligations” of any Person shall mean any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (i) any and all Hedging Transactions, (ii) any and all cancellations, buy backs, reversals, terminations
 
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or assignments of any Hedging Transactions and (iii) any and all renewals, extensions and modifications of any Hedging Transactions and any and all substitutions for any Hedging Transactions.
“Hedging Transaction” of any Person shall mean (a) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into by such Person that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Holdings” shall have the meaning set forth in the introductory paragraph hereof.
“Holdings LLC Agreement” shall mean that certain Limited Liability Company Operating Agreement of Holdings dated as of January 7, 2020, as the same may be amended, restated, supplemented or otherwise modified in accordance with the terms of this Agreement.
“Immaterial Subsidiary” shall mean, as of any date of determination, any Subsidiary of the Borrower that is not a Material Subsidiary.
“Increasing Lender” shall have the meaning set forth in Section 2.23.
“Incremental Cap” shall mean
(a) the Fixed Incremental Amount, plus
(b) (i) the amount of any optional prepayment of any Term Loan in accordance with Section 2.11 and/or the amount of any permanent reduction of any Revolving Commitment in accordance with Section 2.8(b) (other than any such optional prepayments (and commitment reductions) in respect of Incremental Facilities incurred in reliance on clause (c)), in each case, made with Internally Generated Cash, minus (ii) the aggregate outstanding principal amount of all Incremental Facilities and/or Incremental Equivalent Debt incurred or issued in reliance on this clause (b), plus
(c) an unlimited amount so long as, in the case of this clause (c), after giving effect to the incurrence of the relevant Incremental Facility and/or Incremental Equivalent Debt, (i) in the case of an Incremental Facility or Incremental Equivalent Debt, the First Lien Net Leverage Ratio does not exceed 3.00:1.00 as of the last day of the most recently ended Test Period, (ii) in the case of Incremental Equivalent Debt that is secured by a Lien that is junior to the Lien securing the Obligations, the Secured Net Leverage Ratio does not exceed 3.25:1.00 as of the last day of the most recently ended Test Period or (iii) in the case of Incremental Equivalent Debt that is unsecured, the Total Net Leverage Ratio does not exceed 4.00:1.00 as of the last day of the most recently ended Test Period, in each case described in this clause (c), calculated on a Pro Forma
 
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Basis, including the application of the proceeds thereof (without “netting” the cash proceeds of the applicable Incremental Facility and/or Incremental Equivalent Debt on the consolidated statement of financial position of the Borrower and its Restricted Subsidiaries), and in the case of any Incremental Revolving Facilities, assuming a full drawing of such Incremental Revolving Facilities; provided that if Incremental Facilities or Incremental Equivalent Debt are intended to be incurred under clause (c) of this definition and any other clause of this definition in a single transaction or series of related transactions, (A) incurrence of the portion of such Incremental Facilities or Incremental Equivalent Debt to be incurred under clause (c) of this definition shall first be calculated without giving effect to any Incremental Facilities or Incremental Equivalent Debt to be incurred under all other clauses of this definition), but giving full Pro Forma Effect to the use of proceeds of all such Incremental Facilities or Incremental Equivalent Debt and related transactions, and (B) thereafter, incurrence of the portion of such Incremental Facilities or Incremental Equivalent Debt to be incurred under such other applicable clauses of this definition shall be calculated.
“Incremental Equivalent Debt” shall mean Indebtedness incurred by the Borrower in the form of senior secured or unsecured notes or loans or junior secured or unsecured notes or loans and/or commitments in respect of any of the foregoing issued, incurred or implemented in lieu of loans under an Incremental Facility; provided, that:
(a) the aggregate outstanding amount thereof shall not exceed the Incremental Cap (as in effect at the time of determination),
(b) (x) no Event of Default exists immediately prior to or after giving effect to such notes or loans (or, in the case of a Limited Condition Transaction, no Event of Default shall exist immediately prior to or after giving effect to such notes or loans on the LCT Test Date and no Specified Event of Default exists on the date of consummation of such Limited Condition Transaction) and (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects; provided that, in the case of a Limited Condition Transaction, the Specified Representations shall be true and correct in all material respects on the date of the consummation of such Limited Condition Transaction,
(c) the Weighted Average Life to Maturity applicable to such notes or loans is no shorter than the Weighted Average Life to Maturity of any then-existing Class of Term Loans (without giving effect to any prepayments thereof),
(d) the final maturity date with respect to such notes or loans is no earlier than the Maturity Date of any existing Class of Term Loans on the date of the issuance or incurrence, as applicable, thereof,
(e) subject to clauses (c) and (d), may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Equivalent Debt,
(f) in the case of any such Indebtedness in the form of term loans that are pari passu in right of payment and security with the Term Loans made pursuant to Section 2.5, Section 2.23(a)(v) shall apply,
(g) such indebtedness may rank pari passu or junior in right of payment and/or security with respect to the Obligation or may be unsecured; provided that, if such Incremental
 
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Equivalent Debt is subordinated in right of payment or secured, such Incremental Equivalent Debt shall be subject to an Acceptable Intercreditor Agreement,
(h) no such Indebtedness may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(i) such indebtedness in the form of notes shall not have any mandatory prepayment or redemption features (other than customary asset sale events, excess cash flow sweeps, insurance and condemnation proceeds events, change of control or initial public offering offers, AHYDO payments or events of default) that could result in prepayments or redemptions of such indebtedness prior to the Maturity Date of any then existing Class of Term Loans,
(j) such indebtedness in the form of term loans (x) that is pari passu in right of payment and security with the Obligations may participate on a pro rata basis (but not greater than pro rata basis) or less than pro rata basis in any voluntary or mandatory prepayment of the Term Loans and (y) that is subordinated in right of payment or security with the Obligations or is unsecured, may participate on a less than pro rata basis in any voluntary or mandatory prepayment of Term Loans,
(k) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with each of the financial covenants set forth in Article VI as of the last day of the most recently ended Test Period, in each case, calculated without “netting” the proceeds of such indebtedness and assuming that all such indebtedness had been incurred (or established and fully funded in the case of a revolving facility) as of the first day (for purposes of Section 6.3) and as of the last day (for purposes of Section 6.1), as applicable, of such Test Period, and
(l) the terms and conditions of such Indebtedness (excluding pricing, interest rate margins, rate floors, discounts, call protection, premiums, fees and other provisions each of which shall be determined by the Borrower and the lenders or holders of such Incremental Equivalent Debt) shall not be materially more restrictive on the Borrower and its Restricted Subsidiaries (when taken as a whole) than the terms and conditions hereof (when taken as a whole) applicable to the existing Obligations (as determined in good faith by the Borrower) (except for covenants or other provisions applicable only to periods after the Maturity Date of the Term Loans) (it being understood that to the extent that any covenant is added for the benefit of any such Indebtedness, the terms and conditions of such Indebtedness will be deemed not to be more restrictive than the terms and conditions hereof if such covenant is also added for the benefit of all Lenders, which amendment to add such covenant to this Agreement shall not require the consent of any Lender hereunder).
“Incremental Facilities” shall have the meaning set forth in Section 2.23.
“Incremental Revolving Facility” shall have the meaning set forth in Section 2.23.
“Incremental Term Facility” shall have the meaning set forth in Section 2.23.
“Indebtedness” of any Person shall mean, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of the deferred purchase price of property or services, including Earn-Out Obligations (other than trade payables incurred in the ordinary course of business), (iv) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (v) all Capital Lease Obligations and
 
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Attributable Indebtedness of such Person, (vi) the maximum amount of any obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (vii) all Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not such Indebtedness has been assumed by such Person, (viii) all obligations, but not rights, of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such Person, (ix) all Off-Balance Sheet Liabilities, (x) all Hedging Obligations, (xi) all obligations of such Person in respect of Disqualified Capital Stock and (xii) all Guarantees of such Person of the type of Indebtedness described in clauses (i) through (xi) above. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor. The amount of any Indebtedness that is issued at a discount to its initial principal amount shall be calculated based on the initial stated principal amount thereof without giving effect to such discounts. For purposes of determining the amount of attributed Indebtedness from Hedging Obligations, the “principal amount” of any Hedging Obligations at any time shall be the Net Mark-to-Market Exposure of such Hedging Obligations.
“Indemnified Taxes” shall mean (a) Taxes other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Information Memorandum” shall mean the Confidential Information Memorandum dated January 6, 2020 relating to the Borrower and the transactions contemplated by this Agreement, the Closing Date Purchase Agreement and the other Loan Documents.
“Interest Coverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense (net of cash interest income for such period), in each case, for the period of four consecutive Fiscal Quarters ending on the last day of the most recent Fiscal Quarter for which financial statements are actually delivered prior to such date of determination.
“Interest Period” shall mean with respect to any Eurodollar Borrowing, a period of one, two, three or six months; provided that:
(i) the initial Interest Period for such Borrowing shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of another Type), and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless such Business Day falls in another calendar month, in which case such Interest Period would end on the next preceding Business Day;
(iii) any Interest Period which 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 such calendar month;
(iv) each principal installment of the Term Loans shall have an Interest Period ending on each installment payment date and the remaining principal balance (if any) of the Term Loans shall have an Interest Period determined as set forth above; and
 
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(v) no Interest Period may extend beyond the Revolving Commitment Termination Date, unless on the Revolving Commitment Termination Date the aggregate outstanding principal amount of Term Loans is equal to or greater than the aggregate principal amount of Eurodollar Loans with Interest Periods expiring after such date, and no Interest Period may extend beyond the Maturity Date.
“Internally Generated Cash” means, with respect to any Person, funds or such Person and its Subsidiaries not constituting (x) proceeds of the issuance of (or contributions in respect of ) Capital Stock of such Person, (y) proceeds of the incurrence of Indebtedness by such Person or any of its Subsidiaries (other than under any revolving credit facility or line of credit) or (z) proceeds of dispositions (other than dispositions in the ordinary course of business) and casualty, condemnation or eminent domain events.
“Investments” shall have the meaning set forth in Section 7.4.
“IRS” shall mean the United States Internal Revenue Service.
“Issuing Bank” shall mean Truist Bank in its capacity as the issuer of Letters of Credit pursuant to Section 2.22.
“Junior Debt” shall mean (i) any Indebtedness that is subordinated in right of payment to the Obligations, (ii) any Indebtedness that is secured by a Lien on the Collateral on a junior basis to the Obligations or (iii) any unsecured Indebtedness.
“Junior Debt Documents” shall mean any agreement, indenture or instrument pursuant to which any Junior Debt is issued or governed, in each case as amended to the extent permitted under the Loan Documents.
“Lead Arrangers” shall mean SunTrust Robinson Humphrey, Inc., BofA Securities, Inc., RBC Capital Markets and City National Bank, in their capacities as joint lead arrangers in connection with this Agreement.
“LC Commitment” shall mean that portion of the Aggregate Revolving Commitments that may be used by the Borrower for the issuance of Letters of Credit in an aggregate face amount not to exceed $10,000,000.
“LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter of Credit.
“LC Documents” shall mean all applications, agreements and instruments relating to the Letters of Credit but excluding the Letters of Credit.
“LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the aggregate amount of all LC Disbursements that have not been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure at such time.
“LCT Election” shall have the meaning set forth in Section 1.5.
“LCT Test Date” shall have the meaning set forth in Section 1.5.
 
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“Lender-Related Hedge Provider” shall mean any Person that, at the time it enters into a Hedging Transaction with any Loan Party, (i) is a Lender or an Affiliate of a Lender and (ii) except when the Lender-Related Hedge Provider is Truist Bank or any of its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Borrower of (x) the existence of such Hedging Transaction and (y) the methodology to be used by such parties in determining the obligations under such Hedging Transaction from time to time. In no event shall any Lender-Related Hedge Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Hedging Obligations except that each reference to the term “Lender” in Article IX and Section 10.3(b) shall be deemed to include such Lender-Related Hedge Provider. In no event shall the approval of any such Person in its capacity as a Lender-Related Hedge Provider be required in connection with the release or termination of any security interest or Lien of the Administrative Agent.
“Lenders” shall have the meaning set forth in the introductory paragraph hereof and shall include, where appropriate, each Increasing Lender and each Additional Lender that joins this Agreement pursuant to Section 2.23.
“Letter of Credit” shall mean any stand-by letter of credit issued pursuant to Section 2.22 by the Issuing Bank for the account of the Borrower pursuant to the LC Commitment.
“Lien” shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of any of the foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having the same economic effect as any of the foregoing).
“Limited Condition Transaction” shall mean any acquisition or similar Investment by the Borrower or one or more of its Restricted Subsidiaries permitted pursuant to the Loan Documents whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan Documents” shall mean, collectively, this Agreement, the Collateral Documents, the LC Documents, the Fee Letter, all Notices of Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates, any promissory notes issued hereunder and any and all other instruments, agreements, documents and writings executed in connection with any of the foregoing.
“Loan Parties” shall mean Holdings, the Borrower and the Subsidiary Loan Parties.
“Loans” shall mean all Revolving Loans and Term Loans in the aggregate or any of them, as the context shall require, and shall include, where appropriate, any loan made pursuant to Section 2.23.
“Material Adverse Effect” shall mean any circumstance, event or condition that results in or causes, or could reasonably be expected to result in or cause, a material adverse change in any of (a) the financial condition, business, performance, operations or property of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform their obligations under the Loan Documents and (c) the validity or enforceability of any material provision of any Loan Document or the material rights and remedies of the Administrative Agent, the Lenders and the other Secured Parties under any Loan Document.
“Material Indebtedness” shall mean any Indebtedness (other than the Loans and the Letters of Credit) of the Borrower or any of its Restricted Subsidiaries individually or in an aggregate committed or outstanding principal amount exceeding the greater of (x) $5,000,000 and (y) 8.0% of TTM Consolidated EBITDA as of the applicable determination date. For purposes of determining the amount of attributed
 
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Indebtedness from Hedging Obligations, the “principal amount” of any Hedging Obligations at any time shall be the Net Mark-to-Market Exposure of such Hedging Obligations.
“Material Subsidiary” shall mean (i) each Restricted Subsidiary that, as of the last day of the most recently ended Test Period, had net revenues or total assets in excess of 5.0% of the consolidated net revenues or Consolidated Total Assets, as applicable, of the Borrower and its Restricted Subsidiaries for such Test Period, in each case, calculated on a Pro Forma Basis; provided that in the event that the Immaterial Subsidiaries, taken together, had, as of the last day of the most recently ended Test Period for which a Compliance Certificate has been delivered pursuant to Section 5.1(c), net revenues or total assets in excess of 10.0% of the consolidated net revenues or Consolidated Total Assets, as applicable, of the Borrower and its Restricted Subsidiaries for such Test Period, the Borrower shall designate at its sole discretion one or more Immaterial Subsidiaries to be a Material Subsidiary as may be necessary such that the foregoing 10.0% limit shall not be exceeded, and any such Subsidiary shall thereafter be deemed to be an Material Subsidiary hereunder; provided further that the Borrower may re-designate Material Subsidiaries as Immaterial Subsidiaries so long as Borrower is in compliance with the foregoing and no Default or Event of Default exists or would exist as a result therefrom.
“Maturity Date” shall mean, with respect to the Term Loans, the earlier of (i) January 31, 2025 and (ii) the date on which the principal amount of all outstanding Term Loans have been declared or automatically have become due and payable (whether by acceleration or otherwise).
“Minimum Equity Contribution Amount” shall mean a minimum aggregate amount of the Equity Contribution that, when taken together with the aggregate amount of (i) all Capital Stock rolled over, issued directly or indirectly to, or otherwise directly or indirectly acquired by the Sellers and/or management of the Target and (ii) the aggregate principal amount of the Seller Note, is not less than 45% of the sum of (i) the aggregate principal amount of the Term Loans borrowed on the Closing Date (other than any Term Loans used to fund any Flex Increase), (ii) the aggregate principal amount of Revolving Loans borrowed on the Closing Date (other than any Revolving Loans incurred to finance any original issue discount and upfront fees required to be funded on the Closing Date pursuant to the “market flex” provisions of the Fee Letter (a “Flex Increase”), (iii) the aggregate principal amount of the senior unsecured notes issued by a parent company of Holdings to the Sellers (the “Seller Note”) and (iv) the Equity Contribution.
“MIRE Event” means if there is any Mortgaged Property at such time, any increase, extension or renewal of any of the Commitments or Loans (including any Incremental Term Facility, any Incremental Revolving Facility or any other incremental credit facilities hereunder, but excluding (i) any continuation or conversion of borrowings, (ii) the making of any Revolving Loans or (iii) the issuance, renewal or extension of any Letters of Credit).
“Modified Amortization Percentage” means, at any time, with respect to any Incremental Term Facility that will constitute, and be added to, an existing Class of Term Loans a percentage equal to the fraction, the numerator of which is the amount of the scheduled amortization payment required to be made on the next scheduled amortization repayment date pursuant to Section 2.9(b), and the denominator of which is the aggregate principal amount of such Class of Term Loans that is outstanding at such time (without giving effect to the incurrence of the Incremental Term Facility to be made at such time, but, for the avoidance of doubt, to include any Incremental Term Facilities incurred prior to such time).
“Moody’s” shall mean Moody’s Investors Service, Inc.
“Mortgaged Property” shall mean, collectively, the fee owned Real Estate subject to the Mortgages.
 
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“Mortgages” shall mean each mortgage, deed of trust, deed to secure debt or other real estate security documents delivered by any Loan Party to the Administrative Agent from time to time, all in form and substance reasonably satisfactory to the Administrative Agent.
“Multiemployer Plan” shall mean any “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, which is contributed to by (or to which there is or may be an obligation to contribute of) the Borrower, any of its Subsidiaries or an ERISA Affiliate, and each such plan for the five-year period immediately following the latest date on which the Borrower, any of its Subsidiaries or an ERISA Affiliate contributed to or had an obligation to contribute to such plan.
“Net Mark-to-Market Exposure” of any Person shall mean, as of any date of determination with respect to any Hedging Obligation, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from such Hedging Obligation. “Unrealized losses” shall mean the fair market value of the cost to such Person of replacing the Hedging Transaction giving rise to such Hedging Obligation as of the date of determination (assuming such Hedging Transaction were to be terminated as of that date), and “unrealized profits” shall mean the fair market value of the gain to such Person of replacing such Hedging Transaction as of the date of determination (assuming such Hedging Transaction were to be terminated as of that date).
“Net Proceeds” shall mean:
(a) 100% of the cash proceeds actually received by the Borrower or any of its Restricted Subsidiaries (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but in each case only as and when received) from any disposition, casualty event, condemnation, eminent domain or similar proceeding net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees and expenses actually incurred in connection therewith, (ii) the principal amount of any Indebtedness that is secured by a Lien (other than a Lien that is pari passu or subordinated to the Liens securing the Obligations) on the asset subject to such disposition, casualty event, condemnation, eminent domain or similar proceeding and that is required to be repaid in connection with such disposition, casualty event, condemnation, eminent domain or similar proceeding (other than Indebtedness under the Loan Documents), together with any applicable premium, penalty, interest and breakage costs, (iii) in the case of any disposition, casualty event, condemnation, eminent domain or similar proceeding by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iii)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a wholly-owned Restricted Subsidiary as a result thereof, (iv) Taxes and tax distributions permitted by Section 7.5(c) paid or reasonably estimated to be payable or, without duplication, permitted to be paid as a result thereof, (v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) related to any of the applicable assets and (y) retained by the Borrower or any of its Restricted Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such disposition, casualty event, condemnation, eminent domain or similar proceeding occurring on the date of such reduction) and (vi) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the
 
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purchase price associated with any such sale or disposition (provided that to the extent that any amounts are released from such escrow to the Borrower or a Restricted Subsidiary, such amounts net of any related expenses shall constitute Net Proceeds); provided that, no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless the aggregate amount of such net proceeds shall exceed $5,000,000 in any Fiscal Year (and thereafter only net cash proceeds in excess of such amount shall constitute Net Proceeds under this clause (a)), and
(b) 100% of the cash proceeds from the incurrence, issuance or sale by the Borrower or any of its Restricted Subsidiaries of any Indebtedness, net of all taxes paid or reasonably estimated to be payable as a result thereof and fees (including investment banking fees and discounts), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale.
For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to Holdings shall be disregarded.
“Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting Lender.
“Non-Loan Party” means any Restricted Subsidiary of the Borrower that is not a Loan Party.
“Non-Public Information” shall mean any material non-public information (within the meaning of United States federal and state securities laws) with respect to the Borrower, its Affiliates or any of their securities or loans.
“Non-U.S. Plan” shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established, contributed to (regardless of whether through direct contributions or through employee withholding) or maintained outside the United States by the Borrower or one or more of its Subsidiaries primarily for the benefit of employees of the Borrower or such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement, or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
“Not Otherwise Applied” shall mean, with reference to any proceeds of any transaction or event or of Excess Cash Flow or the Available Amount that is proposed to be applied to a particular use or transaction, that such amount (a) was not required to prepay Loans pursuant to Section 2.12(c) and (b) has not previously been (and is not simultaneously being) applied to anything other than such particular use or transaction (including any application thereof as a Specified Equity Contribution pursuant to Section 6.4).
“Notice of Borrowing” shall mean a written notice (or telephonic notice promptly confirmed in writing) of each Revolving Borrowing or Term Loan Borrowing (including, for the avoidance of doubt with respect to the Term Loan Borrowing on the Closing Date), substantially in the form of Exhibit C attached hereto.
“Notice of Conversion/Continuation” shall have the meaning set forth in Section 2.7(b).
“NYFRB” shall mean the Federal Reserve Bank of New York.
“Obligations” shall mean (a) all amounts owing by the Loan Parties to the Administrative Agent, the Issuing Bank, any Lender or the Lead Arrangers pursuant to or in connection with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of Credit including, without limitation, all principal, interest (including any interest accruing after the filing of any petition in
 
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bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to any Loan Party or any Subsidiary, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), reimbursement obligations, fees (including any fees that accrue after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to any Loan Party or any Subsidiary, whether or not a claim for post-filing or post-petition fees is allowed in such proceeding), expenses, indemnification and reimbursement payments, costs and expenses (including all fees and expenses of counsel to the Administrative Agent, the Issuing Bank and any Lender incurred pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent, liquidated or unliquidated, due or to become due, now existing or hereafter arising hereunder or thereunder, (b) all Hedging Obligations owed by any Loan Party to any Lender-Related Hedge Provider, and (c) all Bank Product Obligations, together with all renewals, extensions, modifications or refinancings of any of the foregoing; provided, however, that with respect to any Guarantor, the Obligations shall not include any Excluded Swap Obligations.
“OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability of such Person under any sale and leaseback transactions that do not create a liability on the balance sheet of such Person or (iii) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person.
“Organization Documents” shall mean, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended and in effect from time to time, and any successor statute thereto.
“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.25).
 
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“Parent Company” shall mean, with respect to a Lender, the “bank holding company” as defined in Regulation Y, if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.
“Parent Entity” means any direct or indirect parent of the Borrower.
“Participant” shall have the meaning set forth in Section 10.4(d).
“Participant Register” shall have the meaning set forth in Section 10.4.
“Patent” shall have the meaning assigned to such term in the Guaranty and Security Agreement.
“Patent Security Agreement” shall mean any Patent Security Agreement executed by a Loan Party owning Patents or licenses of Patents in favor of the Administrative Agent for the benefit of the Secured Parties.
“Payment Office” shall mean the office of the Administrative Agent located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, or such other location as to which the Administrative Agent shall have given written notice to the Borrower and the other Lenders.
“PBGC” shall mean the U.S. Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor entity performing similar functions.
“Permitted Acquisition” shall mean any Acquisition by the Borrower or its Restricted Subsidiaries that occurs when the following conditions have been satisfied:
(i) before and after giving effect to such Acquisition, no Event of Default has occurred and is continuing or would result therefrom, and all representations and warranties of each Loan Party set forth in the Loan Documents shall be and remain true and correct in all material respects; provided, that, solely with respect to a Limited Condition Transaction, the Persons providing the financing in connection therewith may agree to a “Funds Certain Provision” that (x) does not impose as a condition to funding thereof the absence of any Event of Default (other than an Event of Default on the LCT Test Date and a Specified Event of Default on the date of consummation of such Limited Condition Transaction) exists at the time such Limited Condition Transaction is consummated and (y) requires only that the Specified Representations to be true and correct in all material respects on the date of consummation of such Limited Condition Transaction;
(ii) before and after giving effect to such Acquisition and any related incurrence of Indebtedness, on a Pro Forma Basis, the Total Net Leverage Ratio shall not be greater than the greater of (x) the Total Net Leverage Ratio immediately prior to giving effect to such Acquisition and (y) 3.00:1.00 as of the last day of the most recently ended Test Period, in each case on a Pro Forma Basis; provided that in the case of any Limited Condition Transaction, the financial test set forth in this clause (ii) shall be tested on the LCT Test Date on a Pro Forma Basis;
(iii) in the case of an Acquisition of a Person projected to contribute 15% or more of Consolidated EBITDA on a Pro Forma Basis, the Borrower shall have delivered to the Administrative Agent at least 5 Business Days prior to the closing of the Acquisition (or such shorter time as the Administrative Agent may agree in its reasonable discretion) (I) annual audited and quarterly unaudited financial statements of such Person for the previous 12 month period for which financial statements are available and a forecasted balance sheet, income statement and cash
 
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flows of such Person for the forthcoming 12 month period and (II) a third party quality of earnings report prepared by a nationally recognized independent public accounting firm;
(iv) such Acquisition is consensual and is not “hostile”;
(v) immediately after giving effect thereto the Borrower is in compliance with Section 7.15; and
(vi) the Borrower shall have executed and delivered, or caused its Restricted Subsidiaries to execute and deliver, all guarantees, Collateral Documents and other related documents solely to the extent required under Section 5.10.
Notwithstanding the foregoing, (a) the Acquisition of Apace after the Closing Date shall be permitted without any limitation pursuant to, or being otherwise subject to, the foregoing terms and conditions provided that the consideration in respect thereof does not exceed $40,000,000 and (b) the aggregate consideration paid for Acquisitions of Persons that do not become Loan Parties and of assets that do not become Collateral shall not exceed the greater of (x) $10,000,000 and (y) 15.0% of TTM Consolidated EBITDA.
“Permitted Encumbrances” shall mean:
(i) Liens imposed by law for taxes not yet due or which are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen and other Liens imposed by law in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are being maintained in accordance with GAAP;
(iii) (x) pledges and deposits made in the ordinary course of business in compliance with any workers’ compensation, health, disability or other similar employee benefits, unemployment insurance and other similar laws or regulations and other insurance-related obligations relating thereto (including in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) and (y) pledges and deposits securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;
(iv) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, stay, customs, surety and appeal bonds, performance and return of money bonds, bids, leases and other obligations of a like nature (including letters of credit in lieu of any such bonds or to support the issuance thereof) incurred by the Borrower or any Restricted Subsidiary in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an Event of Default or Liens created by or existing from any litigation or legal proceeding that are currently being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are being maintained in accordance with GAAP;
 
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(vi) customary rights of set-off, revocation, refund or chargeback relating to (x) the establishment of depository relations with banks or other deposit-taking financial institutions in the ordinary course of business, (y) pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary or (z) purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business; and
(vii) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of the Borrower and its Restricted Subsidiaries taken as a whole;
provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Permitted Holders” shall mean the Controlling Member and direct or indirect members of and co-investors in Holdings as of the Closing Date, including, without limitation the roll-over Sellers, and their Affiliates.
“Permitted Refinancing” shall mean, with respect to any Person, any modification (other than a release of such Person), refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.1(c), such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is secured by a Lien on the Collateral ranking junior to the Lien securing the Obligations, such Indebtedness shall be unsecured or secured by a Lien on the Collateral ranking junior to the Liens securing the Obligations, (d) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is guaranteed by a Guarantee, such Indebtedness as modified, refinanced, renewed or extended shall not have any additional guarantees unless such additional guarantees are substantially simultaneously provided in respect of the Loans and Commitments under this Agreement to the extent required by the provision in this Agreement pursuant to which such refinanced Indebtedness was originally incurred and (e) (i) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being so modified, refinanced, refunded, renewed or extended, (ii) the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate, redemptions and redemption premium) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended (other than in the case of terms applying to periods after the then latest Maturity Date or otherwise added for the benefit of the Lenders hereunder); provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed
 
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description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal or extension is incurred by a Person who is the obligor of the Indebtedness being so modified, refinanced, refunded, renewed or extended.
“Permitted Subordinated Debt” shall mean Indebtedness of the Borrower or a Subsidiary Loan Party that is subordinated in right of payment to the Obligations and is subject to an Acceptable Intercreditor Agreement.
“Permitted Surviving Company Debt” shall mean (i) certain Indebtedness, not required to be repaid pursuant to the Closing Date Purchase Agreement, (ii) Indebtedness permitted by the Closing Date Purchase Agreement to be incurred prior to the Closing Date and permitted to remain outstanding and (iii) other existing Indebtedness (including Capital Lease Obligations, equipment financings and other similar financing arrangements) contemplated to remain outstanding after the Closing Date as agreed by the Lead Arrangers.
“Person” shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.
“Plan” shall mean any “employee benefit plan” as defined in Section 3 of ERISA (other than a Multiemployer Plan) maintained or contributed to by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate has or may have an obligation to contribute, and each such plan that is subject to Title IV of ERISA for the five-year period immediately following the latest date on which the Borrower or any ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed under Section 4069 of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to have liability with respect to) such plan.
“Platform” shall have the meaning set forth in Section 10.1(c).
“Pricing Grid” shall have the meaning set forth in the definition of “Applicable Margin”.
“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” shall mean, with respect to any basket, threshold, test, financial ratio or covenant hereunder required by the terms of this Agreement to be made on a Pro Forma Basis, the determination or calculation of such basket, threshold, test, financial ratio or covenant in accordance with Section 1.7.
“Pro Rata Share” shall mean (i) with respect to any Class of Commitment or Loan of any Lender at any time, a percentage, the numerator of which shall be such Lender’s Commitment of such Class (or, if such Commitment has been terminated or expired or the Loans have been declared to be due and payable, such Lender’s Revolving Credit Exposure or Term Loan, as applicable), and the denominator of which shall be the sum of all Commitments of such Class of all Lenders (or, if such Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure or Term Loans, as applicable, of all Lenders) and (ii) with respect to all Classes of Commitments and Loans of any Lender at any time, the numerator of which shall be the sum of such Lender’s Revolving Commitment (or, if such Revolving Commitment has been terminated or expired or the Loans have been declared to be due and payable, such Lender’s Revolving Credit Exposure) and Term Loan and the denominator of which shall be the sum of all Lenders’ Revolving Commitments (or, if such Revolving
 
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Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure of all Lenders funded under such Commitments) and Term Loans.
“Public Lender” shall mean any Lender who does not wish to receive Non-Public Information and who may be engaged in investment and other market related activities with respect to the Borrower, its Affiliates or any of their securities or loans.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” shall have the meaning set forth in Section 10.18.
“Qualified Capital Stock” shall mean any Capital Stock that is not Disqualified Capital Stock.
“Qualified IPO” shall mean the issuance by Borrower or any Parent Entity of its Capital Stock (other than Disqualified Capital Stock) (and the contribution of any proceeds of such issuance to the Borrower) in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the U.S. Securities and Exchange Commission (or any Governmental Authority succeeding to any of its principal functions) in accordance with the Securities Act of 1933 (whether alone or in connection with a secondary public offering) and such Capital Stock is listed on a nationally-recognized stock exchange in the U.S. to the extent such issuance yields proceeds in excess of $25,000,000.
“R&S Northeast” shall have the meaning set forth in the recitals hereto.
“Ratio Debt” shall mean Indebtedness so long as (A) no Event of Default exists (or would result therefrom); provided, that, if the proceeds of such Indebtedness are intended to and shall be used to finance substantially contemporaneously a Limited Condition Transaction, the condition shall be that no Event of Default shall exist on the LCT Test Date and no Specified Event of Default shall exist on the date of consummation of such Limited Condition Transaction, (B) to the extent Guaranteed, such Indebtedness shall not be guaranteed by any Person other than a Guarantor, (C) if such Indebtedness is secured or subordinated in right of payment to the Obligations, such Indebtedness shall be subject to an Acceptable Intercreditor Agreement and (D) if such Indebtedness is unsecured, the Total Net Leverage Ratio shall not exceed 4.00:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period (without “netting” the cash proceeds of any such Indebtedness); provided, that in the case of any such Indebtedness that is secured, (x) such Indebtedness shall not be secured by any assets other than by the Collateral and (y) if such Indebtedness is in the form of a term loan and shall rank pari passu in right of payment to the existing Term Loans and with respect to security with the Obligations, Section 2.23(a)(vi) shall apply; provided, further, that (I) in the case of any such Indebtedness that is pari passu Indebtedness with the Obligations, such Indebtedness shall not have a shorter average life than the remaining average life of the existing Term Loans or a maturity date earlier than the Maturity Date applicable to existing Term Loans or (II) in the case of such Indebtedness that is junior secured, unsecured or subordinated, have a Weighted Average Life to Maturity prior to the 91st day after the Maturity Date of the Weighted Average Life to Maturity for the existing Term Loans at the time such Indebtedness is incurred; provided further, that the terms of any such Indebtedness (other than with respect to pricing, margin and/or fees or as otherwise contemplated herein) shall not be materially more favorable (taken as a whole) to the lenders providing such Indebtedness than such terms provided to the Lenders in this Agreement, taken as a whole, as reasonably determined by the Borrower in good faith unless such terms are otherwise reasonably acceptable to the Administrative Agent or incorporated into this Agreement for the benefit of the Lenders pursuant to an amendment hereof (with no consent of the Lenders being required) or for terms applicable
 
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only to periods after the latest final Maturity Date of the Loans existing at the time of the incurrence of such Indebtedness; provided that the aggregate principal amount at any time outstanding of any such Indebtedness of Non-Loan Parties shall not exceed the greater of (i) $12,500,000 and (ii) 20% of TTM Consolidated EBITDA as of the applicable determination date.
“Real Estate” shall mean all real property owned or leased by the Borrower and its Restricted Subsidiaries.
“Real Estate Documents” shall mean, collectively, all Mortgages, title insurance policies, real property surveys, legal opinions, “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard determinations (including notices, as applicable, in form required under the Flood Insurance Laws, about special flood hazard area status and flood disaster assistance duly executed by each applicable Loan Party), evidence of flood insurance in accordance with Section 5.8(b), as applicable, all Environmental Indemnities and all other documents, instruments, agreements and certificates executed and delivered by any Loan Party to the Administrative Agent and the Lenders in connection with the foregoing.
“Recipient” shall mean, as applicable, (a) the Administrative Agent, (b) any Lender and (c) the Issuing Bank.
“Refinancing Amendment” shall mean an amendment, in accordance with the terms of Section 2.27 to this Agreement and, as necessary, each other Loan Document (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement of this Agreement or such other Loan Document, as applicable) executed by each of (1) the Borrower; (2) the Administrative Agent; and (3) with respect to an amendment (or an amendment and restatement) of this Agreement, each Lender that agrees to provide any portion of the Refinancing Term Loans in accordance with Section 2.27.
“Refinancing Term Loans” shall mean one or more Classes of Term Loans that result from a Refinancing Amendment.
“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Regulation Y” shall mean Regulation Y of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective managers, administrators, trustees, partners, directors, officers, employees, agents, advisors or other representatives of such Person and such Person’s Affiliates.
“Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment (including ambient air,
 
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surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.
“Required Lenders” shall mean, at any time, Lenders holding more than 50% of the aggregate outstanding Revolving Commitments and Term Loans at such time or, if the Lenders have no Commitments outstanding, then Lenders holding more than 50% of the aggregate outstanding Revolving Credit Exposure and Term Loans of the Lenders at such time; provided that to the extent that (a) any Lender is a Defaulting Lender, such Defaulting Lender and all of its Revolving Commitments, Revolving Credit Exposure and Term Loans shall be excluded for purposes of determining Required Lenders and (b) to the extent there are at least two (2) Lenders party hereto, Required Lenders must include at least two (2) non-Affiliated Lenders.
“Requirement of Law” for any Person shall mean the articles or certificate of incorporation, bylaws, partnership certificate and agreement, or limited liability company certificate of organization and agreement, as the case may be, and other organizational and governing documents of such Person, and any law, treaty, rule or regulation, or determination of a Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” shall mean (x) with respect to certifying compliance with the financial covenants set forth in Article VI, the chief financial officer of the Borrower and (y) with respect to all other provisions, any of the president, the chief executive officer, the chief operating officer, the chief financial officer, the treasurer or a vice president of the Borrower or such other representative of the Borrower as may be designated in writing by any one of the foregoing with the consent of the Administrative Agent.
“Restricted Payment” shall mean, for any Person, any dividend or distribution (whether in the form of cash, securities or other property) on any class of its Capital Stock, or any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of any shares of its Capital Stock, or any options, warrants or other rights to purchase such Capital Stock or such Indebtedness, whether now or hereafter outstanding.
“Restricted Subsidiary” shall mean any Subsidiary of a Person other than an Unrestricted Subsidiary of such Person. Unless otherwise indicated in this Agreement, all references to Restricted Subsidiaries will mean Restricted Subsidiaries of the Borrower.
“Retained Declined Proceeds” shall have the meaning set forth in Section 2.12(d).
“Returns” shall mean, with respect to any Investment, any dividends, distributions, interest, fees, premium, return of capital, repayment of principal, income, profits (from a disposition or otherwise) and other amounts received or realized in respect of such Investment, in each case, on an after-tax basis.
“Revolving Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrower and to acquire participations in Letters of Credit in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on Schedule I, as such schedule may be amended pursuant to Section 2.23, or, in the case of a Person becoming a Lender after the Closing Date, the amount of the assigned “Revolving Commitment” as provided in the Assignment and Acceptance executed by such Person as an assignee, or the joinder executed by such Person, in each case as such commitment may subsequently be increased or decreased pursuant to the terms hereof. The aggregate Revolving Commitments of all Lenders as of the Closing Date is $30,000,000.
 
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“Revolving Commitment Termination Date” shall mean the earliest of (i) January 31, 2025, (ii) the date on which the Revolving Commitments are terminated pursuant to Section 2.8 and (iii) the date on which all amounts outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and LC Exposure.
“Revolving Loan” shall mean a loan made by a Lender to the Borrower under its Revolving Commitment, which may either be a Base Rate Loan or a Eurodollar Loan.
“Rondo Acquisition” shall have the meaning set forth in the recitals hereto.
“S&P” shall mean S&P Global Ratings, a division of S&P Global Inc. and any successors thereto.
“Sanctioned Country” shall mean, at any time, a country, region or territory that is, or whose government is, the subject or target of any Sanctions.
“Sanctioned Person” shall mean, 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 EU member state, (b) any Person located, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person.
“Sanctions” shall mean economic or financial sanctions or trade embargoes 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 or Her Majesty’s Treasury of the United Kingdom.
“Screen Rate” shall mean the rate specified in clause (i) of the definition of Adjusted LIBO Rate.
“Secured Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Secured Debt as of such date, net of Unrestricted Cash of the Borrower and its Restricted Subsidiaries in an aggregate amount not to exceed $20,000,000, to (b) Consolidated EBITDA for the most recently ended Test Period on or prior to such date of determination.
“Secured Parties” shall mean the Administrative Agent, the Lenders, the Issuing Bank, the Lender-Related Hedge Providers, the Bank Product Providers and each sub-agent or co-agent appointed by the Administrative Agent from time to time pursuant to Section 9.1(a).
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Similar Business” shall mean any business, the majority of whose revenues are derived from (1) business or activities conducted by the Borrower and its Restricted Subsidiaries on the Closing Date, (2) any business that is a natural outgrowth or reasonable extension, development or expansion of any such business or any business similar, reasonably related, incidental, complementary or ancillary to any of the foregoing or (3) any business that in the Borrower’s good faith business judgment constitutes a reasonable diversification of businesses conducted by the Borrower and its Restricted Subsidiaries.
“Sellers” shall have the meaning set forth in the recitals.
 
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“Solvent” shall mean, with respect to any Person as of any date of determination, that, as of such date, (a) the value of the assets of such Person (both at fair value and present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person, (b) such Person is able to pay all liabilities of such Person as such liabilities mature and (c) such Person does not have unreasonably small capital and has sufficient assets and cash flow to support its current and anticipated business operations. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Acquisition Agreement Representations” shall mean the representations and warranties made by or with respect to the Target and its Subsidiaries in the Closing Date Purchase Agreement which are material to the interests of the Lenders, but only to the extent that any of Rondo Acquisition or its Affiliates has the right to terminate its respective obligations under the Closing Date Purchase Agreement to consummate the Closing Date Acquisition (or the right to otherwise decline to consummate the Closing Date Acquisition) as a result of the inaccuracy of such representations or warranties in the Closing Date Purchase Agreement.
“Specified Equity Contribution” shall have the meaning set forth in Section 6.4.
“Specified Event of Default” shall mean an Event of Default under Section 8.1(a), Section 8.1(b), Section 8.1(h), Section 8.1(i) or Section 8.1(j).
“Specified Representations” shall mean the representations set forth in Section 4.1(i), 4.2, 4.3(e), 4.7, 4.9, 4.15, 4.17, 4.19 and 4.20.
“Specified Transaction” shall mean any Investment that results in a Person becoming a Restricted Subsidiary, any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, any Permitted Acquisition, any disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or any disposition of a business unit, line of business or division of the Borrower or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise, or any incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), Restricted Payment or Incremental Facility, in each case, that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis”.
“Subsidiary” shall mean, with respect to any Person (the “parent”) at any date, any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company, association or other entity (i) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (ii) that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of the Borrower.
“Subsidiary Loan Party” shall mean any Restricted Subsidiary that executes or becomes a party to the Guaranty and Security Agreement.
 
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“Supported QFC” shall have the meaning set forth in Section 10.18.
“Swap Obligation” shall mean, with respect to any 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.
“Syndication Agent” shall have the meaning set forth in Section 9.12.
“Target” shall have the meaning set forth in the recitals.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Test Period” shall mean, as of any date of determination, the most recently completed four consecutive Fiscal Quarters of the Borrower ending on or prior to such date for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b), as applicable.
“Term Loan” shall mean a term loan made by a Lender to the Borrower pursuant to Section 2.5, Section 2.23, Section 2.27 or Section 2.28.
“Term Loan Commitment” shall mean, with respect to each Lender, the obligation of such Lender to make term loans hereunder in accordance with the terms hereof.
“Total Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Total Debt as of such date, net of Unrestricted Cash in an aggregate amount not to exceed $20,000,000 to (ii) Consolidated EBITDA for the most recently ended Test Period on or prior to such date of determination.
“Trademark” shall have the meaning assigned to such term in the Guaranty and Security Agreement.
“Trademark Security Agreement” shall mean any Trademark Security Agreement executed by a Loan Party owning registered Trademarks or applications for Trademarks in favor of the Administrative Agent for the benefit of the Secured Parties.
“Transaction Costs” means all fees, costs and expenses incurred or payable by Holdings, the Borrower or any other Restricted Subsidiary in connection with the Transactions.
“Transactions” means (a) the Closing Date Acquisition, (b) the Equity Contribution, (c) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to be a party and the incurrence of the Term Loans and Revolving Loans on the Closing Date, (d) the Closing Date Refinancing and (e) the payment of the Transaction Costs.
“TTM Consolidated EBITDA” shall mean as of any date of determination, the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries on a Pro Forma Basis for the most recently ended Test Period (or, in the case of a determination date that occurs prior to the first such delivery, for the four consecutive fiscal quarters ended as of September 30, 2019).
“Type” shall mean when used in reference to a Loan or a Borrowing, whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base Rate.
 
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“Unfunded Pension Liability” of any Plan shall mean the amount, if any, by which the value of the accumulated plan benefits under the Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).
“Unrestricted Subsidiary” shall mean any Subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided that the Borrower will only be permitted to so designate a new Unrestricted Subsidiary after the Closing Date or subsequently re-designate any such Unrestricted Subsidiary as a Restricted Subsidiary (by written notice to the Administrative Agent) if no Event of Default has occurred and is continuing or would result therefrom; provided that (i) no Subsidiary that owns or holds intellectual property that is material to the operation of the business of the Borrower and its Restricted Subsidiaries may be designated as an Unrestricted Subsidiary and (ii) no intellectual property that is material to the operation of the business of the Borrower and its Restricted Subsidiaries may be transferred or contributed to an Unrestricted Subsidiary.
The designation of any Restricted Subsidiary as an Unrestricted Subsidiary will constitute an Investment for purposes of Section 7.4 at the date of designation in an amount equal to the fair market value of the Borrower’s or its Restricted Subsidiary’s (as applicable) Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary will constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time and a return on any Investment by the Borrower in Unrestricted Subsidiaries in an amount equal to the fair market value at the date of such designation of the Borrower’s or its Restricted Subsidiary’s (as applicable) Investment in such Subsidiary. No Subsidiary may be designated as an Unrestricted Subsidiary to the extent such Subsidiary is designated as a “restricted subsidiary” under any Material Indebtedness. Except as expressly set forth in this paragraph, no Investment will be deemed to exist or have been made, and no Indebtedness or Liens shall be deemed to have occurred or been incurred, solely by virtue of a Subsidiary becoming an Excluded Subsidiary.
“Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as amended and in effect from time to time in the State of New York.
“United States” or “U.S.” shall mean the United States of America.
“Unrestricted Cash” shall mean the aggregate amount of cash and Cash Equivalents on the consolidated balance sheet of Borrower and the Guarantors held in deposit accounts to the extent that (a) the use of such cash or Cash Equivalents for application to payment of the Obligations or other Indebtedness is not prohibited by law or any contract or other agreement and (b) such cash and Cash Equivalents are free and clear of all Liens (other than Liens in favor of the Administrative Agent and Liens described in Section 7.2(b)).
“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
“U.S. Borrower” shall mean any Borrower that is a U.S. Person.
“U.S. Person” shall mean any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regimes” shall have the meaning set forth in Section 10.18.
 
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“U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.20(g)(ii).
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.
“Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person, all of the Capital Stock of which (other than nominal holdings and director’s qualifying shares) is owned by such Person, either directly or through one or more Wholly Owned Subsidiaries of such Person.
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent” shall mean the Borrower, any other Loan Party or the Administrative Agent, as applicable.
“Working Capital” shall mean the Current Assets less the Current Liabilities for the current Fiscal Year compared to the Current Assets less the Current Liabilities for the prior Fiscal Year.
“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.
Section 1.2. Classifications of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g. “Revolving Loan” or “Term Loan”) or by Type (e.g. “Eurodollar Loan” or “Base Rate Loan”) or by Class and Type (e.g. “Revolving Eurodollar Loan”). Borrowings also may be classified and referred to by Class (e.g. “Revolving Borrowing” or “Term Loan Borrowing”) or by Type (e.g. “Eurodollar Borrowing” or “Base Rate Borrowing”) or by Class and Type (e.g. “Revolving Eurodollar Borrowing”).
Section 1.3. Accounting Terms and Determination. Unless otherwise defined or specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a basis consistent with the most recent audited consolidated financial statement of the Borrower delivered pursuant to Section 5.1(a); provided that if the Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant in Article VI to eliminate the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders. Notwithstanding any other provision contained herein, (a) for all purposes of this Agreement, and the other Loan Documents, including negative covenants, financial covenants and component definitions, GAAP will be deemed to treat operating leases and Capital Lease Obligations in a manner consistent with the treatment under GAAP as in effect prior to the issuance by the Financial Accounting Standards Board on February 24, 2016 of Accounting Standards Update No. 2016-02, and (b) all terms of an accounting or
 
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financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) Statement of Financial Accounting Standards 141R or ASC 805 (or any other financial accounting standard having a similar result or effect), (ii) any election under Financial Accounting Standards Codification No. 825—Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Indebtedness of Holdings, the Borrower or any Subsidiary at “fair value” as defined therein or (iii) any treatment of Indebtedness in respect of convertible debt instruments under ASC 470-20 (or any other financial accounting standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.
Section 1.4. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the word “to” means “to but excluding”. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as it was originally executed or as it may from time to time be amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of similar import shall be construed to refer to this Agreement as a whole and not to any particular provision hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement, (v) the words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) all references to a specific time shall be construed to refer to Eastern time (daylight or standard, as applicable), unless otherwise indicated.
Section 1.5. Limited Condition Transaction. Notwithstanding anything to the contrary in this Agreement, for purposes of (i) determining compliance with any provision of this Agreement (other than Section 6.1 and Section 6.3) that requires the calculation of any applicable financial ratio, (ii) determining compliance with representations, warranties, defaults or events of default (other than Events of Default under Section 8.1(a), (b), (g) or (h), none of which shall exist on the LCT Test Date or the date of consummation of any Limited Condition Transaction) or (iii) testing availability under baskets set forth herein (including, in each case with respect to the incurrence of Indebtedness incurred in connection therewith), in each case, in connection with a Limited Condition Transaction by the Borrower and its Restricted Subsidiaries or any other transaction or action permitted hereunder that is consummated in connection with a Limited Condition Transaction (other than for purposes of borrowing Revolving Loans and Incremental Term Facilities, each of which shall remain subject to the terms and conditions thereof with respect to the impact, if any, of any Limited Condition Transaction), at the irrevocable option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such Limited Condition Transaction is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction as if they had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied
 
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with for such Limited Condition Transaction; provided that, no LCT Test Date may occur more than 90 days prior to the consummation of the applicable Acquisition. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket (other than maintenance testing of the financial covenants in Article VI) on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be (x) calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof) have been consummated and (y) also calculated (and tested) on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated; provided that (other than solely with respect to the incurrence test under which such Limited Condition Transaction is being made and the test set forth in the immediately preceding clause (x)) Consolidated EBITDA, assets and Consolidated Net Income of any target of such Limited Condition Transaction can only be used in the determination of the relevant ratio and baskets if and when such Limited Condition Transaction has closed.
Section 1.6. Divisions. For all purposes under the Loan Documents, in connection with any Division: (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Capital Stock at such time.
Section 1.7. Pro Forma Calculations.
(a) Notwithstanding anything to the contrary herein, financial ratios and tests, including the Total Net Leverage Ratio, the Secured Net Leverage Ratio, the First Lien Net Leverage Ratio and compliance with covenants or other provisions determined by reference to Consolidated EBITDA or Consolidated Total Assets, shall be calculated on a pro forma basis in the manner prescribed by this Section 1.7; provided that notwithstanding anything to the contrary in clauses (b), (c), (d) or (e) of this Section 1.7 when calculating any such ratio or test for purposes of (i) the definition of “Applicable Margin,” (ii) the percentage of Excess Cash Flow to be applied to prepay Term Loans pursuant to Section 2.12(c) and (iii) Sections 6.1 and 6.3 (other than for the purpose of determining Pro Forma Compliance with Sections 6.1 and 6.3), the events described in this Section 1.7 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. In addition, whenever a financial ratio or test is to be calculated, the reference to the “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.1(a) or (b), as applicable (it being understood that for purposes of determining pro forma compliance with Sections 6.1 and 6.3, if no Test Period with an applicable level cited in Sections 6.1 and 6.3 has passed, the applicable level shall be the level for the first Test Period cited in Sections 6.1 and 6.3 with an indicated level). For purposes of calculating any financial ratio or test or compliance with any covenant or other provision determined by reference to Consolidated EBITDA or Consolidated Total Assets for any Specified Transaction that occurs prior to the date on which financial statements have been (or are required to be) delivered for the Fiscal Quarter ended December 31, 2019, any
 
47

such calculation to made on a Pro Forma Basis shall use the financial statements for the Fiscal Quarter ended September 30, 2019.
(b) For purposes of calculating any financial ratio or test or compliance with any covenant or other provision determined by reference to Consolidated EBITDA or Consolidated Total Assets, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.7) that have been made (i) during the applicable Test Period (solely with respect to the calculation of the Interest Coverage Ratio) or (ii) if applicable as described in clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA or Consolidated Total Assets and the component financial definitions used therein attributable to any Specified Transaction) have occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.7 then such financial ratio or test shall be calculated to give pro forma effect thereto in accordance with this Section 1.7.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions and cost synergies resulting from or relating to, any Specified Transaction which is being given pro forma effect that have been realized or are projected to be realized and for which actions have been taken or that are committed to be taken within eighteen (18) months after the consummation of such Specified Transaction to realize such cost savings, operating expense reductions and cost synergies (in the good faith determination of the Borrower) (calculated on a pro forma basis as though such cost savings, operating expense reductions and cost synergies were realized during the entirety of such period) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of any financial ratios or tests (and in respect of any subsequent pro forma calculations in which such Specified Transaction is given pro forma effect) and during any applicable subsequent Test Period in which the effects thereof are expected to be realized) relating to such Specified Transaction; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken or with respect to which actions have been taken or are committed to be taken no later than eighteen (18) months after the date of such Specified Transaction, (C) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period and (D) any increase to Consolidated EBITDA as a result of such cost savings, operating expense reductions and cost synergies pursuant to this Section 1.7(c) shall be subject to the cap set forth in clause (ii)(G)(3) in the definition of Consolidated EBITDA.
(d) In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes unless such Indebtedness has been permanently repaid and not replaced), subject to paragraph (a), subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence or repayment of
 
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Indebtedness, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period.
(e) If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any interest hedging arrangements applicable to such Indebtedness); provided, in the case of repayment of any Indebtedness, to the extent actual interest related thereto was included during all or any portion of the applicable Test Period, the actual interest may be used for the applicable portion of such Test Period. Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a London interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or Subsidiary may designate.
Section 1.8. Leverage Ratios. Notwithstanding anything to the contrary contained herein, for purposes of calculating any leverage ratio herein in connection with the incurrence of any Indebtedness, (a) there shall be no netting of the cash proceeds proposed to be received in connection with the incurrence of such Indebtedness and (b) to the extent the Indebtedness to be incurred is revolving Indebtedness, such incurred revolving Indebtedness (or if applicable, the portion (and only such portion) of the increased commitments thereunder) shall be treated as fully drawn.
Section 1.9. Certain Determinations.
If any baskets set forth in Article VII are exceeded solely as a result of fluctuations in Consolidated EBITDA for the most recent Test Period after the last time such baskets were calculated for any purpose under Article VII, such baskets will be deemed not to have been exceeded solely as a result of such fluctuations.
Section 1.10. Cashless Roll. Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless mechanism approved by the Borrower, the Administrative Agent and such Lender.
Section 1.11. Currency Generally. For purposes of determining compliance with Article VII with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time such Indebtedness or Investment is incurred (so long as such Indebtedness or Investment, at the time incurred, made or acquired, was permitted hereunder).
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1. General Description of Facilities. Subject to and upon the terms and conditions herein set forth, (i) the Lenders hereby establish in favor of the Borrower a revolving credit facility pursuant to which each Lender severally agrees (to the extent of such Lender’s Revolving Commitment) to make Revolving Loans to the Borrower in accordance with Section 2.2; (ii) the Issuing Bank shall issue Letters
 
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of Credit in accordance with Section 2.22; (iii) each Lender agrees to purchase a participation interest in the Letters of Credit pursuant to the terms and conditions hereof; provided that in no event shall the aggregate principal amount of all outstanding Revolving Loans and outstanding LC Exposure exceed the Aggregate Revolving Commitment Amount in effect from time to time; and (iv) each Lender severally agrees to make a Term Loan to the Borrower in a principal amount not exceeding such Lender’s Term Loan Commitment on the Closing Date.
Section 2.2. Revolving Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata Share of the Aggregate Revolving Commitments, to the Borrower, from time to time during the Availability Period, in an aggregate principal amount that, after giving effect to any Revolving Loan, will not result in (a) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment at such time or (b) the aggregate Revolving Credit Exposures of all Lenders exceeding the Aggregate Revolving Commitment Amount at such time. During the Availability Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving Loans in accordance with the terms and conditions of this Agreement; provided that the Borrower may not borrow or reborrow should there exist a Default or Event of Default; provided further that the Borrower may not borrow Revolving Loans in an aggregate principal amount of more than $7,500,000 on the Closing Date. Revolving Loans may be Base Rate Loans or Eurodollar Loans as further provided herein.
Section 2.3. Procedure for Revolving Borrowings. The Borrower shall deliver a Notice of Borrowing to the Administrative Agent, (x) prior to 11:00 a.m. one (1) Business Day prior to the requested date of each Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to the requested date of each Eurodollar Borrowing. Each Notice of Borrowing shall be irrevocable and shall specify (i) the aggregate principal amount of such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the initial Interest Period applicable thereto (subject to the provisions of the definition of Interest Period). Each Revolving Borrowing shall consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may request. The aggregate principal amount of each Eurodollar Borrowing shall not be less than $1,000,000 or a larger multiple of $250,000, and the aggregate principal amount of each Base Rate Borrowing shall not be less than $500,000 or a larger multiple of $100,000; provided that Base Rate Loans made pursuant to Section 2.22(d) may be made in lesser amounts as provided therein. At no time shall the total number of Eurodollar Borrowings (including Revolving Borrowings and Term Loan Borrowings) outstanding at any time exceed ten (10). Promptly following the receipt of a Notice of Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details thereof and the amount of such Lender’s Revolving Loan to be made as part of the requested Revolving Borrowing. If the Borrower fails to specify a Type of Loan in a Notice of Borrowing, then the applicable Revolving Loans shall be made as Base Rate Loans. If the Borrower requests a Borrowing of Eurodollar Loans in any such Notice of Borrowing but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
Section 2.4. Reserved.
Section 2.5. Term Loan Commitments; Procedure for Term Loan Borrowings. Subject to the terms and conditions set forth herein, each Lender severally agrees to make a single term loan to the Borrower on the Closing Date in a principal amount equal to the Term Loan Commitment of such Lender. The Borrower shall deliver a Notice of Borrowing to the Administrative Agent, (x) prior to 11:00 a.m. one (1) Business Day prior to the requested date of each Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to the requested date of each Eurodollar Borrowing. Each Notice of Borrowing shall be irrevocable and shall specify (i) the aggregate principal amount of such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) the Type of such Term Loan comprising such
 
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Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the initial Interest Period applicable thereto (subject to the provisions of the definition of Interest Period). Each Term Loan Borrowing shall consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may request. The aggregate principal amount of each Eurodollar Borrowing shall not be less than $1,000,000 or a larger multiple of $250,000, and the aggregate principal amount of each Base Rate Borrowing shall not be less than $500,000 or a larger multiple of $100,000. At no time shall the total number of Eurodollar Borrowings (including Revolving Borrowings and Term Loan Borrowings) outstanding at any time exceed ten (10). Promptly following the receipt of a Notice of Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details thereof and the amount of such Lender’s Term Loan to be made as part of the requested Term Loan Borrowing. If the Borrower fails to specify a Type of Loan in a Notice of Borrowing, then the applicable Term Loans shall be made as Base Rate Loans. If the Borrower requests a Borrowing of Eurodollar Loans in any such Notice of Borrowing but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
Section 2.6. Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it hereunder on the proposed date thereof by wire transfer in immediately available funds by 11:00 a.m. to the Administrative Agent at the Payment Office. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts that it receives, in like funds by the close of business on such proposed date, to an account maintained by the Borrower with the Administrative Agent or, at the Borrower’s option, by effecting a wire transfer of such amounts to an account designated by the Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any Lender prior to 5:00 p.m. one (1) Business Day prior to the date of a Borrowing in which such Lender is to participate that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date, and the Administrative Agent, in reliance on such assumption, may make available to the Borrower on such date a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender on the date of such Borrowing, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest (x) at the Federal Funds Rate until the second Business Day after such demand and (y) at the Base Rate at all times thereafter. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest at the rate specified for such Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from its obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis of their respective Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in its obligations hereunder, and each Lender shall be obligated to make its Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.7. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a different Type or to continue such Borrowing, all as provided in this Section. The Borrower may elect different options with
 
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respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each Borrowing that is to be converted or continued, as the case may be, substantially in the form of Exhibit 2.7 attached hereto (a “Notice of Conversion/Continuation”) (x) prior to 10:00 a.m. one (1) Business Day prior to the requested date of a conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to a continuation of or conversion into a Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing to which such Notice of Conversion/Continuation applies and, if different options are being elected with respect to different portions thereof, the portions thereof that are to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) shall be specified for each resulting Borrowing), (ii) the effective date of the election made pursuant to such Notice of Conversion/Continuation, which shall be a Business Day, (iii) whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing, and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of “Interest Period”. If any such Notice of Conversion/Continuation requests a Eurodollar Borrowing but does not specify an Interest Period, the Borrower shall be deemed to have selected an Interest Period of one month. The principal amount of any resulting Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of Conversion/Continuation, then, unless such Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to convert such Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a Eurodollar Borrowing if a Default or an Event of Default exists, unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. No conversion of any Eurodollar Loan shall be permitted except on the last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall promptly notify each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
Section 2.8. Optional Reduction and Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments and LC Commitments shall terminate on the Revolving Commitment Termination Date. The Term Loan Commitment of each Lender shall be automatically and permanently reduced to zero on the Closing Date (after giving effect to the incurrence of Term Loans on such date).
(b) Upon at least three (3) Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent (which notice shall be irrevocable), the Borrower may reduce the Aggregate Revolving Commitments in part or terminate the Aggregate Revolving Commitments in whole; provided that (i) any partial reduction shall apply to reduce proportionately and permanently the Revolving Commitment of each Lender, (ii) any partial reduction pursuant to this Section shall be in an amount of at least $1,000,000 and any larger multiple of $1,000,000, and (iii) no such reduction shall be permitted which would reduce the Aggregate Revolving Commitment Amount to an amount less than the aggregate outstanding Revolving Credit Exposure of all Lenders. Any such reduction
 
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in the Aggregate Revolving Commitment Amount below the principal amount of the LC Commitment shall result in a dollar-for-dollar reduction in the LC Commitment.
(c) The Borrower may terminate (on a non-ratable basis) the unused amount of the Revolving Commitment of a Defaulting Lender, and in such event the provisions of Section 2.26(b) will apply to all amounts thereafter paid by the Borrower for the account of any such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that such termination will not be deemed to be a waiver or release of any claim that the Borrower, the Administrative Agent, the Issuing Bank or any other Lender may have against such Defaulting Lender.
Section 2.9. Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans shall be due and payable (together with accrued and unpaid interest thereon) on the Revolving Commitment Termination Date.
(b) The Borrower unconditionally promises to pay to the Administrative Agent for the account of the Lenders the principal amount of the Term Loans made pursuant to Section 2.5 in installments payable on the dates set forth below, with each such installment (which installments shall (x) be reduced as a result of the application of prepayments made in accordance with the order of the penalty set forth in Section 2.11 and Section 2.12 and (y) be incurred in accordance with the immediately succeeding sentence and Section 2.23, as applicable) being in the aggregate principal amount for all Lenders set forth opposite such date below (and on such other date(s) and in such other amounts as may be required from time to time pursuant to this Agreement):

	Installment Date	  	Aggregate Principal Amount	 	
June 30, 2020	  	$	2,250,000	 		
September 30, 2020	  	$	2,250,000	 		
December 31, 2020	  	$	2,250,000	 		
March 31, 2021	  	$	2,250,000	 		
June 30, 2021	  	$	2,250,000	 		
September 30, 2021	  	$	2,250,000	 		
December 31, 2021	  	$	2,250,000	 		
March 31, 2022	  	$	2,250,000	 		
June 30, 2022	  	$	2,250,000	 		
September 30, 2022	  	$	2,250,000	 		
December 31, 2022	  	$	2,250,000	 		
March 31, 2023	  	$	2,250,000	 		
June 30, 2023	  	$	2,250,000	 		
September 30, 2023	  	$	2,250,000	 		
December 31, 2023	  	$	2,250,000	 		
March 31, 2024	  	$	2,250,000	 		
June 30, 2024	  	$	2,250,000	 		
September 30, 2024	  	$	2,250,000	 		
December 31, 2024	  	$	2,250,000	 		
Maturity Date	  	 	The entire remaining amount	 		
 
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provided that, to the extent not previously paid, the entire unpaid principal balance of the Term Loans shall be due and payable in full on the Maturity Date. In connection with any Incremental Term Facility that will constitute part of the same Class as the Term Loans incurred on the Closing Date, the amount of the scheduled amortization payment that would otherwise be required pursuant to the immediately preceding sentence shall be increased for the Lenders on a pro rata basis to the extent necessary to ensure that the Lenders holding Term Loans continue to receive a payment that is not less than the same amount that such Lenders would have received absent the incurrence of such Incremental Term Facility; provided that if such Incremental Term Facility is to be “fungible” with the existing Term Loans, notwithstanding any other conditions specified in this Section 2.9(b), the amortization schedule for such “fungible” Incremental Term Facility may provide for amortization based on the Modified Amortization Percentage to ensure that such Incremental Term Facility will be “fungible” with the existing Term Loans; provided, further, that without the consent of any other Loan Party or Lender, the Borrower and the Administrative Agent may effect such amendments to the Agreement as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.9(b). The immediately preceding sentence of this Section 2.9(b) shall supersede any provisions in Section 10.2 to the contrary.
Section 2.10. Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice appropriate records evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable thereon and paid to such Lender from time to time under this Agreement. The Administrative Agent shall maintain (acting solely for purposes of Treasury Regulation Section 5f.103-1(c) as a non-fiduciary agent for the Borrower) appropriate records in which shall be recorded (i) the Revolving Commitment and the Term Loan Commitment of each Lender, (ii) the amount of each Loan made hereunder by each Lender, the Class and Type thereof and, in the case of each Eurodollar Loan, the Interest Period applicable thereto, (iii) the date of any continuation of any Loan pursuant to Section 2.7, (iv) the date of any conversion of all or a portion of any Loan to another Type pursuant to Section 2.7, (v) the date and amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder in respect of the Loans and (vi) both the date and amount of any sum received by the Administrative Agent hereunder from the Borrower in respect of the Loans and each Lender’s Pro Rata Share thereof. The entries made in such records shall be, absent manifest error, prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided that the failure or delay of any Lender or the Administrative Agent in maintaining or making entries into any such record or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans (both principal and unpaid accrued interest) of such Lender in accordance with the terms of this Agreement. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such amounts, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
(b) This Agreement evidences the obligation of the Borrower to repay the Loans and is being executed as a “noteless” credit agreement. However, at the request of any Lender at any time, the Borrower agrees that it will prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Borrower and the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment permitted hereunder) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
 
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Section 2.11. Optional Prepayments. The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty, by giving written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent no later than (i) in the case of any prepayment of any Eurodollar Borrowing, 11:00 a.m. not less than three (3) Business Days prior to the date of such prepayment and (ii) in the case of any prepayment of any Base Rate Borrowing, not less than one (1) Business Day prior to the date of such prepayment. Each such notice shall be irrevocable and shall specify the proposed date of such prepayment and the principal amount of each Borrowing or portion thereof to be prepaid. Upon receipt of any such notice, the Administrative Agent shall promptly notify each affected Lender of the contents thereof and of such Lender’s Pro Rata Share of any such prepayment. If such notice is given, the aggregate amount specified in such notice shall be due and payable on the date designated in such notice, together with accrued interest to such date on the amount so prepaid in accordance with Section 2.13(d); provided that if a Eurodollar Borrowing is prepaid on a date other than the last day of an Interest Period applicable thereto, the Borrower shall also pay all amounts required pursuant to Section 2.19. Each partial prepayment of any Loan shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type pursuant to Section 2.3 or, in the case of a Term Loan Borrowing of the same Type pursuant to Section 2.5. Each prepayment of a Borrowing shall be applied ratably to the Loans comprising such Borrowing and, in the case of a prepayment of a Term Loan Borrowing, to principal installments as directed by the Borrower (and, absent such direction, in direct order of maturity).
Section 2.12. Mandatory Prepayments.
(a) Immediately upon receipt by the Borrower or any of its Restricted Subsidiaries of any Net Proceeds of any sale or disposition by the Borrower or any of its Restricted Subsidiaries of any of its assets, or any Net Proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay the Obligations in an amount equal to all such Net Proceeds; provided that the Borrower shall not be required to prepay the Obligations with respect to Net Proceeds from the sales of assets in the ordinary course of business, from sales of assets or from any casualty insurance policies or eminent domain, condemnation or similar proceedings that are reinvested in assets then used or usable in the business of the Borrower and its Restricted Subsidiaries (other than in current assets) within 12 months following receipt thereof; provided that if any Net Proceeds are not so reinvested by the deadline specified above or if any such Net Proceeds are no longer intended to be or cannot be so reinvested, any such Net Proceeds shall be applied, in accordance with Section 2.12(d), to the prepayment of the Term Loans as set forth in this Section 2.12. If at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Term Loans (such Indebtedness, “Other Pari Indebtedness”) pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds from such disposition, casualty insurance policy or eminent domain, condemnation or similar proceeding, then the Borrower, at its election, may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the applicable Class(es) of Term Loans and Other Pari Indebtedness at such time) to the outstanding Classes of Term Loans and such Other Pari Indebtedness; provided, that the portion of such Net Proceeds allocated to the Other Pari Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the applicable Class(es) of Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.12(a) shall be reduced accordingly; provided, that to the extent the holders of Other Pari Indebtedness decline to have such indebtedness repurchase or prepaid, the declined amount shall promptly (and in any
 
55

event within ten (10) Business Days after the date of such rejection) be applied to prepay the applicable Class(es) of Term Loans in accordance with the terms hereof,
(b) No later than the Business Day following the date of receipt by the Borrower or any of its Restricted Subsidiaries of any Net Proceeds from any issuance of Indebtedness by the Borrower or any of its Restricted Subsidiaries, (i) that is not permitted to be issued or incurred pursuant to Section 7.1 or (ii) that is intended to constitute Credit Agreement Refinancing Indebtedness in respect of any Class of Term Loans, the Borrower shall prepay the Obligations in an amount equal to all such Net Proceeds. Any such prepayment shall be applied in accordance with subsection (d) of this Section.
(c) No later than five (5) Business Days after the date on which the Borrower’s annual audited financial statements for such Fiscal Year are required to be delivered pursuant to Section 5.1(a) (beginning with the Fiscal Year ending December 31, 2021), (i) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is greater than 2.50:1.00, the Borrower shall prepay the Obligations in an amount equal to 50% of Excess Cash Flow for such Fiscal Year, (ii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.50:1.00 but greater than 2.00:1.00, the Borrower shall prepay the Obligations in an amount equal to 25% of Excess Cash Flow for such Fiscal Year and (iii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.00:1.00, no prepayment shall be required; provided that such amount shall be reduced on a dollar-for-dollar basis for such Fiscal Year by the aggregate amount of voluntary prepayments of Term Loans (and, to the extent the Revolving Commitments are permanently reduced in a corresponding amount pursuant to Section 2.8, Revolving Loans) that rank pari passu in right of payment and security with the Term Loans made pursuant to Section 2.11, in each case, to the extent made with Internally Generated Cash during such fiscal year or after such Fiscal Year and prior to the time such prepayment is due (without duplication to subsequent years). If at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Pari Indebtedness, then the Borrower, at its election, may apply Excess Cash Flow on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Pari Indebtedness at such time) provided that the portion of such Excess Cash Flow allocated to the Other Pari Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow shall be allocated to the applicable Class(es) of Term Loans in accordance with the terms hereof) to the prepayment of such Class(es) of Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of prepayment of the applicable Class(es) of Term Loans that would have otherwise been required pursuant to this Section 2.12(c) shall be reduced accordingly; provided that to the extent the holders of Other Pari Indebtedness decline to have such indebtedness repurchases or prepaid, the declined amount shall promptly (and in any event within then (10) Business Days after the date of such rejection) be applied to prepay the applicable Class(es) of Term Loans in accordance with the terms hereof.Any such prepayment shall be applied in accordance with subsection (d) of this Section. Any such prepayment shall be accompanied by a certificate signed by the Borrower’s chief financial officer certifying in reasonable detail the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent.
(d) Any prepayments made by the Borrower pursuant to subsections (a), (b) or (c) of this Section shall be applied as follows: first, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loans in direct order of maturity; second, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments (with no permanent reduction in the Revolving Commitments); and third, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Borrower shall notify the Administrative Agent in
 
56

writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) and (c) of this Section 2.12 prior to 1:00 p.m. at least five (5) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment notice and of such Lender’s Pro Rata Share of the prepayment with respect to any Class of Term Loans. Each Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (a) or (c) of this Section 2.12 by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. three (3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be retained by the Borrower (“Retained Declined Proceeds”).
(e) If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.8 or otherwise, the Borrower shall immediately repay the Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment shall be applied as follows: first, to the Base Rate Loans to the full extent thereof; and second, to the Eurodollar Loans to the full extent thereof. If, after giving effect to prepayment of all Revolving Loans, the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall Cash Collateralize its reimbursement obligations with respect to all Letters of Credit in an amount equal to such excess plus any accrued and unpaid fees thereon.
(f) Notwithstanding any provision of this Section 2.12 to the contrary, (i) to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent that any or all of the Net Proceeds received by a Foreign Subsidiary or Excess Cash Flow attributable to a Foreign Subsidiary giving rise to a prepayment event pursuant to subsections (a) or (c) is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.12, but may be retained by the Borrower or the applicable Foreign Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation to the United States. Once such repatriation of any of such affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be effected promptly and such repatriated Net Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.12 to the extent provided herein; provided that the Borrower hereby agrees, and will cause any applicable Restricted Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or (ii) to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent that repatriation of any of or all the Net Proceeds received by a Foreign Subsidiary or Excess Cash Flow attributable to a Foreign Subsidiary giving rise to a prepayment event pursuant to this Section 2.12 would have a material adverse tax consequence, then in each case the Net Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.12, but may be retained by the Borrower or the applicable Foreign Subsidiary without being repatriated; provided that when the Borrower determines in good faith that repatriation of any of or all the Net Proceeds or Excess Cash Flow, in each case, from a Foreign Subsidiary would no longer have a material adverse tax consequence with respect to
 
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such Net Proceeds or Excess Cash Flow, such Net Proceeds or Excess Cash Flow shall be applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 2.12(a) or Section 2.12(c), as applicable; provided that, the Borrower shall take all commercially reasonable actions available under local law to permit such repatriation. The non- application of proceeds as a consequence of this subsection (f) will not constitute an Event of Default under this Agreement.
Section 2.13. Interest on Loans.
(a) The Borrower shall pay interest on (i) each Base Rate Loan at the Base Rate plus the Applicable Margin in effect from time to time and (ii) each Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan plus the Applicable Margin in effect from time to time.
(b) [Reserved].
(c) Notwithstanding subsection (a) of this Section, at the option of the Required Lenders and upon written notice to the Borrower if an Event of Default has occurred and is continuing pursuant to Section 8.1(d) (solely with respect to an Event of Default arising by virtue of a breach of Section 5.1 (after giving effect to the cure period applicable thereto) or Section 6.1 or Section 6.3 after giving effect to the provisions of Section 6.4), and automatically if an Event of Default has occurred and is continuing pursuant to Sections 8.1(a), (b), (h) or (i), the Borrower shall pay interest (“Default Interest”) with respect to all Eurodollar Loans at the rate per annum equal to 200 basis points above the otherwise applicable interest rate for such Eurodollar Loans for the then-current Interest Period until the last day of such Interest Period, and thereafter, and with respect to all Base Rate Loans and all other Obligations hereunder (other than Loans), at the rate per annum equal to 200 basis points above the otherwise applicable interest rate for Base Rate Loans.
(d) Interest on the principal amount of all Loans shall accrue from and including the date such Loans are made to but excluding the date of any repayment thereof. Interest on all outstanding Base Rate Loans shall be payable quarterly in arrears on the last day of each March, June, September and December and on the Revolving Commitment Termination Date or the Maturity Date, as the case may be. Interest on all outstanding Eurodollar Loans shall be payable on the last day of each Interest Period applicable thereto, and, in the case of any Eurodollar Loans having an Interest Period in excess of three months, on each day which occurs every three months after the initial date of such Interest Period, and on the Revolving Commitment Termination Date or the Maturity Date, as the case may be. To the extent necessary to create a “fungible” Class of Term Loans, the Borrower shall pay all accrued and unpaid interest on the Class of Term Loans being increased on the Business Day that any Incremental Term Facility is incurred. Interest on any Loan which is converted into a Loan of another Type or which is repaid or prepaid shall be payable on the date of such conversion or on the date of any such repayment or prepayment (on the amount repaid or prepaid) thereof. All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate applicable to the Loans hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing (or by telephone, promptly confirmed in writing). Any such determination shall be conclusive and binding for all purposes, absent manifest error.
Section 2.14. Fees.
(a) The Borrower shall pay to the Administrative Agent for its own account fees in the amounts and at the times previously agreed upon in writing by the Borrower and the Administrative Agent.
 
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(b) The Borrower agrees to pay to the Administrative Agent for the account of each Lender an unused line fee, which shall accrue at the Applicable Margin per annum (determined daily in accordance with the Pricing Grid) on the daily amount of the unused Revolving Commitment of such Lender during the Availability Period. For purposes of computing the unused line fee, the Revolving Commitment of each Lender shall be deemed used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender.
(c) The Borrower agrees to pay (i) to the Administrative Agent, for the account of each Lender, a letter of credit fee with respect to its participation in each Letter of Credit, which shall accrue at a rate per annum equal to the Applicable Margin for Eurodollar Loans then in effect on the daily average amount of such Lender’s LC Exposure attributable to such Letter of Credit during the period from and including the date of issuance of such Letter of Credit to but excluding the date on which such Letter of Credit expires or is drawn in full (including, without limitation, any LC Exposure that remains outstanding after the Revolving Commitment Termination Date) and (ii) to the Issuing Bank for its own account a fronting fee, which shall accrue at the rate of 0.25% per annum on the daily average amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the Availability Period (or until the date that such Letter of Credit is irrevocably cancelled, whichever is later), as well as the Issuing Bank’s standard fees with respect to issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Notwithstanding the foregoing, if the Required Lenders elect upon notice to the Borrower to increase the interest rate on the Loans to the rate for Default Interest pursuant to Section 2.13(c), the rate per annum used to calculate the letter of credit fee pursuant to clause (i) above shall automatically be increased by 200 basis points.
(d) The Borrower shall pay on the Closing Date to the Administrative Agent and its affiliates all fees in the Fee Letter that are due and payable on the Closing Date. The Borrower shall pay on the Closing Date to Lead Arrangers all upfront fees previously agreed in writing.
(e) Accrued fees under subsections (b) and (c) of this Section shall be payable quarterly in arrears on the last day of each March, June, September and December, commencing on March 31, 2020, and on the Revolving Commitment Termination Date (and, if later, the date the Loans and LC Exposure shall be repaid in their entirety); provided that any such fees accruing after the Revolving Commitment Termination Date shall be payable on demand.
Section 2.15. Computation of Interest and Fees.
Interest hereunder based on the Administrative Agent’s prime lending rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and paid for the actual number of days elapsed (including the first day but excluding the last day). All other interest and all fees hereunder shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of an interest rate or fee hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive and binding for all purposes.
Section 2.16. Inability to Determine Interest Rates. (a) If, prior to the commencement of any Interest Period for any Eurodollar Borrowing:
(i) the Administrative Agent shall have reasonably determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant interbank market, adequate means do not exist for ascertaining the Adjusted LIBO Rate (including, without limitation, because the Screen Rate is not available or published on a current basis) for such Interest Period, or
 
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(ii) the Administrative Agent shall have received notice from the Required Lenders that the Adjusted LIBO Rate does not adequately and fairly reflect the cost to such Lenders of making, funding or maintaining their Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in writing) to the Borrower and to the Lenders as soon as practicable thereafter. Until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) the obligations of the Lenders to make Eurodollar Revolving Loans or to continue or convert outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all such affected Loans shall be converted into Base Rate Loans on the last day of the then current Interest Period applicable thereto unless the Borrower prepays such Loans in accordance with this Agreement. Unless the Borrower notifies the Administrative Agent at least one (1) Business Day before the date of any Eurodollar Borrowing for which a Notice of Borrowing or a Notice of Conversion/Continuation has previously been given that it elects not to borrow, continue or convert to a Eurodollar Borrowing on such date, then such Revolving Borrowing shall be made as, continued as or converted into a Base Rate Borrowing.
(b) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) or the Required Lenders notify the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined (i) the circumstances set forth in clause (a)(i) above have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) above have not arisen but the supervisor for the administrator of the Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate benchmark rate of interest to the Screen Rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that gives due consideration to the then prevailing market convention for determining a benchmark rate of interest for U.S. dollar denominated syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin). Notwithstanding anything to the contrary in Section 10.2, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date such amendment is provided to the Lenders, written notice from Lenders constituting the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.16(b), only to the extent the Screen Rate for the applicable currency and/or such Interest Period is not available or published at such time on a current basis), (x) any Notice of Conversion/Continuation that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (y) if any Notice of Borrowing requests a Eurodollar Borrowing, such Borrowing shall be made as a Base Rate Borrowing; provided, that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Such alternate rate of interest shall be applied in a manner consistent with market practice.
Section 2.17. Illegality. If any Change in Law shall make it unlawful or impossible for any Lender to make, maintain or fund any Eurodollar Loan or to determine or charge interest rates based upon the Adjusted LIBO Rate, and such Lender shall so notify the Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Borrower and the other Lenders, whereupon until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such suspension no longer exist, (i) the obligation of such Lender to make Eurodollar Revolving Loans, or to continue or convert outstanding Loans as or into Eurodollar Loans, shall be suspended and (ii)_if such
 
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notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Adjusted LIBO Rate component of the Base Rate, then the interest rate on such Base Rate Loans of such Lender, shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted LIBO Rate component of the Base Rate. In the case of the making of a Eurodollar Borrowing, such Lender’s Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving Borrowing for the same Interest Period and, if the affected Eurodollar Loan is then outstanding, such Loan shall be converted to a Base Rate Loan either (i) on the last day of the then current Interest Period applicable to such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan to such date or (ii) immediately if such Lender shall determine that it may not lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding the foregoing, the affected Lender shall, prior to giving such notice to the Administrative Agent, designate a different Applicable Lending Office if such designation would avoid the need for giving such notice and if such designation would not otherwise be disadvantageous to such Lender in the good faith exercise of its discretion.
Section 2.18. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement that is not otherwise included in the determination of the Adjusted LIBO Rate hereunder against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes and (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes; or
(iii) impose on any Lender, the Issuing Bank or the eurodollar interbank market any other condition affecting this Agreement or any Eurodollar Loans made by such Lender or any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Lender of making, converting into, continuing or maintaining a Eurodollar Loan or to increase the cost to such Lender or the Issuing Bank of participating in or issuing any Letter of Credit or to reduce the amount received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or any other amount), then, from time to time, such Lender or the Issuing Bank may provide the Borrower (with a copy thereof to the Administrative Agent) with written notice and demand with respect to such increased costs or reduced amounts, and within five (5) Business Days after receipt of such notice and demand the Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such additional amounts as will compensate such Lender or the Issuing Bank for any such increased costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that on or after the date of this Agreement any Change in Law regarding capital or liquidity ratios or requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital (or on the capital of the Parent Company of such Lender or the Issuing Bank) as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender, the Issuing Bank or such Parent Company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies or the policies of such Parent Company with respect to capital adequacy and liquidity), then, from time to time, such Lender or the Issuing Bank may provide the Borrower (with a copy thereof to the Administrative Agent) with written notice and demand with respect to such reduced amounts, and within five (5) Business Days after receipt of such notice and demand the Borrower
 
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shall pay to such Lender or the Issuing Bank, as the case may be, such additional amounts as will compensate such Lender, the Issuing Bank or such Parent Company for any such reduction suffered.
(c) A certificate of such Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender, the Issuing Bank or the Parent Company of such Lender or the Issuing Bank, as the case may be, specified in subsection (a) or (b) of this Section shall be delivered to the Borrower (with a copy to the Administrative Agent) and shall be conclusive, absent manifest error.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation.
Section 2.19. Funding Indemnity. In the event of (a) the payment of any principal of a Eurodollar Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion or continuation of a Eurodollar Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure by the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in any applicable notice (regardless of whether such notice is withdrawn or revoked), then, in any such event, the Borrower shall compensate each Lender, within five (5) Business Days after written demand from such Lender, for any loss, cost or expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense shall be deemed to include an amount determined by such Lender to be the excess, if any, of (A) the amount of interest that would have accrued on the principal amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Eurodollar Loan) over (B) the amount of interest that would accrue on the principal amount of such Eurodollar Loan for the same period if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or the date on which the Borrower failed to borrow, convert or continue such Eurodollar Loan. A certificate as to any additional amount payable under this Section submitted to the Borrower by any Lender (with a copy to the Administrative Agent) shall be conclusive, absent manifest error.
Section 2.20. Taxes.
(a) Defined Terms. For purposes of this Section 2.20, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
 
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(d) Indemnification by the Borrower. The Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient 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 as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.4(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender 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 any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower or any other Loan Party to a Governmental Authority pursuant to this Section 2.20, the Borrower or other Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.20(g) (ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,
 
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(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(ii) executed copies of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit 2.20A to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(iv) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.20B or Exhibit 2.20C, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.20D on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed
 
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by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20 (including by the payment of additional amounts pursuant to this Section 2.20), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Survival. Each party’s obligations under this Section 2.20 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
 
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Section 2.21. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.18, 2.19 or 2.20, or otherwise) prior to 12:00 p.m. on the date when due, in immediately available funds, free and clear of any defenses, rights of set-off, counterclaim, or withholding or deduction of taxes. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to the Issuing Bank as expressly provided herein and except that payments pursuant to Sections 2.18, 2.19, 2.20 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof in an amount equal to such Person’s Pro Rata Share (or other applicable share provided for in this Agreement) of such payment. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be made payable for the period of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied as follows: first, to all fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to all interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to all principal of the Loans and unreimbursed LC Disbursements then due and payable hereunder, pro rata to the parties entitled thereto based on their respective pro rata shares of such principal and unreimbursed LC Disbursements.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements that would result in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure, Term Loans and accrued interest and fees thereon than the proportion received by any other Lender with respect to its Revolving Credit Exposure or Term Loans, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Credit Exposure and Term Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Exposure and Term Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this subsection shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Exposure or Term Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this subsection shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
 
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(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Section 2.22. Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in reliance upon the agreements of the other Lenders pursuant to subsections (d) and (e) of this Section, shall issue, at the request of the Borrower, Letters of Credit denominated in Dollars for the account of the Borrower on the terms and conditions hereinafter set forth; provided that (i) each Letter of Credit shall expire on the earlier of (A) the date one year after the date of issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (B) the date that is five (5) Business Days prior to the Revolving Commitment Termination Date; provided, further that any Letter of Credit with a one year tenor may provide for automatic extension thereof for additional one year periods (which, in no event, shall extend beyond the date referred to in clause (B) of this paragraph (a)) so long as such Letter of Credit (any such Letter of Credit, an “Auto Extension Letter of Credit”) permits the Issuing Bank to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Auto Extension Letter of Credit) by giving prior notice to the beneficiary thereof within a time period during such twelve-month period to be agreed upon at the time such Auto Extension Letter of Credit is issued; (ii) each Letter of Credit shall be in a stated amount of at least $100,000; (iii) the Borrower may not request any Letter of Credit if, after giving effect to such issuance, (A) the aggregate LC Exposure would exceed the LC Commitment or (B) the aggregate Revolving Credit Exposure of all Lenders would exceed the Aggregate Revolving Commitment Amount, (iv) the Revolving Credit Exposure of each Lender shall not exceed such Lender’s Revolving Commitment at such time and (v) the Borrower shall not request, and the Issuing Bank shall have no obligation to issue, any Letter of Credit the proceeds of which would be made available to any Person (AA) to fund any activity or business of or with any Sanctioned Person or in any Sanctioned Countries, that, at the time of such funding, is the subject of any Sanctions or (BB) in any manner that would result in a violation of any Sanctions by any party to this Agreement. Each Lender with a Revolving Commitment shall be deemed to have purchased, and hereby irrevocably and unconditionally purchases from the relevant Issuing Bank without recourse a participation in each Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate amount available to be drawn under such Letter of Credit on the date of issuance with respect to all other Letters of Credit. Each issuance of a Letter of Credit shall be deemed to utilize the Revolving Commitment of each Lender by an amount equal to the amount of such participation. With respect to any renewal of any Auto Extension Letter of Credit, unless otherwise directed by the Issuing Bank, the Borrower shall not be required to make a specific request to the Issuing Bank for any such renewal. Once an Auto Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the renewal of such Letter of Credit at any time to an expiry date not later than the Revolving Commitment Termination Date.
(b) To request the issuance of a Letter of Credit (or any amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall give the Issuing Bank and the Administrative Agent irrevocable written notice at least three (3) Business Days prior to the requested date of such issuance specifying the date (which shall be a Business Day) such Letter of Credit is to be issued
 
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(or amended, renewed or extended, as the case may be), the expiration date of such Letter of Credit, the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. In addition to the satisfaction of the conditions in Article III, the issuance of such Letter of Credit (or any amendment which increases the amount of such Letter of Credit) will be subject to the further conditions that such Letter of Credit shall be in such form and contain such terms as the Issuing Bank shall reasonably approve and that the Borrower shall have executed and delivered any additional applications, agreements and instruments relating to such Letter of Credit as the Issuing Bank shall reasonably require; provided that in the event of any conflict between such applications, agreements or instruments and this Agreement, the terms of this Agreement shall control.
(c) At least two (2) Business Days prior to the issuance of any Letter of Credit, the Issuing Bank will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received such notice, and, if not, the Issuing Bank will provide the Administrative Agent with a copy thereof. Unless the Issuing Bank has received notice from the Administrative Agent, on or before the Business Day immediately preceding the date the Issuing Bank is to issue the requested Letter of Credit, directing the Issuing Bank not to issue the Letter of Credit because such issuance is not then permitted hereunder because of the limitations set forth in subsection (a) of this Section or that one or more conditions specified in Article III are not then satisfied, then, subject to the terms and conditions hereof, the Issuing Bank shall, on the requested date, issue such Letter of Credit in accordance with the Issuing Bank’s usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to represent a demand for payment under a Letter of Credit promptly following its receipt thereof. The Issuing Bank shall notify the Borrower and the Administrative Agent of such demand for payment and whether the Issuing Bank has made or will make a LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the Lenders with respect to such LC Disbursement. The Borrower shall be irrevocably and unconditionally obligated to reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank in respect of such drawing, without presentment, demand or other formalities of any kind. Unless the Borrower shall have notified the Issuing Bank and the Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior to the date on which such drawing is honored that the Borrower intends to reimburse the Issuing Bank for the amount of such drawing in funds other than from the proceeds of Revolving Loans, the Borrower shall be deemed to have timely given a Notice of Borrowing to the Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the date on which such drawing is honored in an exact amount due to the Issuing Bank; provided that for purposes solely of such Borrowing, the conditions precedent set forth in Section 3.2 hereof shall not be applicable. The Administrative Agent shall notify the Lenders of such Borrowing in accordance with Section 2.3, and each Lender shall make the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of the Issuing Bank in accordance with Section 2.6. The proceeds of such Borrowing shall be applied directly by the Administrative Agent to reimburse the Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then each Lender (other than the Issuing Bank) shall be obligated to fund the participation that such Lender purchased pursuant to subsection (a) of this Section in an amount equal to its Pro Rata Share of such LC Disbursement on and as of the date which such Base Rate Borrowing should have occurred. Each Lender’s obligation to fund its participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender or any other Person may have against the Issuing Bank or any other Person for any reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of the Aggregate
 
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Revolving Commitments, (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any other Lender, (v) any amendment, renewal or extension of any Letter of Credit or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. On the date that such participation is required to be funded, each Lender shall promptly transfer, in immediately available funds, the amount of its participation to the Administrative Agent for the account of the Issuing Bank. Whenever, at any time after the Issuing Bank has received from any such Lender the funds for its participation in a LC Disbursement, the Issuing Bank (or the Administrative Agent on its behalf) receives any payment on account thereof, the Administrative Agent or the Issuing Bank, as the case may be, will distribute to such Lender its Pro Rata Share of such payment; provided that if such payment is required to be returned for any reason to the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding, such Lender will return to the Administrative Agent or the Issuing Bank any portion thereof previously distributed by the Administrative Agent or the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount required to be paid pursuant to subsection (d) or (e) of this Section on the due date therefor, such Lender shall pay interest to the Issuing Bank (through the Administrative Agent) on such amount from such due date to the date such payment is made at a rate per annum equal to the Federal Funds Rate; provided that if such Lender shall fail to make such payment to the Issuing Bank within three (3) Business Days of such due date, then, retroactively to the due date, such Lender shall be obligated to pay interest on such amount at the rate set forth in Section 2.13(c).
(g) If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders demanding that its reimbursement obligations with respect to the Letters of Credit be Cash Collateralized pursuant to this subsection, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to 105% of the aggregate LC Exposure of all Lenders as of such date plus any accrued and unpaid fees thereon; provided that such obligation to Cash Collateralize the reimbursement obligations of the Borrower with respect to the Letters of Credit shall become effective immediately, and such deposit shall become immediately due and payable, without demand or notice of any kind, upon the occurrence of any Event of Default described in Section 8.1(h), (i) or (j). Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. The Borrower agrees to execute any documents and/or certificates to effectuate the intent of this subsection. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest and profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it had not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated, with the consent of the Required Lenders, be applied to satisfy other obligations of the Borrower under this Agreement and the other Loan Documents. If the Borrower is required to Cash Collateralize its reimbursement obligations with respect to the Letters of Credit as a result of the occurrence of an Event of Default, such cash collateral so posted (to the extent not so applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived.
(h) Upon the request of any Lender, but no more frequently than quarterly, the Issuing Bank shall deliver (through the Administrative Agent) to each Lender and the Borrower a report describing
 
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the aggregate Letters of Credit then outstanding. Upon the request of any Lender from time to time, the Issuing Bank shall deliver to such Lender any other information reasonably requested by such Lender with respect to each Letter of Credit then outstanding.
(i) The Borrower’s obligation to reimburse LC Disbursements hereunder shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under all circumstances whatsoever and irrespective of any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit or this Agreement;
(ii) the existence of any claim, set-off, defense or other right which the Borrower or any Subsidiary or Affiliate of the Borrower may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such beneficiary or transferee may be acting), any Lender (including the Issuing Bank) or any other Person, whether in connection with this Agreement or the Letter of Credit or any document related hereto or thereto or any unrelated transaction;
(iii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document to the Issuing Bank that does not comply with the terms of such Letter of Credit;
(v) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of set-off against, the Borrower’s obligations hereunder; or
(vi) the existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, any Lender nor any Related Party of any of the foregoing shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to above), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any actual direct damages (as opposed to special, indirect (including claims for lost profits or other consequential damages), or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise due care when determining whether drafts or other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised due care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to
 
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accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(j) Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a Letter of Credit is issued and subject to applicable laws, (i) each standby Letter of Credit shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be published by the Institute of International Banking Law & Practice on any date any Letter of Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later revision as may be published by the International Chamber of Commerce on any date any Letter of Credit may be issued) and (iii) the Borrower shall specify the foregoing in each letter of credit application submitted for the issuance of a Letter of Credit.
(k) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to Base Rate Revolving Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (d) of this Section 2.22, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be paid to the Administrative Agent, for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (d) of this Section 2.22 to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment and shall be payable on demand or, if no demand has been made, on the date on which the Borrower reimburses the applicable LC Disbursement in full.
(l) Resignation of an Issuing Bank. Subject to the appointment and acceptance of a successor Issuing Bank reasonably acceptable to the Borrower (to the extent that there is only one Issuing Bank hereunder at such time), any Issuing Bank may resign at any time by giving thirty (30) days’ written notice to the Administrative Agent, the Lenders and the Borrower. At the time any such resignation shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the resigning Issuing Bank pursuant to Section 2.14(c). Notwithstanding the effectiveness of any such resignation, the resigning Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation, but shall not (a) be required (and shall be discharged from its obligations) to issue any additional Letters of Credit or extend or increase the amount of Letters of Credit then outstanding, without affecting its rights and obligations with respect to Letters of Credit previously issued by it, or (b) be deemed an Issuing Bank for any other purpose.
Section 2.23. Increase of Commitments; Additional Lenders.
(a) From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments (each, an “Incremental Revolving Facility”) and/or add one or more term loan facilities or to increase the aggregate amount of any existing Class of Term Loans hereunder (each, an “Incremental Term Facility” and, together with the Incremental Revolving Facility, the “Incremental Facilities”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Facilities made pursuant to this Section shall not exceed the Incremental Cap; provided that the aggregate commitments under the Incremental Revolving Facility shall not exceed $20,000,000;
 
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(ii) at the time of and immediately after giving effect to any such proposed incurrence, no Event of Default shall exist and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects); provided, that, solely with respect to an Incremental Term Facility the proceeds of which are intended to and shall be used to finance substantially contemporaneously a Limited Condition Transaction, the condition shall be that (x) no Event of Default shall exist on the LCT Test Date and no Specified Event of Default shall exist on the date of consummation of such Limited Condition Transaction and (y) the Specified Representations shall be true and correct in all material respects on the date of consummation of such Limited Condition Transaction;
(iii) (x) any Incremental Term Facility made pursuant to this Section and which is a separate Class of Term Loans shall have a maturity date no earlier than the Maturity Date and shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.5, (y) any Incremental Term Facility made pursuant to this Section in the form of an increase to an existing Class of Term Loans shall have the same maturity date as such existing tranche of Term Loans, and (z) any Incremental Revolving Facility provided pursuant to this Section shall have a termination date no earlier than the Revolving Commitment Termination Date;
(iv) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with each of the financial covenants set forth in Article VI as of the most recently ended (1) Fiscal Quarter for which financial statements are required to have been delivered or (2) calendar month, solely to the extent that the financial statements for such month (and any prior month or months the results for which are not included in clause (1)) have been delivered to the Administrative Agent and are in form and substance reasonably acceptable to the Administrative Agent, in each case, calculated (without “netting” the proceeds thereof in such calculation) as if all such Incremental Term Facilities had been made and all such Incremental Revolving Facilities had been established (and fully funded) as of the first day (for purposes of Section 6.3) and as of the last day (for purposes of Section 6.1), as applicable, of the relevant period for testing compliance, provided, that, solely with respect to an Incremental Term Facility the proceeds of which are intended to and shall be used to finance substantially contemporaneously a Limited Condition Transaction, the condition set forth in this clause (iv) shall be true and correct on the LCT Test Date;
(v) if the interest rate margin applicable to any such Incremental Term Facility incurred within 18 months of the Closing Date exceeds by more than 0.50% per annum the Applicable Margin then in effect for Eurodollar Term Loans made pursuant to Section 2.5, then the Applicable Margin of the existing Term Loans, shall be increased such that the Applicable Margin on the existing Term Loan is no more than 0.50% per annum lower than the interest rate margin on such Incremental Facility, provided, that in determining the interest rate margin applicable to such Incremental Term Facility and the existing Term Loans, (w) any prepayment premiums, arrangement, commitment, structuring, syndication, underwriting, placement, success, advisory, ticking and unused line, consent and amendment fees or other fees that are not generally paid ratably to all lenders providing such indebtedness or to one or more arrangers (or their affiliates) of such indebtedness shall be excluded, (x) original issue discount and upfront fees paid to the lenders thereunder shall be included (with original issue discount or upfront fees being equated to interest based on assumed four-year life to maturity), (y) if such Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the existing Term Loan, such differential between interest rate floors shall be equated to the applicable interest rate margin
 
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for purposes of determining whether an increase to the interest rate margin under the existing Term Loan shall be required, but only to the extent an increase in the interest rate floor in the existing Term Loan would cause an increase in the Applicable Margin then in effect for Eurodollar Term Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the existing Term Loan shall be increased to the extent of such differential between interest rate floors and (z) for purposes of calculating the adjustments pursuant to this clause (v), such Indebtedness, if it is fixed rate Indebtedness, shall be swapped to a floating rate on a customary matched maturity basis as is reasonably acceptable to the Administrative Agent and the Borrower;
(vi) the Incremental Facilities (A) shall rank pari passu in right of payment and/or with respect to security with the Obligations, (B) may not be secured by any assets other than Collateral, (C) may not be guaranteed by any Person who is not a Loan Party and (D) may participate on a (x) pro rata basis (but not greater than a pro rata basis) or less than pro rata basis in any voluntary repayment or prepayment in respect of the Term Loans and (y) pro rata basis or less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayment or prepayment in respect of the Term Loans; and
(vii) (x) any Incremental Term Facility made pursuant to this Section and which is a separate tranche of Term Loans shall be on terms and conditions that are, taken as a whole, not materially more favorable to the lenders or holders providing such Indebtedness than, those applicable to the existing Term Loans, as determined in good faith by a Responsible Officer of the Borrower (except (A) as otherwise permitted by this Section 2.23, (B) for covenants applicable only to periods after the Maturity Date of the Term Loans at the time of incurrence and (C) to the extent such terms and conditions are offered to be conformed or added to this Agreement for the benefit of the existing Lenders pursuant to an amendment) and to the extent applicable and if reasonably requested by the Administrative Agent, such Indebtedness shall be subject to an Acceptable Intercreditor Agreement, (y) any Incremental Term Facility made pursuant to this Section in the form of an increase to an existing Class of Term Loans shall be on the same terms and conditions (subject to clause (v) above, other than with respect to original issue discount and upfront fees) as such existing Class of Term Loans (except as otherwise permitted by this Section 2.23), and (z) any Incremental Revolving Facility provided pursuant to this Section shall be on the same terms and conditions (other than with respect to upfront fees) as the Revolving Loans (except as otherwise permitted by this Section 2.23).
(b) The Borrower shall provide at least 10 Business Days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Facility. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their Term Loans, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or its Term Loans, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within 5 Business Days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Facility that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment, Term Loan Commitment and/or its Term Loans, and any decision by a Lender to increase its Revolving Commitment and/or its Term Loans shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments, Term Loan Commitments and/or the Term Loans, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment, Term Loan Commitments and/or its Term Loans may be replaced with respect to its existing Revolving Commitment, Term Loan Commitments and/or its Term
 
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Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment and/or its Term Loans within five (5) Business Days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment and/or its Term Loans, as applicable. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld or conditioned) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Facility. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Facilities and/or such Incremental Term Facilities among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Term Loans of the Increasing Lenders plus the Revolving Commitments, Term Loan Commitments and the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Cap.
(c) Subject to subsections (a) and (b) of this Section, any Incremental Facility requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder or an amendment to this Agreement (the “Incremental Facility Amendment”), in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments and/or new Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Facility and such opinions of counsel for the Borrower with respect to such Incremental Facility as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Facilities and/or such Incremental Term Facilities, issued by the Borrower in accordance with Section 2.10;
(v) a duly executed Notice of Borrowing; and
(vi) any other certificates (including solvency certificates) or documents (including reaffirmation agreements) that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
Upon the effectiveness of any such Incremental Facility, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Facilities and/or the Incremental Term Facilities, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Facilities are to have terms that are different from the Term Loans, outstanding immediately prior to such incurrence (any such Incremental Term Facilities, the
 
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“Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among the Borrower, the Lenders providing such Incremental Term Facilities and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.9 shall be ratably increased after the making of any Incremental Term Facilities (other than Term Loans that are Non-Conforming Credit Extensions) under this Section by the aggregate principal amount of such Incremental Term Facilities; provided that such scheduled principal installments may be adjusted as set forth in Section 2.9 to ensure “fungibility” with any Incremental Term Facility. After the incurrence of any Non-Conforming Credit Extensions, all optional prepayments of Term Loans shall be allocated ratably between the then-outstanding Term Loans and such Non-Conforming Credit Extensions.
(e) The Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.23 (including, in connection with an Incremental Revolving Facility, to reallocate Revolving Credit Exposure on a pro rata basis among the relevant Lenders). On the date of the making of any Incremental Term Facility that will be added to any Class of Term Loans, and notwithstanding anything to the contrary set forth herein, the Term Loans made under such Incremental Term Facility shall be added to (and constitute a part of) each Borrowing of outstanding Term Loans of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the same type with the same Interest Period of the respective Class. Upon each increase in the Revolving Commitments pursuant to this Section 2.23, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Increase Lender”) in respect of such Incremental Revolving Facility, and each such Incremental Revolving Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such Incremental Revolving Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Lender’s Revolving Commitment after giving effect to such Incremental Revolving Facility. Additionally, if any Revolving Loans are outstanding under at the time any Incremental Revolving Facility is implemented, the Lenders immediately after the effectiveness of such Incremental Revolving Facility shall purchase and assign at par such amounts of the Revolving Loans outstanding at such time as the Administrative Agent may require such that each Lender holds its Pro Rata Share of all Revolving Loans immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this Section 2.23.
(f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into (i) any Incremental Facility Amendment and/or any amendment to any other Loan Document as may be necessary in order to (A) establish new Classes or sub-Classes in respect of Loans or Commitments pursuant to this Section 2.23 and (B) implement any restrictive terms or conditions permitted or required to be provided to the Lenders pursuant to clause (vii) of this Section 2.23 (which amendment shall be entered into by the Administrative Agent upon the reasonable request of the Borrower) and (ii) such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.23.
 
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(g) Notwithstanding anything to the contrary, this Section 2.23 shall supersede any provisions in Section 2.21 or Section 10.2 to the contrary.
Section 2.24. Mitigation of Obligations. If any Lender requests compensation under Section 2.18, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable under Section 2.18 or Section 2.20, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all costs and expenses incurred by any Lender in connection with such designation or assignment.
Section 2.25. Replacement of Lenders. If (a) any Lender requests compensation under Section 2.18, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20, (b) any Lender is a Defaulting Lender, or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.2(b), the consent of Required Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 10.4(b)), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.18 or 2.20, as applicable) and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender) (a “Replacement Lender”); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal amount of all Loans owed to it, accrued interest thereon, accrued fees and all other amounts payable to it hereunder from the assignee (in the case of such outstanding principal and accrued interest) and from the Borrower (in the case of all other amounts), (iii) in the case of a claim for compensation under Section 2.18 or payments required to be made pursuant to Section 2.20, such assignment will result in a reduction in such compensation or payments, and (iv) in the case of a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such terminated Lender was a Non-Consenting Lender. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Acceptance executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment need not be a party thereto.
Section 2.26. Defaulting Lenders.
(a) Cash Collateral.
(i) At any time that there shall exist a Defaulting Lender, within two (2) Business Days following the written request of the Administrative Agent or the Issuing Bank (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize the Issuing Bank’s LC Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.26(b)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than 105% of the Issuing Bank’s LC Exposure with respect to such Defaulting Lender.
 
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(ii) The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Bank, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause (iii) below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Bank as herein provided, or that the total amount of such Cash Collateral is less than the minimum amount required pursuant to clause (i) above, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).
(iii) Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.26(a) or Section 2.26(b) in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit or LC Disbursements (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(iv) Cash Collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s LC Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.26(a) following (A) the elimination of the applicable LC Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the Issuing Bank that there exists excess Cash Collateral; provided that, subject to Section 2.26(b) through (d) the Person providing Cash Collateral and each Issuing Bank may agree that Cash Collateral shall be held to support future anticipated LC Exposure or other obligations and provided further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
(b) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and in Section 10.2.
(ii) 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 Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.7 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 Issuing Bank hereunder; third, to Cash Collateralize the Issuing Bank’s LC Exposure with respect to such Defaulting Lender in accordance with Section 2.26(a); fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which 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
 
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held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.26(a); sixth, to the payment of any amounts owing to the Lenders or the Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements 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 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to sub-section (iv) below. 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 2.26(b)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) (A) No Defaulting Lender shall be entitled to receive any commitment fee pursuant to Section 2.14(b) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive letter of credit fees pursuant to Section 2.14(c) for any period during which that Lender is a Defaulting Lender only to the extent allocable to that portion of its LC Exposure for which it has provided Cash Collateral pursuant to Section 2.26(a).
(C) With respect to any commitment fee or letter of credit fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower 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’s participation in Letters of Credit that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing Bank the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Bank’s LC Exposure with respect to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv) All or any part of such Defaulting Lender’s participation in Letters of Credit shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the Revolving Commitments (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the conditions set forth in Section 3.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and
 
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warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. Subject to Section 10.17, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with the procedures set forth in Section 2.26(a).
(c) Defaulting Lender Cure. If the Borrower, the Administrative Agent and Issuing Bank 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 to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.26(b)(iv), 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 Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(d) New Letters of Credit. So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no LC Exposure after giving effect thereto.
Section 2.27. Refinancing Term Loans.
(a) From time to time after the Closing Date and in accordance with this Section 2.27, the Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Term Loans, in the form of Refinancing Term Loans which may take the form of a new Class of term loans or one or more increases in the amount of any existing Class of term loans pursuant to a Refinancing Amendment. Each Class of Credit Agreement Refinancing Indebtedness incurred under this Section 2.27 shall be in an aggregate principal amount that is not less than $5,000,000 and in an integral multiple of $1,000,000 in excess thereof (or, if less, the aggregate principal amount of Term Loans outstanding).
(b) The effectiveness of any Refinancing Amendment will be subject only to the satisfaction on the date thereof of such of the conditions as may be requested by the providers of the Refinancing Term Loans. The Administrative Agent will promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement will be deemed amended (or amended and restated, as applicable) to the extent (but only to the extent) necessary to reflect the existence and terms of the Refinancing Term Loans incurred pursuant thereto (including any amendments necessary to treat the Term Loans subject thereto as Refinancing Term Loans).
 
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(c) Any Refinancing Amendment may, without the consent of any Person other than the Administrative Agent, the Borrower and the Lenders or Additional Lenders providing Refinancing Term Loans, effect such amendments (or amendment and restatements) to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.27. This Section 2.27 supersedes any provisions in Section 2.21 or 10.2 to the contrary. The transactions contemplated by this Section 2.27 will not require the consent of any other Lender or any other Person, and the requirements of any provision of this Agreement or any other Loan Document that may otherwise prohibit any transaction contemplated by this Section 2.27 will not apply to any of the transactions effected pursuant to this Section 2.27.
(d) Refinancing Term Loans may be provided by any existing Lender (it being understood that no existing Lender shall have an obligation to make all or any portion of any Refinancing Term Loan) or by any Additional Lender. Any Lender approached to provide all or a portion of Refinancing Term Loans may elect or decline, in its sole discretion, to provide such Refinancing Term Loans (it being understood that there is no obligation to approach any existing Lenders to provide Refinancing Term Loans).
Section 2.28. Extensions of Term Loans.
(a) Extension Offers. Pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of Term Loans of a particular Class with a like Maturity Date (and with respect to any Extension Offer each Lender may, in its sole discretion, choose whether to accept or reject such Extension Offer), the Borrower may extend such Maturity Date and otherwise modify the terms of such Term Loans pursuant to the terms set forth in an Extension Offer (each, an “Extension,” and each group of such Term Loans so extended (the “Extended Term Loans”), as well as any such Term Loans of the same Class not so extended, being a tranche). Each Extension Offer will specify the minimum amount of Term Loans with respect to which an Extension Offer may be accepted, which will be an integral multiple of $1,000,000 and an aggregate principal amount that is not less than $5,000,000 (or (x) if less, the aggregate principal amount of such Term Loans outstanding or (y) such lesser minimum amount as is approved by the Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed), and will be made on a pro rata basis to all Lenders of Term Loans of a particular Class with a like Maturity Date. If the aggregate outstanding principal amount of such Term Loans (calculated on the face amount thereof) in respect of which Lenders have accepted an Extension Offer exceeds the maximum aggregate principal amount of Term Loans offered to be extended pursuant to an Extension Offer, then the Term Loans of such Lenders will 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 Lenders have accepted such Extension Offer. There is no requirement that any Extension Offer or Extension Amendment (defined as follows) be subject to any “most favored nation” pricing provisions. The terms of an Extension Offer will be determined by the Borrower and an Extension Offer may contain one or more conditions to its effectiveness, including that a minimum amount of Term Loans or any or all applicable tranches be tendered.
(b) Extension Amendments. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement of this Agreement or such Loan Document, as applicable) (an “Extension Amendment”) as may be necessary in order to establish new tranches in respect of Extended Term Loans and such amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches. This Section 2.28 supersedes any provisions of Section 2.21 or 10.2 to the contrary. Except as otherwise set forth in an Extension Offer, there will be no
 
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conditions to the effectiveness of an Extension Amendment. Extensions will not constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(c) Terms of Extension Offers and Extension Amendments. The terms of any Extended Term Loans will be set forth in an Extension Offer and as agreed between the Borrower and the Lenders accepting such Extension Offer; provided that:
(i) the final maturity date of such Extended Term Loans will be no earlier than the latest Maturity Date applicable to the Term Loans subject to such Extension Offer;
(ii) the Weighted Average Life to Maturity of any such Extended Term Loans will be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans subject to such Extension Offer;
(iii) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in voluntary or mandatory repayments or prepayments of Term Loans;
(iv) such Extended Term Loans are not secured by any assets or property that does not constitute Collateral;
(v) such Extended Term Loans are not guaranteed by any Person other than a Loan Party; and
(vi) the other terms and conditions applicable to the Extended Term Loans are (i) substantially identical to, or, taken as a whole, no more favorable to the lenders or holders providing such Extended Term Loans than, those applicable to the Term Loans subject to such Extension Offer (except for covenants applicable only to periods after the latest Maturity Date of the Term Loans made on the Closing Date at the time of incurrence) (provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least four (4) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of such Extended Term Loans together with a reasonably detailed description of the material covenants and event of default of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (vi) shall be conclusive evidence that such Indebtedness satisfies this clause (vi) unless the Administrative Agent notifies the Borrower within such four (4) Business Day (or shorter) period that it disagrees with such determination (including a description of the basis upon which it disagrees)); provided that this clause (vi) will not apply to (w) terms addressed in the preceding clauses (i) through (v), (x) interest rate, rate floors, fees, funding discounts and other pricing terms, (y) redemption, prepayment or other premiums, or (z) optional prepayment or redemption terms.
Any Extended Term Loans will constitute a separate tranche of Term Loans from the Term Loans held by Lenders that did not accept the applicable Extension Offer.
(d) Required Consents. No consent of any Lender or any other Person will be required to effectuate any Extension, other than the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), the Borrower and the applicable Lender(s) of such Term Loans with respect to such Extension. The transactions contemplated by this Section 2.28 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans
 
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on such terms as may be set forth in the relevant Extension Offer) will not require the consent of any other Lender or any other Person, and the requirements of any provision of this Agreement (including Sections 2.12 and 2.21) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.28 will not apply to any of the transactions effected pursuant to this Section 2.28.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
Section 3.1. Conditions to Effectiveness. The obligations of the Lenders to make Loans and the obligations of the Issuing Bank to issue Letters of Credit hereunder on the Closing Date are subject to the satisfaction (or waiver by the Lead Arrangers) of solely the following conditions (subject to the last paragraph of this Section 3.1):
(a) The Administrative Agent shall have received payment of all fees, expenses and other amounts due and payable on or prior to the Closing Date, including, without limitation, to the extent invoiced at least three (3) Business Days prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, and the Lead Arrangers (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Loan Document and under any agreement with the Administrative Agent or the Lead Arrangers (which amounts may, at the option of the Borrower, be offset against the proceeds of the Term Loans).
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) (A) a certificate of the Secretary or Assistant Secretary of each Loan Party in the form of Exhibit 3.1(b)(ii)(A), attaching and certifying copies of its bylaws, partnership agreement or limited liability company agreement, as applicable, and of the resolutions of its board of directors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party and (B) a certificate in the form of Exhibit 3.1(b)(ii)(B), dated as of the Closing Date, and signed by a Responsible Officer, certifying that the conditions set forth in clause (v) have been satisfied;
(iii) certified copies of the articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of such Loan Party;
(iv) a customary written opinion of (i) Morgan, Lewis & Bockius, LLP, New York legal counsel to the Loan Parties, addressed to the Administrative Agent, the Issuing Bank and each of the Lenders, and (ii) Stites and Harbison PLLC, special Tennessee and Kentucky
 
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counsel to the Loan Parties, addressed to the Administrative Agent, the Issuing Bank and each of the Lenders;
(v) (A) the Specified Acquisition Agreement Representations shall be true and correct to the extent required by the terms of the definition, (B) the Specified Representations shall be true and correct in all material respects as of the Closing Date (or in the case of those qualified by materiality, in all respects), (C) since October 31, 2019, there shall have been no Material Adverse Effect (as defined in the Closing Date Purchase Agreement), and (D) the Closing Date Acquisition shall be consummated substantially simultaneously with the initial Borrowing hereunder, in accordance in all material respects with the terms of the Closing Date Purchase Agreement without giving effect to any modifications, amendments, consents or waivers by the Borrower (or any of its Affiliates) thereto that are materially adverse to the Lenders (taken as a whole) without the prior consent of the Lead Arrangers, such consent not to be unreasonably withheld, conditioned or delayed and provided that the Lead Arrangers shall be deemed to have consented to any such amendment, modification, consent or waiver unless they shall object thereto within three (3) business days after receipt by the Lead Arrangers of written notice of such amendment or modification (it being understood that (a) any reduction in the purchase price of, or consideration for, the Closing Date Acquisition under the Closing Date Purchase Agreement shall be deemed to be not materially adverse to the interests of the Lenders so long as (i) any reduction (A) is not greater than 10% of the purchase price and (B) shall first reduce the Equity Contribution to the Minimum Equity Contribution Amount and second, reduce the Equity Contribution and the Term Loans ratably in proportion to the actual percentages that the amount of the Equity Contribution and the Term Loans bear to the pro forma total capitalization of the Borrower and its Restricted Subsidiaries after giving effect to the Transactions, (b) any increase in the cash purchase price of, or consideration for, the Closing Date Acquisition under the Closing Date Purchase Agreement shall be deemed to be not materially adverse to the interests of the Lenders so long as any such increase is funded with an increase to the Equity Contribution, (c) any adverse waivers, modifications, consents or amendments to the definition of “Material Adverse Effect” in the Closing Date Purchase Agreement shall be deemed to be materially adverse to the interests of the Lenders, and (d) any adjustment to the purchase price in accordance with the purchase price or working capital adjustment provisions of the Closing Date Purchase Agreement will not constitute a modification, amendment, consent or waiver to the Closing Date Purchase Agreement);
(vi) a duly executed Notice of Borrowing for any initial Borrowing delivered at least three (3) Business Days prior to the Closing Date (or such shorter period as the Lead Arrangers may otherwise agree);
(vii) (x) the audited consolidated balance sheet and related audited consolidated statements of income, stockholders’ equity and cash flows of the Target for the Fiscal Years ended December 31, 2017 and December 31, 2018, (y) the unaudited consolidated balance sheets and related unaudited consolidated statements of income, stockholders’ equity and cash flows of the Target for each Fiscal Quarter ended after the date of the most recent audited financial statements delivered pursuant to clause (a) above, and ended at least 45 days prior to the Closing Date and (z) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of Borrower for the trailing twelve-month period ended on the last day of and for the Fiscal Quarter or Fiscal Year, as applicable, with respect to which the most recent financial statements were delivered pursuant to clauses (x) or (y) above, as applicable, prepared immediately after giving effect to this Agreement and the Closing Date Acquisition, as if such transactions had occurred as of such date (in the case of the balance sheet) or at the beginning of such period (in the case of the income statement) and any other adjustments as agreed by the Borrower and the Lead Arrangers;
 
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(ix) the Closing Date Refinancing shall be consummated substantially simultaneously with the borrowing of the Term Loans and the Equity Contribution shall have been made, or substantially simultaneously with the borrowing of the Term Loans shall be made, in an amount at least equal to the Minimum Equity Contribution Amount;
(x) so long as requested at least ten (10) days prior to the Closing Date, the Lead Arrangers shall have received, at least three (3) business days prior to the Closing Date, (A) all documentation and other information concerning the Borrower and the other Guarantors that the Lead Arrangers reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and (B) a customary Beneficial Ownership Certification in relation to the Borrower;
(xi) a certificate in the form of Exhibit 3.1(b)(xi), dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming that the Loan Parties and their Restricted Subsidiaries on a consolidated basis are Solvent after giving effect to the funding of the initial Term Loan Borrowing and any initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(xii) subject to the last paragraph of this Section 3.1, the Guaranty and Security Agreement, duly executed by each Loan Party, together with (A) UCC financing statements with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Loan Parties, (B) original certificates evidencing all issued and outstanding shares of Capital Stock of the Borrower and all Wholly Owned Subsidiaries owned directly by any Loan Party, (C) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements and (D) stock or membership interest powers or other appropriate instruments of transfer executed in blank relative to the Capital Stock pledged pursuant to clause (B) above) ;
(xvi) the Administrative Agent and the Lenders shall have received all fees and expenses, if any, owing pursuant to the Fee Letter and Section 2.14; and
(xvii) a copy of a promissory note executed by the Borrower in favor of each Lender that has requested a promissory note pursuant to Section 2.10 at least two (2) Business Days in advance of the Closing Date.
Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Notwithstanding anything to the contrary herein or in the provisions of any Loan Document, to the extent any security interest in any Collateral is not or cannot be provided and/or perfected on the Closing Date (other than (i) the perfection of a security interest in the Capital Stock issued by the Borrower and each of its respective Domestic Subsidiaries that are Wholly Owned Subsidiaries of any Loan Party (to the extent required to be pledged pursuant to the Loan Documents) with respect to which a Lien may be perfected by the delivery of a stock or equivalent certificate representing such interests (together with stock powers or similar instruments of transfer endorsed in blank), (ii) the perfection of a security interest in respect of any assets of any Loan Party with respect to which a Lien may be perfected by the filing of UCC financing
 
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statements and (iii) the pledge and perfection of a security interest in respect of any federally registered and/or applied for intellectual property of any Loan Party with respect to which a Lien may be provided and perfected by the execution, delivery and proper filing of a short form security agreement suitable for filing with the United States Patent and Trademark Office or United States Copyright Office, as applicable) after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability and/or initial funding of the facilities established hereby on the Closing Date, but instead shall be required to be provided and/or perfected after the Closing Date (and in any event, not later than 90 days after the Closing Date or such longer period as may be agreed by the Administrative Agent) pursuant to arrangements to be mutually agreed by the Borrower and the Administrative Agent.
Section 3.2. Conditions to Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit is subject to Section 2.26(d) and the satisfaction (or waiver) of the following conditions:
(a) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except for any representation or warranty made as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date; and
(c) the Borrower shall have delivered a Notice of Borrowing.
Each Borrowing and each issuance, amendment, renewal or extension of any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in subsections (a) and (b) of this Section. Notwithstanding the foregoing, the conditions set forth in subsections (a) and (b) of this Section shall not apply to any Incremental Facility (which shall be governed by Section 2.23) and/or any extensions of credit under any Refinancing Amendment (which shall be governed by Section 2.27) or Extension Amendment (which shall be governed by Section 2.28).
Section 3.3. Delivery of Documents. All of the Loan Documents, certificates, legal opinions and other documents and papers referred to in this Article, unless otherwise specified, shall be delivered to the Administrative Agent for the account of each of the Lenders and in sufficient counterparts or copies for each of the Lenders and shall be in form and substance reasonably satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to the Administrative Agent, each Lender and the Issuing Bank as follows:
 
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Section 4.1. Existence; Power. Each of Holdings, the Borrower and its Restricted Subsidiaries (i) is duly organized, validly existing and in good standing as a corporation, partnership or limited liability company under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to carry on its business as now conducted, and (iii) is duly qualified to do business, and is in good standing, in each jurisdiction where such qualification is required, except where a failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect. No Loan Party is an EEA Financial Institution.
Section 4.2. Organizational Power; Authorization. The execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party are within such Loan Party’s organizational powers and have been duly authorized by all necessary organizational and, if required, shareholder, partner or member action. This Agreement has been duly executed and delivered by Holdings and the Borrower and constitutes, and each other Loan Document to which any Loan Party is a party, when executed and delivered by such Loan Party, will constitute, valid and binding obligations of Holdings and the Borrower or such Loan Party (as the case may be), enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
Section 4.3. Governmental Approvals; No Conflicts. The execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party (a) do not require any consent or approval of, registration or filing with, or any action by, any Governmental Authority, except those as have been obtained or made and are in full force and effect and except for filings necessary to perfect or maintain perfection of the Liens created under the Loan Documents, (b) will not violate any Requirement of Law applicable to Holdings, the Borrower or any of its Restricted Subsidiaries or any judgment, order or ruling of any Governmental Authority, except where such violation, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (c) will not violate or result in a default under any Contractual Obligation of Holdings, the Borrower or any of its Restricted Subsidiaries or any of its assets or give rise to a right thereunder to require any payment to be made by Holdings, the Borrower or any of its Subsidiaries, except where such violation or default, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect and (d) will not result in the creation or imposition of any Lien on any asset of Holdings, the Borrower or any of its Restricted Subsidiaries, except Liens (if any) created under the Loan Documents and (e) do not contravene the terms of any such Person’s Organization Documents.
Section 4.4. Financial Statements. The Borrower has furnished to each Lender (x) the audited consolidated balance sheet and related audited consolidated statements of income, stockholders’ equity and cash flows of the Target for the Fiscal Years ended December 31, 2017 and December 31, 2018, (y) the unaudited consolidated balance sheets and related unaudited consolidated statements of income, stockholders’ equity and cash flows of the Target for each Fiscal Quarter and year to date period then ended after the date of the most recent audited financial statements delivered pursuant to clause (x) above, and ended at least 45 days prior to the Closing Date and (z) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of Borrower for the trailing twelve-month period ended on the last day of and for the Fiscal Quarter or Fiscal Year, as applicable, with respect to which the most recent financial statements were delivered pursuant to clauses (x) or (y) above, as applicable, prepared immediately after giving effect to this Agreement and the Closing Date Acquisition, as if such transactions had occurred as of such date (in the case of the balance sheet) or at the beginning of such period (in the case of the income statement) and any other adjustments as agreed by the Borrower and the Lead Arrangers. Such financial statements fairly present the consolidated financial condition of the Borrower and its Subsidiaries as of such dates and the consolidated results of operations for such periods in conformity with GAAP consistently applied, subject to year-end audit adjustments and the absence of footnotes in the case
 
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of the statements referred to in clause (y). Since October 31, 2019, there have been no changes with respect to the Borrower and its Restricted Subsidiaries which have had or could reasonably be expected to have either individually or in the aggregate, a Material Adverse Effect.
Section 4.5. Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before any arbitrators or Governmental Authorities is pending against or, to the knowledge of the Borrower, threatened in writing against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination that could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect or (ii) which in any manner seeks to enjoin or calls into question the validity or enforceability of this Agreement or any other Loan Document.
(b) None of Holdings, the Borrower or any of its Restricted Subsidiaries (i) has failed to comply, in any material respect, with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) to the knowledge of the Borrower, has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability which, in each case, could reasonably be expected to result in a Material Adverse Effect.
Section 4.6. Compliance with Laws and Agreements. Each of Holdings, the Borrower and each of its Restricted Subsidiaries is in compliance with (a) all Requirements of Law and all judgments, decrees and orders of any Governmental Authority and (b) all indentures, agreements or other instruments binding upon it or its properties, except, in each case of clauses (a) and (b), where non-compliance, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Section 4.7. Investment Company Act. None of Holdings, the Borrower or any of its Restricted Subsidiaries is (a) an “investment company”, is required to be registered as an “investment company” or is “controlled” by an “investment company”, as such terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as amended and in effect from time to time, or (b) otherwise subject to any other regulatory scheme limiting its ability to incur debt or requiring any approval or consent from, or registration or filing with, any Governmental Authority in connection therewith.
Section 4.8. Taxes. Each of Holdings, the Borrower and its Subsidiaries and each other Person for whose taxes Holdings, the Borrower or any of its Subsidiaries could become liable have timely filed or caused to be filed all Federal income tax returns and all other material tax returns that are required to be filed by them, and have paid all taxes owed by Holdings, the Borrower and its Subsidiaries as shown to be due and payable on such returns or on any assessments made against it or its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority, except where (a) the same are currently being contested in good faith by appropriate proceedings and for which Holdings, the Borrower or such Restricted Subsidiary, as the case may be, has set aside on its books adequate reserves in accordance with GAAP or (b) where the failure to file any such return or pay any such taxes could not reasonably be expected to result in a Material Adverse Effect (except with respect to any Federal income tax return). The charges, accruals and reserves on the books of Holdings, the Borrower and its Subsidiaries in respect of such taxes are adequate, and no tax liabilities that could be materially in excess of the amount so provided are anticipated.
Section 4.9. Margin Regulations. None of the proceeds of any of the Loans or Letters of Credit will be used, directly or indirectly, for “purchasing” or “carrying” any “margin stock” within the respective meanings of each of such terms under Regulation U or for any purpose that violates the provisions of Regulation T, Regulation U or Regulation X. None of Holdings, the Borrower or any of its
 
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Restricted Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock”.
Section 4.10. ERISA. Except as could not reasonably be expected to result in a Material Adverse Effect, (a) each Plan is in substantial compliance in form and operation with its terms and with ERISA and the Code (including, without limitation, the Code provisions compliance with which is necessary for any intended favorable tax treatment) and all other applicable laws and regulations, (b) each Plan (and each related trust, if any) which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the effect that it meets the requirements of Sections 401(a) and 501(a) of the Code covering all applicable tax law changes, or is comprised of a master or prototype plan that has received a favorable opinion letter from the Internal Revenue Service, and nothing has occurred since the date of such determination that would adversely affect such determination (or, in the case of a Plan with no determination, nothing has occurred that would adversely affect the issuance of a favorable determination letter or otherwise adversely affect such qualification), (c) no ERISA Event has occurred or is reasonably expected to occur, (d) there exists no Unfunded Pension Liability with respect to any Plan, (e) none of the Borrower, any of its Subsidiaries or any ERISA Affiliate is making or accruing an obligation to make contributions, or has, within any of the five calendar years immediately preceding the date this assurance is given or deemed given, made or accrued an obligation to make, contributions to any Multiemployer Plan, (f) there are no actions, suits or claims pending against or involving a Plan (other than routine claims for benefits) or, to the knowledge of the Borrower, any of its Subsidiaries or any ERISA Affiliate, threatened, which would reasonably be expected to be asserted successfully against any Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate to result in liability to the Borrower or any of its Subsidiaries, (g) the Borrower, each of its Subsidiaries and each ERISA Affiliate have made all contributions to or under each Plan and Multiemployer Plan required by law within the applicable time limits prescribed thereby, by the terms of such Plan or Multiemployer Plan, respectively, or by any contract or agreement requiring contributions to a Plan or Multiemployer Plan, (h) no Plan which is subject to Section 412 of the Code or Section 302 of ERISA has applied for or received an extension of any amortization period within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA, (i) none of the Borrower, any of its Subsidiaries or any ERISA Affiliate have ceased operations at a facility so as to become subject to the provisions of Section 4068(a) of ERISA, withdrawn as a substantial employer so as to become subject to the provisions of Section 4063 of ERISA or ceased making contributions to any Plan subject to Section 4064(a) of ERISA to which it made contributions, (j) each Non-U.S. Plan has been maintained in compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities, except as would not reasonably be expected to result in liability to the Borrower or any of its Subsidiaries, (k) all contributions required to be made with respect to a Non-U.S. Plan have been timely made and (l) neither the Borrower nor any of its Subsidiaries has incurred any obligation in connection with the termination of, or withdrawal from, any Non-U.S. Plan. The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan, determined as of the end of the Borrower’s most recently ended Fiscal Year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities.
Section 4.11. Ownership of Property; Insurance.
(a) Except as could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, each of Holdings, the Borrower and its Restricted Subsidiaries has good title to, or valid leasehold interests in, all of its real and personal property material to the operation of its business, or purported to have been acquired by Holdings, the Borrower or any of its Restricted Subsidiaries after said date (except as sold or otherwise disposed of in the ordinary course of business), in
 
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each case free and clear of Liens (except for Liens permitted by Section 7.2). All leases that individually or in the aggregate are material to the business or operations of Holdings, the Borrower and its Restricted Subsidiaries are valid and subsisting and are in full force.
(b) Each of Holdings, the Borrower and its Restricted Subsidiaries owns, or is licensed or otherwise has the right to use, all patents, trademarks, service marks, trade names, copyrights, domain names, trade secrets, software, know-how, proprietary information, data, and other intellectual property used in its business, and the use thereof by Holdings, the Borrower and its Restricted Subsidiaries does not, to the best knowledge of the Borrower, infringe in any material respect on the rights of any other Person.
(c) The properties of the Borrower and its Subsidiaries are insured with insurance companies (i) that the Borrower believes in good faith to be financially sound and reputable and (ii) which are not Affiliates of the Borrower, in such amounts with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or any applicable Subsidiary operates.
(d) As of the Closing Date, neither the Borrower nor any of its Restricted Subsidiaries owns any Real Estate.
Section 4.12. Disclosure. (a) The Borrower has disclosed to the Lenders all agreements, instruments, and corporate or other restrictions to which Holdings, the Borrower or any of its Restricted Subsidiaries is subject, and all other matters known to any of them, that, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. The Information Memorandum and any of the reports (including, without limitation, all reports that the Borrower is required to file with the Securities and Exchange Commission), financial statements, certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the negotiation or syndication of this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or supplemented by any other information so furnished) when furnished and taken as a whole, are correct in all material respects and do not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, not materially misleading in light of the circumstances under which such statements are made; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time furnished to the Lenders; provided, further that projected financial information is as to future events and is not to be viewed as facts, that any projected financial information is subject to significant uncertainty and contingency, many of which are beyond the Borrower’s control, that no assurance can be given that any particular projected financial information will be realized and that actual results during the period or periods covered by any such projected financial information may differ significantly from the projected results and such differences may be material.
(b) The information included in the Beneficial Ownership Certification is true and correct in all respects.
Section 4.13. Labor Relations. There are no strikes, lockouts or other material labor disputes or grievances against Holdings, the Borrower or any of its Restricted Subsidiaries, or, to the Borrower’s knowledge, threatened in writing against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries, in each case, except for those that would not, in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 4.13, no significant unfair labor practice charges or grievances are pending against Holdings, the Borrower or any of its Restricted Subsidiaries, or, to the Borrower’s knowledge, threatened in writing against any of them before any Governmental Authority. All payments due from Holdings, the Borrower or any of its Restricted Subsidiaries pursuant to the provisions of any collective
 
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bargaining agreement have been paid or accrued as a liability on the books of Holdings, the Borrower or any such Restricted Subsidiary, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 4.14. Subsidiaries. Schedule 4.14 sets forth the name of, the ownership interest of the applicable Loan Party in, the jurisdiction of incorporation or organization of, and the type of each Subsidiary of the Borrower and the other Loan Parties and identifies each Subsidiary that is a Subsidiary Loan Party, in each case, as of the Closing Date.
Section 4.15. Solvency. After giving effect to the execution and delivery of the Loan Documents and the making of the Loans under this Agreement on the Closing Date, the Loan Parties and their Subsidiaries taken as a whole and on a consolidated basis are Solvent.
Section 4.16. [Reserved].
Section 4.17. Collateral Documents.
(a) The Guaranty and Security Agreement is effective to create in favor of the Administrative Agent for the ratable benefit of the Secured Parties a legal, valid and enforceable security interest in the Collateral (as defined therein), and when UCC financing statements in appropriate form are filed in the offices specified on Schedule 3 to the Guaranty and Security Agreement, the Guaranty and Security Agreement shall constitute a fully perfected Lien (to the extent that such Lien may be perfected by the filing of a UCC financing statement) on, and security interest in, all right, title and interest of the grantors thereunder in such Collateral, in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 7.2 to be prior and superior to the Liens granted in favor of the Administrative Agent on the Collateral. When the certificates evidencing all Capital Stock pledged pursuant to the Guaranty and Security Agreement are delivered to the Administrative Agent, together with appropriate stock powers or other similar instruments of transfer duly executed in blank, the Liens in such Capital Stock shall be fully perfected first priority security interests, perfected by “control” as defined in the UCC.
(b) When the filings in subsection (a) of this Section are made and when, if applicable, the Patent Security Agreements and the Trademark Security Agreements are filed in the United States Patent and Trademark Office and the Copyright Security Agreements are filed in the United States Copyright Office, the Guaranty and Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Patents, Trademarks and Copyrights, if any, in which a security interest may be perfected by filing, recording or registering a security agreement, financing statement or analogous document in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, in each case prior and superior in right to any other Person other than Liens permitted to secure pari passu or senior Indebtedness pursuant to Sections 7.1 and 7.2.
(c) Each Mortgage, when duly executed and delivered by the relevant Loan Party, will be effective to create in favor of the Administrative Agent for the ratable benefit of the Secured Parties a legal, valid and enforceable Lien on all of such Loan Party’s right, title and interest in and to the Real Estate of such Loan Party covered thereby and the proceeds thereof, and when such Mortgage is filed in the real estate records where the respective Mortgaged Property is located, such Mortgage shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of such Loan Party in such Real Estate and the proceeds thereof, in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 7.2.
 
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(d) No Mortgage encumbers improved real property that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards except if flood insurance has been provided under the National Flood Insurance Act of 1968.
Section 4.18. Healthcare Laws. Each of Holdings, the Borrower and its Restricted Subsidiaries is in compliance with all Healthcare Laws, except, in each case, where non-compliance, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Section 4.19. OFAC and USA Patriot Act. None of the Loan Parties, or any of their Subsidiaries or their respective officers, directors or, to the knowledge of any Loan Party, any of their respective employees, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) is a Sanctioned Person or (iii) located, organized or resident in a Sanctioned Country. Neither Holdings, the Borrower nor any of its Restricted Subsidiaries does business or conducts any transactions with the governments of, or persons within, any country that is subject or target of any Sanctions. Neither Holdings, the Borrower nor any of its Restricted Subsidiaries will directly or, to the knowledge of Holdings, the Borrower or such Restricted Subsidiary, indirectly use the proceeds from the Loans or the Letters of Credit, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person to fund any activities of or business with any Person that, at the time of such funding, is the subject or target of Sanctions, or is in any country or territory that, at the time of such funding or facilitation, is the subject or target of Sanctions. Neither Holdings, the Borrower nor any of its Restricted Subsidiaries is in violation in any material respect of the USA PATRIOT Act.
Section 4.20. Anti-Corruption Laws. (a) The Loan Parties and their Subsidiaries have conducted their businesses in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar and applicable anti-corruption legislation or laws in other jurisdictions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
(b) No part of the proceeds of the Loans or Letters of Credit will be used by Holdings, the Borrower or its Restricted Subsidiaries, directly or, to the knowledge of Holdings, the Borrower or such Restricted Subsidiaries, indirectly, in any manner that violates any provision of applicable anti-corruption legislation or laws in any material respect.
Section 4.21. Use of Proceeds.
The Borrower will use the proceeds of the (a) Term Loans made on the Closing Date to directly or indirectly finance the Transactions and Transaction Costs and (b) the Revolving Loans and loans incurred under any Incremental Facility made, and Letters of Credit issued, after the Closing Date for working capital and general corporate purposes and other purposes permitted by the terms of this Agreement; provided, however, up to $7,500,000 of Revolving Loans may be incurred on the Closing Date to finance the Transaction Costs.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of Holdings (Solely in the case of Sections 5.3, 5.4, 5.5, 5.6, 5.8 and 5.12) and the Borrower covenants and agrees, and (except in the case of Sections 5.1, 5.2 and 5.9) shall cause each of their respective Restricted Subsidiaries to covenant and agree, that so long as any Lender has a Commitment hereunder or any Obligation (other than unasserted contingent Obligations) remains unpaid or outstanding:
 
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Section 5.1. Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent:
(a) as soon as available and in any event within 120 days (or, in the case of the Fiscal Year ended December 31, 2019, within 150 days) after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries (except, with respect to the Fiscal Year ending December 31, 2019, such audited financial statements shall be for each of R&S Northeast and AvKare), containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail (together with customary management discussion and analysis) and reported on by an independent public accountant of nationally recognized standing or any other independent accounting firm reasonably acceptable to the Administrative Agent (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit except any “going concern” qualification or exception as a result of the impending Maturity Date, any change in accounting practices or policies due to changes in GAAP that is required or approved by such auditors or any prospective non-compliance with Section 6.1 and/or 6.3 hereof) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year (or R&S Northeast and AvKare, as applicable) on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days (or, in the case of each Fiscal Quarter in Fiscal Year 2020, 60 days) after the end of each Fiscal Quarter of the Borrower (commencing with the Fiscal Quarter ending March 31, 2020), an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter, the corresponding portion of the Borrower’s previous Fiscal Year and the budget for such Fiscal Year and including management’s discussion and analysis of operating results inclusive of operating metrics in comparative form and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of income or operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the chief financial officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of Holdings and/or the Borrower and its Restricted Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate and (v) setting forth reasonably detailed calculations in the case of financial statements delivered under paragraph (a) above, beginning with the financial statements for the Fiscal Year of the Borrower ending December 31, 2021, of Excess Cash Flow and Available Amount for such Fiscal Year;
 
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(d) as soon as available and in any event within 90 days after the end of the calendar year, forecasts and a pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow and including management discussion and analysis of operating results inclusive of operating metrics in comparative form;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials, in each case, filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(f) to the extent applicable, simultaneously with the delivery of each set of consolidated financial statements referred to in clauses (a) and (b) above, the related unaudited consolidating financial information (i) that explains in reasonable detail the differences (if any) between the information relating to the Borrower and its Subsidiaries, on the one hand, and the information relating to the Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements; and
(g) and promptly following any request therefor, (i) such other information regarding the results of operations, business affairs and financial condition of Holdings, the Borrower or any of its Restricted Subsidiaries and (ii) that the Administrative Agent, any Lender or the Issuing Bank reasonably determines is required by regulatory authorities under the Beneficial Ownership Regulation and applicable “Know Your Customer” and anti-money laundering rules and regulations, including the USA Patriot Act, in each case, as the Administrative Agent or any Lender may reasonably request.
Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.1 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower (or a parent company thereof) filed with the SEC within the applicable time periods required by applicable law and regulations (including any extended deadlines available thereunder in connection with an IPO or (B) the applicable financial statements of Holdings (or any direct or indirect parent of Holdings)); provided that (i) to the extent such information relates to a parent of the Borrower, such information is accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.1(a), such materials are accompanied by a report and opinion of an independent public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than any exception or explanatory paragraph but not a qualification, that is expressly solely with respect to, or expressly resulting solely from, (i) the upcoming Maturity Date, (ii) any change in accounting practices or policies due to changes in GAAP that is required or approved by such auditors or (iii) any prospective non-compliance with Section 6.1 and/or 6.3).
Documents required to be delivered pursuant to Section 5.1(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed in Section 10.1; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a
 
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commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.
Section 5.2. Notices of Material Events. The Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of, or any material development in, any action, suit or proceeding by or before any arbitrator or Governmental Authority against or, to the knowledge of the Borrower, affecting Holdings, the Borrower or any of its Restricted Subsidiaries which, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which Holdings, the Borrower or any of its Restricted Subsidiaries (i) fails to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) becomes subject to any Environmental Liability, (iii) receives notice of any claim with respect to any Environmental Liability, or (iv) becomes aware of any basis for any Environmental Liability, in each case which, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) promptly and in any event within 15 days after (i) Holdings, the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred that could reasonably be expected to result in a Material Adverse Effect, a certificate of a Responsible Officer of the Borrower describing such ERISA Event and the action, if any, proposed to be taken with respect to such ERISA Event and a copy of any notice filed with the PBGC or the IRS pertaining to such ERISA Event and any notices received by the Borrower, such Subsidiary or such ERISA Affiliate from the PBGC or any other governmental agency with respect thereto and (ii) becoming aware (1) that there has been an increase in Unfunded Pension Liabilities (not taking into account Plans with negative Unfunded Pension Liabilities) since the date the representations hereunder are given or deemed given, or from any prior notice, as applicable, (2) of the existence of any Withdrawal Liability, (3) of the adoption of, or the commencement of contributions to, any Plan subject to Section 412 of the Code by the Borrower, any of its Subsidiaries or any ERISA Affiliate, or (4) of the adoption of any amendment to a Plan subject to Section 412 of the Code which, in each case, could reasonably be expected to result in a Material Adverse Effect, a detailed written description thereof from a Responsible Officer of the Borrower;
(e) the occurrence of any default or event of default, or the receipt by the Borrower or any of its Restricted Subsidiaries of any written notice of an alleged default or event of default, with respect to any Material Indebtedness of the Borrower or any of its Restricted Subsidiaries;
(f) any other development that, either individually or in the aggregate, results in, or could reasonably be expected to result in, a Material Adverse Effect (including with respect to Healthcare Permits);
(g) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) and (d) of such certification; and
 
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(h) as soon as available and in any event within 30 days after receipt thereof, a copy of any environmental report or site assessment obtained by or for Holdings, the Borrower, or any of its Restricted Subsidiaries after the Closing Date on any Real Estate.
Each notice or other document delivered under this Section shall be accompanied by a written statement of a Responsible Officer setting forth the details of the event or development requiring such notice or other document and any action taken or proposed to be taken with respect thereto.
Section 5.3. Existence; Conduct of Business. Each of Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, do or cause to be done all things necessary to preserve, renew and maintain in full force and effect its legal existence and its respective rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business except (other than with respect to the preservation of the existence of Holdings or the Borrower) to the extent failure to do so could not be reasonably expected, either individually or in the aggregate, to result in a Material Adverse Effect; provided that nothing in this Section shall prohibit any merger, consolidation, liquidation or dissolution permitted under Section 7.3.
Section 5.4. Compliance with Laws. Each of Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental Authority applicable to its business and properties, including, without limitation, all Environmental Laws, Healthcare Laws, ERISA and OSHA, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Section 5.5. Payment of Obligations. Each of Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, pay and discharge at or before its Taxes (including, without limitation, all assessments, charges and levies of Governmental Authorities imposed upon it or its income or properties or in respect of its property that could result in a statutory Lien) before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) Holdings, the Borrower or such Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
Section 5.6. Books and Records. Each of Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, keep proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities to the extent necessary to prepare the consolidated financial statements of Holdings or the Borrower, as applicable, in conformity with GAAP.
Section 5.7. Visitation and Inspection. The Borrower will, and will cause each of its Subsidiaries to, permit any representative of the Administrative Agent or any Lender to visit and inspect its properties, to examine its books and records and to make copies and take extracts therefrom, and to discuss its affairs, finances and accounts with any of its officers and with its independent certified public accountants, all at reasonable times during normal business hours and as often as the Administrative Agent or any Lender may reasonably request after reasonable prior notice to the Borrower; 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 visitation and inspection rights of the Administrative Agent and the Lenders under this Section 5.7 and the Administrative Agent shall not exercise such rights more often than one time during any calendar year absent the existence of an Event of Default and such time shall be at the Borrower’s expense; provided, further that (a) when an Event of
 
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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 Borrower at any time during normal business hours and upon reasonable advance notice and (b) the Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent public accountants.
Section 5.8. Maintenance of Properties; Insurance. (a) Each of Holdings and the Borrower will, and the Borrower will cause each of its Restricted Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, (b) maintain with financially sound and reputable insurance companies which are not Affiliates of the Borrower (i) insurance with respect to its properties and business, and the properties and business of its Subsidiaries, against loss or damage of the kinds customarily insured against by companies in the same or similar businesses operating in the same or similar locations and (ii) all insurance required to be maintained pursuant to the Collateral Documents, and will, upon request of the Administrative Agent, furnish to each Lender at reasonable intervals a certificate of a Responsible Officer setting forth the nature and extent of all insurance maintained by Holdings, the Borrower and its Restricted Subsidiaries in accordance with this Section, and (c) at all times shall name the Administrative Agent as additional insured on all liability policies of Holdings, the Borrower and its Restricted Subsidiaries and as loss payee (pursuant to a loss payee endorsement approved by the Administrative Agent) on all casualty and property insurance policies of the Borrower and its Restricted Subsidiaries.
(b) With respect to each improved Mortgaged Property that is located in an area identified by the Federal Emergency Management Agency (or any successor agency thereto) as a “special flood hazard area” with respect to which flood insurance has been made available under the Flood Insurance Laws, the applicable Loan Party (a) shall obtain and maintain with financially sound and reputable insurance companies which are not Affiliates of the Borrower, such flood insurance in such reasonable total amount as the Administrative Agent and the Lenders may from time to time reasonably require and otherwise sufficient to comply with all applicable rules and regulations promulgated under the Flood Insurance Laws and (b) promptly upon request of the Administrative Agent or any Lender, shall deliver to the Administrative Agent or such Lender, as applicable, evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent or such Lender, including, without limitation, evidence of annual renewals of such flood insurance.
Section 5.9. Use of Proceeds; Margin Regulations. The Borrower will use the proceeds of all Loans consistent with Section 4.21. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that would violate any rule or regulation of the Board of Governors of the Federal Reserve System, including Regulation T, Regulation U or Regulation X. All Letters of Credit will be used for general corporate purposes.
Section 5.10. Additional Subsidiaries and Collateral.
(a) In the event that, subsequent to the Closing Date, (i) any Restricted Subsidiary (other than an Excluded Subsidiary) is formed or acquired (including by Division), (ii) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, (iii) any Restricted Subsidiary ceases to be an Excluded Subsidiary or (iv) the Borrower, at its option, elects to cause a Domestic Subsidiary to become a Subsidiary Loan Party, (x) the Borrower shall promptly notify the Administrative Agent and the Lenders thereof and (y) within 60 days (or such longer period as the Administrative Agent agrees) after such Restricted Subsidiary is formed or acquired, such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, such Restricted Subsidiary ceases to be an Excluded Subsidiary or the Borrower has made such election, as applicable, the Borrower shall cause such Restricted Subsidiary (i) to become a new Guarantor and to grant Liens in favor of the Administrative Agent in all of its personal property (other than Excluded
 
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Property) by executing and delivering to the Administrative Agent a supplement to the Guaranty and Security Agreement in form and substance reasonably satisfactory to the Administrative Agent, executing and delivering a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, as applicable, and authorizing and delivering, at the request of the Administrative Agent, such UCC financing statements or similar instruments required by the Administrative Agent to perfect the Liens in favor of the Administrative Agent and granted under any of the Loan Documents, (ii) to the extent required, to grant Liens in favor of the Administrative Agent in all interests in fee owned Real Estate (subject to Permitted Encumbrances) by executing and delivering to the Administrative Agent such Real Estate Documents as the Administrative Agent shall require, and (iii) to deliver all such other documentation (including, without limitation, certified organizational documents, resolutions, lien searches, environmental reports and legal opinions) and to take all such other actions as such Restricted Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such Restricted Subsidiary had been a Loan Party on the Closing Date or that such Restricted Subsidiary would be required to deliver pursuant to Section 5.11 with respect to any fee owned Real Estate; provided, however, no Foreign Subsidiary shall be required to become a Guarantor or grant Liens in its personal property or fee owned Real Estate. In addition, within 30 days (or such longer period as the Administrative Agent agrees) after the date any Person becomes a Restricted Subsidiary, the Borrower shall, or shall cause the applicable Loan Party to (i) pledge all of the Capital Stock of such Restricted Subsidiary to the Administrative Agent as security for the Obligations by executing and delivering a supplement to the Guaranty and Security Agreement in form and substance satisfactory to the Administrative Agent, and (ii) deliver the original certificates evidencing such pledged Capital Stock to the Administrative Agent, together with appropriate powers executed in blank.
(b) [reserved].
(c) The Borrower shall and shall cause its Restricted Subsidiaries, to furnish to the Administrative Agent within 20 days of such event (or such later date as the Administrative Agent may agree in its sole discretion) written notice of any change in any Loan Party’s: (i) legal name; (ii) type of organization; (iii) location (determined as provided in UCC Section 9-307); or (iv) jurisdiction of organization. The Borrower shall not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the UCC or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all Collateral held by such Loan Party.
(d) The Borrower agrees that, following the delivery of any Collateral Documents required to be executed and delivered by this Section, the Administrative Agent shall have a valid and enforceable, first priority perfected Lien on the property required to be pledged pursuant to subsections (a) and (b) of this Section (to the extent that such Lien can be perfected by execution, delivery and/or recording of the Collateral Documents or UCC financing statements, or possession of such Collateral), free and clear of all Liens other than Liens expressly permitted by Section 7.2. All actions to be taken pursuant to this Section shall be at the expense of the Borrower or the applicable Loan Party, shall be taken to the reasonable satisfaction of the Administrative Agent. Notwithstanding anything to the contrary, the provisions of this Section 5.10 need not be satisfied with respect to any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Guaranty and Security Agreement or any other applicable Collateral Document.
Section 5.11. Additional Real Estate; Leased Locations.
(a) To the extent otherwise permitted hereunder, if any Loan Party proposes to acquire a fee ownership interest in Real Estate (other than an Excluded Property) after the Closing Date, within 90 days (or such later date as the Administrative Agent may agree) of the date of the acquisition thereof, it
 
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shall provide to the Administrative Agent all Real Estate Documents requested by the Administrative Agent granting the Administrative Agent a first priority Lien on such Real Estate (subject to Permitted Encumbrances), together with all environmental audits and reports, evidence of compliance with zoning and building laws, environmental indemnities, legal opinions, supplemental casualty and flood insurance and other documents requested by Administrative Agent to confirm compliance with Flood Insurance Laws and other documents, instruments and agreements reasonably requested by the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any Real Estate acquired by any Loan Party after the Closing Date until (1) the Administrative Agent or the Borrower shall have given written notice to the Lenders (which may be delivered electronically) 25 Business Days prior to obtaining such Mortgage and (2) the Administrative Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance have been completed by the Lenders to their reasonable satisfaction (such written confirmation not to be unreasonably conditioned, withheld or delayed); provided that the Administrative Agent may enter into any such Mortgage prior to the notice period specified above upon receipt of the written confirmation described in clause (2) above; provided further that any obligations any Loan Party may have under this Section 5.11(a) to grant a Mortgage within the 90-day time period described herein shall be extended for so long as is required to ensure compliance with the requirements of clause (2) above.
(b) To the extent otherwise permitted hereunder, if any Loan Party proposes to lease any Real Estate that is a headquarters location or a location where books or records, or Collateral with a value of at least $1,000,000, will be stored or located, it shall (i) promptly provide to the Administrative Agent a copy of such lease and (ii) use its commercially reasonable efforts to execute a Collateral Access Agreement from the landlord of such leased property, which agreement or letter shall be reasonably satisfactory in form and substance to the Administrative Agent; provided that if such Loan Party is unable to deliver any such Collateral Access Agreement after using its commercially reasonable efforts to do so, the Administrative Agent shall waive the foregoing requirement.
Notwithstanding anything to the contrary herein, the parties hereto acknowledge and agree that no MIRE Event may be closed until the date that is (a) if there are no Mortgaged Properties located in an area which has been identified by the Secretary of Housing and Urban Development as a “special flood hazard area,” ten (10) days or (b) if there are any Mortgaged Properties located in an area which has been identified by the Secretary of Housing and Urban Development as a “special flood hazard area,” thirty (30) days (in each case, the “Notice Period”), after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a completed “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard determination with respect to such Mortgaged Property from a third party vendor; (ii) if such Mortgaged Property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice and (C) a notice about special flood hazard area status and flood disaster assistance executed by the Borrower and any applicable Loan Party relating thereto; and (iii) evidence of flood insurance in accordance with Section 5.8(b) herein; provided that any such MIRE Event may be closed prior to the Notice Period if the Administrative Agent shall have received written confirmation from each applicable Lender that such Lender has completed any necessary flood insurance due diligence and flood insurance compliance to its reasonable satisfaction (such written confirmation not to be unreasonably conditioned, withheld or delayed). Notwithstanding the applicable Notice Period, any MIRE Event shall be subject to flood insurance due diligence and flood insurance compliance reasonably satisfactory to all Lenders.
Section 5.12. Further Assurances. The Borrower will, and will cause each other Loan Party to, execute any and all further documents, financing statements, agreements and instruments, and take all
 
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such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and the receipt of “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard determinations and related regulatory compliance), which may be required under any applicable law, or which the Administrative Agent or the Required Lenders may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created by the Collateral Documents or the validity or priority of any such Lien, all at the expense of the Loan Parties. The Borrower also agrees to provide to the Administrative Agent, from time to time upon request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents. Without limiting the foregoing, in the event that any Loan Party Divides itself into two or more Persons, any Persons formed as a result of such Division, unless otherwise consented to by the Administrative Agent, shall be required to comply with the requirements and obligations set forth in Section 5.10, 5.11, this Section 5.12 and the other future assurances obligations set forth in in the Loan Documents and become a Borrower if such Loan Party is a Borrower, or a Guarantor if such Loan Party is a Guarantor, as required by this Agreement or the other Loan Documents.
Section 5.13. Anti-Corruption Laws. Conduct its, and cause its Subsidiaries to conduct their, business in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar and applicable anti-corruption legislation or laws in other jurisdictions and institute and maintain policies and procedures designed to promote and achieve compliance with such laws.
Section 5.14. Post-Closing Matters. Deliver to Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, the items described on Schedule 5.14 hereof on or before the dates specified with respect to such items on Schedule 5.14 (or, in each case, such later date as may be agreed to by Administrative Agent in its sole discretion). All representations and warranties contained in this Agreement and the other Loan Documents will be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described on Schedule 5.14 within the time periods specified thereon, rather than as elsewhere provided in any of the Loan Documents).
ARTICLE VI
FINANCIAL COVENANTS
Each of Holdings and the Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any Obligation (other than unasserted contingent Obligations) remains unpaid or outstanding:
Section 6.1. Total Net Leverage Ratio. The Total Net Leverage Ratio, calculated as of the last day of each Fiscal Quarter (commencing with the first full Fiscal Quarter ended after the Closing Date), shall be less than or equal to 4.50 to 1.00.
Section 6.2. Reserved.
Section 6.3. Interest Coverage Ratio. The Interest Coverage Ratio, calculated as of the last day of each Fiscal Quarter (commencing with the first full Fiscal Quarter ended after the Closing Date), shall be greater than or equal to 2.00 to 1.00.
 
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Section 6.4. Specified Equity Contribution. Notwithstanding the above, or anything to the contrary in this Agreement, the parties hereto acknowledge and agree that, solely for purposes of calculations made in determining compliance with this Article VI, any cash common equity contribution made after the Closing Date to the Borrower (the “Specified Equity Contribution Request”), on or prior to the day that is ten (10) Business Days after the earlier of (a) the day on which a Compliance Certificate is required to be delivered pursuant to Section 5.1(c) and (b) the day on which financial statements are required to be delivered with respect to a Fiscal Year pursuant to Section 5.1(a) or a Fiscal Quarter pursuant to Section 5.1(b), as applicable, will, at the request of the Borrower, be deemed to increase, dollar for dollar, Consolidated EBITDA for the purposes of determining compliance with the financial covenants contained in this Article VI at the end of such Fiscal Year or Fiscal Quarter and each applicable subsequent period that includes the Fiscal Quarter in which such common equity contribution was made (any such equity contribution, a “Specified Equity Contribution”); provided that (i) in any four consecutive Fiscal Quarter period, there shall not be more than two (2) Specified Equity Contributions, (ii) there shall not be more than five (5) Specified Equity Contributions made during the term of this Agreement, (iii) 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 financial covenants set forth above, (iv) there shall be no pro forma reduction of Indebtedness with the proceeds of the Specified Equity Contribution (whether direct payment or by way of netting) for purposes of calculating the financial covenants for each Fiscal Quarter during which the Specified Equity Contribution is made and (v) a Specified Equity Contribution shall only be included in the computation of the financial covenants for purposes of determining compliance by the Loan Parties with this Article VI and not for any other purpose under this Agreement (including, without limitation, any determination of the Applicable Margin, any compliance with this Article VI set forth in the definition of Permitted Acquisition and in the determination of the availability of any baskets set forth in Article V or Article VII). Upon the making of a Specified Equity Contribution, the financial covenants in this Article VI shall be recalculated giving effect to the increase in Consolidated EBITDA; provided that nothing in this subsection shall waive any Default or Event of Default that exists pursuant to Sections 6.1 or 6.3 until such recalculation (and pending such recalculation, the Administrative Agent and the Lenders shall withhold any actions and remedies available arising from any such Default or Event of Default pursuant to Section 6.1 or 6.3) and the Borrower shall not be permitted to incur Revolving Loans or request the issuance of Letters of Credit. If, after giving effect to such recalculation, the Loan Parties are in compliance with the financial covenants, the Loan Parties shall be deemed to have satisfied the requirements of the financial covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date and the applicable Default or Event of Default that had occurred under Section 6.1 and 6.3 shall be deemed waived and not to have occurred for all purposes of this Agreement and the other Loan Documents.
ARTICLE VII
NEGATIVE COVENANTS
Each of Holdings (solely with respect to Section 7.9) and the Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any Obligation (other than unasserted contingent Obligations) remains outstanding:
Section 7.1. Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, create, issue, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents (including Incremental Facilities, Refinancing Term Loans, Extended Term Loans and the issuance and creation of Letters of Credit thereunder (with Letters of Credit being deemed to have a principal amount equal to the face amount thereof));
 
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(b) Indebtedness of the Borrower and its Restricted Subsidiaries existing on the date hereof and set forth on Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life thereof;
(c) (i) Attributable Indebtedness relating to any transactions and (ii) other Indebtedness of the Borrower or any of its Restricted Subsidiaries incurred to finance the acquisition, construction, repair, replacement and/or improvement of any facilities of the Borrower or any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred concurrently with or within ninety (90) days after the applicable acquisition, construction, repair, replacement or improvement) and (ii) any Permitted Refinancing of any Indebtedness set forth in clause (i); provided that the aggregate outstanding principal amount of all such Indebtedness under this clause (c) does not exceed the greater of (x) $16,000,000 and (y) 25.0% of TTM Consolidated EBITDA as of the applicable determination date;
(d) Indebtedness (including obligations in respect of letters of credit or bank Guarantees, bankers’ acceptances or similar instruments) incurred by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business in respect of workers’ compensation, health, disability or other employee benefits (whether to current or former employees) or property, casualty or liability insurance or self-insurance in respect of such items, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance;
(e) Indebtedness constituting indemnification obligations, Earn-out Obligations, milestones, royalties, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Acquisition, any Investment permitted by this Agreement or the disposition of any business or assets permitted by this Agreement;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion Guarantees and similar obligations and instruments, in each case, provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) (i) Indebtedness of any Person that becomes a Restricted Subsidiary after the Closing Date and/or other Indebtedness assumed in connection with a Permitted Acquisition or other Investment permitted hereunder, which Indebtedness is (1) existing at the time such Person becomes a Restricted Subsidiary, (2) not incurred in contemplation of such Person becoming a Restricted Subsidiary or such Permitted Acquisition or Investment, (3) non-recourse to the Borrower or any other Restricted Subsidiary (other than any Person that becomes a Subsidiary in connection with the foregoing and its Subsidiaries) and (4) permitted to be incurred as Ratio Debt at such time (including, to the extent such Indebtedness is secured, Pro Forma Compliance with the First Lien Net Leverage Ratio or Secured Net Leverage Ratio, as applicable, set forth in Section 7.2(h)); provided that the outstanding principal amount of such Indebtedness assumed by Restricted Subsidiaries that are not Guarantors pursuant to this clause (g) does not exceed the greater of (A) $20,000,000 and (B) 25.0% of TTM Consolidated EBITDA as of the applicable determination date, in each case determined as of the time of incurrence; and (ii) any Permitted Refinancing of any Indebtedness originally incurred pursuant to the preceding clause (g)(i);
(h) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished within five (5) Business Days of its incurrence;
 
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(i) Indebtedness (i) supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit and (ii) in respect of letters of credit (other than Letters of Credit) in an aggregate face amount at any time outstanding not to exceed the greater of (x) $2,500,000 and (y) 4.0% of TTM Consolidated EBITDA as of the applicable determination date, in each case determined as of the time of incurrence;
(j) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(k) [reserved];
(l) cash management obligations and other Indebtedness in respect of Bank Products, including, without limitation, netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and other cash management and similar arrangements entered into in the ordinary course of business;
(m) Indebtedness issued to any future, current or former officers, directors, managers, employees, consultants and independent contractors of the Borrower or any Restricted Subsidiary or any direct or indirect parent thereof, or their respective estates, heirs, family members, spouses, former spouses, executors, administrators, trustees, legatees or distributees, in each case to finance the purchase or redemption of Capital Stock of the Borrower (or any Parent Entity) permitted by Section 7.5(g);
(n) obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in the ordinary course of business and not in connection with the borrowing of money;
(o) Indebtedness of the Borrower owing to any Restricted Subsidiary and of any Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary, in each case, to the extent constituting an Investment permitted by Section 7.4(d); provided that any Indebtedness of any Loan Party owed to a Restricted Subsidiary that is a Non-Loan Party shall be subject to subordination provisions reasonably acceptable to the Administrative Agent;
(p) Guarantees by the Borrower of Indebtedness of any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (i) Guarantees by any Loan Party of Indebtedness of any Restricted Subsidiary that is not a Subsidiary Loan Party shall be otherwise permitted by Section 7.4, (ii) Guarantees by a Non-Loan Party of any Ratio Debt or Indebtedness under Section 7.1(g) (or any Permitted Refinancing in respect thereof) shall only be permitted if such Guarantee meets the requirements of Ratio Debt and/or such Section 7.1(g), as the case may be, and (iii) if the Indebtedness being Guaranteed is subject to an Acceptable Intercreditor Agreement, such Guarantee shall be contractually subordinated on terms at least as favorable (taken as a whole) to the Lenders as those provided in the applicable Acceptable Intercreditor Agreement;
(q) Indebtedness consisting of Hedging Obligations permitted by Section 7.10;
(r) [reserved];
(s) Indebtedness of a Restricted Subsidiary that is a Non-Loan Party, and/or Indebtedness incurred on behalf thereof or representing any Guarantees thereof, in an aggregate principal amount outstanding at any time not to exceed the greater of (i) $6,500,000 and (ii) 10.0% of TTM Consolidated EBITDA as of the applicable determination date;
(t) Incremental Equivalent Debt and any Permitted Refinancing in respect thereof;
 
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(u) Ratio Debt and any Permitted Refinancing in respect thereof;
(v) customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;
(w) Indebtedness incurred by the Borrower or any Restricted Subsidiary in connection with bankers’ acceptances, discounted bills of exchange, warehouse receipts or similar facilities, in each case incurred or undertaken in the ordinary course of business;
(x) Permitted Subordinated Debt in an aggregate principal amount not to exceed $15,000,000 at any time outstanding and any Permitted Refinancing thereof;
(y) additional Indebtedness in an aggregate principal amount outstanding at any time not to exceed the greater of (i) $12,500,000 and (ii) 20% of TTM Consolidated EBITDA as of the applicable determination date; and
(z) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (y) above.
For the avoidance of doubt, each category of Indebtedness and each dollar cap set forth in this Section 7.1 is be separate and is not meant to reduce any other category or cap set forth in this Section 7.1.
Section 7.2. Liens. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property now owned or hereafter acquired, except:
(a) Liens securing the Obligations; provided that no Liens may secure Hedging Obligations or Bank Product Obligations without securing all other Obligations on a basis at least pari passu with such Hedging Obligations or Bank Product Obligations and subject to the priority of payments set forth in Section 2.21 and Section 8.2;
(b) Permitted Encumbrances;
(c) Liens on any property or asset of the Borrower or any of its Restricted Subsidiaries existing on the date hereof and set forth on Schedule 7.2; provided that such Liens shall not apply to any other property or asset of the Borrower or any Restricted Subsidiary;
(d) Liens securing Indebtedness permitted by Section 7.1(c); provided that (i) any such Lien attaches to such asset concurrently or within 90 days after the acquisition or the completion of the construction or improvements thereof, (ii) any such Lien does not extend to any other asset, and (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing and/or improving such fixed or capital assets;
(e) any Lien (x) existing on any asset of any Person at the time such Person becomes a Restricted Subsidiary of the Borrower, (y) existing on any asset of any Person at the time such Person is merged with or into the Borrower or any of its Restricted Subsidiaries, or (z) existing on any asset prior to the acquisition thereof by the Borrower or any of its Restricted Subsidiaries; provided that (i) any such Lien was not created in the contemplation of any of the foregoing, (ii) any such Lien secures only those obligations which it secures on the date that such Person becomes a Restricted Subsidiary or the date of such merger or the date of such acquisition and (iii) any Indebtedness secured thereby is permitted under Section 7.1(g);
 
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(f) extensions, renewals, or replacements of any Lien referred to in subsections (b) through (e) of this Section; provided that the principal amount of the Indebtedness secured thereby is not increased and that any such extension, renewal or replacement is limited to the assets originally encumbered thereby;
(g) Liens on any property of the Borrower or any of its Restricted Subsidiaries securing any of their Indebtedness or their other liabilities; provided, that the aggregate outstanding principal amount of all such Indebtedness and other liabilities shall not exceed, at any time, the greater of (i) $10,000,000 and (ii) 15% of TTM Consolidated EBITDA as of the applicable determination date;
(h) Liens securing Ratio Debt; provided, that (1) after giving Pro Forma Effect to the incurrence of such Indebtedness (and any Specified Transactions consummated in connection therewith), (x) if such Liens are not expressly junior in right of security with the Obligations, the Borrower’s First Lien Net Leverage Ratio shall be no greater than 3.25:1.00 as of the last day of the most recently ended Test Period (provided that the provisions set forth in Section 2.23(a)(v) shall apply to any such Indebtedness in the form of loans that rank pari passu in right of payment and security with the Obligations that are secured on a first lien basis as if such Indebtedness were a Class of Incremental Term Facilities that is pari passu in right of payment and security with the Term Loans) or (y) if such Liens rank junior in right of security with the Liens securing the Obligations, the Borrower’s Secured Net Leverage Ratio shall be no greater than 3.50:1.00 as of the last day of the most recently ended Test Period;
(i) Lien securing Indebtedness permitted under Section 7.1(t);
(j) [reserved];
(k) Liens on assets of Restricted Subsidiaries that are Non-Loan Parties securing Indebtedness permitted to be incurred by such Non-Loan Party in accordance with Section 7.1;
(l) Liens on any Excluded Property securing Indebtedness in an aggregate principal amount not to exceed $5,000,000 at any time outstanding;
(m) Liens disclosed by any title insurance policies delivered on or subsequent to the Closing Date and any replacement, extension or renewal of any such Liens (so long as the Indebtedness and other obligations secured by such replacement, extension or renewal Liens are permitted by this Agreement); provided that such replacement, extension or renewal Liens do not cover any property other than the property that was subject to such Liens prior to such replacement, extension or renewal (plus any replacements, additions, accessions and improvements thereto and products thereof);
(n) any interest or title of a lessor, sublessor, licensor or sublicensor under any leases, subleases, licenses or sublicenses entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(o) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights;
(p) leases or subleases, licenses or sublicenses (including with respect to intellectual property rights and software) (or other agreement under which the Borrower or any Restricted Subsidiary has granted rights to end users to access and use the Borrower’s or any Restricted Subsidiary’s products, technologies or services) granted to others in the ordinary course of business that do not interfere in any material respect with the ordinary conduct of business of the Borrower and the Restricted Subsidiaries, taken as a whole and do not secure Indebtedness;
 
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(q) Liens (i) solely on any cash earnest money deposits made by the Borrower or any Restricted Subsidiary in connection with any letter of intent or other agreement in respect of any Investment permitted under Section 7.4 and (ii) incurred in connection with escrow arrangements or other similar agreements relating to an acquisition or Investment permitted under Section 7.4;
(r) the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;
(s) purported Liens evidenced by precautionary Uniform Commercial Code financing statements or similar public filings in respect of any leases;
(t) Liens on Capital Stock or assets of any joint venture in which the Borrower or any Restricted Subsidiary owns less than a majority of the outstanding Capital Stock (a) securing obligations of such joint venture or (b) pursuant to the relevant joint venture agreement or arrangement;
(u) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(v) Liens on securities that are the subject of repurchase agreements constituting Investments permitted hereunder;
(w) Liens (i) securing insurance premium financing arrangements and (ii) securing obligations to insurance companies with respect to insurable liabilities incurred in the ordinary course of business;
(x) Liens on assets used to defease or to satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge is not prohibited by this Agreement;
(y) Liens:
(i) of a collection bank arising under Section 4-208 or 4-210 of the Uniform Commercial Code, or any comparable or successor provision, on items in the course of collection;
(ii) attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business; or
(iii) in favor of banking or other financial institutions or entities, or electronic payment service providers, arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking or finance industry;
(z) Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit entered into in the ordinary course of business issued or created for the account of such Person to facilitate the purchase, shipment, processing or storage of such inventory or other goods;
(aa) Liens in favor of the Borrower or a Loan Party securing any Indebtedness permitted to be incurred under Section 7.1;
(bb) Liens (i) consisting of an agreement to dispose of any property permitted under Section 7.6, (ii) arising out of conditional sale, title retention, consignment or similar arrangements for sale
 
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of goods in the ordinary course of business or (iii) imposed by law or incurred pursuant to customary reservations or retentions of title (including contractual Liens in favor of sellers and suppliers of goods) incurred in the ordinary course of business;
(cc) Liens in respect of Cash Collateralization of letters of credit incurred pursuant to Section 7.1(i)(ii);
(dd) (i) ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are located and (ii) deposits of cash with the owner or lessor of premises leased and operated by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(ee) Liens securing amounts owing pursuant to any Hedging Transaction, so long as (x) such Hedging Transactions do not constitute Obligations and (y) the value of property securing such Hedging Transactions does not exceed $5,000,000 at any time; and
(ff) Liens securing Permitted Subordinated Debt permitted to be incurred pursuant to Section 7.1(x) that (i) do not encumber any assets of the Borrower or any of its Restricted Subsidiaries the fair market value of which exceeds the principal amount of such Permitted Subordinated Debt and (ii) do not secure obligations in excess of $5,000,000 in the aggregate for all such Liens at any time.
For the avoidance of doubt, each category of Liens and each dollar cap set forth in this Section 7.2 is be separate and is not meant to reduce any other category or cap set forth in this Section 7.2.
Section 7.3. Fundamental Changes. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, merge into or consolidate into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided that (i) the Borrower or any Restricted Subsidiary may merge with a Person if the Borrower (or such Restricted Subsidiary if the Borrower is not a party to such merger) is the surviving Person, (ii) any Restricted Subsidiary may merge into the Borrower or another Restricted Subsidiary, provided that if any party to such merger is the Borrower or a Subsidiary Loan Party, the Borrower or such Subsidiary Loan Party, as applicable, shall be the surviving Person, (iii) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a Subsidiary Loan Party, (iv) any Restricted Subsidiary (other than a Subsidiary Loan Party) may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided, further, that any such transaction involving a Person that is not a Wholly Owned Subsidiary immediately prior to such transaction shall not be permitted unless also permitted by Sections 7.4 and 7.6 and (v) so long as no Event of Default exists or would result therefrom, any merger, consolidation or other fundamental change necessary to effect a Permitted Acquisition, Investment permitted by Section 7.4 and other transactions permitted by Section 7.6; provided that the continuing or surviving Person shall be a Restricted Subsidiary that shall have complied with the requirements of Section 5.10.
Any reference in this Section 7.3 or in Section 7.6 to a combination, merger, consolidation, disposition, dissolution, liquidation or transfer shall be deemed to apply to a Division (or the unwinding of such a Division) as if it were a combination, merger, consolidation, disposition, dissolution, transfer or similar term, as applicable, to or with a separate Person.
 
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Section 7.4. Investments, Loans. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Wholly Owned Subsidiary prior to such merger) any Capital Stock, Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit, or create or form any Subsidiary, except:
(a) Investments (other than Cash Equivalents) existing on the date hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries) and any modification, replacement, renewal, reinvestment or extension thereof; provided that the amount of such Investment permitted pursuant to this Section 7.4(a) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by one or more other exceptions to this Section 7.4;
(b) Cash Equivalents;
(c) [reserved];
(d) Investments made by the Borrower in or to any Restricted Subsidiary and by any Restricted Subsidiary to the Borrower or in or to another Restricted Subsidiary; provided that the aggregate amount of Investments by the Loan Parties (other than Holdings) in or to, and Guarantees by the Loan Parties (other than Holdings) of Indebtedness of, any Restricted Subsidiary that is not a Subsidiary Loan Party, shall not exceed, at any time outstanding the greater of (x) $10,000,000 or (y) 15% of TTM Consolidated EBITDA as of the applicable determination date;
(e) (i) payroll advances to employees in the ordinary course of business and (ii) loans or advances to employees, officers or directors of the Borrower or any of its Subsidiaries in the ordinary course of business for travel, relocation, entertainment and analogous ordinary business purposes and related expenses; provided that the aggregate amount of all such loans and advances under this clause (e)(ii) does not exceed the greater of (x) $2,000,000 or (y) 3% of TTM Consolidated EBITDA as of the applicable determination date at any time outstanding;
(f) Hedging Transactions permitted by Section 7.10;
(g) Permitted Acquisitions;
(h) Investments of any Person that becomes a Restricted Subsidiary on or after the date hereof (or of a Person merged, consolidated or amalgamated with or into a Restricted Subsidiary or acquired pursuant to a Permitted Acquisition); provided that any such Investment (i) exists at the time such person becomes (or merges, consolidates or amalgamates with or into) a Restricted Subsidiary and (ii) is not made in anticipation of such Person becoming a Restricted Subsidiary (or such merger, consolidation or amalgamation);
(i) Investments arising out of the receipt by the Borrower or any of the Restricted Subsidiaries of promissory notes and other non-cash consideration in connection with any disposition permitted under Section 7.6;
(j) (i) Investments (including debt obligations and Capital Stock) received in connection with the bankruptcy, workout, recapitalization or reorganization of, or in settlement of delinquent obligations of, or other disputes with, the issuer of such Investment or an Affiliate thereof and
 
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(ii) Investments consisting of accounts or notes receivable, security deposits and prepayments and other credits granted or made in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors, including in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, such account debtors, in each case in the ordinary course of business;
(k) Investments (including debt obligations and Capital Stock) (i) upon a foreclosure with respect to any secured Investments or other transfer of title with respect to any secured Investment in default, (ii) in satisfaction of judgments against other Persons and (iii) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(l) Indebtedness otherwise permitted by the terms of Section 7.1 (other than by reference to Section 7.4);
(m) Investments consisting of, Permitted Encumbrances and other Liens permitted under Section 7.2, mergers, dissolutions, liquidations and consolidations permitted under Section 7.3, dispositions permitted under Section 7.6 (other than Section 7.6(e)) and Restricted Payments permitted under Section 7.5;
(n) acquisitions of obligations of one or more future, present or former employees, managers, officers, directors, consultants or contractors (or spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing) of the Borrower, any of its Restricted Subsidiaries or any direct or indirect parent thereof, in connection with such employee’s, manager’s, officer’s, director’s, consultant’s or contractor’s acquisition of Capital Stock of the Borrower or any direct or indirect parent thereof, so long as no cash is actually advanced by the Borrower or any Restricted Subsidiary to such Persons in connection with the acquisition of any such obligations;
(o) Guarantees of operating leases or of other obligations that do not constitute Indebtedness, in each case, entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(p) Investments in an amount equal to the aggregate amount of cash contributions made after the Closing Date to the Borrower in exchange for Qualified Capital Stock of the Borrower, to the extent such amount is Not Otherwise Applied, and except to the extent such amount increases the Available Amount or constitutes a Specified Equity Contribution;
(q) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(r) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or any Restricted Subsidiary;
(s) Investments, including loans and advances, to any Person so long as the Borrower or any Restricted Subsidiary (as applicable) would otherwise be permitted to make a Restricted Payment in such amount to such Person; provided that the amount of any such Investment will be deemed to be a Restricted Payment under the appropriate clause of Section 7.5 for all purposes of this Agreement and reduce the amount of such applicable Restricted Payment thereafter permitted by a corresponding amount;
(t) Investments consisting of the leasing, subleasing, licensing or sublicensing of intellectual property rights in the ordinary course of business or the contribution of intellectual property rights pursuant to joint marketing arrangements with other Persons;
 
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(u) Investments consisting of purchases or acquisitions of inventory, supplies and materials in each case in the ordinary course of business;
(v) Investments in assets useful in the business of the Borrower or any Restricted Subsidiary made with (or in an amount equal to) the Net Proceeds of any casualty event; provided that if the underlying casualty event was with respect to assets of the Borrower or a Subsidiary Loan Party, then such Investment shall be consummated by the Borrower or a Subsidiary Loan Party;
(w) [reserved];
(x) intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries;
(y) Investments consisting of the licensing (or equivalent thereof), acquisition, sale or contribution of intellectual property rights or proprietary materials pursuant to pharmaceutical or therapeutic product licensing, collaboration, development, promotion, marketing, supply, research or similar arrangements with other Persons made in the ordinary course of business or not exceeding at any time outstanding an aggregate principal amount of the greater of (i) $6,500,000 and (ii) 10% of TTM Consolidated EBITDA as of the applicable determination date, in each case, determined as of the time of incurrence;
(z) additional Investments which in the aggregate do not exceed the greater of (i) $15,000,000 and (ii) 25% of TTM Consolidated EBITDA as of the applicable determination date at any time outstanding;
(aa) loan or advances to officers and other key employees of the Borrower to fund all or a portion of their purchase price of or refinance all or a portion of existing indebtedness incurred to purchase Capital Stock of the Borrower, loans or advances made in connection with deferred compensation plans or stock-based compensation to employees of the Borrower or any of its Subsidiaries (including any loans made as a result of, in connection with or pursuant to, any management equity plan, unit issuances and sales, deferred compensation plan, or other management or employee benefit plan or agreement; provided that such loans or advances do not exceed the greater of (x) $6,500,000 and (y) 10% of TTM Consolidated EBITDA as of the applicable determination date at any time outstanding;
(bb) So long as no Event of Default then exists or would result therefrom, additional Investments in an amount not exceeding the Available Amount;
(cc) Investments in joint ventures, Unrestricted Subsidiaries or Similar Businesses in an amount not to exceed at any time outstanding the greater of (i) $7,500,000 and (ii) 12% of TTM Consolidated EBITDA as of the applicable determination date; and
(dd) additional Investments so long as, immediately after giving effect thereto on a Pro Forma Basis, the Total Net Leverage Ratio would not exceed 3.00:1.00 calculated as of the last day of the most recently ended Test Period.
For the avoidance of doubt, each category of Investments and each dollar cap set forth in this Section 7.4 is be separate and is not meant to reduce any other category or cap set forth in this Section 7.4.
 
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Section 7.5. Restricted Payments. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(a) dividends payable by the Borrower solely in interests of any class of its common equity;
(b) Restricted Payments made by any Restricted Subsidiary to the Borrower or to another Restricted Subsidiary, on at least a pro rata basis with any other shareholders if such Restricted Subsidiary is not a Wholly Owned Subsidiary of the Borrower and other Restricted Subsidiaries that are Wholly Owned Subsidiaries of the Borrower;
(c) Restricted Payments the proceeds of which will be used to pay or finance: (i) tax distributions made pursuant to Section 10 of the Holdings LLC Agreement, provided that (x) any such tax distributions attributable to the income of any Unrestricted Subsidiary of the Borrower shall be limited to the amount of any cash paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose and (y) no tax receivables agreement will be contemplated thereby, (ii) operating, overhead, legal, accounting and other professional fees costs and expenses (including directors’ fees and expenses) and other ordinary course overhead costs and operational expenses (including administrative, legal, accounting, filing and similar expenses provided by third parties), in each case to the extent related to Holdings’ separate existence as a holding company or attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries (and, to the extent permitted below, Unrestricted Subsidiaries) in an amount not to exceed the greater of (x) $2,000,000 and (y) 3% of TTM Consolidated EBITDA as of the applicable determination date in the aggregate; provided that the amount of such Restricted Payments made in respect of an Unrestricted Subsidiary will be permitted only to the extent that cash distributions or dividends were made by such Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary to cover such amount or the amount of such payment is treated by the Borrower or a Restricted Subsidiary as an Investment in such Unrestricted Subsidiary and such Investment is permitted under Section 7.4 at such time, and (iii) franchise taxes and other fees, taxes and expenses in connection with (x) the ownership of the Borrower or any Restricted Subsidiary or (y) the maintenance of Holdings’, the Borrower’s or any other such parent entity’s corporate or legal existence;
(d) payments of any trade readjustment allowances by the Borrower (or any direct or indirect parent company) or any Restricted Subsidiary thereof;
(e) Restricted Payments required to consummate the Closing Date Acquisition on the Closing Date and, to the extent not paid on the Closing Date, any payments required to be made after the Closing Date pursuant to the terms of the Closing Date Purchase Agreement, including, without limitation, the AvKare Seller Notes and any working capital and/or purchase price adjustments;
(f) the loans or other advances contemplated by Section 7.4(j) and Section 7.4(k) hereof;
(g) the Borrower or any Restricted Subsidiary may, in good faith, pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Capital Stock of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) of any of its Restricted Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee,
 
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management, director or manager benefit plan or any similar agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of the Borrower or any Restricted Subsidiary; provided that such payments do not exceed the greater of (x) $2,000,000 and (y) 3.0% of TTM Consolidated EBITDA as of the applicable date of determination in any calendar year; provided that any unused portion of the preceding basket for any calendar year may be carried forward to the immediately succeeding calendar year;
(h) [Reserved];
(i) repurchases of Capital Stock (a) deemed to occur upon exercise of options, warrants or similar rights if such Capital Stock represent a portion of the exercise price of such options or warrants or similar rights or (b) in consideration of withholding or similar taxes payable by any future, present or former employee, manager, officer, director, consultant or contractor (or any spouses, former spouses, successors, executors, administrators, heirs, trustees, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options or the vesting of any equity awards;
(j) Restricted Payments the proceeds of which will be used to pay or finance (or permit any Parent Entity to pay or finance):
(i) any Permitted Acquisition; provided that (i) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (ii) the Borrower will, immediately following the closing thereof, cause (A) all property acquired (whether assets or Capital Stock) to be contributed to the Borrower or a Restricted Subsidiary or (B) the merger (to the extent permitted in Section 7.3) of the Person formed or acquired with or into the Borrower or a Restricted Subsidiary in order to consummate such Investment, in each case, in accordance with the requirements of Section 5.10;
(ii) costs, fees and expenses related to any equity or debt offering expressly permitted by this Agreement or any Investment permitted hereunder, whether or not consummated; and
(iii) customary salary, bonus and other benefits payable to future, present or former employees, managers, officers, directors, consultants or contractors of Holdings or any direct or indirect parent of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries (and, to the extent permitted below, Unrestricted Subsidiaries) provided that, the amount of such Restricted Payments made in respect of an Unrestricted Subsidiary will be permitted only to the extent that such cash distributions or dividends were made by such Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary to cover such amount or the amount of such payment is treated by the Borrower or a Restricted Subsidiary as an Investment in such Unrestricted Subsidiary and such Investment is permitted under Section 7.4 at such time;
(k) after a Qualified IPO, the Borrower may make Restricted Payments to its equity holders or the equity holders of any direct or indirect parent company of Borrower (i) to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) in an aggregate amount not exceeding 6.0% of the net equity proceeds received by Borrower from such Qualified IPO; provided that, in the case of any Restricted Payments made under subclause (ii) hereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom at the time such Restricted Payment is made;
(l) dispositions (other than by reference to Section 7.6) to the extent constituting a Restricted Payment or Restricted Payments, mergers, dissolutions, liquidations and consolidations permitted under Section 7.3 or Section 7.7 (other than Section 7.7(b));
 
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(m) Restricted Payments to pay (or permit any direct or indirect parent entity to pay) cash in lieu of the issuance of fractional Capital Stock in connection with the exercise of warrants, upon the conversion or exchange of Capital Stock of any such Person, in connection with any merger, consolidation, amalgamation or other business combination, or in connection with any dividend, distribution, split or combination of Capital Stock;
(n) the making of any Restricted Payment in exchange for, or out of or with the Net Proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Borrower) of Qualified Capital Stock of the Borrower or any Parent Entity or from the substantially concurrent contribution of common equity capital to the Borrower (other than by a Restricted Subsidiary), in each case that are Not Otherwise Applied and to the extent such Net Proceeds do not increase Available Amount or constitute a Specified Equity Contribution;
(o) Restricted Payments of Investments in one or more Unrestricted Subsidiaries (other than Unrestricted Subsidiaries all or substantially all of the assets of which are cash and Cash Equivalents);
(p) other Restricted Payments, provided that, (i) no Event of Default shall exist or be continuing or result therefrom and (ii) immediately after giving effect thereto, the Total Net Leverage Ratio, on a Pro Forma Basis does not exceed 2.25:1.00 as of the last day of the most recently ended Test Period;
(q) so long as no Default or Event of Default shall exist or be continuing or result therefrom, distributions to any direct or indirect Parent Entity of the Borrower (including Holdings) for the purpose of allowing the holders of the Seller Notes to pay tax liabilities attributable to the installment obligations that result in unpaid tax liabilities in an amount not to exceed 1% per annum of the then outstanding principal amount of the Seller Note; and
(r) the Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the Available Amount; provided that at the time of any such Restricted Payment, (i) no Event of Default shall have occurred and be continuing or would result therefrom and (ii) with respect to any Restricted Payment made utilizing amounts specified in clauses (i) and (ii) of the definition of “Available Amount”, at the time of such Restricted Payment, after giving effect thereto, the Total Net Leverage Ratio of the Borrower as of the last day of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 3.00:1.00.
For the avoidance of doubt, each category of Restricted Payments and each dollar cap set forth in this Section 7.5 is be separate and is not meant to reduce any other category or cap set forth in this Section 7.5.
Section 7.6. Sale of Assets. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of any of its assets, business or property or, in the case of any Restricted Subsidiary, any shares of such Restricted Subsidiary’s Capital Stock, in each case whether now owned or hereafter acquired, to any Person other than the Borrower or a Subsidiary Loan Party (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition of (i) obsolete or worn out property or other property not necessary for operations disposed of in the ordinary course of business and (ii) property to the extent that (A) such property is simultaneously exchanged for credit against the purchase price of similar replacement property or (B) the net proceeds of such disposition are promptly applied to the purchase price of such replacement property;
 
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(b) the sale of inventory in the ordinary course of business;
(c) dispositions of property to the Borrower or a Restricted Subsidiary; provided, that if the transferor of such property is a Loan Party (a) the transferee thereof must be a Loan Party or (b) to the extent constituting an Investment, such Investment must be permitted pursuant to Section 7.4 in a Restricted Subsidiary that is not a Loan Party;
(d) dispositions consisting of Investments permitted under Section 7.4 (other than Section 7.4(m)), transactions permitted under Section 7.3 or Restricted Payments permitted under Section 7.5 or consisting of Liens permitted under Section 7.2;
(e) dispositions of property pursuant to sale and leaseback transactions, provided that (i) no Event of Default has occurred and is continuing or would result therefrom (other than any such disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing), (ii) such disposition shall be for no less than the fair market value of such property at the time of such disposition, (iii) the aggregate proceeds of sale and leaseback transactions permitted pursuant to this clause (e) shall not in any Fiscal Year exceed the greater of (i) $10,000,000 and (ii) 15% of TTM Consolidated EBITDA as of the applicable date of determination and (iv) the Borrower and its Restricted Subsidiaries shall receive not less than 75% of the consideration for such sale and leaseback transaction in the form of cash or Cash Equivalents;
(f) dispositions of Cash Equivalents (or Investments that were Cash Equivalents when made); provided, that such disposition shall be for no less than the fair market value of such property at the time of such disposition;
(g) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole, provided, that such disposition shall be for no less than the fair market value of such property at the time of such disposition;
(h) dispositions of property subject to any casualty event, eminent domain or condemnation;
(i) other dispositions, provided that:
(i) at the time of such disposition (other than any such disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing), no Event of Default has occurred and is continuing or would result therefrom; and
(ii) with respect to any disposition pursuant to this clause (i) for a purchase price in excess of the greater of (i) $10,000,000 million and (ii) 15% of TTM Consolidated EBITDA as of the applicable determination date, in each case determined as of the time of making such disposition, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii) each of the following will be deemed to be cash,
(1) any liabilities (as shown on the Borrower’s or any Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which
 
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the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing; and
(2) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or any Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable disposition;
(iii) such disposition shall be for no less than the fair market value of such property at the time of such disposition (or, if earlier, the definitive documentation or other contractual obligation with respect to such disposition is entered into by the Borrower or any Restricted Subsidiary (as applicable);
(j) dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements among, the joint venture parties set forth in joint venture or similar agreements or arrangements;
(k) dispositions or discounts of accounts receivable and related assets in connection with the collection or compromise thereof;
(l) dispositions (including issuances or sales) of Capital Stock in, or Indebtedness owing to, or of other securities of, an Unrestricted Subsidiary;
(m) dispositions constituting any exchange of like property for use in any business conducted by the Borrower or any of the Restricted Subsidiaries, to the extent allowable under Section 1031 of the Code (or comparable or successor provision); provided that to the extent the property being transferred constitutes Collateral, such replacement property shall constitute Collateral;
(n) the unwinding of any Hedging Transaction pursuant to its terms;
(o) dispositions of assets in connection with the closing or sale of a facility, including dispositions of inventory, fee or leasehold interests in the premises of such facility, equipment and fixtures located at such premises, and the books and records relating to the operations of such facility; provided that as to each and all such sales and closings, (a) no Event of Default shall have occurred and be continuing or shall result therefrom and (b) such dispositions shall be for no less than fair market value at the time of such disposition;
(p) [reserved];
(q) (i) settlement of litigation concerning intellectual property rights, or (ii) the lease, sublease, license or sublicense of intellectual property rights outside the United States or (iii) the lapse, abandonment, discontinuance of the use or maintenance of any intellectual property rights no longer used in the business of the Borrower or the Restricted Subsidiaries, in each case of (i), (ii) and (iii), if the Borrower or any Restricted Subsidiary determines in its reasonable business judgment that it would not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(r) disposition of assets (including Capital Stock) acquired in connection with Permitted Acquisitions or other Investments permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries;
 
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(s) dispositions of pipeline, marketed or other assets required by regulatory authorities in connection with the Closing Date Acquisition, any Permitted Acquisition or other Investment permitted hereunder;
(t) [reserved];
(u) [reserved]; and
(v) the sale or other disposition of such assets in an aggregate amount not to exceed the greater of (i) $5,000,000 and (ii) 8% of TTM Consolidated EBITDA as of the applicable determination date.
Section 7.7. Transactions with Affiliates. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, in an amount in excess of the greater of (x) $2,000,000 and (y) 3% of TTM Consolidated EBITDA as of the applicable determination date except:
(a) at prices and on terms and conditions not less favorable to the Borrower or such Restricted Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties;
(b) transactions between or among the Loan Parties and any Restricted Subsidiaries or any Person that becomes a Restricted Subsidiary as a result of such transaction that are otherwise permitted under this Agreement;
(c) any Restricted Payment permitted by Section 7.5;
(d) the consummation of the Transactions on the Closing Date;
(e) the issuance, transfer or conversion of Capital Stock (other than Disqualified Capital Stock) of the Borrower or any Parent Entity not constituting a Change in Control;
(f) the licensing of intellectual property rights in the ordinary course of business to permit the commercial exploitation of intellectual property rights between or among the Borrower, its Affiliates or its Restricted Subsidiaries, to the extent such licensing is made in the ordinary course of business and does not interfere in any material respect with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(g) payments by the Borrower, any Restricted Subsidiary or any direct or indirect parent thereof pursuant to reasonable tax sharing arrangements between or among such Persons;
(h) payments to or from, and transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by the Borrower and the Restricted Subsidiaries in such joint venture) otherwise permitted under this Agreement;
(i) any purchase by any Parent Entity of the Capital Stock of the Borrower and the issuance, sale or transfer of Capital Stock of the Borrower to any Parent Entity and capital contributions by any Parent Entity to the Borrower (and payment of reasonable out-of-pocket expenses incurred in connection therewith);
 
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(j) the existence of, or the performance by the Borrower or any of its Restricted Subsidiaries of its obligations under the terms of, any customary registration rights agreement to which such Person or any Parent Entity is a party or becomes a party in the future; and
(k) indemnification and expense reimbursement of officers, directors, employees and consultants.
Section 7.8. Restrictive Agreements. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any of its Restricted Subsidiaries to create, incur or permit any Lien upon any of its assets or properties, whether now owned or hereafter acquired, or (b) the ability of any of its Restricted Subsidiaries to pay dividends or other distributions with respect to its Capital Stock, to make or repay loans or advances to the Borrower or any other Restricted Subsidiary thereof, to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary thereof or to transfer any of its property or assets to the Borrower or any other Restricted Subsidiary thereof; provided that (i) the foregoing shall not apply to restrictions or conditions imposed by law or by this Agreement or any other Loan Document, (ii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is sold and such sale is permitted hereunder, (iii) clause (a) shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement and (iv) clause (a) shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.
Section 7.9. Business of Holdings. Holdings will not engage in any business other than (a) the ownership of the Capital Stock in the Borrower, (b) performance of its obligations in connection with this Agreement and any other Loan Document, (c) issuance of Capital Stock, (d) as otherwise required by law, (e) holding and receiving cash as permitted by the terms of this Agreement, its participation in tax, accounting and other administrative matters as a member of the consolidated group of Amneal Pharmaceuticals, Inc. and its Subsidiaries, including compliance with applicable laws and legal, tax and accounting matters related thereto and activities relating to its officers, directors, employees, managers, partners, consultants and independent contractors, (f) preparing reports to Governmental Authorities and to the holders of its Capital Stock, (g) holding manager and equityholder meetings, preparing organizational records and other organizational activities required to maintain its separate organizational structure or to comply with applicable laws, (h) activities and transactions in connection with any management equity plan and (i) any activities reasonably related to the activities set forth in clause (a) through (h) above.
Section 7.10. Hedging Transactions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any of its Restricted Subsidiaries is exposed in the conduct of its business or the management of its liabilities. Solely for the avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered into for speculative purposes or of a speculative nature (which shall be deemed to include any Hedging Transaction under which the Borrower or any of its Restricted Subsidiaries is or may become obliged to make any payment (i) in connection with the purchase by any third party of any Capital Stock or any Indebtedness or (ii) as a result of changes in the market value of any Capital Stock or any Indebtedness) is not a Hedging Transaction entered into in the ordinary course of business to hedge or mitigate risks.
Section 7.11. Amendment to Material Documents. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, amend, modify or waive any of its rights under its certificate of incorporation, bylaws or other Organization Documents or any Junior Debt Documents (subject to any
 
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applicable Acceptable Intercreditor Agreement) in any manner that would be materially adverse to the interests of the Lenders and the Administrative Agent.
Section 7.12. Certain Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiaries to prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that subject to the terms of the applicable Acceptable Intercreditor Agreement, payments of regularly scheduled principal, interest and mandatory prepayments shall be permitted) any Junior Debt, except (i) the refinancing thereof with any Indebtedness (to the extent such Indebtedness constitutes a Permitted Refinancing), to the extent not required to prepay any Loans pursuant to Section 2.12(b), (ii) the conversion or exchange of any Junior Debt to Qualified Capital Stock of Holdings or any of its direct or indirect parents, (iii) subject to the subordination provisions in respect thereof, the prepayment of Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any Restricted Subsidiary, (iv) repayments, redemptions, purchases, defeasances and other payments in respect of Junior Debt prior to their scheduled maturity in an aggregate amount not to exceed, so long as no Event of Default then exists and is continuing or would result therefrom, the Available Amount at such time; provided that in respect of any such repayments, redemptions, purchases, defeasances and other payments using clauses (i) and (ii) of the Available Amount only, the Total Net Leverage Ratio (as determined on a Pro Forma Basis) is less than or equal to 3.00:1.00 as of the last day of the most recently ended Test Period and (v) so long as no Event of Default shall have occurred and be continuing or would otherwise result therefrom, additional amounts so long as, after giving effect to such repayment, the Total Net Leverage Ratio on a Pro Forma Basis is less than or equal to 2.25:1.00 as of the last day of the most recently ended Test Period.
Section 7.13. Accounting Changes. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any change in accounting treatment or reporting practices, except as required by GAAP, or change the fiscal year of the Borrower or of any of its Restricted Subsidiaries, except to change the fiscal year of a Restricted Subsidiary to conform its fiscal year to that of the Borrower.
Section 7.14. Government Regulation. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, (a) be or become subject at any time to any law, regulation or list of any Governmental Authority of the United States (including, without limitation, the OFAC list) that prohibits or limits the Lenders or the Administrative Agent from making any advance or extension of credit to the Borrower or from otherwise conducting business with the Loan Parties, or (b) fail to provide documentary and other evidence of the identity of the Loan Parties as may be requested by the Lenders or the Administrative Agent at any time to enable the Lenders or the Administrative Agent to verify the identity of the Loan Parties or to comply with any applicable law or regulation, including, without limitation, the USA Patriot Act.
Section 7.15. Business of the Borrower and its Restricted Subsidiaries. Neither the Borrower nor any of its Restricted Subsidiaries shall engage in any material line of business substantially different from those lines of business conducted or proposed to be conducted by the Borrower and its Restricted Subsidiaries on the Closing Date (after giving effect to the Closing Date Acquisition) and any business that is similar, corollary, ancillary, incidental or complementary or related to, or a reasonable extension, development or expansion of, the businesses conducted or proposed to be conducted by the Borrower and its Restricted Subsidiaries on the Closing Date.
Section 7.16. Sanctions. The Borrower will not, and will not permit any Restricted Subsidiary to, use any Loan or Letter of Credit or the proceeds of any Loan and/or Letter of Credit, or lend, contribute or otherwise make available any Loan or Letter of Credit or the proceeds of any Loan or Letter of Credit to any Sanctioned Person, to fund any activities of or business with any Sanctioned Person or in any Sanctioned Country, or in any other manner that will result in a violation by any Person (including any
 
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Person participating in the transaction, whether as a Lead Arranger, the Administrative Agent, any Lender or the Issuing Bank or otherwise) of Sanctions.
Section 7.17. Anti-Corruption Laws. The Borrower will not, and will not permit any Restricted Subsidiary to, use any Loan or Letter of Credit or the proceeds therefrom for any purpose that would violate the Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and any similar anti-corruption legislation or laws in any other jurisdiction.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1. Events of Default. If any of the following events (each, an “Event of Default”) shall occur:
(a) any Loan Party shall fail to pay any principal of any Loan or of any reimbursement obligation in respect of any LC Disbursement, when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment or otherwise; or
(b) any Loan Party shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount payable under subsection (a) of this Section) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (5) Business Days; or
(c) any representation or warranty made or deemed made by or on behalf of Holdings, the Borrower or any of its Restricted Subsidiaries in or in connection with this Agreement or any other Loan Document (including the Schedules attached hereto and thereto), or in any amendments or modifications hereof or waivers hereunder, or in any certificate, report, financial statement or other document submitted to the Administrative Agent or the Lenders by any Loan Party or any representative of any Loan Party pursuant to or in connection with this Agreement or any other Loan Document shall prove to be incorrect in any material respect (other than any representation or warranty that is expressly qualified by a Material Adverse Effect or other materiality, in which case such representation or warranty shall prove to be incorrect in any respect) when made or deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any covenant or agreement contained in Section 5.1, 5.2, or 5.3 (with respect to the Borrower’s legal existence) or Article VI or VII, and, with respect to Section 5.1 only, such failure shall continue unremedied for a period of ten (10) days; or
(e) any Loan Party shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those referred to in subsections (a), (b) and (d) of this Section) or any other Loan Document, and such failure shall remain unremedied for 30 days after the earlier of (i) any officer of the Borrower becomes aware of such failure, or (ii) notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or
(f) any Acceptable Intercreditor Agreement shall cease, for any reason, to be in full force and effect (other than in accordance with its terms); or
(g) (i) Holdings, the Borrower or any of its Restricted Subsidiaries (whether as primary obligor or as guarantor or other surety) shall fail to pay any principal of, or premium or interest on, any Material Indebtedness that is outstanding, when and as the same shall become due and payable (whether at scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall
 
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continue after the applicable grace period, if any, specified in the agreement or instrument evidencing or governing such Indebtedness; (ii) any other event shall occur or condition shall exist under any agreement or instrument relating to any Material Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or permit the acceleration of, the maturity of such Indebtedness; or (iii) or any Material Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or any offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the stated maturity thereof and, in the case of clauses (i), (ii) and (iii), such failure, event or condition is unremedied and is not waived or cured by the holders of such Material Indebtedness prior to any acceleration of the Obligations pursuant to this Section 8.1; or
(h) Holdings, the Borrower or any of its Restricted Subsidiaries shall (i) commence a voluntary case or other proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a custodian, trustee, receiver, liquidator or other similar official of it or any substantial part of its property, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (i) of this subsection, (iii) apply for or consent to the appointment of a custodian, trustee, receiver, liquidator or other similar official for the Borrower or any such Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, or (vi) take any action for the purpose of effecting any of the foregoing; or
(i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Holdings, Borrower or any of its Restricted Subsidiaries or its debts, or any substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the appointment of a custodian, trustee, receiver, liquidator or other similar official for Holdings, the Borrower or any of its Restricted Subsidiaries or for a substantial part of its assets, and in any such case, such proceeding or petition shall remain undismissed for a period of 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or
(j) Holdings, the Borrower or any of its Restricted Subsidiaries shall become unable to pay, shall admit in writing its inability to pay, or shall fail to pay, its debts as they become due; or
(k) an ERISA Event occurs with respect to any Plan or Multiemployer Plan, and such ERISA Event, together with all other such ERISA Events, if any, could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect; or
(l) any judgment or order for the payment of money in excess of (x) $5,000,000 and (y) 8% of TTM Consolidated EBITDA as of the applicable determination date in the aggregate shall be rendered against Holdings, the Borrower or any of its Restricted Subsidiaries, and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(m) any non-monetary judgment or order shall be rendered against Holdings, the Borrower or any of its Restricted Subsidiaries that could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
 
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(n) a Change in Control shall occur or exist; or
(o) any provision of the Guaranty and Security Agreement or any other Collateral Document shall for any reason cease to be valid and binding on, or enforceable against, any Loan Party, or any Loan Party shall so state in writing, or any Loan Party shall seek to terminate its obligation under the Guaranty and Security Agreement or any other Loan Document (other than the release of any guaranty or collateral to the extent permitted pursuant to Section 9.11); or
(p) any Lien purported to be created under any Collateral Document shall fail or cease to be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any material portion of Collateral, with the priority required by the applicable Collateral Documents;
then, and in every such event (other than an event with respect to Holdings or the Borrower described in subsection (h), (i) or (j) of this Section) and at any time thereafter during the continuance of such event, the Administrative Agent may, and upon the written request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate the Commitments, whereupon the Commitment of each Lender shall terminate immediately, (ii) declare the principal of and any accrued interest on the Loans, and all other Obligations owing hereunder, to be, whereupon the same shall become, due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, (iii) exercise all remedies contained in any other Loan Document, and (iv) exercise any other remedies available at law or in equity; provided that, if an Event of Default specified in either subsection (h), (i) or (j) shall occur, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon, and all fees and all other Obligations shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
Section 8.2. Application of Proceeds from Collateral. All proceeds from each sale of, or other realization upon, all or any part of the Collateral by any Secured Party after an Event of Default arises or any payments received from any other source shall be applied as follows:
(a) first, to the reimbursable expenses of the Administrative Agent incurred in connection with such sale or other realization upon the Collateral, until the same shall have been paid in full;
(b) second, to the fees and other reimbursable expenses of the Administrative Agent and the Issuing Bank then due and payable pursuant to any of the Loan Documents, until the same shall have been paid in full;
(c) third, to all reimbursable expenses, if any, of the Lenders then due and payable pursuant to any of the Loan Documents, until the same shall have been paid in full;
(d) fourth, to the fees and interest then due and payable under the terms of this Agreement, until the same shall have been paid in full;
(e) fifth, to the aggregate outstanding principal amount of the Loans, the LC Exposure, the Bank Product Obligations and any amounts owing with respect to Hedging Obligations that constitute Obligations, until the same shall have been paid in full, allocated pro rata among the Secured Parties based on their respective pro rata shares of the aggregate amount of such Loans, LC Exposure, Bank Product Obligations and such Hedging Obligations;
 
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(f) sixth, to additional cash collateral for the aggregate amount of all outstanding Letters of Credit until the aggregate amount of all cash collateral held by the Administrative Agent pursuant to this Agreement is at least 105% of the LC Exposure after giving effect to the foregoing clause fifth; and
(g) seventh, to the extent any proceeds remain, to the Borrower or as otherwise provided by a court of competent jurisdiction.
All amounts allocated pursuant to the foregoing clauses third through fifth to the Lenders as a result of amounts owed to the Lenders under the Loan Documents shall be allocated among, and distributed to, the Lenders pro rata based on their respective Pro Rata Shares; provided that all amounts allocated to that portion of the LC Exposure comprised of the aggregate undrawn amount of all outstanding Letters of Credit pursuant to clauses fifth and sixth shall be distributed to the Administrative Agent, rather than to the Lenders, and held by the Administrative Agent in an account in the name of the Administrative Agent for the benefit of the Issuing Bank and the Lenders as cash collateral for the LC Exposure, such account to be administered in accordance with Section 2.22(g). All cash collateral for LC Exposure shall be applied to satisfy drawings under the Letters of Credit as they occur; if any amount remains on deposit on cash collateral after all letters of credit have either been fully drawn or expired, such remaining amount shall be applied to other Obligations, if any, in the order set forth above.
Notwithstanding the foregoing, Bank Product Obligations and Hedging Obligations shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the Bank Product Provider or the Lender-Related Hedge Provider, as the case may be. Each Bank Product Provider or Lender-Related Hedge Provider that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party hereto.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1. Appointment of the Administrative Agent.
(a) Each Lender irrevocably appoints Truist Bank as the Administrative Agent and authorizes it to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent under this Agreement and the other Loan Documents, together with all such actions and powers that are reasonably incidental thereto. The Administrative Agent may perform any of its duties hereunder or under the other Loan Documents by or through any one or more sub-agents or attorneys-in-fact appointed by the Administrative Agent. The Administrative Agent and any such sub-agent or attorney-in-fact may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions set forth in this Article shall apply to any such sub-agent, attorney-in-fact or Related Party and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith until such time and except for so long as the Administrative Agent may agree at the request of the Required Lenders to act for the Issuing Bank with respect thereto; provided that the Issuing Bank shall have all the benefits and immunities (i) provided to the Administrative Agent in this Article with respect to any acts taken or omissions suffered by the Issuing
 
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Bank in connection with Letters of Credit issued by it or proposed to be issued by it and the application and agreements for letters of credit pertaining to the Letters of Credit as fully as if the term “Administrative Agent” as used in this Article included the Issuing Bank with respect to such acts or omissions and (ii) as additionally provided in this Agreement with respect to the Issuing Bank.
Section 9.2. Nature of Duties of the Administrative Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except those discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.2), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it, its sub-agents or its attorneys-in-fact with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.2) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final non-appealable judgment. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents or attorneys-in-fact except to the extent that a court of competent jurisdiction determines in a final and nonappelable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof (which notice shall include an express reference to such event being a “Default” or “Event of Default” hereunder) is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements, or other terms and conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth in Article III or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent may consult with legal counsel (including counsel for the Borrower) concerning all matters pertaining to such duties.
Section 9.3. Lack of Reliance on the Administrative Agent. Each of the Lenders and the Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent, the Issuing Bank or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each of the Lenders and the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Issuing Bank or any other Lender and based on such documents and information
 
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as it has deemed appropriate, continue to make its own decisions in taking or not taking any action under or based on this Agreement, any related agreement or any document furnished hereunder or thereunder.
Section 9.4. Certain Rights of the Administrative Agent. If the Administrative Agent shall request instructions from the Required Lenders with respect to any action or actions (including the failure to act) in connection with this Agreement, the Administrative Agent shall be entitled to refrain from such act or taking such act unless and until it shall have received instructions from such Lenders, and the Administrative Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting hereunder in accordance with the instructions of the Required Lenders where required by the terms of this Agreement.
Section 9.5. Reliance by the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, posting or other distribution) believed by it to be genuine and to have been signed, sent or made by the proper Person. The Administrative Agent may also rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or not taken by it in accordance with the advice of such counsel, accountants or experts.
Section 9.6. The Administrative Agent in its Individual Capacity. The bank serving as the Administrative Agent shall have the same rights and powers under this Agreement and any other Loan Document in its capacity as a Lender as any other Lender and may exercise or refrain from exercising the same as though it were not the Administrative Agent; and the terms “Lenders”, “Required Lenders”, or any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity. The bank acting as the Administrative Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Subsidiary or Affiliate of the Borrower as if it were not the Administrative Agent hereunder.
Section 9.7. Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving notice thereof to the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent, subject to approval by the Borrower provided that no Event of Default pursuant to Section 8.1(a), (b), (h) or (i) shall exist at such time. If no successor Administrative Agent shall have been so appointed, and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a trust company or a commercial bank organized under the laws of the United States or any state thereof or a bank which maintains an office in the United States, having a combined capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. If, within 45 days after written notice is given of the retiring Administrative Agent’s resignation under this Section, no successor Administrative Agent shall have been appointed and shall have accepted such appointment, then on such 45th day (i) the retiring Administrative Agent’s resignation shall become effective, (ii) the retiring Administrative Agent shall thereupon be discharged
 
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from its duties and obligations under the Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Secured Parties under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (iii) the Required Lenders shall thereafter perform all duties of the retiring Administrative Agent under the Loan Documents until such time as the Required Lenders appoint a successor Administrative Agent as provided above. After any retiring Administrative Agent’s resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Administrative Agent and its representatives and agents in respect of any actions taken or not taken by any of them while it was serving as the Administrative Agent. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.3 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Section 9.8. Withholding Tax.
To the extent required by any applicable law, the Administrative Agent may withhold from any interest payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any authority of the United States or any other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason), such Lender shall indemnify the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including penalties and interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of pocket expenses.
Section 9.9. The Administrative Agent May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or any Revolving Credit Exposure shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or Revolving Credit Exposure and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Bank and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Bank and the Administrative Agent and its agents and counsel and all other amounts due the Lenders, the Issuing Bank and the Administrative Agent under Section 10.3) allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
(b) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the Issuing Bank to make
 
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such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Bank, 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 Section 10.3.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
Section 9.10. Authorization to Execute Other Loan Documents. Each Lender hereby authorizes the Administrative Agent to execute on behalf of all Lenders all Loan Documents (including, without limitation, the Collateral Documents and any subordination agreements) other than this Agreement.
Section 9.11. Collateral and Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion:
(a) to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the termination of all Revolving Commitments, the Cash Collateralization of all reimbursement obligations with respect to Letters of Credit in an amount equal to 105% of the aggregate LC Exposure of all Lenders, and the payment in full of all Obligations (other than contingent indemnification obligations and such Cash Collateralized reimbursement obligations), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in writing in accordance with Section 10.2; and
(b) to release any Subsidiary Loan Party from its obligations under the applicable Loan Documents if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release its interest in particular types or items of property, or to release any Loan Party from its obligations under the applicable Collateral Documents pursuant to this Section. In each case as specified in this Section, the Administrative Agent is authorized, at the Borrower’s expense, to execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the Liens granted under the applicable Collateral Documents, or to release such Loan Party from its obligations under the applicable Collateral Documents, in each case in accordance with the terms of the Loan Documents and this Section.
Section 9.12. Documentation Agent; Syndication Agent. Each Lender hereby designates City National Bank as Documentation Agent (the “Documentation Agent”) and agrees that the Documentation Agent shall have no duty or obligation under any Loan Documents to any Lender or any Loan Party. Each Lender hereby designates Bank of America, N.A. and City National Bank as Syndication Agents (the “Syndication Agents”) and agrees that the Syndication Agents shall have no duties or obligations under any Loan Documents to any Lender or any Loan Party.
Section 9.13. Right to Realize on Collateral and Enforce Guarantee. Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral or to enforce the Collateral Documents, it being understood and agreed that all powers, rights and remedies hereunder and under the Collateral Documents may be exercised solely by the Administrative
 
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Agent, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent at such sale or other disposition.
Section 9.14. Secured Bank Product Obligations and Hedging Obligations. No Bank Product Provider or Lender-Related Hedge Provider that obtains the benefits of Section 8.2, the Collateral Documents or any Collateral by virtue of the provisions hereof or of any other Loan Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Bank Product Obligations and Hedging Obligations unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Bank Product Provider or Lender-Related Hedge Provider, as the case may be.
ARTICLE X
MISCELLANEOUS
Section 10.1. Notices.
(a) Written Notices.
(i) Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications to any party herein to be effective shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:

 To the Borrower:	  	c/o Amneal Pharmaceuticals, LLC	
	  	400 Crossing Boulevard, 3rd Floor	
	  	Bridgewater, NJ 08807	
	  	Attention: Chief Financial Officer	
	  	Telecopy Number:	
	  	Email: financecontract@amneal.com	
	  	Website: www.amneal.com	
		
With a copy to:	  	Morgan, Lewis & Bockius, LLP	
	  	101 Park Avenue	
	  	New York, New York 10178-0060	
	  	Attention: Matthew Edward Schernecke	
	  	Telecopy Number: (212) 309-6001	
		
 To the Administrative Agent	  		
 
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or Issuing Bank:	  	Truist Bank	
	  	303 Peachtree Street, 25th Floor	
	  	Atlanta, Georgia 30308	
	  	Attention: Karen Weich	
	  	Telephone: (404) 813-9293	
	  	Telecopy Number: (801) 453-4108	
	  	Email: Agency.Services@suntrust.com	
With a copy to (for	  		
Informational purposes only):	  	Truist Bank	
	  	3333 Peachtree Road, N.E., 7th Floor	
	  	Atlanta, Georgia 30326	
	  	Attention: Anton Brykalin	
	  	Telephone: (404) 836-6106	
	  	Facsimile: (917) 423-5073	
	  	Email: anton.brykalin@suntrust.com	
		
To any other Lender:	  	the address set forth in the Administrative Questionnaire or the Assignment and Acceptance executed by such Lender	
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All such notices and other communications shall be effective upon actual receipt by the relevant Person or, if delivered by overnight courier service, upon the first Business Day after the date deposited with such courier service for overnight (next-day) delivery or, if sent by telecopy, upon transmittal in legible form by facsimile machine or, if mailed, upon the third Business Day after the date deposited into the mail or, if delivered by hand, upon delivery; provided that notices delivered to the Administrative Agent or the Issuing Bank shall not be effective until actually received by such Person at its address specified in this Section.
(ii) Any agreement of the Administrative Agent, the Issuing Bank or any Lender herein to receive certain notices by telephone or facsimile is solely for the convenience and at the request of the Borrower. The Administrative Agent, the Issuing Bank and each Lender shall be entitled to rely on the authority of any Person purporting to be a Person authorized by the Borrower to give such notice and the Administrative Agent, the Issuing Bank and the Lenders shall not have any liability to the Borrower or other Person on account of any action taken or not taken by the Administrative Agent, the Issuing Bank or any Lender in reliance upon such telephonic or facsimile notice. The obligation of the Borrower to repay the Loans and all other Obligations hereunder shall not be affected in any way or to any extent by any failure of the Administrative Agent, the Issuing Bank or any Lender to receive written confirmation of any telephonic or facsimile notice or the receipt by the Administrative Agent, the Issuing Bank or any Lender of a confirmation which is at variance with the terms understood by the Administrative Agent, the Issuing Bank and such Lender to be contained in any such telephonic or facsimile notice.
(b) Electronic Communications.
(i) Notices and other communications to the Lenders and the Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to Article II unless such Lender, the Issuing Bank, as applicable, and the Administrative Agent
 
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have agreed to receive notices under any Section thereof by electronic communication and have agreed to the procedures governing such communications. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
(ii) Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement) and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (A) of notification that such notice or communication is available and identifying the website address therefor; provided that, in the case of clauses (A) and (B) above, if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
(iii) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available to the Issuing Bank and the other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a substantially similar electronic system (each an “Electronic System”).
(iv) Any Electronic System used by the Administrative Agent is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, 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 Communications or any Electronic System. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Loan Party, any Lender, the Issuing Bank or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of Communications through an Electronic System. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or the Issuing Bank by means of electronic communications pursuant to this Section, including through an Electronic System.
(c) Certification of Public Information. The Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to Section 5.1 or Section 5.2 otherwise are being distributed through Syndtrak, Intralinks or any other Internet or intranet website or other information platform (the “Platform”), any document or notice that the Borrower has indicated contains Non-Public Information shall not be posted on that portion of the Platform designated for such Public Lenders. The Borrower agrees to clearly designate all information provided to the Administrative Agent by or on behalf of the Borrower which is suitable to make available to Public Lenders. If the Borrower has not indicated whether a document or notice delivered pursuant to Section 5.1 or Section 5.2 contains Non-Public Information, the Administrative Agent reserves the right to
 
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post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive Non-Public Information.
(d) Private Side Information Contacts. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including Unites States federal and state securities laws, to make reference to information that is not made available through the “Public Side Information” portion of the Platform and that may contain Non-Public Information with respect to the Borrower, its Affiliates or any of their securities or loans for purposes of United States federal or state securities laws. In the event that any Public Lender has determined for itself not to access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) neither the Borrower nor the Administrative Agent has any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents.
Section 10.2. Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document, and no course of dealing between the Borrower and the Administrative Agent or any Lender, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of any provision of this Agreement or of any other Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by subsection (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or of the other Loan Documents (other than the Fee Letter), nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower and the Required Lenders, or the Borrower and the Administrative Agent with the consent of the Required Lenders, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, no amendment, waiver or consent shall:
(i) increase the Commitment of any Lender without the written consent of such Lender (it being understood that a waiver of any condition precedent set forth in Section 3.2 or the waiver of any Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender);
(ii) reduce the principal amount of any Loan or reimbursement obligation with respect to a LC Disbursement (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute a reduction or forgiveness of principal) or reduce the rate of interest thereon, or reduce any fees payable
 
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hereunder, without the written consent of each directly and adversely affected Lender (but not the Required Lenders) (it being understood that any change to the definition of Total Net Leverage Ratio, Secured Net Leverage Ratio or First Lien Net Leverage Ratio or in the component definitions thereof shall not constitute a reduction of interest or fees for purposes of this clause (ii)), provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay default interest pursuant to Section 2.13(c);
(iii) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or any fees hereunder or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment, without the written consent of each directly and adversely affected Lender (but not the Required Lenders) (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute a reduction or forgiveness of principal or an extension of any maturity date, date of any scheduled amortization payment or date for payment of interest or fees);
(iv) (A) change Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender or (B) change Section 8.2 in a manner that would alter the pro rata sharing of payments or the order of application required thereby without the written consent of each directly and adversely affected Lender (but not the Required Lenders);
(v) change any of the provisions of this subsection (b) or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the consent of each directly and adversely affected Lender (but not the Required Lenders);
(vi) release all or substantially all of the value of the guarantors, or limit the liability of such guarantors, under any guaranty agreement guaranteeing any of the Obligations, without the written consent of each Lender; or
(vii) release all or substantially all of the value of the collateral (if any) securing any of the Obligations, without the written consent of each Lender;
provided, further, that no such amendment, waiver or consent shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent or the Issuing Bank without the prior written consent of such Person.
(c) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended, and amounts payable to such Lender hereunder may not be permanently reduced, without the consent of such Lender (other than reductions in fees and interest in which such reduction does not disproportionately affect such Lender).
(d) Notwithstanding anything to the contrary herein, this Agreement may be amended (or amended and restated) without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20
 
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and 10.3), such Lender shall have no other commitment or other obligation hereunder and such Lender shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement.
(e) Notwithstanding anything to the contrary herein, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower and the other Loan Parties (i) to add one or more additional credit facilities to this Agreement, 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 Term Loans, the Revolving Credit Exposure and any Incremental Facility and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and (ii) to change, modify or alter Section 2.21(b) or (c) or any other provision hereof relating to pro rata sharing of payments among the Lenders to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in subsection (d), (e)(i) or (f) of this Section.
(f) In addition to the foregoing, any amendment or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by any Loan Party therefrom, that by its express terms amends or modifies the rights or duties under this Agreement or such other Loan Document of one or more Classes of Lenders (but not of one or more other Classes of Lenders) may be effected by an agreement or agreements in writing signed by the Borrower or the applicable Loan Party, as the case may be, and the requisite percentage in interest of each affected Class of Lenders that would be required to consent thereto under this Section if all such affected Classes of Lenders were the only Lenders hereunder at the time.
(g) Notwithstanding any of the foregoing to the contrary, the Loan Parties and the Administrative Agent, without the consent of any Lender, may enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to correct any obvious ambiguity, omission, defect or inconsistency or to effect any changes of a technical nature, in each case that is not material (as determined by the Administrative Agent), in any provision of any Loan Document.
Section 10.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and its Affiliates in connection with the syndication of the credit facilities provided for herein, the preparation and administration of the Loan Documents and any amendments, modifications or waivers thereof (whether or not the transactions contemplated in this Agreement or any other Loan Document shall be consummated), including the reasonable and documented out-of-pocket fees, charges and disbursements of one (1) counsel for the Administrative Agent and its Affiliates and, to the extent reasonably determined by the Administrative Agent to be necessary, one local counsel in each applicable jurisdiction, (ii) all reasonable and documented out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket costs and expenses (including, without limitation, the reasonable fees, charges and disbursements of one (1) outside counsel and, to the extent reasonably determined to be necessary, one local counsel in each applicable jurisdiction) incurred by the Administrative Agent, the Issuing Bank or any Lender in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made or any Letters of Credit issued hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
 
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(b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the Issuing Bank, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee, (y) a material breach in bad faith of the obligations of such Indemnitee under the Loan Documents (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as Administrative Agent, Lead Arranger or Issuing Bank or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any Platform, except as a result of such Indemnitee’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent, the Issuing Bank and each of the Lenders harmless from and against, any and all present and future stamp, documentary, and other similar taxes with respect to this Agreement and any other Loan Documents, any collateral described therein or any payments due thereunder, and save the Administrative Agent, the Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required to be paid to the Administrative Agent or the Issuing Bank under subsection (a), (b) or (c) hereof, each Lender severally agrees to pay to the Administrative Agent or the Issuing Bank as the case may be, such Lender’s pro rata share (in accordance with its respective Revolving Commitment (or Revolving Credit Exposure, as applicable) and Term Loan determined as of the time that the unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified payment, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent or the Issuing Bank in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
 
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consequential or punitive damages (as opposed to actual or direct damages) arising out of, in connection with or as a result of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated therein, any Loan or any Letter of Credit or the use of proceeds thereof; provided, that nothing in this clause (e) shall relieve the Borrower of any obligation it may have to indemnify any Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.
(f) All amounts due under this Section shall be payable promptly (and in any event no later than 30 days) after written demand therefor.
Section 10.4. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither Holdings nor the Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). 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 subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) 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, Loans and other Revolving Credit Exposure at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitments, Loans and other Revolving Credit Exposure at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans and Revolving Credit Exposure outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans and Revolving Credit Exposure 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 or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date) shall not be less than $1,000,000 with respect to Term Loans and $2,500,000 with respect to Revolving Loans and in minimum increments of $1,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
 
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(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans, other Revolving Credit Exposure or the Commitments assigned, except that this subsection (b)(ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Commitments on a non-pro rata basis.
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) a Specified Event of Default has occurred and is continuing at the time of such assignment, (y) such assignment is of a Term Loan to a Lender, an Affiliate of such Lender or an Approved Fund of such Lender or (z) such assignment is of the Revolving Commitment (or if the Revolving Commitment is not then in effect, Revolving Credit Exposure) to another Lender with a Revolving Commitment or Revolving Credit Exposure or an Affiliate of such Lender; provided that the Borrower shall be deemed to have consented to any such assignment (including a consent to an assignment which does not meet the minimum assignment thresholds specified above) unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required unless such assignment is of a Term Loan to a Lender, an Affiliate of such Lender or an Approved Fund of such Lender; and
(C) the consent of the Issuing Bank (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding).
(iv) Assignment and Acceptance. The parties to each assignment shall deliver to the Administrative Agent (A) a duly executed Assignment and Acceptance, (B) a processing and recordation fee of $3,500, (C) an Administrative Questionnaire unless the assignee is already a Lender and (D) the documents required under Section 2.20(g).
(v) No Assignment to Certain Persons. No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B) or (C) to the extent that the list of Disqualified Lenders is made available to any requesting Lender or a potential assignee is advised that its name appears on the list, to any Disqualified Lender.
(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural person.
(vii) Certain Additional Payments. 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
 
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consent of the Borrower 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 Issuing Bank and each other 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. 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.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement 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 Sections 2.18, 2.19, 2.20 and 10.3 with respect to facts and circumstances occurring prior to the effective date of such assignment; 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 such Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 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 subsection (d) of this Section (other than in the case of an assignment to a Disqualified Lender which is subject to subsection (g) below).
(c) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans and Revolving Credit Exposure owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). Information with respect to any Lender contained in the Register shall be available for inspection by such Lender (and not, for the avoidance of doubt, by any other Lender) at any reasonable time and from time to time upon reasonable prior notice; information contained in the Register shall also be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice. In establishing and maintaining the Register, the Administrative Agent shall serve as the Borrower’s agent solely for tax purposes and solely with respect to the actions described in this Section, and the Borrower hereby agrees that, to the extent Truist Bank serves in such capacity, Truist Bank and its officers, directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees”.
(d) Any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent or the Issuing Bank, sell participations to any Person (other than a natural person, a Lender (solely to the extent that the list of Disqualified Lenders has been made available to each requesting Lender), the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
 
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Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; 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 with respect to the following to the extent affecting such Participant: (i) increase the Commitment of such Lender; (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder; (iii) postpone the date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or any fees hereunder or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or reduction of any Commitment; (iv) change Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby; (v) change any of the provisions of Section 10.2(b) or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders which are required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder; (vi) release all or substantially all of the guarantors, or limit the liability of such guarantors, under any guaranty agreement guaranteeing any of the Obligations; or (vii) release all or substantially all collateral (if any) securing any of the Obligations. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.18, 2.19, and 2.20 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant agrees to be subject to Section 2.24 as though it were a Lender. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.7 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.21 as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register in the United States 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 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, letters of credit or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) and proposed Section 163-5(b) of the United States Treasury regulations. 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 participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(e) A Participant shall not be entitled to receive any greater payment under Sections 2.18 and 2.20 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 2.20 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.20(f) and (g) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
 
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(g) Disqualified Lenders. Notwithstanding anything to the contrary contained herein, no assignment or participation shall be made to any Person that was a Disqualified Lender as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person (unless the Borrower has consented to such assignment in writing in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Lender for the purpose of such assignment or participation). For the avoidance of doubt, with respect to any assignee that becomes a Disqualified Lender after the applicable Trade Date, (x) such assignee shall not retroactively be disqualified from becoming a Lender and (y) the execution by the Borrower of an Assignment Agreement with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Lender. Any assignment in violation of this paragraph (g) shall not be void, but the other provisions of this paragraph (g) shall apply.
(i) If any assignment or participation is made to any Disqualified Lender without the Borrower’s prior written consent in violation of paragraph (g) above, or if any Person becomes a Disqualified Lender after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Lender and Administrative Agent, (1) terminate any Revolving Commitment of such Disqualified Lender and repay all obligations of the Borrower owing to such Disqualified Lender in connection with such Revolving Credit Commitment, (2) in the case of outstanding Term Loans held by Disqualified Lenders, purchase or prepay such Term Loan by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such Term Loans, in each case, plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (C) require such Disqualified Lender to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 10.4), all of its interest, rights and obligations under this Agreement to one or more eligible assignees at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests, rights and obligations of such Term Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder; and
(ii) Notwithstanding anything to the contrary contained in this Agreement, Disqualified Lenders (i) will not (x) have the right to receive information, reports or other materials provided to Lenders by Holdings, any Borrower, Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders and Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of Administrative Agent or the Lenders and (ii) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Lenders consented to such matter, and (y) for purposes of voting on any plan of reorganization or similar plan, each Disqualified Lender party hereto hereby agrees (1) not to vote on such plan, (2) if such Disqualified Lender does vote on such Plan notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (3) not to contest any request by any party for a determination by the applicable bankruptcy court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).
 
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(h) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, the Administrative Agent, in its capacity as such, shall not be responsible (other than updating the list of Disqualified Lenders in accordance with the definition thereof or providing the list of Disqualified Lenders upon written request) or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders (other than updating the list of Disqualified Lenders in accordance with the definition thereof or providing the list of Disqualified Lenders upon written request). Without limiting the generality of the foregoing, the Administrative Agent, in its capacity as such, shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to, or the restrictions on any exercise of rights or remedies of, any Disqualified Lender.
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be construed in accordance with and be governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York, and of any state court of the State of the Supreme Court of the State of New York sitting in New York county, and of any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such District Court or New York state court or, to the extent permitted by applicable law, such appellate court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding described in subsection (b) of this Section and brought in any court referred to in subsection (b) of this Section. Each of the parties hereto irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service of process in the manner provided for notices in Section 10.1. Nothing in this Agreement or in any other Loan Document will affect the right of any party hereto to serve process in any other manner permitted by law.
Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
 
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CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7. Right of Set-off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, each Lender and its Affiliates and the Issuing Bank and its Affiliates shall have the right, at any time or from time to time upon the occurrence and during the continuance of an Event of Default, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, to set off and apply against all deposits (general or special, time or demand, provisional or final) of the Borrower at any time held or other obligations at any time owing by such Lender and its Affiliates and the Issuing Bank and its Affiliates to or for the credit or the account of the Borrower against any and all Obligations held by such Lender and its Affiliates or the Issuing Bank and its Affiliates, as the case may be, irrespective of whether such Lender and its Affiliates or the Issuing Bank and its Affiliates shall have made demand hereunder and although such Obligations may be unmatured; provided 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 2.26(b) and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks, 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. Each Lender and the Issuing Bank agrees promptly to notify the Administrative Agent and the Borrower after any such set-off and any application made by such Lender or the Issuing Bank, as the case may be; provided that the failure to give such notice shall not affect the validity of such set-off and application. Each Lender and the Issuing Bank agrees to apply all amounts collected from any such set-off to the Obligations before applying such amounts to any other Indebtedness or other obligations owed by the Borrower and any of its Subsidiaries to such Lender or the Issuing Bank.
Section 10.8. Counterparts; Integration. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Agreement, the Fee Letter, the other Loan Documents, and any separate letter agreements relating to any fees payable to the Administrative Agent and its Affiliates constitute the entire agreement among the parties hereto and thereto and their affiliates regarding the subject matters hereof and thereof and supersede all prior agreements and understandings, oral or written, regarding such subject matters. Delivery of an executed counterpart to this Agreement or any other Loan Document by facsimile transmission or by electronic mail in pdf format shall be as effective as delivery of a manually executed counterpart hereof.
Section 10.9. Survival. All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates, reports, notices or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the other Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any
 
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accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.18, 2.19, 2.20, and 10.3 and Article IX shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
Section 10.10. Severability. Any provision of this Agreement or any other Loan Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without affecting the legality, validity or enforceability of the remaining provisions hereof or thereof; and the illegality, invalidity or unenforceability of a particular provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 10.11. Confidentiality. Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to take normal and reasonable precautions to maintain the confidentiality of any information relating to the Borrower or any of its Restricted Subsidiaries or any of their respective businesses, to the extent designated in writing as confidential and provided to it by the Borrower or any of its Restricted Subsidiaries, other than any such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the Borrower or any of its Restricted Subsidiaries, except that such information may be disclosed (i) to any Related Party of the Administrative Agent, the Issuing Bank or any such Lender including, without limitation, accountants, legal counsel, service providers and other advisors, (ii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iii) to the extent requested by any regulatory agency or authority purporting to have jurisdiction over it (including any self-regulatory authority such as the National Association of Insurance Commissioners), (iv) to the extent that such information becomes publicly available other than as a result of a breach of this Section, or which becomes available to the Administrative Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing on a non-confidential basis from a source other than the Borrower or any of its Restricted Subsidiaries, (v) in connection with the exercise of any remedy hereunder or under any other Loan Documents or any suit, action or proceeding relating to this Agreement or any other Loan Documents or the enforcement of rights hereunder or thereunder, (vi) subject to execution by such Person of an agreement containing provisions substantially the same as those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, or (B) any actual or prospective party (or its Related Parties) to any swap or derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (vii) to any rating agency, (viii) to the CUSIP Service Bureau or any similar organization, (ix) with the consent of the Borrower or (x) to the extent such information is independently developed by such Person or its Affiliates so long as not based on information obtained in a manner that would otherwise violate this Section 10.11. Any Person required to maintain the confidentiality of any information as provided for in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such information as such Person would accord its own confidential information. In the event of any conflict between the terms of this Section and those of any other Contractual Obligation entered into with any Loan Party (whether or not a Loan Document), the terms of this Section shall govern.
Section 10.12. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which may be treated as interest on such Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate of interest (the “Maximum Rate”) which may be contracted for, charged, taken,
 
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received or reserved by a Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Rate to the date of repayment (to the extent permitted by applicable law), shall have been received by such Lender.
Section 10.13. Waiver of Effect of Corporate Seal. The Borrower represents and warrants that neither it nor any other Loan Party is required to affix its corporate seal to this Agreement or any other Loan Document pursuant to any Requirement of Law, agrees that this Agreement is delivered by the Borrower under seal and waives any shortening of the statute of limitations that may result from not affixing the corporate seal to this Agreement or such other Loan Documents.
Section 10.14. USA Patriot Act; Beneficial Ownership Regulation. The Administrative Agent and each Lender hereby notifies the Loan Parties that, (a) pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the USA Patriot Act, and (b) pursuant to the Beneficial Ownership Regulation, it is required to obtain a Beneficial Ownership Certificate to the extent that the Borrower qualifies as a “Legal Entity Customer” under the Beneficial Ownership Regulation.
Section 10.15. No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower and each other Loan Party acknowledges and agrees and acknowledges its Affiliates’ understanding that (i) (A) the services regarding this Agreement provided by the Administrative Agent and/or the Lenders are arm’s-length commercial transactions between the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent and the Lenders, on the other hand, (B) each of the Borrower and the other Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate, and (C) the Borrower and each other Loan Party is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Administrative Agent and the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower, any other Loan Party or any of their respective Affiliates, or any other Person, and (B) neither the Administrative Agent nor any Lender has any obligation to the Borrower, any other Loan Party or any of their Affiliates with respect to the transaction contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and each of the Administrative Agent and the Lenders has no obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and the other Loan Parties hereby waives and releases any claims that it may have against the Administrative Agent or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
Section 10.16. Location of Closing. Each Lender and the Issuing Bank acknowledges and agrees that it has delivered, with the intent to be bound, its executed counterparts of this Agreement to the
 
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Administrative Agent, c/o White & Case LLP, Southeast Financial Center, 200 South Biscayne Boulevard, Suite 4900, Miami, FL 33131-2352. Each Loan Party acknowledges and agrees that it has delivered, with the intent to be bound, its executed counterparts of this Agreement and each other Loan Document, together with all other documents, instruments, opinions, certificates and other items required under Section 3.1, to the Administrative Agent, c/o White & Case LLP, Southeast Financial Center, 200 South Biscayne Boulevard, Suite 4900, Miami, FL 33131-2352. All parties agree that the closing of the transactions contemplated by this Agreement has occurred in New York.
Section 10.17. 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 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) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
 
 	(i)	a reduction in full or in part or cancellation of any such liability;	
 
 	(ii)	a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other 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.	
Section 10.18. Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Hedging Transaction or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): in the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of
 
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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.
Section 10.19. Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, the Issuing Bank or any Lender, or the Administrative Agent, the Issuing Bank or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the Issuing Bank or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the Issuing Bank severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate. The obligations of the Lenders and the Issuing Bank under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
(remainder of page left intentionally blank)
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

RONDO INTERMEDIATE HOLDINGS, LLC, as the Borrower	
		
By:	 	/s/ Todd Branning	
	 	Name: Todd Branning	
	 	Title: Chief Financial Officer and Treasurer	
	
RONDO HOLDINGS, LLC, as Holdings	
		
By:	 	/s/ Todd Branning	
	 	Name: Todd Branning	
	 	Title: Chief Financial Officer and Treasurer	

[Signature Page to Revolving Credit and Term Loan Agreement]

			
TRUIST BANK	
as the Administrative Agent, as the Issuing Bank and as a Lender	
		
By:	 	/s/ Jared Cohen	
	 	Name: Jared Cohen	
	 	Title:   Director	
 
[Signature Page to Revolving Credit and Term Loan Agreement]

			
BANK OF AMERICA, N.A.	
as a Lender	
		
By:	 	/s/ Darren Merten	
	 	Name: Darren Merten	
	 	Title:   Vice President	
 
[Signature Page to Revolving Credit and Term Loan Agreement]

			
BankUnited, N.A.	
		
By:	 	/s/ Jeff Landroche	
	 	Name: Jeff Landroche	
	 	Title:   Vice President	
 
[Signature Page to Revolving Credit and Term Loan Agreement]

			
CITY NATIONAL BANK	
		
By:	 	/s/ Andrew Miller	
	 	Name: Andrew Miller	
	 	Title:   VP	
 
[Signature Page to Revolving Credit and Term Loan Agreement]

			
PINNACLE BANK	
		
By:	 	/s/ Allison H. Jones	
	 	Name: Allison H. Jones	
	 	Title:   Senior Vice President	
 
[Signature Page to Revolving Credit and Term Loan Agreement]

			
Preferred Bank	
		
By:	 	/s/ Samuel Leung	
	 	Name: Samuel Leung	
	 	Title:    Senior Vice President	
 
[Signature Page to Revolving Credit and Term Loan Agreement]

			
Royal Bank of Canada	
		
By:	 	/s/ Mustafa Topiwalla	
	 	Name: Mustafa Topiwalla	
	 	Title:   Authorized Signatory	
 
[Signature Page to Revolving Credit and Term Loan Agreement]

Exhibit 2.3
EXECUTION VERSION
GUARANTY AND SECURITY AGREEMENT
dated as of January 31, 2020
made by
RONDO INTERMEDIATE HOLDINGS, LLC
as Borrower
and
THE OTHER GRANTORS FROM TIME TO TIME PARTY HERETO
in favor of
TRUIST BANK
as Administrative Agent

TABLE OF CONTENTS
Page

ARTICLE I	 	DEFINITIONS	  	 	1	 	
			
Section 1.1	 	Definitions	  	 	1	 	
Section 1.2	 	Other Definitional Provisions; References	  	 	6	 	
			
ARTICLE II	 	GUARANTEE	  	 	7	 	
			
Section 2.1	 	Guarantee	  	 	7	 	
Section 2.2	 	Payments	  	 	9	 	
			
ARTICLE III	 	GRANT OF SECURITY INTEREST	  	 	9	 	
			
Section 3.1	 	Grant of Security Interest	  	 	9	 	
Section 3.2	 	Transfer of Pledged Securities	  	 	10	 	
Section 3.3	 	Grantors Remain Liable under Accounts, Chattel Paper and Payment Intangibles	  	 	10	 	
			
ARTICLE IV	 	ACKNOWLEDGMENTS, WAIVERS AND CONSENTS	  	 	11	 	
			
Section 4.1	 	Acknowledgments, Waivers and Consents	  	 	11	 	
Section 4.2	 	No Subrogation, Contribution or Reimbursement	  	 	14	 	
			
ARTICLE V	 	REPRESENTATIONS AND WARRANTIES	  	 	14	 	
			
Section 5.1	 	Confirmation of Representations in Credit Agreement	  	 	14	 	
Section 5.2	 	Benefit to the Guarantors	  	 	15	 	
Section 5.3	 	Pledged Securities; Promissory Notes	  	 	15	 	
Section 5.4	 	First Priority Liens	  	 	15	 	
Section 5.5	 	Legal Name, Organizational Status, Chief Executive Office	  	 	15	 	
Section 5.6	 	Prior Names, Prior Chief Executive Offices	  	 	15	 	
Section 5.7	 	Goods	  	 	16	 	
Section 5.8	 	Chattel Paper	  	 	16	 	
Section 5.9	 	Truth of Information	  	 	16	 	
Section 5.10	 	Accounts	  	 	16	 	
Section 5.11	 	Governmental Obligors	  	 	16	 	
Section 5.12	 	Copyrights, Patents and Trademarks	  	 	16	 	
Section 5.13	 	Vehicles	  	 	17	 	
Section 5.14	 	Commercial Tort Claims	  	 	17	 	
Section 5.15	 	Letter-of-Credit Rights	  	 	17	 	
			
ARTICLE VI	 	COVENANTS	  	 	17	 	
			
Section 6.1	 	Maintenance of Perfected Security Interest; Further Documentation	  	 	17	 	
Section 6.2	 	Maintenance of Records	  	 	18	 	
Section 6.3	 	Further Identification of Collateral	  	 	18	 	
Section 6.4	 	Changes in Locations	  	 	18	 	
Section 6.5	 	Compliance with Contractual Obligations	  	 	18	 	
Section 6.6	 	Limitations on Dispositions of Collateral	  	 	19	 	
Section 6.7	 	Pledged Securities    	  	 	19	 	
 
i

TABLE OF CONTENTS
Page

Section 6.8	 	Limitations on Modifications, Waivers, Extensions of Agreements Giving Rise to Accounts	  	 	20	 	
Section 6.9	 	Instruments and Tangible Chattel Paper	  	 	20	 	
Section 6.10	 	Copyrights, Patents and Trademarks	  	 	20	 	
Section 6.11	 	Commercial Tort Claims	  	 	22	 	
			
ARTICLE VII	 	REMEDIAL PROVISIONS	  	 	22	 	
			
Section 7.1	 	Pledged Securities	  	 	22	 	
Section 7.2	 	Collections on Accounts	  	 	23	 	
Section 7.3	 	Proceeds	  	 	23	 	
Section 7.4	 	UCC and Other Remedies	  	 	24	 	
Section 7.5	 	Private Sales of Pledged Securities	  	 	25	 	
Section 7.6	 	Waiver; Deficiency	  	 	26	 	
Section 7.7	 	Non-Judicial Enforcement	  	 	26	 	
			
ARTICLE VIII	 	THE ADMINISTRATIVE AGENT	  	 	26	 	
			
Section 8.1	 	The Administrative Agent’s Appointment as Attorney-in-Fact	  	 	26	 	
Section 8.2	 	Duty of the Administrative Agent	  	 	28	 	
Section 8.3	 	Filing of Financing Statements	  	 	29	 	
Section 8.4	 	Authority of the Administrative Agent	  	 	29	 	
Section 8.5	 	Proxy	  	 	29	 	
			
ARTICLE IX	 	SUBORDINATION OF INDEBTEDNESS	  	 	30	 	
			
Section 9.1	 	Subordination of All Guarantor Claims	  	 	30	 	
Section 9.2	 	Claims in Bankruptcy	  	 	30	 	
Section 9.3	 	Payments Held in Trust	  	 	31	 	
Section 9.4	 	Liens Subordinate	  	 	31	 	
Section 9.5	 	Notation of Records	  	 	31	 	
			
ARTICLE X	 	MISCELLANEOUS	  	 	31	 	
			
Section 10.1	 	Waiver	  	 	31	 	
Section 10.2	 	Notices	  	 	32	 	
Section 10.3	 	Payment of Expenses, Indemnities	  	 	32	 	
Section 10.4	 	Amendments in Writing	  	 	32	 	
Section 10.5	 	Successors and Assigns	  	 	32	 	
Section 10.6	 	Severability	  	 	32	 	
Section 10.7	 	Counterparts	  	 	32	 	
Section 10.8	 	Survival	  	 	32	 	
Section 10.9	 	Captions	  	 	33	 	
Section 10.10	 	No Oral Agreements	  	 	33	 	
Section 10.11	 	Governing Law; Submission to Jurisdiction	  	 	33	 	
Section 10.12	 	WAIVER OF JURY TRIAL	  	 	34	 	
Section 10.13	 	Acknowledgments    	  	 	34	 	
 
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TABLE OF CONTENTS
Page

Section 10.14	 	Additional Grantors	  	 	35	 	
Section 10.15	 	Set-Off	  	 	35	 	
Section 10.16	 	Releases	  	 	35	 	
Section 10.17	 	Reinstatement	  	 	36	 	
Section 10.18	 	Acceptance	  	 	36	 	
Section 10.19	 	Keepwell	  	 	36	 	

Schedules	  		  		
			
Schedule 1	  	-	  	Pledged Securities and Promissory Notes	
Schedule 2	  	-	  	First Priority Liens	
Schedule 3	  	-	  	Legal Name, Organizational Status, Chief Executive Office	
Schedule 4	  	-	  	Prior Names and Prior Chief Executive Offices	
Schedule 5	  	-	  	Goods in Possession of a Bailee	
Schedule 6	  	-	  	Patents and Patent Licenses	
Schedule 7	  	-	  	Trademarks and Trademark Licenses	
Schedule 8	  	-	  	Copyrights and Copyright Licenses	
Schedule 9	  	-	  	Vehicles	
Schedule 10	  	-	  	Commercial Tort Claims	
Schedule 11	  	-	  	Letter-of-Credit Rights	

Annexes	  		
		
Annex I	  	Form of Joinder Agreement	
Annex II	  	Form of Intellectual Property Security Agreement	
Annex III	  	Form of Acknowledgment and Consent	
 
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GUARANTY AND SECURITY AGREEMENT
THIS GUARANTY AND SECURITY AGREEMENT, dated as of January 31, 2020, is made by RONDO INTERMEDIATE HOLDINGS, LLC, a Delaware limited liability company (the “Borrower”), RONDO HOLDINGS, LLC, a Delaware limited liability company (“Holdings”) and certain Subsidiaries of the Borrower identified on the signature pages hereto as “Guarantors” (collectively with the Borrower, Holdings and any other Subsidiary of the Borrower that becomes a party hereto from time to time after the date hereof, each, a “Grantor” and, collectively, the “Grantors”), in favor of TRUIST BANK, as administrative agent (in such capacity, together with its successors in such capacity, the “Administrative Agent”) for the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower is entering into that certain Revolving Credit and Term Loan Agreement, dated as of the date hereof, by and among Holdings, the Borrower, the lenders from time to time parties thereto and the Administrative Agent, providing for revolving credit and term loan facilities (as amended, restated, amended and restated, supplemented, replaced, increased, refinanced or otherwise modified from time to time, the “Credit Agreement”); and
WHEREAS, it is a condition precedent to the obligations of the Lenders, the Issuing Bank and the Administrative Agent under the Loan Documents that the Grantors enter into this Agreement, pursuant to which the Grantors (other than the Borrower) shall guaranty all Obligations of the Borrower and the Grantors (including the Borrower) shall grant Liens on the Collateral (as defined herein) to the Administrative Agent, on behalf of the Secured Parties, to secure their respective Obligations;
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent, the Lenders and the Issuing Bank to enter into the Credit Agreement and to induce the Lenders and the Issuing Bank to make their respective extensions of credit to the Borrower thereunder, each Grantor party hereto hereby agrees with the Administrative Agent, for the ratable benefit of the Secured Parties, as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
(a) Each term defined above shall have the meaning set forth above for all purposes of this Agreement. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings assigned to such terms in the Credit Agreement, and the terms “Account Debtor”, “Account”, “Chattel Paper”, “Commercial Tort Claim”, “Deposit Account”, “Document”, “Electronic Chattel Paper”, “Equipment”, “Financial Asset”, “Fixture”, “General Intangible”, “Goods”, “Instrument”, “Inventory”, “Investment
 
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Property”, “Letter-of-Credit Right”, “Payment Intangible”, “Proceeds”, “Securities Account”, “Security”, “Supporting Obligation”, and “Tangible Chattel Paper” shall have the meanings assigned to such terms in the UCC.
(b) The following terms shall have the following meanings:
“Agreement” shall mean this Guaranty and Security Agreement, as amended, restated, supplemented or otherwise modified from time to time.
“Collateral” shall have the meaning set forth in Section 3.1.
“Copyright Licenses” shall mean any and all present and future agreements providing for the granting of any right in, or to, Copyrights (whether the applicable Grantor is the licensee or licensor thereunder), including, without limitation, any thereof referred to in Schedule 8.
“Copyrights” shall mean, collectively, with respect to each Grantor, all copyrights, whether registered or unregistered, owned by or assigned to such Grantor and all registrations and applications for the foregoing (whether by statutory or common law, whether established or registered in the United States, any State thereof, or any other country or any political subdivision thereof and, in each case, whether owned by or licensed to such Grantor), and all goodwill associated therewith, now existing or hereafter adopted or acquired, together with any and all (i) rights and privileges arising under applicable law with respect to such Grantor’s use of any copyrights, (ii) reissues, continuations, extensions and renewals thereof and amendments thereto, (iii) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future infringements thereof, including, without limitation, any thereof referred to in Schedule 8.
“Excluded Property” shall mean, collectively, any (i) Real Estate leased by any Grantor (which, for the avoidance of doubt, shall not include Collateral Access Agreements), (ii) Real Estate owned by any Grantor having a fair market value less than or equal to $1,000,000, (iii) Vehicles and other assets covered by certificates of title or ownership to the extent a Lien cannot be perfected solely by filing a UCC-1 financing statement, (iv) Letter-of-Credit Rights to the extent a Lien cannot be perfected solely by filing a UCC-1 financing statement, (v) Commercial Tort Claim having a fair market value less than or equal to $1,000,000, (vi) Capital Stock or Stock Equivalent of any Person other than a Wholly Owned Subsidiary if under the terms of such Person’s Organization Documents the grant of a Lien or security interest therein is prohibited or requires consent by any other party thereto other than any other Grantor (so long as such prohibition or requirement did not arise as a part of the acquisition or formation thereof or in anticipation of this Agreement), (vii) assets as to which the Administrative Agent and the Borrower reasonably determine that the burden or cost of obtaining or perfecting a Lien or security interest therein outweighs the benefit to the Secured Parties, (viii) intent-to-use trademark applications prior to the filing of a “Statement of Use” or “Amended to Allege Use” with respect thereto to the
 
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extent, if any, that, and solely during the period, if any, in which the grant of a Lien or security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law, (ix) margin stock, (x) rights or interest in any contract, lease, permit, or license agreement covering real or personal property of any Grantor, in each case, in existence on the Closing Date or upon acquisition of the relevant Subsidiary party thereto (so long as such contract, lease, permit, or license agreement was not entered into as a part of the acquisition thereof or in anticipation of this Agreement), if under the terms of such contract, lease, permit, license or license agreement or applicable law with respect thereto, the grant of a Lien or security interest therein is prohibited as a matter of law or constitutes a breach or default under or results in a right of termination in favor of, or requires consent not obtained under the terms of such contract, lease, permit, license or license agreement by, any party thereto (other than Holdings, the Borrower or any of its Subsidiaries) and such prohibition or restricted has not been waived or the consent of the other party to such contract, lease, permit, license or license agreement has not been obtained, after giving effect the applicable anti-assignment provisions of the UCC or other applicable law, the assignment of which is expressly deemed effective under the UCC or other applicable law notwithstanding such prohibition, (xi) any licenses, permits, franchises, charters and authorizations issued by, and other assets regulated by, a Governmental Authority to the extent the grant of a Lien or security interest therein is (a) prohibited by such license, permit, franchise, charter, authorization or asset, (b) prohibited by applicable law, (c) requires prior notice to any Governmental Authority (or any required waiting period associated therewith has not expired), or (d) requires the consent, approval, license or authorization of any Governmental Authority which has not been received, in each case, after giving effect to the applicable anti-assignment provisions of the UCC and other applicable law, (xii) (a) Deposit Accounts used exclusively for payroll, payroll taxes and other employee wage and benefit payments, trust, tax (including, without limitation sales tax), escrow and other fiduciary accounts, (b) Deposit Accounts holding cash collateral or other deposits that constitute a Lien permitted by the Credit Agreement, (c) zero balance accounts and other Deposit Accounts with an aggregate average monthly balance of less than $1,000,000 (collectively, the “Excluded Accounts”) and (xiii) any asset, receivable or Account which a grant of a Lien therein is prohibited by applicable law or regulation (for so long as such prohibition remains in effect); provided that “Excluded Property” shall not include any proceeds, products, substitutions or replacements of Excluded Property (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).
“Guaranteed Obligations” shall have the meaning set forth in Section 2.1(a).
“Guarantors” shall mean, collectively, each Grantor other than the Borrower.
“Intellectual Property” means all intellectual property of every kind and nature now owned or hereafter owned or acquired by any Grantor, including Patents, Copyrights, Trademarks, Licenses, Trade Secrets, the intellectual property rights in Software and databases and related documentation and all renewals and extensions, rights to sue or otherwise recover for infringements or other violations of the foregoing, and all rights corresponding thereto throughout the world.
 
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“Issuers” shall mean, collectively, each issuer of a Pledged Security.
“License” means any Patent License, Trademark License, Copyright License or other Intellectual Property license or sublicense agreement to which any Grantor is a party, together with any and all (i) renewals, extensions, supplements and continuations thereof, (ii) income, fees, royalties, damages, claims and payments now and hereafter due and/or payable thereunder or with respect thereto including damages and payments for past, present or future infringements or violations thereof, and (iii) rights to sue for past, present and future violations thereof.
“Monetary Obligation” shall mean a monetary obligation secured by Goods or owed under a lease of Goods and includes a monetary obligation with respect to software used in Goods.
“Note” shall mean an instrument that evidences a promise to pay a Monetary Obligation and any other instrument within the description of “promissory note” as defined in Article 9 of the UCC.
“Patent Licenses” shall mean any and all present and future agreements providing for the granting of any right in, or to, Patents (whether the applicable Grantor is the licensee or licensor thereunder), including, without limitation, any thereof referred to in Schedule 6.
“Patents” shall mean, collectively, with respect to each Grantor, all letters patent issued or assigned to, and all patent applications and registrations made by, such Grantor (whether established or registered or recorded in the United States, any State thereof or any other country or any political subdivision thereof and, in each case, whether owned by or licensed to such Grantor), and all goodwill associated therewith, now existing or hereafter adopted or acquired, together with any and all (i) rights and privileges arising under applicable law with respect to such Grantor’s use of any patents, (ii) inventions and improvements described and claimed therein, (iii) reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof and amendments thereto, and rights to obtain any of the foregoing, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements thereof, (v) rights corresponding thereto throughout the world and (vi) rights to sue for past, present or future infringements thereof, including, without limitation, any thereof referred to in Schedule 6.
“Pledged Certificated Stock” shall mean all certificated securities and any other Capital Stock or Stock Equivalent of any Person, other than Excluded Property, evidenced by a certificate, instrument or other similar document, in each case now owned or at any time hereafter acquired by any Grantor, and any dividend or distribution of cash, instruments or other property made on, in respect of or in exchange for the foregoing from time to time, including in each case those interests set forth on Schedule 1.
“Pledged Securities” shall mean, collectively, all Pledged Certificated Stock and all Pledged Uncertificated Stock.
 
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“Pledged Uncertificated Stock” shall mean any Capital Stock or Stock Equivalent of any Person, other than Pledged Certificated Stock and Excluded Property, in each case now owned or at any time hereafter acquired by any Grantor, including all right, title and interest of any Grantor as a limited or general partner in any partnership or as a member of any limited liability company not constituting Pledged Certificated Stock, all right, title and interest of any Grantor in, to and under any Organization Documents of any partnership or limited liability company to which it is a party, and any dividend or distribution of cash, instruments or other property made on, in respect of or in exchange for the foregoing from time to time, including in each case those interests set forth on Schedule 1.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other person as constitutes an ECP under the Commodity Exchange Act or any regulations promulgated thereunder.
“Secured Obligations” shall have the meaning set forth in Section 3.1.
“Securities Act” shall mean the Securities Act of 1933, as amended and in effect from time to time.
“Software” means all computer programs, object code, source code and supporting documentation, including, without limitation, “software” as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York and computer programs that may be construed as included in the definition of “goods” in the Uniform Commercial Code as in effect on the date hereof in the State of New York, including any licensed rights to Software, and all media that may contain Software or recorded data of any kind.
“Stock Equivalents” shall mean all securities convertible into or exchangeable for Capital Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Capital Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable.
“Trade Secrets” means any trade secrets or other proprietary and confidential information, including unpatented inventions, invention disclosures, engineering, preclinical, clinical, regulatory or other technical data, financial data, procedures, know-how, designs, personal information, supplier lists, customer lists, business, production or marketing plans, formulae, methods (whether or not patentable), processes, compositions, schematics, ideas, algorithms, techniques, analyses, proposals, source code, object code and data collections.
“Trademark Licenses” shall mean any and all present and future agreements providing for the granting of any right in, or to, Trademarks (whether the applicable Grantor is the licensee or licensor thereunder), including, without limitation, any thereof referred to in Schedule 7.
 
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“Trademarks” shall mean, collectively, with respect to each Grantor, all trademarks, service marks, slogans, logos, certification marks, trade dress, uniform resource locations (URL’s), domain names, corporate names, trade names and other source or business identifiers, whether registered or unregistered, owned by or assigned to such Grantor and all registrations and applications for the foregoing (whether by statutory or common law, whether established or registered in the United States, any State thereof, or any other country or any political subdivision thereof and, in each case, whether owned by or licensed to such Grantor), and all goodwill associated therewith, now existing or hereafter adopted or acquired, together with any and all (i) rights and privileges arising under applicable law with respect to such Grantor’s use of any trademarks, (ii) reissues, continuations, extensions and renewals thereof and amendments thereto, (iii) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future infringements thereof, including, without limitation, any thereof referred to in Schedule 7.
“UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York.
“Vehicles” shall mean all vehicles covered by a certificate of title of any state and, in any event, shall include, without limitation, the vehicles listed on Schedule 9 and all tires and other appurtenances to any of the foregoing.
Section 1.2 Other Definitional Provisions; References. The definition of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of, or reference to, any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits, Schedules and Annexes shall, unless otherwise stated, be construed to refer to Articles and Sections of, and Exhibits, Schedules and Annexes to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.
 
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ARTICLE II
GUARANTEE
Section 2.1 Guarantee.
(a) Each Guarantor irrevocably and unconditionally guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, (i) the due and punctual payment of all Obligations of the Borrower and the other Loan Parties, including, without limitation, (A) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (B) each payment required to be made by the Borrower under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement or disbursements, interest thereon and obligations to provide cash collateral and (C) 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 the Loan Parties to the Administrative Agent, the Lenders and the Issuing Bank under the Credit Agreement and the other Loan Documents; (ii) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Loan Parties under or pursuant to the Credit Agreement and the other Loan Documents; (iii) the due and punctual payment of all Bank Product Obligations of any other Loan Party; and (iv) the due and punctual payment and performance of all Hedging Obligations owed by any other Loan Party to any Lender-Related Hedge Provider (all the monetary and other obligations referred to in the preceding clauses (i) through (iv) being collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from such Guarantor, and that such Guarantor will remain bound upon its guarantee notwithstanding any extension or renewal of any Guaranteed Obligations.
(b) Each Guarantor further agrees that its guarantee constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Administrative Agent or any Secured Party to any of the security held for payment of the Guaranteed Obligations or to any balance of any deposit account or credit on the books of the Administrative Agent or any Secured Party in favor of the Borrower or any other Guarantor. Each Guarantor agrees that its guarantee hereunder is continuing in nature and applies to all of the Guaranteed Obligations, whether currently existing or hereinafter incurred.
(c) It is the intent of each Guarantor and the Administrative Agent that the maximum obligations of the Guarantors hereunder shall be, but not in excess of:
(i) in a case or proceeding commenced by or against any Guarantor under the provisions of Title 11 of the United States Code, 11 U.S.C. §§101 et seq., as amended and in effect
 
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from time to time (the “Bankruptcy Code”), on or within one year from the date on which any of the Guaranteed Obligations are incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor owed to the Administrative Agent or the Secured Parties) to be avoidable or unenforceable against such Guarantor under (i) Section 548 of the Bankruptcy Code or (ii) any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against any Guarantor under the Bankruptcy Code subsequent to one year from the date on which any of the Guaranteed Obligations are incurred, the maximum amount which would not otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor to the Administrative Agent or the Secured Parties) to be avoidable or unenforceable against such Guarantor under any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against any Guarantor under any law, statute or regulation other than the Bankruptcy Code (including, without limitation, any other bankruptcy, reorganization, arrangement, moratorium, readjustment of debt, dissolution, liquidation or similar debtor relief laws), the maximum amount which would not otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor to the Administrative Agent or the Secured Parties) to be avoidable or unenforceable against such Guarantor under such law, statute or regulation, including, without limitation, any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding.
The substantive laws under which the possible avoidance or enforceability of the Guaranteed Obligations (or any other obligations of such Guarantor to the Administrative Agent or the Secured Parties) as may be determined in any case or proceeding shall hereinafter be referred to as the “Avoidance Provisions”. To the extent set forth in clauses (i), (ii) and (iii) of this subsection, but only to the extent that the Guaranteed Obligations would otherwise be subject to avoidance or found unenforceable under the Avoidance Provisions, if any Guarantor is not deemed to have received valuable consideration, fair value or reasonably equivalent value for the Guaranteed Obligations, or if the Guaranteed Obligations would render such Guarantor insolvent, or leave such Guarantor with an unreasonably small capital to conduct its business, or cause such Guarantor to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of the Guaranteed Obligations are deemed to have been incurred under the Avoidance Provisions and after giving effect to the contribution by such Guarantor, the maximum Guaranteed Obligations for which such Guarantor shall be liable hereunder shall be reduced to that amount which, after giving effect thereto, would not cause the Guaranteed Obligations (or any other obligations of such Guarantor to the Administrative Agent or the Secured Parties), as so reduced, to be subject to avoidance or unenforceability under the Avoidance Provisions.
This subsection is intended solely to preserve the rights of the Administrative Agent and the Secured Parties hereunder to the maximum extent that would not cause the Guaranteed
 
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Obligations of such Guarantor to be subject to avoidance or unenforceability under the Avoidance Provisions, and neither the Grantors nor any other Person shall have any right or claim under this subsection as against the Administrative Agent or any Secured Party that would not otherwise be available to such Person under the Avoidance Provisions.
(d) Each Guarantor agrees that if the maturity of any of the Guaranteed Obligations is accelerated by bankruptcy or otherwise, such maturity shall also be deemed accelerated for the purpose of this guarantee without demand or notice to such Guarantor. The guarantee contained in this Article shall remain in full force and effect until all Guaranteed Obligations are irrevocably satisfied in full and all Commitments have been irrevocably terminated, notwithstanding that, from time to time during the term of the Credit Agreement, no Obligations may be outstanding.
Section 2.2 Payments. Each Guarantor hereby agrees and guarantees that payments hereunder will be paid to the Administrative Agent without set-off or counterclaim in U.S. dollars at the office of the Administrative Agent specified pursuant to the Credit Agreement.
ARTICLE III
GRANT OF SECURITY INTEREST
Section 3.1 Grant of Security Interest. Each Grantor hereby pledges, assigns and transfers to the Administrative Agent, and grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in, all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest and whether now existing or hereafter coming into existence (collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations (collectively, the “Secured Obligations”):
(a) all Accounts and Chattel Paper;
(b) all Commercial Tort Claims;
(c) all contracts;
(d) all Deposit Accounts and Securities Accounts;
(e) all Documents;
(f) all General Intangibles;
(g) all Goods (including, without limitation, all Inventory, all Equipment and all Fixtures);
(h) all Instruments;
 
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(i) all Intellectual Property;
(j) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all Notes and all intercompany obligations issued to any Grantor;
(m) all Pledged Securities;
(n) all Vehicles;
(o) all books and records, Supporting Obligations and related letters of credit or other claims and causes of action, in each case to the extent pertaining to the Collateral; and
(p) to the extent not otherwise included, substitutions, replacements, accessions, products and other Proceeds (including, without limitation, insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) of any or all of the foregoing and all collateral security, guarantees and other Supporting Obligations given with respect to any of the foregoing;
provided that, notwithstanding the foregoing, no Lien or security interest is hereby granted on any Excluded Property, and, to the extent that any Collateral later becomes Excluded Property, the Lien granted hereunder will automatically be deemed to have been released; provided, further, that if and when any property shall cease to be Excluded Property, a Lien on and security interest in such property shall automatically be deemed granted therein.
Section 3.2 Transfer of Pledged Securities. All certificates and instruments representing or evidencing the Pledged Certificated Stock shall be delivered to and held pursuant hereto by the Administrative Agent or a Person designated by the Administrative Agent and, in the case of an instrument or certificate in registered form, shall be duly indorsed to the Administrative Agent or in blank by an effective endorsement (whether on the certificate or instrument or on a separate writing), and accompanied by any required transfer tax stamps to effect the pledge of the Pledged Securities to the Administrative Agent. Notwithstanding the preceding sentence, all Pledged Certificated Stock must be delivered or transferred in such manner, and each Grantor shall take all such further action as may be reasonably requested by the Administrative Agent, as to permit the Administrative Agent to be a “protected purchaser” to the extent of its security interest as provided in Section 8-303 of the UCC.
Section 3.3 Grantors Remain Liable under Accounts, Chattel Paper and Payment Intangibles. Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of the Accounts, Chattel Paper and Payment Intangibles to observe and perform all of the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise to each such Account, Chattel Paper or Payment Intangible. Neither the Administrative Agent nor any other Secured Party shall have any obligation or liability under any Account, Chattel Paper or Payment Intangible (or any agreement
 
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giving rise thereto) by reason of or arising out of this Agreement or the receipt by the Administrative Agent or any such other Secured Party of any payment relating to such Account, Chattel Paper or Payment Intangible pursuant hereto, nor shall the Administrative Agent or any other Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Account, Chattel Paper or Payment Intangible (or any agreement giving rise thereto) to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party under any Account, Chattel Paper or Payment Intangible (or any agreement giving rise thereto), to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
ARTICLE IV
ACKNOWLEDGMENTS, WAIVERS AND CONSENTS
Section 4.1 Acknowledgments, Waivers and Consents.
(a) Each Guarantor acknowledges and agrees that the obligations undertaken by it under this Agreement involve the guarantee of, and each Grantor acknowledges and agrees that the obligations undertaken by it under this Agreement involve the provision of collateral security for, obligations of Persons other than such Grantor and that such Grantor’s guarantee and provision of collateral security for the Secured Obligations are absolute, irrevocable and unconditional under any and all circumstances. In full recognition and furtherance of the foregoing, each Grantor understands and agrees, to the fullest extent permitted under applicable law and except as may otherwise be expressly and specifically provided in the Loan Documents, that each Grantor shall remain obligated hereunder (including, without limitation, with respect to each Guarantor the guarantee made by it herein and, with respect to each Grantor, the collateral security provided by such Grantor herein), and the enforceability and effectiveness of this Agreement and the liability of such Grantor, and the rights, remedies, powers and privileges of the Administrative Agent and the other Secured Parties under this Agreement and the other Loan Documents, shall not be affected, limited, reduced, discharged or terminated in any way:
(i) notwithstanding that, without any reservation of rights against any Grantor and without notice to or further assent by any Grantor, (A) any demand for payment of any of the Secured Obligations made by the Administrative Agent or any other Secured Party may be rescinded by the Administrative Agent or such other Secured Party and any of the Secured Obligations continued; (B) the Secured Obligations, the liability of any other Person upon, or for, any part thereof or any collateral security or guarantee therefor, or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by, or any indulgence or forbearance in respect thereof granted by, the Administrative Agent or any other Secured Party; (C) the Credit Agreement, the other Loan Documents and all other documents executed and delivered in connection therewith or in connection with Hedging Obligations and Bank Product Obligations included as Obligations may be amended, modified, supplemented or terminated, in whole or in part,
 
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as the Administrative Agent (or the Required Lenders, all Lenders, or the other parties thereto, as the case may be) may deem advisable from time to time; (D) the Borrower, any Guarantor or any other Person may from time to time accept or enter into new or additional agreements, security documents, guarantees or other instruments in addition to, in exchange for or relative to any Loan Document, all or any part of the Secured Obligations or any collateral now or in the future serving as security for the Secured Obligations; (E) any collateral security, guarantee or right of offset at any time held by the Administrative Agent or any other Secured Party for the payment of the Secured Obligations may be sold, exchanged, waived, surrendered or released; and (F) any other event shall occur which constitutes a defense or release of sureties generally; and
(ii) regardless of, and each Grantor hereby expressly waives to the fullest extent permitted by law any defense now or in the future arising by reason of, (A) the illegality, invalidity or unenforceability of the Credit Agreement, any other Loan Document, any of the Secured Obligations 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 the Administrative Agent or any other Secured Party; (B) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Grantor or any other Person against the Administrative Agent or any other Secured Party; (C) the insolvency, bankruptcy arrangement, reorganization, adjustment, composition, liquidation, disability, dissolution or lack of power of any Grantor or any other Person at any time liable for the payment of all or part of the Secured Obligations or the failure of the Administrative Agent or any other Secured Party to file or enforce a claim in bankruptcy or other proceeding with respect to any Person, or any sale, lease or transfer of any or all of the assets of any Grantor, or any changes in the shareholders of any Grantor; (D) the fact that any collateral or Lien contemplated or intended to be given, created or granted as security for the repayment of the Secured Obligations shall be released or shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien, it being recognized and agreed by each of the Grantors that it is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the collateral for the Secured Obligations; (E) any failure of the Administrative Agent or any other Secured Party to marshal assets in favor of any Grantor or any other Person, to exhaust any collateral for all or any part of the Secured Obligations, to pursue or exhaust any right, remedy, power or privilege it may have against any Grantor or any other Person or to take any action whatsoever to mitigate or reduce any Grantor’s liability under this Agreement or any other Loan Document; (F) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation; (G) the possibility that the Secured Obligations may at any time and from time to time exceed the aggregate liability of such Grantor under this Agreement; (H) the fact that any Person that, pursuant to the Loan Documents, was required to become a party hereto may not have executed or is not effectively bound by this Agreement or that such Person or any other guarantor was
 
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released from its obligations under this Agreement or any other guarantee; or (I) any other circumstance or act whatsoever, including any action or omission of the type described in subsection (a)(i) of this Section (with or without notice to or knowledge of any Grantor), which constitutes, or might be construed to constitute, an equitable or legal discharge or defense of the Borrower for the Obligations, or of such Guarantor under the guarantee contained in Article II, or with respect to the collateral security provided by such Grantor herein, or which might be available to a surety or guarantor, in bankruptcy or in any other instance.
(b) Each Grantor hereby waives to the extent permitted by law (i) except as expressly provided otherwise in any Loan Document, all notices to such Grantor, or to any other Person, including, but not limited to, notices of the acceptance of this Agreement, the guarantee contained in Article II or the provision of collateral security provided herein, or the creation, renewal, extension, modification or accrual of any Secured Obligations, or notice of or proof of reliance by the Administrative Agent or any other Secured Party upon the guarantee contained in Article II or upon the collateral security provided herein, or of default in the payment or performance of any of the Secured Obligations owed to the Administrative Agent or any other Secured Party and enforcement of any right or remedy with respect thereto, or notice of any other matters relating thereto; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in Article II and the collateral security provided herein and no notice of creation of the Secured Obligations or any extension of credit already or hereafter contracted by or extended to the Borrower need be given to any Grantor, and all dealings between the Borrower and any of the Grantors, on the one hand, and the Administrative Agent and the other Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in Article II and on the collateral security provided herein; (ii) diligence and demand of payment, presentment, protest, dishonor and notice of dishonor; (iii) any statute of limitations affecting any Grantor’s liability hereunder or the enforcement thereof; (iv) all rights of revocation with respect to the Secured Obligations, the guarantee contained in Article II and the provision of collateral security herein; and (v) all principles or provisions of law which conflict with the terms of this Agreement and which can, as a matter of law, be waived.
(c) When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Grantor, the Administrative Agent or any other Secured Party may, but shall be under no obligation to, join or make a similar demand on or otherwise pursue or exhaust such rights and remedies as it may have against the Borrower, any other Grantor or any other Person or against any collateral security or guarantee for the Secured Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any other Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Grantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Grantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Grantor of any obligation or liability hereunder, and shall not impair or affect the rights and
 
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remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any other Secured Party against any Grantor. For the purposes hereof, “demand” shall include the commencement and continuance of any legal proceedings. Neither the Administrative Agent nor any other Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Secured Obligations or for the guarantee contained in Article II or any property subject thereto.
Section 4.2 No Subrogation, Contribution or Reimbursement. Until all Secured Obligations are irrevocably satisfied in full and all Commitments of each Secured Party under the Credit Agreement or any other Loan Document have been irrevocably terminated, notwithstanding any payment made by any Grantor hereunder or any set-off or application of funds of any Grantor by the Administrative Agent or any other Secured Party, no Grantor shall be entitled to be subrogated to any of the rights of the Administrative Agent or any other Secured Party against the Borrower or any other Grantor or any collateral security or guarantee or right of offset held by the Administrative Agent or any other Secured Party for the payment of the Secured Obligations, nor shall any Grantor seek or be entitled to seek any indemnity, exoneration, participation, contribution or reimbursement from the Borrower or any other Grantor in respect of payments made by such Grantor hereunder, and each Grantor hereby expressly waives, releases and agrees not to exercise any or all such rights of subrogation, reimbursement, indemnity and contribution. Each Grantor further agrees that to the extent that such waiver and release set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement, indemnity and contribution such Grantor may have against the Borrower or any other Grantor or against any collateral or security or guarantee or right of offset held by the Administrative Agent or any other Secured Party shall be junior and subordinate to any rights the Administrative Agent and the other Secured Parties may have against the Borrower and such Grantor and to all right, title and interest the Administrative Agent and the other Secured Parties may have in such collateral or security or guarantee or right of offset. The Administrative Agent, for the benefit of the Secured Parties, may use, sell or dispose of any item of collateral or security as it sees fit without regard to any subrogation rights any Grantor may have, and upon any disposition or sale, any rights of subrogation any Grantor may have shall terminate.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the other Secured Parties to enter into the Credit Agreement and the other Loan Documents, to induce the Lenders and the Issuing Bank to make their respective extensions of credit to the Borrower thereunder and to induce the Lender-Related Hedge Providers and the Bank Product Providers to enter into Hedging Obligations and Bank Product Obligations with the Grantors, each Grantor represents and warrants to the Administrative Agent and each other Secured Party as follows:
Section 5.1 Confirmation of Representations in Credit Agreement. Each Grantor represents and warrants to the Secured Parties that the representations and warranties set forth in Article IV of the Credit Agreement as they relate to such Grantor (in its capacity as a Loan Party or a
 
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Restricted Subsidiary of the Borrower, as the case may be) or to the Loan Documents to which such Grantor is a party are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects); provided that each reference in each such representation and warranty to the Borrower’s knowledge shall, for the purposes of this Section, be deemed to be a reference to such Guarantor’s knowledge.
Section 5.2 Benefit to the Guarantors. As of the Closing Date, the Borrower is a member of an affiliated group of companies that includes each Guarantor, and the Borrower and the Guarantors are engaged in related businesses permitted pursuant to Section 5.3 of the Credit Agreement. Each Guarantor is a Subsidiary of the Borrower, and the guaranty and surety obligations of each Guarantor pursuant to this Agreement reasonably may be expected to benefit, directly or indirectly, such Guarantor; and each Guarantor has determined that this Agreement is necessary and convenient to the conduct, promotion and attainment of the business of such Guarantor and the Borrower.
Section 5.3 Pledged Securities; Promissory Notes. Schedule 1 correctly sets forth (a) all duly authorized, issued and outstanding Capital Stock owned by each Grantor and each other Person that is beneficially owned by each Grantor and (b) all promissory notes held by each Grantor and all intercompany notes issued to any Grantors, in each case as of the Closing Date.
Section 5.4 First Priority Liens. The Liens and security interests granted pursuant to this Agreement (a) upon completion of the filings and other actions set forth on Schedule 2 (which, in the case of all filings and other documents referred to on said Schedule have been delivered to the Administrative Agent in completed and duly executed form) will constitute valid perfected Liens on, and security interests in, all of the Collateral in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, as collateral security for such Grantor’s obligations, enforceable in accordance with the terms hereof against all creditors of such Grantor and any Persons purporting to purchase any Collateral from such Grantor and (b) are prior to all other Liens on the Collateral in existence on the Closing Date, except for Liens expressly permitted under Section 7.2 of the Credit Agreement that are expressly permitted to have priority over the Liens hereunder or that have priority over the Liens on the Collateral by operation of law.
Section 5.5 Legal Name, Organizational Status, Chief Executive Office. On the Closing Date, the correct legal name of such Grantor, such Grantor’s jurisdiction of organization, organizational identification number, federal (and, if applicable, state) taxpayer identification number and the location of such Grantor’s chief executive office or sole place of business are specified on Schedule 3.
Section 5.6 Prior Names, Prior Chief Executive Offices. Schedule 4 correctly sets forth (a) all names and trade names of such Grantor that such Grantor has used in the last five years and (b) the chief executive office of such Grantor over the last five years (if different from that which is set forth in Section 5.4).
 
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Section 5.7 Goods. Except as set forth on Schedule 5, no portion of the Collateral constituting Goods with an aggregate value of $1,000,000 or more is at any time in the possession of a bailee that has issued a negotiable or non-negotiable document covering such Collateral.
Section 5.8 Chattel Paper. No Collateral constituting Chattel Paper or Instruments contains any statement therein to the effect that such Collateral has been assigned to an identified party other than the Administrative Agent, and the grant of a security interest in such Collateral in favor of the Administrative Agent hereunder does not violate the rights of any other Person as a secured party.
Section 5.9 Truth of Information. All information with respect to the Collateral set forth in any schedule, certificate or other writing at any time heretofore or hereafter furnished by such Grantor to the Administrative Agent or any other Secured Party, and all other written information heretofore or hereafter furnished by such Grantor to the Administrative Agent or any other Secured Party, is and will be true and correct in all material respects as of the date furnished.
Section 5.10 Accounts. The amount represented by such Grantor to the Administrative Agent and the other Secured Parties from time to time as owing by each Account Debtor or by all Account Debtors in respect of the Accounts, Chattel Paper and Payment Intangibles will at such time be the correct amount actually owing by such Account Debtor or Account Debtors thereunder. The place where each Grantor keeps its records concerning the Accounts, Chattel Paper and Payment Intangibles comprising a portion of the Collateral is c/o Amneal Pharmaceuticals, LLC, 400 Crossing Boulevard, 3rd Floor, Bridgewater, NJ 08807.
Section 5.11 Governmental Obligors. None of the Account Debtors on such Grantor’s Accounts, Chattel Paper or Payment Intangibles is a Governmental Authority, except to the extent such Accounts, Chattel Paper or Payment Intangibles have an aggregate value of less than $250,000.
Section 5.12 Copyrights, Patents and Trademarks. Schedule 6 correctly sets forth all Patents owned by such Grantor in its own name and all Patent Licenses to which such Grantor is a party, as of the Closing Date. Schedule 7 correctly sets forth all Trademarks and owned by such Grantor in its own name and all Trademark Licenses to which such Grantor is a party, as of the Closing Date. Schedule 8 correctly sets forth all Copyrights owned by such Grantor in its own name and all Copyright Licenses to which such Grantor is a party, as of the Closing Date. To the best of each such Grantor’s knowledge, each Patent and Trademark is valid, subsisting, unexpired and enforceable and has not been abandoned. Except as set forth in any such Schedule, none of such Patents, Trademarks and Copyrights is the subject of any licensing or franchise agreement. No holding, decision or judgment has been rendered by any Governmental Authority which could have a Material Adverse Effect. No action or proceeding is pending (i) seeking to limit, cancel or question the validity of any Patent, Trademark or Copyright, or (ii) which, if adversely determined, could have a Material Adverse Effect.
 
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Section 5.13 Vehicles. All Vehicles that are not Excluded Property owned by such Grantor as of the Closing Date that are not encumbered by Liens expressly permitted under Section 7.2 of the Credit Agreement are set forth on Schedule 9.
Section 5.14 Commercial Tort Claims. Schedule 10 correctly sets forth all Commercial Tort Claims of such Grantor in existence as of the Closing Date and having a value in excess of $500,000.
Section 5.15 Letter-of-Credit Rights. Schedule 11 correctly sets forth all Letter-of-Credit Rights under which such Grantor is named as the beneficiary in existence as of the Closing Date and having a value in excess of $500,000.
ARTICLE VI
COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and the other Secured Parties that, from and after the date of this Agreement until the Secured Obligations (other than unasserted contingent Secured Obligations) shall have been paid in full, no Letter of Credit shall be outstanding and all Commitments shall have been terminated:
Section 6.1 Maintenance of Perfected Security Interest; Further Documentation.
(a) Such Grantor shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 5.4 and shall defend such security interest against the claims and demands of all Persons whomsoever, except with respect to Liens expressly permitted under Section 7.2 of the Credit Agreement.
(b) At any time and from time to time, upon the reasonable request of the Administrative Agent, and at the sole expense of such Grantor, such Grantor will promptly and duly give, execute, deliver, indorse, file or record any and all financing statements, continuation statements, amendments, notices (including, without limitation, notifications to financial institutions and any other Person), contracts, agreements, assignments, certificates, stock powers or other instruments, obtain any and all governmental approvals and consents and take or cause to be taken any and all steps or acts that may be necessary or advisable or as the Administrative Agent may reasonably request to create, perfect, establish the priority of, or to preserve the validity, perfection or priority of, the Liens granted by this Agreement or to enable the Administrative Agent or any other Secured Party to enforce its rights, remedies, powers and privileges under this Agreement with respect to such Liens or to otherwise obtain or preserve the full benefits of this Agreement and the rights, powers and privileges herein granted.
(c) Without limiting the obligations of the Grantors under subsection (b) of this Section, (i) upon the request of the Administrative Agent, such Grantor shall take or cause to be taken all actions (other than any actions required to be taken by the Administrative Agent) requested by the Administrative Agent to cause the Administrative Agent to (A) have “control”
 
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(within the meaning of Sections 9-104, 9-105, 9-106, and 9-107 of the UCC) over any Collateral constituting Deposit Accounts, Electronic Chattel Paper, Investment Property (including the Pledged Securities), or Letter-of-Credit Rights, in each case, having a value in excess of $1,000,000 on an individual basis, including, without limitation, executing and delivering any agreements, in form and substance reasonably satisfactory to the Administrative Agent, with securities intermediaries, issuers or other Persons in order to establish “control”, and each Grantor shall promptly notify the Administrative Agent of such Grantor’s acquisition of any such Collateral, and (B) be a “protected purchaser” (as defined in Section 8-303 of the UCC); and (ii) with respect to any Collateral constituting Goods having a value in excess of $1,000,000 that are in the possession of a bailee, such Grantor shall provide prompt notice to the Administrative Agent of any such Collateral then in the possession of such bailee, and such Grantor shall use commercially reasonable efforts to take or cause to be taken all actions (other than any actions required to be taken by the Administrative Agent or any other Secured Party) necessary or reasonably requested by the Administrative Agent to cause the Administrative Agent to have a perfected security interest in such Collateral under applicable law.
(d) This Section and the obligations imposed on each Grantor by this Section shall be interpreted as broadly as possible in favor of the Administrative Agent and the other Secured Parties in order to effectuate the purpose and intent of this Agreement.
Section 6.2 Maintenance of Records. Such Grantor will keep and maintain at its own cost and expense satisfactory and complete records of the Collateral, including, without limitation, a record of all payments received and all credits granted with respect to the Accounts comprising any part of the Collateral. For the Administrative Agent’s and the other Secured Parties’ further security, the Administrative Agent, for the ratable benefit of the Secured Parties, shall have a security interest in all of such Grantor’s books and records pertaining to the Collateral.
Section 6.3 Further Identification of Collateral. Such Grantor will furnish to the Administrative Agent and the other Secured Parties from time to time, at such Grantor’s sole cost and expense, statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as the Administrative Agent may reasonably request, all in reasonable detail.
Section 6.4 Changes in Locations. Without limitation of any other covenant herein, such Grantor will not cause or permit any change to the identity of any warehouseman, common carrier, other third party transporter, bailee or any agent or processor in possession or control of any Collateral having a value in excess of $500,000, unless such Grantor shall have first (i) notified the Administrative Agent and the other Secured Parties of such change at least 30 days prior to the date of such change, and (ii) taken all action reasonably requested by the Administrative Agent for the purpose of maintaining the perfection and priority of the Administrative Agent’s security interests under this Agreement.
Section 6.5 Compliance with Contractual Obligations. Such Grantor will perform and comply in all material respects with all of its contractual obligations relating to the Collateral.
 
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Section 6.6 Limitations on Dispositions of Collateral. The Administrative Agent and the other Secured Parties do not authorize the Grantors to, and each Grantor agrees not to, sell, transfer, lease or otherwise dispose of any of the Collateral, or attempt, offer or contract to do so, except to the extent expressly permitted by the Credit Agreement or any other Loan Document.
Section 6.7 Pledged Securities.
(a) If such Grantor shall become entitled to receive or shall receive any stock certificate or other instrument (including, without limitation, any certificate or instrument representing a dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate or instrument issued in connection with any reorganization), option or rights in respect of the Capital Stock or other equity interests of any nature of any Issuer, whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares (or such other interests) of the Pledged Securities, or otherwise in respect thereof, except as otherwise provided herein or in the Credit Agreement, such Grantor shall accept the same as the agent of the Administrative Agent and the other Secured Parties, hold the same in trust for the Administrative Agent and the other Secured Parties and promptly deliver (but in any event within three (3) Business Days) the same forthwith to the Administrative Agent in the exact form received, duly indorsed by such Grantor to the Administrative Agent, if required, together with an undated stock power or other equivalent instrument of transfer acceptable to the Administrative Agent covering such certificate or instrument duly executed in blank by such Grantor and with, if the Administrative Agent so requests, signature guaranteed, to be held by the Administrative Agent, subject to the terms hereof and of the Credit Agreement, as additional collateral security for the Secured Obligations.
(b) Without the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned), such Grantor will not (i) sell, assign, transfer, exchange or otherwise dispose of, or grant any option with respect to, the Pledged Securities or Proceeds thereof (except pursuant to a transaction expressly permitted by the Credit Agreement), (ii) create, incur or permit to exist any Lien (except for Liens expressly permitted under Section 7.2 of the Credit Agreement) or option in favor of, or any claim of any Person with respect to, any of the Pledged Securities or Proceeds thereof, or any interest therein, except for the security interests created by this Agreement or except as permitted by the Credit Agreement or (iii) enter into any agreement or undertaking restricting the right or ability of such Grantor or the Administrative Agent to sell, assign or transfer any of the Pledged Securities or Proceeds thereof (except as permitted by the Credit Agreement).
(c) In the case of each Grantor which is an Issuer, and each other Issuer that executes the Acknowledgment and Consent in the form of Annex III (which the applicable Grantor shall use its commercially reasonable efforts to obtain from each such other Issuer), such Issuer agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it and (ii) the terms of Section 7.1(c) and Section 7.5 shall apply to it, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 7.1(c) or Section 7.5 with respect to the Pledged Securities issued by it.
 
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(d) Such Grantor shall furnish to the Administrative Agent such powers and other equivalent instruments of transfer as may be reasonably required by the Administrative Agent to assure the transferability of and the perfection of the security interest in the Pledged Securities when and as often as may be reasonably requested by the Administrative Agent.
(e) The Pledged Securities will constitute not less than 100% of the Capital Stock or other equity interests of the Issuer thereof owned by any Grantor.
(f) Such Grantor shall not, without executing and delivering, or causing to be executed and delivered, to the Administrative Agent such agreements, documents and instruments as the Administrative Agent may reasonably require, issue or acquire any Capital Stock or hold any Pledged Security that consists of an interest in a partnership or a limited liability company which (i) is dealt in or traded on a securities exchange or in a securities market, (ii) by its terms expressly provides that it is a Security governed by Article 8 of the UCC, (iii) is held in a Securities Account or (iv) constitutes a Security or a Financial Asset.
Section 6.8 Limitations on Modifications, Waivers, Extensions of Agreements Giving Rise to Accounts. Such Grantor will not (i) amend, modify, terminate or waive any provision of any Chattel Paper, Instrument or any agreement giving rise to an Account or Payment Intangible comprising a portion of the Collateral, or (ii) fail to exercise promptly and diligently each and every right which it may have under any Chattel Paper, Instrument and each agreement giving rise to an Account or Payment Intangible comprising a portion of the Collateral (other than any right of termination), in each case except where such action or failure to act, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 6.9 Instruments and Tangible Chattel Paper. If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any Instrument or Tangible Chattel Paper and the value of such Instruments and Tangible Chattel Paper in the aggregate is $750,000 or more, each such Instrument or Tangible Chattel Paper, shall be delivered to the Administrative Agent as soon as practicable, duly endorsed in a manner reasonably satisfactory to the Administrative Agent to be held as Collateral pursuant to this Agreement.
Section 6.10 Copyrights, Patents and Trademarks.
(a) Except as could not reasonably be expected to have a Material Adverse Effect, such Grantor (either itself or through licensees) will, except with respect to any Trademark that such Grantor shall reasonably determine is immaterial, (i) maintain as in the past the quality of services offered under such Trademark, (ii) maintain such Trademark in full force and effect, free from any claim of abandonment for non-use, (iii) employ such Trademark with the appropriate notice of registration, (iv) not adopt or use any mark which is confusingly similar or a colorable imitation of such Trademark unless the Administrative Agent, for the ratable benefit of the Secured Parties, shall obtain a perfected security interest in such mark pursuant to this Agreement, and (v) not (and not permit any licensee or sublicensee thereof to) do any act, or knowingly omit to do any act, whereby any Trademark may become invalidated.
 
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(b) Except as could not reasonably be expected to have a Material Adverse Effect, such Grantor will not, except with respect to any Patent that such Grantor shall reasonably determine is immaterial, do any act, or knowingly omit to do any act, whereby any Patent may become abandoned or dedicated.
(c) Except as could not reasonably be expected to have a Material Adverse Effect, such Grantor will not, except with respect to any Copyright that such Grantor shall reasonably determine is immaterial, do any act, or knowingly omit to do any act, whereby any Copyright may become abandoned or dedicated.
(d) Except as could not reasonably be expected to have a Material Adverse Effect, such Grantor will notify the Administrative Agent and the other Secured Parties promptly if it knows, or has reason to know, that any application or registration relating to any Copyright, Patent or Trademark may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office or the United States Copyright Office) regarding such Grantor’s ownership of any Copyright, Patent or Trademark or its right to register the same or to keep and maintain the same.
(e) Whenever a Grantor, either by itself or through any agent, employee, licensee or designee, shall file an application for the registration of any Copyright, Patent or Trademark with the United States Copyright Office or the United States Patent and Trademark Office, such Grantor shall report such filing to the Administrative Agent and the other Secured Parties within fifteen (15) Business Days after the last day of the fiscal quarter in which such filing occurs. Upon request of the Administrative Agent, such Grantor shall execute and deliver an Intellectual Property Security Agreement substantially in the form of Annex II, and such Grantor hereby constitutes the Administrative Agent its attorney-in-fact to execute and file all such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power being coupled with an interest is irrevocable until the Secured Obligations are paid in full and the Commitments are terminated.
(f) Except as could not reasonably be expected to have a Material Adverse Effect, such Grantor will take all reasonable and necessary steps, including, without limitation, in any proceeding before the United States Copyright Office or the United States Patent and Trademark Office, to maintain and pursue each application (and to obtain the relevant registration) and to maintain the registration of each Copyright, Patent and Trademark, including, without limitation, filing of applications for renewal, affidavits of use and affidavits of incontestability.
(g) Except as could not reasonably be expected to have a Material Adverse Effect, in the event that any Copyright, Patent or Trademark included in the Collateral is infringed, misappropriated or diluted by a third party, such Grantor shall promptly notify the Administrative Agent and the other Secured Parties after it learns thereof and shall, unless such Grantor shall reasonably determine that such Copyright, Patent or Trademark is immaterial to such Grantor.
 
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Section 6.11 Commercial Tort Claims. If such Grantor shall at any time hold or acquire a Commercial Tort Claim that is not Excluded Property, such Grantor shall notify the Administrative Agent and the other Secured Parties in writing within 30 days of holding or acquiring such Commercial Tort Claim.
ARTICLE VII
REMEDIAL PROVISIONS
Section 7.1 Pledged Securities.
(a) Unless an Event of Default shall have occurred and be continuing and the Administrative Agent shall have given prior written notice to the relevant Grantor of the Administrative Agent’s intent to exercise its corresponding rights pursuant to subsection (b) of this Section, each Grantor shall be permitted to receive all cash dividends paid in respect of the Pledged Securities paid in the normal course of business of the relevant Issuer, to the extent permitted in the Credit Agreement, and to exercise all voting and corporate rights with respect to the Pledged Securities; provided that such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Securities or the rights and remedies of any of the Administrative Agent or the other Secured Parties under this Agreement, the Credit Agreement or any other Loan Document or the ability of the Secured Parties to exercise the same, unless such exercise of powers is in connection with an action permitted by the Credit Agreement.
(b) If an Event of Default shall occur and be continuing, then at any time in the Administrative Agent’s discretion, on at least three (3) Business Days’ prior written notice, (i) the Administrative Agent shall have the right to receive any and all cash dividends, payments or other Proceeds paid in respect of the Pledged Securities and make application thereof to the Obligations in accordance with Section 8.2 of the Credit Agreement, (ii) any or all of the Pledged Securities shall be registered in the name of the Administrative Agent or its nominee, and (iii) the Administrative Agent or its nominee may exercise (x) all voting, corporate and other rights pertaining to such Pledged Securities at any meeting of shareholders (or other equivalent body) of the relevant Issuer or Issuers or otherwise and (y) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to such Pledged Securities as if it were the absolute owner thereof (including, without limitation, the right to exchange at its discretion any and all of the Pledged Securities upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the organizational structure of any Issuer, or upon the exercise by any Grantor or the Administrative Agent of any right, privilege or option pertaining to such Pledged Securities, and in connection therewith, the right to deposit and deliver any and all of the Pledged Securities with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Administrative Agent may determine), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.
 
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(c) Each Grantor hereby authorizes and instructs each Issuer of any Pledged Securities pledged by such Grantor hereunder (and each Issuer party hereto hereby agrees) to (i) comply with any instruction received by it from the Administrative Agent in writing (x) after an Event of Default has occurred and is continuing and the prior written notice described in Section 7.1(b) hereof and (y) that is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Securities directly to the Administrative Agent.
(d) After the occurrence and during the continuation of an Event of Default, if the Issuer of any Pledged Securities is the subject of bankruptcy, insolvency, receivership, custodianship or other proceedings under the supervision of any Governmental Authority, then all rights of the Grantor in respect thereof to exercise the voting and other consensual rights which such Grantor would otherwise be entitled to exercise with respect to the Pledged Securities issued by such Issuer shall cease, and all such rights shall thereupon become vested in the Administrative Agent who shall thereupon have the sole right to exercise such voting and other consensual rights, but the Administrative Agent shall have no duty to exercise any such voting or other consensual rights and shall not be responsible for any failure to do so or delay in so doing.
Section 7.2 Collections on Accounts. The Administrative Agent hereby authorizes each Grantor to collect upon the Accounts, Instruments, Chattel Paper and Payment Intangibles, and the Administrative Agent may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default. Upon the request of the Administrative Agent, at any time after the occurrence and during the continuance of an Event of Default each Grantor shall promptly notify the applicable Account Debtors that the applicable Accounts, Chattel Paper and Payment Intangibles have been assigned to the Administrative Agent for the ratable benefit of the Secured Parties and that payments in respect thereof shall be made directly to the Administrative Agent. At any time after the occurrence and during the continuance of an Event of Default, the Administrative Agent may in its own name or in the name of others communicate with the applicable Account Debtors to verify with them to its satisfaction the existence, amount and terms of any applicable Accounts, Chattel Paper or Payment Intangibles.
Section 7.3 Proceeds. If required by the Administrative Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Accounts, Instruments, Chattel Paper and Payment Intangibles comprising a portion of the Collateral, when collected or received by each Grantor, and any other cash or non-cash Proceeds received by each Grantor upon the sale or other disposition of any Collateral, shall be forthwith (and, in any event, within five (5) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Administrative Agent in a special collateral account maintained by the Administrative Agent subject to withdrawal by the Administrative Agent for the ratable benefit of the Secured Parties only, as hereinafter provided, and, until so turned over, shall be held by such Grantor in trust for the Administrative Agent for the ratable benefit of the Secured Parties segregated from other funds of any such Grantor. All Proceeds of the Collateral (including, without limitation, Proceeds constituting collections of Accounts, Chattel Paper, Instruments or Payment Intangibles comprising a portion of the Collateral) while held by the Administrative Agent (or by any Grantor
 
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in trust for the Administrative Agent for the ratable benefit of the Secured Parties) shall continue to be collateral security for all of the Secured Obligations and shall not constitute payment thereof until applied as hereinafter provided. At such intervals as may be agreed upon by each Grantor and the Administrative Agent, or, if an Event of Default shall have occurred and be continuing, at any time at the Administrative Agent’s election, the Administrative Agent shall apply all or any part of the funds or Proceeds on deposit in said special collateral account on account of the Secured Obligations in the order set forth in Section 8.2 of the Credit Agreement, and any part of such funds or Proceeds which the Administrative Agent elects not so to apply and deems not required as collateral security for the Secured Obligations shall be paid over from time to time by the Administrative Agent to each Grantor or to whomsoever may be lawfully entitled to receive the same.
Section 7.4 UCC and Other Remedies.
(a) If an Event of Default shall occur and be continuing, the Administrative Agent, on behalf of the Secured Parties, may exercise in its discretion, in addition to all other rights, remedies, powers and privileges granted to them in this Agreement, the other Loan Documents, and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights, remedies, powers and privileges of a secured party under the UCC (regardless of whether the UCC is in effect in the jurisdiction where such rights, remedies, powers or privileges are asserted) or any other applicable law or otherwise available at law or equity. Without limiting the generality of the foregoing, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. In the case of Intellectual Property, the Administrative Agent shall have the right to (i) declare the entire right, title and interest of any Grantor in and to the Intellectual Property, vested in the Administrative Agent for the benefit of the Secured Parties, in which event such rights, title and interest shall immediately vest, in the Administrative Agent for the benefit of the Secured Parties, and the Administrative Agent shall be entitled to exercise the power of attorney referred to herein to execute, cause to be acknowledged and notarized and record an absolute assignment of the applicable Intellectual Property with the applicable agency or registrar; (ii) take and use or sell the Intellectual Property; and (iii) take and use or sell the goodwill of such Grantor’s business symbolized by the Trademarks and the right to carry on the business and use the assets of such Grantor in connection with which the Trademarks or domain names have been used. The Administrative Agent or any other Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free
 
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of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. If an Event of Default shall occur and be continuing, each Grantor further agrees, at the Administrative Agent’s request, to assemble the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. Any such sale or transfer by the Administrative Agent either to itself or to any other Person shall be absolutely free from any claim of right by any Grantor, including any equity or right of redemption, stay or appraisal which such Grantor has or may have under any rule of law, regulation or statute now existing or hereafter adopted. Upon any such sale or transfer, the Administrative Agent shall have the right to deliver, assign and transfer to the purchaser or transferee thereof the Collateral so sold or transferred. The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Administrative Agent and the other Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in accordance with Section 8.2 of the Credit Agreement, and only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615 of the UCC, need the Administrative Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against the Administrative Agent or any other Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.
(b) In the event that the Administrative Agent elects not to sell the Collateral, the Administrative Agent retains its rights to dispose of or utilize the Collateral or any part or parts thereof in any manner authorized or permitted by law or in equity and to apply the proceeds of the same towards payment of the Secured Obligations. Each and every method of disposition of the Collateral described in this Agreement shall constitute disposition in a commercially reasonable manner. The Administrative Agent may appoint any Person as agent to perform any act or acts necessary or incident to any sale or transfer of the Collateral.
Section 7.5 Private Sales of Pledged Securities. Each Grantor recognizes that the Administrative Agent may be unable to effect a public sale of any or all the Pledged Securities, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Administrative Agent shall be under no obligation to delay a sale of any of the Pledged Securities for the period of time necessary to permit the Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if
 
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such Issuer would agree to do so. Each Grantor agrees to use its best efforts to do or cause to be done all such other acts as may reasonably be necessary to make such sale or sales of all or any portion of the Pledged Securities pursuant to this Section valid and binding and in compliance with any and all other applicable Requirements of Law. Each Grantor further agrees that a breach of any of the covenants contained in this Section will cause irreparable injury to the Administrative Agent and the other Secured Parties, that the Administrative Agent and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants.
Section 7.6 Waiver; Deficiency. Each Grantor waives and agrees not to assert any rights or privileges which it may acquire under the UCC or any other applicable law. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Obligations or Guaranteed Obligations, as the case may be, and the fees and disbursements of any attorneys employed by the Administrative Agent or any other Secured Party to collect such deficiency.
Section 7.7 Non-Judicial Enforcement. The Administrative Agent may enforce its rights hereunder without prior judicial process or judicial hearing, and, to the extent permitted by law, each Grantor expressly waives any and all legal rights which might otherwise require the Administrative Agent to enforce its rights by judicial process.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.1 The Administrative Agent’s Appointment as Attorney-in-Fact.
(a) Each Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all reasonably appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following:
(i) pay or discharge Taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof;
 
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(ii) execute, in connection with any sale provided for in Section 7.4 or Section 7.5, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and
(iii) (A) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall direct; (B) take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Account, Instrument, General Intangible, Chattel Paper or Payment Intangible or with respect to any other Collateral, and to file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Administrative Agent for the purpose of collecting any or all such moneys due under any Account, Instrument or General Intangible or with respect to any other Collateral whenever payable; (C) ask or demand for, collect, and receive payment of and receipt for any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (D) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (E) receive, change the address for delivery, open and dispose of mail addressed to any Grantor, and execute, assign and indorse negotiable and other instruments for the payment of money, documents of title or other evidences of payment, shipment or storage for any form of Collateral on behalf of and in the name of any Grantor; (F) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (G) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (H) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Administrative Agent may deem appropriate; (I) assign any Patent, Copyright or Trademark (along with the goodwill of the business to which any such Trademark pertains) throughout the world for such term or terms, on such conditions, and in such manner as the Administrative Agent shall in its sole discretion determine; and (J) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Administrative Agent were the absolute owner thereof for all purposes, and do, at the Administrative Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Administrative Agent deems necessary to protect, preserve or realize upon the Collateral and the Administrative Agent’s and the other Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.
Anything in this subsection to the contrary notwithstanding, the Administrative Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 8.1 unless an Event of Default shall have occurred and be continuing. The Administrative Agent shall give the relevant Grantor prompt written notice of any action taken pursuant to this subsection.
 
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(b) Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement for a defaulting Grantor.
(c) The expenses of the Administrative Agent incurred in connection with actions undertaken as provided in this Section shall be payable by such Grantor to the Administrative Agent within ten (10) days of demand therefor.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof and in compliance herewith. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.
Section 8.2 Duty of the Administrative Agent. The Administrative Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same manner as the Administrative Agent deals with similar property for its own account, and the Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which comparable secured parties accord comparable collateral. Neither the Administrative Agent, any other Secured Party nor any of their respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Administrative Agent and the other Secured Parties hereunder are solely to protect the Administrative Agent’s and the other Secured Parties’ interests in the Collateral and shall not impose any duty upon the Administrative Agent or any other Secured Party to exercise any such powers. The Administrative Agent and the other Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment. Except as otherwise provided in this Agreement and the Credit Agreement, to the fullest extent permitted by applicable law, the Administrative Agent shall be under no duty whatsoever to make or give any presentment, notice of dishonor, protest, demand for performance, notice of nonperformance, notice of intent to accelerate, notice of acceleration, or other notice or demand in connection with any Collateral, or to take any steps necessary to preserve any rights against any Grantor or other Person or ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not it has or is deemed to have knowledge of such matters. Each Grantor, to the extent permitted by applicable law, waives any right of marshaling in respect of any and all Collateral, and waives any right to require the Administrative Agent or any other Secured Party to proceed against any Grantor or other Person, exhaust any Collateral or enforce any other remedy which the Administrative Agent or any other Secured Party now has or may hereafter have against any Grantor or other Person.
 
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Section 8.3 Filing of Financing Statements. Pursuant to the UCC and any other applicable law, each Grantor authorizes the Administrative Agent, its counsel or its representative, at any time and from time to time, to file or record financing statements, continuation statements, amendments thereto and other filing or recording documents or instruments with respect to the Collateral without the signature of such Grantor in such form and in such offices as the Administrative Agent reasonably determines appropriate to perfect the security interests of the Administrative Agent under this Agreement. Additionally, each Grantor authorizes the Administrative Agent, its counsel or its representative, at any time and from time to time, to file or record such financing statements that describe the collateral covered thereby as “all assets of the Grantor”, “all personal property of the Grantor” or words of similar effect. A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.
Section 8.4 Authority of the Administrative Agent. Each Grantor acknowledges that the rights and responsibilities of the Administrative Agent under this Agreement with respect to any action taken by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Administrative Agent and the other Secured Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Administrative Agent and the Grantors, the Administrative Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
Section 8.5 Proxy. EACH GRANTOR HEREBY IRREVOCABLY APPOINTS THE ADMINISTRATIVE AGENT AS ITS PROXY AND ATTORNEY-IN-FACT (AS SET FORTH IN SECTION 8.1 ABOVE AND SUBJECT TO THE TERMS OF THIS AGREEMENT) WITH RESPECT TO THE PLEDGED SECURITIES, INCLUDING THE RIGHT TO VOTE SUCH PLEDGED SECURITIES, WITH FULL POWER OF SUBSTITUTION TO DO SO, UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT AND UPON THREE BUSINESS DAYS’ WRITTEN NOTICE TO THE APPLICABLE GRANTOR OF ITS EXERCISE OF ITS RIGHTS HEREUNDER. IN ADDITION TO THE RIGHT TO VOTE ANY SUCH PLEDGED SECURITIES, THE APPOINTMENT OF THE ADMINISTRATIVE AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF SUCH PLEDGED SECURITIES WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS), UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT AND UPON THREE BUSINESS DAYS’ WRITTEN NOTICE TO THE APPLICABLE GRANTOR OF ITS EXERCISE OF ITS RIGHTS HEREUNDER. SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY SUCH PLEDGED
 
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SECURITIES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF SUCH PLEDGED SECURITIES OR ANY OFFICER OR ADMINISTRATIVE AGENT THEREOF), ONLY UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT AND UPON THREE BUSINESS DAYS’ WRITTEN NOTICE TO THE APPLICABLE GRANTOR OF ITS EXERCISE OF ITS RIGHTS HEREUNDER. THE POWER OF ATTORNEY AND IRREVOCABLE PROXY GRANTED HEREBY ARE COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE, SHALL SURVIVE THE BANKRUPTCY, DISSOLUTION OR WINDING UP OF EACH RELEVANT GRANTOR, AND SHALL TERMINATE ONLY UPON THE TERMINATION OF THE COMMITMENTS AND PAYMENT IN FULL OF THE SECURED OBLIGATIONS (OTHER THAN CONTINGENT INDEMNIFICATION OBLIGATIONS) AND THE EXPIRATION OR TERMINATION OF ALL LETTERS OF CREDIT WITH NO PENDING DRAWINGS (OTHER THAN LETTERS OF CREDIT THAT HAVE BEEN CASH COLLATERALIZED OR AS TO WHICH OTHER ARRANGEMENTS REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE ISSUING BANK HAVE BEEN MADE). FOR THE AVOIDANCE OF DOUBT, ANY IRREVOCABLE POWER OF ATTORNEY AND/OR PROXY GRANTED HEREBY WITH RESPECT TO PLEDGED SECURITIES ISSUED BY A MANAGER-MANAGED ENTITY THAT IS NOT A CORPORATION SHALL INCLUDE (AND BE DEEMED TO INCLUDE) ALL OF THE APPLICABLE GRANTOR’S VOTING RIGHTS AS A “MANAGER” (AS APPLICABLE) AND AS A “MEMBER” OF SUCH ENTITY AS ARE SET FORTH IN SUCH ENTITY’S ORGANIZATION DOCUMENTS.
ARTICLE IX
SUBORDINATION OF INDEBTEDNESS
Section 9.1 Subordination of All Guarantor Claims. As used herein, the term “Guarantor Claims” shall mean all debts and obligations of the Borrower or any other Grantor to any Grantor, whether such debts and obligations now exist or are hereafter incurred or arise, or whether the obligation of the debtor thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or obligations be evidenced by note, contract, open account, or otherwise, and irrespective of the Person or Persons in whose favor such debts or obligations may, at their inception, have been or may hereafter be created, or the manner in which they have been or may hereafter be acquired. After the occurrence and during the continuation of an Event of Default, no Grantor shall receive or collect, directly or indirectly, from any obligor in respect thereof any amount upon the Guarantor Claims.
Section 9.2 Claims in Bankruptcy. In the event of receivership, bankruptcy, reorganization, arrangement, debtor’s relief or other insolvency proceedings involving any Grantor, the Administrative Agent on behalf of the Secured Parties shall have the right to prove their claim in any proceeding, so as to establish their rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims. Each Grantor hereby assigns such dividends and payments to the Administrative Agent for the benefit of the Secured Parties for application against the Secured Obligations as provided under Section 8.2 of the Credit Agreement. Should the Administrative
 
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Agent or any other Secured Party receive, for application upon the Secured Obligations, any such dividend or payment which is otherwise payable to any Grantor, and which, as between such Grantor, shall constitute a credit upon the Guarantor Claims, then upon payment in full of the Secured Obligations and termination of all Commitments, the intended recipient shall become subrogated to the rights of the Administrative Agent and the other Secured Parties to the extent that such payments to the Administrative Agent and the other Secured Parties on the Guarantor Claims have contributed toward the liquidation of the Secured Obligations, and such subrogation shall be with respect to that proportion of the Secured Obligations which would have been unpaid if the Administrative Agent and the other Secured Parties had not received dividends or payments upon the Guarantor Claims.
Section 9.3 Payments Held in Trust. In the event that, notwithstanding Section 9.1 and Section 9.2, any Grantor should receive any funds, payments, claims or distributions which are prohibited by such Sections, then it agrees (a) to hold in trust for the Administrative Agent and the other Secured Parties an amount equal to the amount of all funds, payments, claims or distributions so received, and (b) that it shall have absolutely no dominion over the amount of such funds, payments, claims or distributions except to pay them promptly to the Administrative Agent, for the benefit of the Secured Parties; and each Grantor covenants promptly to pay the same to the Administrative Agent.
Section 9.4 Liens Subordinate. Each Grantor agrees that, until the Secured Obligations are paid in full and all Commitments have terminated, any Liens securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any Liens securing payment of the Secured Obligations, regardless of whether such encumbrances in favor of such Grantor, the Administrative Agent or any other Secured Party presently exist or are hereafter created or attach. Without the prior written consent of the Administrative Agent, no Grantor, during the period in which any of the Secured Obligations are outstanding or any of the Commitments are in effect, shall (a) exercise or enforce any creditor’s right it may have against any debtor in respect of the Guarantor Claims, or (b) foreclose, repossess, sequester or otherwise take steps or institute any action or proceeding (judicial or otherwise, including, without limitation, the commencement of or joinder in any liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any Lien held by it.
Section 9.5 Notation of Records. Upon the request of the Administrative Agent, all promissory notes and all accounts receivable ledgers or other evidence of the Guarantor Claims accepted by or held by any Grantor shall contain a specific written notice thereon that the indebtedness evidenced thereby is subordinated under the terms of this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 Waiver. No failure on the part of the Administrative Agent or any other Secured Party to exercise and no delay in exercising, and no course of dealing with respect to, any right, remedy, power or privilege under any of the Loan Documents shall operate as a waiver thereof,
 
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nor shall any single or partial exercise of any right, power or privilege under any of the Loan Documents preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided herein are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. The exercise by the Administrative Agent of any one or more of the rights, powers and remedies herein shall not be construed as a waiver of any other rights, powers and remedies, including, without limitation, any rights of set-off.
Section 10.2 Notices. All notices and other communications provided for herein shall be given in the manner and subject to the terms of Section 10.1 of the Credit Agreement; provided that any such notice, request or demand to or upon any Guarantor shall be addressed to the Borrower at its notice address set forth in Section 10.1 of the Credit Agreement.
Section 10.3 Payment of Expenses, Indemnities. The terms of Section 10.3 of the Credit Agreement shall apply to each Grantor, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 10.3 of the Credit Agreement and Article II of this Agreement, as applicable.
Section 10.4 Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 10.2 of the Credit Agreement.
Section 10.5 Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Administrative Agent and the other Secured Parties, the future holders of the Loans, and their respective successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or Secured Obligations under this Agreement without the prior written consent of the Administrative Agent and the Lenders.
Section 10.6 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or enforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 10.7 Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. Delivery of an executed counterpart to this Agreement by facsimile transmission or by electronic mail in pdf format shall be as effective as delivery of a manually executed counterpart hereof.
Section 10.8 Survival. The obligations of the parties under Section 10.3 shall survive the repayment of the Secured Obligations and the termination of the Credit Agreement, the Letters of Credit, the Commitments, the Hedging Obligations and the Bank Product Obligations. To the extent that any payments on the Secured Obligations or proceeds of any Collateral are
 
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subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver or other Person under any bankruptcy law, common law or equitable cause, then, to such extent, the Secured Obligations so satisfied shall be revived and continue as if such payment or proceeds had not been received and the Administrative Agent’s and the other Secured Parties’ Liens, security interests, rights, powers and remedies under this Agreement and each other applicable Collateral Document shall continue in full force and effect. In such event, each applicable Collateral Document shall be automatically reinstated and each Grantor shall take such action as may be reasonably requested by the Administrative Agent and the other Secured Parties to effect such reinstatement.
Section 10.9 Captions. Captions and Section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.
Section 10.10 No Oral Agreements. The Loan Documents embody the entire agreement and understanding between the parties and supersede all other agreements and understandings between such parties relating to the subject matter hereof and thereof. The Loan Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.
Section 10.11 Governing Law; Submission to Jurisdiction.
(a) This Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be construed in accordance with and be governed by the law of the State of New York.
(b) Each Grantor hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York, and of the Supreme Court of the State of New York sitting in New York county, and of any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such District Court or such New York state court or, to the extent permitted by applicable law, such appellate court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against the Borrower or its properties in the courts of any jurisdiction.
 
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(c) Each Grantor irrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding described in subsection (b) of this Section and brought in any court referred to in subsection (b) of this Section. Each of the parties hereto irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service of process in the manner provided for notices in Section 10.2. Nothing in this Agreement or in any other Loan Document will affect the right of any party hereto to serve process in any other manner permitted by law.
Section 10.12 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.13 Acknowledgments.
(a) Each Grantor hereby acknowledges that:
(i) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;
(ii) neither the Administrative Agent nor any other Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Grantors, on the one hand, and the Administrative Agent and the other Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(iii) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties.
 
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(b) Each of the parties hereto specifically agrees that it has a duty to read this Agreement and the other Loan Documents to which it is a party and agrees that it is charged with notice and knowledge of the terms of this Agreement and the other Loan Documents to which it is a party; that it has in fact read this Agreement and the other Loan Documents to which it is a party and is fully informed and has full notice and knowledge of the terms, conditions and effects of this Agreement and the other Loan Documents to which it is a party; that it has been represented by independent legal counsel of its choice throughout the negotiations preceding its execution of this Agreement and the other Loan Documents to which it is party; and has received the advice of its attorney in entering into this Agreement and the other Loan Documents to which it is a party; and that it recognizes that certain of the terms of this Agreement and other Loan Documents to which it is a party result in one party assuming the liability inherent in some aspects of the transaction and relieving the other party of its responsibility for such liability. Each Grantor agrees and covenants that it will not contest the validity or enforceability of any exculpatory provision of this Agreement or the other Loan Documents to which it is a party on the basis that such Grantor had no notice or knowledge of such provision or that the provision is not “conspicuous”.
(c) Each Grantor warrants and agrees that each of the waivers and consents set forth in this Agreement are made voluntarily and unconditionally after consultation with outside legal counsel and with full knowledge of their significance and consequences, with the understanding that events giving rise to any defense or right waived may diminish, destroy or otherwise adversely affect rights which such Grantor otherwise may have against any other Grantor, the Administrative Agent, the other Secured Parties or any other Person or against any Collateral. If, notwithstanding the intent of the parties that the terms of this Agreement shall control in any and all circumstances, any such waivers or consents are determined to be unenforceable under applicable law, such waivers and consents shall be effective to the maximum extent permitted by law.
Section 10.14 Additional Grantors. Each Person that is required to become a party to this Agreement pursuant to Section 5.10 of the Credit Agreement and is not a signatory hereto shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Person of a Joinder Agreement in the form of Annex I, which shall be delivered to the Administrative Agent pursuant to Section 5.10(a) of the Credit Agreement.
Section 10.15 Set-Off. Each Grantor agrees that, in addition to (and without limitation of) any right of set-off, bankers’ lien or counterclaim a Secured Party may otherwise have, each Secured Party shall have the right and be entitled (after consultation with the Administrative Agent), at its option, to offset (i) balances held by it or by any of its Affiliates for account of any Grantor or any of its Subsidiaries at any of its offices, in dollars or in any other currency, and (ii) Obligations then due and payable to such Secured Party (or any Affiliate of such Secured Party), which are not paid when due, in which case it shall promptly notify the Borrower and the Administrative Agent thereof; provided that such Secured Party’s failure to give such notice shall not affect the validity thereof.
Section 10.16 Releases.
 
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(a) This Agreement and all of the security interests granted hereby shall terminate automatically when (i) all the Secured Obligations have been paid in full in cash (other than contingent indemnification obligations), (ii) all Commitments have terminated or expired and (iii) the LC Exposure has been reduced to zero and the Issuing Bank has no further obligation to issue or amend Letters of Credit under the Credit Agreement.
(b) The Lien and all other security interests granted hereby shall also automatically terminate and be released at the time or times and in the manner set forth in Section 9.11 of the Credit Agreement.
(c) In connection with any termination or release pursuant to paragraph (a) or (b) of this Section, the Administrative Agent shall execute and deliver to any Grantor, at such Grantor’s expense, all documents that such Grantor shall reasonably request to evidence such termination or release. Any execution and delivery of documents by the Administrative Agent pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
(d) Except as may be expressly applicable pursuant to Section 9-620 of the UCC, no action taken or omission to act by the Administrative Agent or the other Secured Parties hereunder, including, without limitation, any exercise of voting or consensual rights or any other action taken or inaction, shall be deemed to constitute a retention of the Collateral in satisfaction of the Secured Obligations or otherwise to be in full satisfaction of the Secured Obligations, and the Secured Obligations shall remain in full force and effect, until the Administrative Agent and the other Secured Parties shall have applied payments (including, without limitation, collections from Collateral) towards the Secured Obligations in the full amount then outstanding or until such subsequent time as is provided in Section 9.11(a) of the Credit Agreement.
Section 10.17 Reinstatement. The obligations of each Grantor under this Agreement (including, without limitation, with respect to the guarantee contained in Article II and the provision of collateral herein) shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or any other Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any other Grantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any other Grantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
Section 10.18 Acceptance. Each Grantor hereby expressly waives notice of acceptance of this Agreement, acceptance on the part of the Administrative Agent and the other Secured Parties being conclusively presumed by their request for this Agreement and delivery of the same to the Administrative Agent.
Section 10.19 Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guaranty and Security Agreement in respect of Swap Obligations (provided, however, that each
 
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Qualified ECP Guarantor shall only be liable under this Section 10.19 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.19, or otherwise under this Guaranty, as it relates to such other Loan Party, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until this Agreement has been terminated pursuant to Section 10.16(a). Each Qualified ECP Guarantor intends that this Section 10.19 constitute, and this Section 10.19 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1 a(18)(A)(v)(II) of the Commodity Exchange Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty and Security Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

BORROWER:	
	
RONDO INTERMEDIATE HOLDINGS, LLC,
a Delaware limited liability company	
		
By:	 	/s/ Todd Branning	
	 	Name: Todd Branning	
	 	Title:   Chief Financial Officer and Treasurer	
	
GUARANTORS:	
	
RONDO HOLDINGS, LLC, a Delaware limited liability company	
		
By:	 	/s/ Todd Branning	
Name: Todd Branning	
Title:   Chief Financial Officer and Treasurer	
	
DIXON-SHANE, LLC d/b/a R&S Northeast LLC, a Kentucky limited liability company	
		
By:	 	/s/ Todd Branning	
Name: Todd Branning	
Title:   Chief Financial Officer and Treasurer	
	
AVKARE, LLC, a Tennessee limited liability company	
		
By:	 	/s/ Todd Branning	
Name: Todd Branning	
Title:   Chief Financial Officer and Treasurer	
 
[Signature Page to Guaranty and Security Agreement]

Acknowledged and Agreed to as of the date hereof:

ADMINISTRATIVE AGENT:	
	
TRUIST BANK	
		
By:	 	/s/ Jared Cohen	
	 	Name: Jared Cohen	
	 	Title: Director	
 
[Signature Page to Guaranty and Security Agreement]