(b)          Subject to Section 2.14, each Borrowing (other than a Swingline Borrowing) shall be comprised entirely of ABR Loans or Term Benchmark Loans for any Borrowing denominated in Dollars.  Each Swingline Borrowing shall be an ABR Borrowing.  Each Lender at its option may make any ABR Loan or Term Benchmark Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided, that any exercise of such option shall not affect the obligation of the Borrower and each applicable Subsidiary Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender shall not be entitled to any amounts payable under Section 2.15 solely in respect of increased costs resulting from such exercise and existing at the time of such exercise.

(c)        At the commencement of each Interest Period for any Term Benchmark Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum.  At the time that each ABR Revolving Facility Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided, that an ABR Revolving Facility Borrowing may be in an aggregate amount that is equal to the entire unused available balance of the Revolving Facility Commitments or that is required to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.05(e).  Each Swingline Borrowing shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum.  Borrowings of more than one Type may be outstanding at the same time; provided, however, that the Borrower shall not be entitled to request any Borrowing that, if made, would result in more than 10 Term Benchmark Borrowings outstanding under all Revolving Facilities at any time.  Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.  No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan.

(d)          Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing of any Class if the Interest Period requested with respect thereto would end after the Revolving Facility Maturity Date for such Class.

(i)       whether such Borrowing is to be a Borrowing of Initial Revolving Loans, FILO Revolving Loans or Extended Revolving Loans, as applicable;

(ii)       the aggregate amount of the requested Borrowing;

(iii)      the date of such Borrowing, which shall be a Business Day;

(iv)     whether such Borrowing is to be an ABR Borrowing, a Term SOFR Borrowing, Term CORRA Borrowing or Canadian Prime Rate Borrowing;

(v)      in the case of a Term Benchmark Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;

(vi)      the currency in which such Borrowing is to be denominated (which shall be Dollars or an Alternate Currency);

(vii)     the identity of the Borrower and/or the applicable Subsidiary Borrower in respect of such Borrowing; and

(viii)    the location and number of the Borrower’s or the applicable Subsidiary Borrower’s account to which funds are to be disbursed.

(b)       To the extent not paid by the Borrower when due (after taking into consideration any applicable grace period), the Administrative Agent, without the request of the Borrower, may advance any interest or fee payable pursuant to Section 2.12 or Section 2.13 or other payment to which the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank is entitled from the Loan Parties pursuant hereto or any other Loan Document and may charge the same to the Loan Account notwithstanding that an Overadvance may result thereby.  The Administrative Agent shall advise the Borrower of any such advance or charge promptly after the making thereof.  Such action on the part of the Administrative Agent shall not constitute a waiver of the Administrative Agent’s rights and the Borrower’s obligations under Section 2.11.  Any amount which is added to the principal balance of the Loan Account as provided in this Section 2.03(b) shall not bear interest.

(b)         To request a Swingline Borrowing, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by delivering a Swingline Borrowing Request by electronic means not later than 2:00 p.m., Local Time, on the day of a proposed Swingline Borrowing.  Each such notice and Swingline Borrowing Request shall be irrevocable and shall specify (i) the requested date of such Swingline Borrowing (which shall be a Business Day) and (ii) the amount of the requested Swingline Borrowing. The Swingline Lender shall consult with the Administrative Agent as to whether the making of the Swingline Loan is in accordance with the terms of this Agreement prior to the Swingline Lender funding such Swingline Loan.  The Swingline Lender shall make each Swingline Loan on the proposed date thereof by wire transfer of immediately available funds, to the account of the Borrower or the applicable Subsidiary Borrower (or, in the case of a Swingline Borrowing made to finance the reimbursement of an L/C Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank).

(c)         The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., Local Time, on any Business Day require the Revolving Facility Lenders of the applicable Class to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans made by it.  Such notice shall specify the aggregate amount of such Swingline Loans in which the Revolving Facility Lenders will participate.  Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each such Revolving Facility Lender, specifying in such notice such Revolving Facility Lender’s applicable Revolving Facility Percentage of such Swingline Loan or Loans.  Each Revolving Facility Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent for the account of the Swingline Lender, such Revolving Facility Lender’s applicable Revolving Facility Percentage of such Swingline Loan or Loans.  Each Revolving Facility Lender acknowledges and agrees that its respective obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Revolving Facility Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Revolving Facility Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Facility Lenders.  The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender from the Borrower or any Subsidiary Borrower (or other party on behalf of the Borrower or any Subsidiary Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Facility Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided, that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower or any Subsidiary Borrower for any reason.  The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower or any Subsidiary Borrower of any default in the payment thereof.

(d)         [Reserved].

(e)         The Administrative Agent, the Swingline Lender and the Revolving Facility Lenders agree (which agreement shall not be for the benefit of or enforceable by the Loan Parties) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among them as to the Revolving Facility Loans, the Swingline Loans and the Agent Advances shall take place on a periodic basis in accordance with the following provisions:

(i)       The Administrative Agent shall request settlement (a “Settlement”) with the Revolving Facility Lenders on at least a weekly basis, or on a more frequent basis if so determined by the Administrative Agent, (A) on behalf of the Swingline Lender, with respect to each outstanding Swingline Loan, (B) for itself, with respect to each Agent Advance, and (C) with respect to collections received, in each case, by notifying the Revolving Facility Lenders under the applicable Class of such requested Settlement by facsimile, telephone, or other similar form of transmission, of such requested Settlement, no later than 5:00 p.m., Local Time, on the Business Day prior to the date of such requested Settlement (the “Settlement Date”).  Each Revolving Facility Lender shall make the amount of such Lender’s Revolving Facility Percentage with respect to such Class of the outstanding principal amount of the Swingline Loans and Agent Advances with respect to which Settlement is requested available to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate, not later than 3:00 p.m., Local Time, on the Settlement Date applicable thereto, which may occur before or after the occurrence or during the continuation of a Default or an Event of Default and whether or not the applicable conditions precedent set forth in Section 4.01 have then been satisfied.  Such amounts made available to the Administrative Agent shall be applied against the amounts of the applicable Swingline Loan or Agent Advance and, together with the portion of such Swingline Loan or Agent Advance representing the Swingline Lender’s or Administrative Agent’s Revolving Facility Percentage thereof, shall constitute Revolving Facility Loans of the Revolving Facility Lenders.  If any such amount is not made available to the Administrative Agent by any Revolving Facility Lender on the Settlement Date applicable thereto, the Administrative Agent shall, on behalf of the Swingline Lender with respect to each outstanding Swingline Loan and for itself with respect to each Agent Advance, be entitled to recover such amount on demand from such Revolving Facility Lender together with interest thereon at the Federal Funds Effective Rate for the first three days from and after the Settlement Date and thereafter at the interest rate then applicable to ABR Loans.

(ii)       Notwithstanding the foregoing, not more than one Business Day after demand is made by the Administrative Agent (whether before or after the occurrence of a Default or an Event of Default and regardless of whether the Administrative Agent has requested a Settlement with respect to a Swingline Loan or Agent Advance), each Revolving Facility Lender under the applicable Class (A) shall irrevocably and unconditionally purchase and receive from the Swingline Lender or the Administrative Agent, as the case may be, without recourse or warranty, an undivided interest and participation in such Swingline Loan or Agent Advance equal to such Lender’s Revolving Facility Percentage with respect to such Class of such Swingline Loan or Agent Advance and (B) if Settlement has not previously occurred with respect to such Swingline Loans or Agent Advances, upon demand by the Swingline Lender or the Administrative Agent, as the case may be, shall pay to the Swingline Lender or Administrative Agent, as applicable, as the purchase price of such participation an amount equal to 100% of such Lender’s Revolving Facility Percentage of such Swingline Loans or Agent Advances. If such amount is not in fact made available to the Administrative Agent by any Revolving Facility Lender, the Administrative Agent shall be entitled to recover such amount on demand from such Revolving Facility Lender together with interest thereon at the Federal Funds Effective Rate for the first three days from and after such demand and thereafter at the interest rate then applicable to ABR Loans.

(iii)     From and after the date, if any, on which any Revolving Facility Lender under the applicable Class purchases an undivided interest and participation in any Swingline Loan or Agent Advance pursuant to clause (ii) above, the Administrative Agent shall promptly distribute to such Lender such Lender’s Revolving Facility Percentage with respect to such Class of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Swingline Loan or Agent Advance.

(iv)     Between Settlement Dates, to the extent no Agent Advances are outstanding, the Administrative Agent may pay over to the Swingline Lender any payments received by the Administrative Agent, which in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Facility Loans under the applicable Class, for application to the Swingline Lender’s or Swingline Loans under such Class.  During the period between Settlement Dates, the Swingline Lender with respect to Swingline Loans, the Administrative Agent with respect to Agent Advances, and each Revolving Facility Lender with respect to the Revolving Facility Loans, shall be entitled to interest at the applicable rate or rates payable under this Agreement on the actual average daily amount of funds employed by the Swingline Lender, the Administrative Agent and the Revolving Facility Lenders.

(f)         Any Swingline Lender may resign as Swingline Lender upon at least 30 days prior written notice to the Administrative Agent, the Lenders and the Borrower.  In the event of any such resignation, the Borrower shall be entitled to appoint any Lender that is willing to accept such appointment as successor Swingline Lender hereunder.  Upon the acceptance of any such appointment, the successor Swingline Lender shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Swingline Lender, and the retiring Swingline Lender shall be discharged from its duties and obligations in such capacity hereunder. Any Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender (provided that, no consent will be required if the replaced Swingline Lender has no Swingline Loans outstanding) and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of any Swingline Lender.  At the time any such replacement or resignation shall become effective, the Borrower and each Subsidiary Borrower shall prepay any outstanding Swingline Loans made by the resigning or removed Swingline Lender (which repayment may be effectuated with the proceeds of a Borrowing of Revolving Facility Loans). From and after the effective date of any such replacement or resignation, (x) any successor Swingline Lender shall have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require.

(b)          No Issuing Bank shall have any obligation to issue a Letter of Credit if, after giving effect to the requested issuance, (i) the Revolving Facility Credit Exposure would exceed Maximum Availability, (ii) any Lender’s Revolving Facility Percentage of the aggregate Revolving Facility Credit Exposure would exceed such Lender’s Revolving Facility Commitment, (iii) the Revolving L/C Exposure would exceed the Letter of Credit Sublimit or (iv) the aggregate amount of outstanding Letters of Credit issued by such Issuing Bank (including any unreimbursed L/C Disbursements) would be greater than such Issuing Bank’s Revolving Facility Commitment or, except to the extent of any excess attributable to the Existing Roll-Over Letters of Credit, its Letter of Credit Commitment, unless in each case otherwise agreed to by such Issuing Bank.

(c)         In the event there is a Defaulting Lender as of the date of any request for the issuance of a Letter of Credit, no Issuing Bank shall be required to issue or arrange for such Letter of Credit to the extent (i) the Defaulting Lender’s participation with respect to such Letter of Credit may not be reallocated pursuant to Section 2.22, or (ii) the Issuing Bank has not otherwise entered into arrangements reasonably satisfactory to it and the Borrower to eliminate such Issuing Bank’s risk with respect to the participation in such Letter of Credit of the Defaulting Lender, which arrangements may include the Borrower cash collateralizing such Defaulting Lender’s participation with respect to such Letter of Credit in accordance with Section 2.22.  Additionally, no Issuing Bank shall have any obligation to issue and/or extend a Letter of Credit if (A) any order, judgment, or decree of any Governmental Authority or arbitrator shall, by its terms, purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit, or any Law applicable to the Issuing Bank or any request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit or request that the Issuing Bank refrain from the issuance of letters of credit generally or such Letter of Credit in particular, (B) the issuance of such Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally, (C) the expiry date of such requested Letter of Credit that is a Standby Letter of Credit would occur later than the date that is twelve (12) months after the date of issuance thereof, provided, that, such Standby Letter of Credit may provide for the automatic extension thereof for any number of additional periods each of up to one year in duration, subject to the terms hereof (including, without limitation, clause (E) below), (D) the expiry date of such requested Letter of Credit that is a Trade Letter of Credit would occur later than the date that is the earlier of (i) 120 days after the date of the issuance of such Trade Letter of Credit and (ii) the Letter of Credit Expiration Date, and (E) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date or, at the option of the applicable Issuing Bank, such Letter of Credit is Cash Collateralized on or prior to Letter of Credit Expiration Date.

(d)         Any Issuing Bank shall notify the Administrative Agent in writing no later than the Business Day prior to the Business Day on which such Issuing Bank issues any Letter of Credit.  In addition, each Issuing Bank shall, on the first Business Day of each week, submit to the Administrative Agent a report detailing the daily undrawn amount of each Letter of Credit issued by such Issuing Bank during the prior calendar week.  Each of the parties hereto hereby acknowledge and agree that all Existing Roll-Over Letters of Credit shall constitute Letters of Credit under this Agreement on and after the Closing Date with the same effect as if such Existing Roll-Over Letters of Credit were issued by the Issuing Banks at the request of, and for the account of, the Borrower on the Closing Date.  Each Letter of Credit shall be in form and substance reasonably acceptable to the applicable Issuing Bank, including the requirement that the amounts payable thereunder must be payable in Dollars; provided that, with respect to any Letter of Credit issued in an Alternate Currency, all reimbursements by the Borrower of the honoring of any drawing under such Letter of Credit shall be paid in Dollars based on the Spot Rate.  If an Issuing Bank makes a payment under a Letter of Credit, the Borrower shall pay to the Administrative Agent an amount equal to the applicable L/C Disbursement on the Business Day such L/C Disbursement is made and, in the absence of such payment, the amount of the L/C Disbursement immediately and automatically shall be deemed to be a Loan hereunder (notwithstanding any failure to satisfy any condition precedent set forth in Section 4.01 hereof) and, initially, shall bear interest at the rate then applicable to ABR Loans.  If a L/C Disbursement is deemed to be a Loan hereunder, the Borrower’s obligation to pay the amount of such L/C Disbursement to the applicable Issuing Bank shall be automatically converted into an obligation to pay the resulting Loan.  For the avoidance of doubt, the funding of a Loan pursuant to this Section 2.05(d) shall not be deemed to constitute a Default or Event of Default; provided that no Overadvance arises as a result thereof.  Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that the Lenders have made payments pursuant to Section 2.05(e) to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear.

(e)          Promptly following receipt of a notice of a L/C Disbursement pursuant to Section 2.05(d), each Lender agrees to fund its Revolving Facility Percentage of any Loan deemed made pursuant to Section 2.05(d) on the same terms and conditions as if the Borrower had requested the amount thereof as a Loan and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Lenders.  By the issuance of a Letter of Credit (or an amendment or extension of a Letter of Credit) and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank shall be deemed to have granted to each Lender, and each Lender shall be deemed to have purchased, a participation in each Letter of Credit issued by the Issuing Bank, in an amount equal to its Revolving Facility Percentage of such Letter of Credit, and each such Lender agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Revolving Facility Percentage of any L/C Disbursement made by the Issuing Bank under the applicable Letter of Credit.  In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Revolving Facility Percentage of each L/C Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the date due as provided in Section 2.05(d), or of any reimbursement payment that is required to be refunded (or that the Administrative Agent or the Issuing Bank elects, based upon the advice of counsel, to refund) to the Borrower for any reason.  Each Lender acknowledges and agrees that its obligation to deliver to the Administrative Agent, for the account of the Issuing Bank, an amount equal to its respective Revolving Facility Percentage of each Letter of Credit Disbursement pursuant to this Section 2.05(e) shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of a Default or Event of Default or the failure to satisfy any condition set forth in Section 4.01 hereof.  If any such Lender fails to make available to the Administrative Agent the amount of such Lender’s Revolving Facility Percentage of a L/C Disbursement as provided in this Section, such Lender shall be deemed to be a Defaulting Lender and the Administrative Agent (for the account of the Issuing Bank) shall be entitled to recover such amount on demand from such Lender together with interest thereon at the rate applicable to Defaulting Lenders until paid in full.

(f)       The Borrower agrees to indemnify, defend and hold harmless each Issuing Bank and its branches, Affiliates and correspondents and each such person’s respective directors, officers, employees, attorneys and agents (each, including the Issuing Bank, a “Letter of Credit Related Person”) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties and damages, and all reasonable fees and disbursements of attorneys, experts, or consultants (excluding the allocated costs of in house counsel and limited to not more than one counsel for all such Letter of Credit Related Persons, taken as a whole, and, if necessary, a single local counsel in each appropriate jurisdiction for all such Letter of Credit Related Persons, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel with the Borrower’s prior written consent (not to be unreasonably withheld), of another firm of counsel for such affected Letter of Credit Related Person)), incurred in connection therewith or in connection with the enforcement of this indemnification, which may be incurred by or awarded against any Letter of Credit Related Person (other than Taxes, which shall be governed by Section 2.17), and which arise out of or in connection with, or as a result of this Agreement, any Letter of Credit, any Issuer Document, or any Drawing Document referred to in or related to any Letter of Credit, or any action or proceeding arising out of any of the foregoing (whether administrative, judicial or in connection with arbitration); in each case, including that resulting from the Letter of Credit Related Person’s own negligence; provided, that such indemnity shall not, as to any Letter of Credit Related Person, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence, bad faith or willful misconduct of such Letter of Credit Related Person or any of its Related Parties. The provisions of this Section 2.05(f) shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, any Issuing Bank or any Lender.

(g)         The liability of any Issuing Bank (or any other Letter of Credit Related Person) under, in connection with or arising out of any Letter of Credit (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages suffered by the Borrower that are caused directly by the Issuing Bank’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction, in (i) honoring a presentation under a Letter of Credit that on its face does not at least substantially comply with the terms and conditions of such Letter of Credit, (ii) failing to honor a presentation under a Letter of Credit that strictly complies with the terms and conditions of such Letter of Credit or (iii) retaining Drawing Documents presented under a Letter of Credit.  The Borrower’s aggregate remedies against the Issuing Bank and any Letter of Credit Related Person for wrongfully honoring a presentation under any Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Borrower to the Issuing Bank in respect of the honored presentation in connection with such Letter of Credit under Section 2.05(d), plus interest at the rate then applicable to ABR Loans hereunder.  The Borrower shall take actions to avoid and mitigate the amount of any damages claimed against the Issuing Bank or any other Letter of Credit Related Person, including by enforcing its rights against the beneficiaries of the Letters of Credit.  Any claim by the Borrower under or in connection with any Letter of Credit shall be reduced by an amount equal to the sum of (x) the amount (if any) saved by the Borrower as a result of the breach or alleged wrongful conduct complained of; and (y) the amount (if any) of the loss that would have been avoided had the Borrower taken all reasonable steps to mitigate any loss, and in case of a claim of wrongful dishonor, by specifically and timely authorizing the Issuing Bank to effect a cure.

(h)        The Borrower is responsible for the final text of the Letter of Credit as issued by the Issuing Bank, irrespective of any assistance the Issuing Bank may provide such as drafting or recommending text or by the Issuing Bank’s use or refusal to use text submitted by the Borrower.  The Borrower understands that the final form of any Letter of Credit may be subject to such revisions and changes as are deemed necessary or appropriate by the Issuing Bank, and Borrower hereby consents to such revisions and changes not materially different from the application executed in connection therewith.  The Borrower is solely responsible for the suitability of the Letter of Credit for the Borrower’s purposes.  If the Borrower requests that the Issuing Bank issue a Letter of Credit for an affiliated or unaffiliated third party (an “Account Party”), (i) such Account Party shall have no rights against the Issuing Bank; (ii) the Borrower shall be responsible for the application and obligations under this Agreement; and (iii) communications (including notices) related to the respective Letter of Credit shall be among the Issuing Bank and the Borrower.  The Borrower will examine the copy of the Letter of Credit and any other documents sent by the Issuing Bank in connection therewith and shall promptly notify the Issuing Bank (not later than three (3) Business Days following the Borrower’s receipt of documents from the Issuing Bank) of any non-compliance with the Borrower’s instructions and of any discrepancy in any document under any presentment or other irregularity.  The Borrower understands and agrees that the Issuing Bank is not required to extend the expiration date of any Letter of Credit for any reason.  With respect to any Letter of Credit containing an “automatic amendment” to extend the expiration date of such Letter of Credit, the Issuing Bank, in its sole and absolute discretion, may give notice of non-extension of such Letter of Credit and, if the Borrower does not at any time want the then current expiration date of such Letter of Credit to be extended, the Borrower will so notify the Administrative Agent and the Issuing Bank at least 30 calendar days before the Issuing Bank is required to notify the beneficiary of such Letter of Credit or any advising bank of such non-extension pursuant to the terms of such Letter of Credit (or such shorter period as the Administrative Agent and the Issuing Bank may agree in their sole discretion).

(i)        The Borrower’s reimbursement and payment obligations under this Section 2.05 are absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever; provided, that subject to Section 2.05(g) above, the foregoing shall not release the Issuing Bank from such liability to the Borrower as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against the Issuing Bank following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of the Borrower to an Issuing Bank arising under, or in connection with, this Section 2.05 or any Letter of Credit.

(j)          Without limiting any other provision of this Agreement, each Issuing Bank and each other Letter of Credit Related Person (if applicable) shall not be responsible to the Borrower for, and the Issuing Bank’s rights and remedies against the Borrower and the obligation of the Borrower to reimburse the Issuing Bank for each drawing under each Letter of Credit shall not be impaired by:

(A)    honor of a presentation under any Letter of Credit that on its face substantially complies with the terms and conditions of such Letter of Credit, even if the Letter of Credit requires strict compliance by the beneficiary;

(B)       honor of a presentation of any Drawing Document that appears on its face to have been signed, presented or issued (A) by any purported successor or transferee of any beneficiary or other person required to sign, present or issue such Drawing Document or (B) under a new name of the beneficiary;

(C)      acceptance as a draft of any written or electronic demand or request for payment under a Letter of Credit, even if nonnegotiable or not in the form of a draft or notwithstanding any requirement that such draft, demand or request bear any or adequate reference to the Letter of Credit;

(D)       the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other than the Issuing Bank’s determination that such Drawing Document appears on its face substantially to comply with the terms and conditions of the Letter of Credit);

(E)      acting upon any instruction or request relative to a Letter of Credit or requested Letter of Credit that the Issuing Bank in good faith believes to have been given by a person authorized to give such instruction or request;

(F)     any errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent or transmitted) or for errors in interpretation of technical terms or in translation or any delay in giving or failing to give notice to the Borrower;

(G)      any acts, omissions or fraud by, or the insolvency of, any beneficiary, any nominated person or entity or any other person or any breach of contract between any beneficiary and the Borrower or any of the parties to the underlying transaction to which the Letter of Credit relates;

(H)     assertion or waiver of any provision of the ISP or UCP that primarily benefits an issuer of a letter of credit, including any requirement that any Drawing Document be presented to it at a particular hour or place;

(I)       payment to any presenting bank (designated or permitted by the terms of the applicable Letter of Credit) claiming that it rightfully honored or is entitled to reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;

(J)       acting or failing to act as required or permitted under Standard Letter of Credit Practice applicable to where the Issuing Bank has issued, confirmed, advised or negotiated such Letter of Credit, as the case may be;

(K)     honor of a presentation after the expiration date of any Letter of Credit notwithstanding that a presentation was made prior to such expiration date and dishonored by the Issuing Bank if subsequently the Issuing Bank or any court or other finder of fact determines such presentation should have been honored;

(L)      dishonor of any presentation that does not strictly comply or that is fraudulent, forged or otherwise not entitled to honor;

(M)     honor of a presentation that is subsequently determined by the Issuing Bank to have been made in violation of international, federal, state or local restrictions on the transaction of business with certain prohibited persons;

(N)      any lack of validity or enforceability of any Letter of Credit, any Issuer Document or this Agreement, or any term or provision therein; or

(O)      any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.

(k)       [Reserved.]

(l)       Upon the request of the  Administrative Agent, (i) if an Issuing Bank has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an Revolving L/C Exposure that remains outstanding, or (ii) if, as of the Letter of Credit Expiration Date, any Revolving L/C Exposure for any reason remains outstanding, the Borrower shall, in each case, Cash Collateralize the aggregate amount of such Revolving L/C Exposure.  For purposes of this Section 2.05, “Cash Collateralize” means to pledge and deposit with or deliver to the Agent, for the benefit of the Issuing Bank and the Lenders, as collateral for the Revolving L/C Exposure, cash or deposit account balances in an amount equal to 103% of the outstanding amount of all Revolving L/C Exposure (other than Revolving L/C Exposure with respect to Letters of Credit denominated in an Alternate Currency, which Revolving L/C Exposure shall be Cash Collateralized in an amount equal to 115% of the outstanding amount of such Revolving L/C Exposure), pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable Issuing Bank (which documents are hereby consented to by the Lenders).  The Borrower hereby grants to the Administrative Agent a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Citibank, N.A.  If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any person other than the Administrative Agent or that the total amount of such funds is less than the aggregate outstanding amount of all Revolving L/C Exposure, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate outstanding amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the Issuing Bank and, to the extent not so applied, shall thereafter be applied to satisfy other Loan Obligations.  If Borrower fails to provide Cash Collateral as required by this Section 2.05, the Lenders may (and, upon direction of the Administrative Agent, shall) advance, as Loans, the amount of the cash collateral required pursuant to the terms of this Agreement so that the then outstanding amount of all Revolving L/C Exposure is cash collateralized in accordance with the terms hereof (whether or not the Commitments have terminated, an Overadvance exists or the conditions in Section 4.01 are satisfied).

(m)      [Reserved].

(n)       [Reserved].

(o)      Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Roll‑Over Letter of Credit), (i) the rules of the ISP shall apply to each Standby Letter of Credit, and (ii) the rules of the UCP shall apply to each Trade Letter of Credit.

(p)      Each Issuing Bank shall be deemed to have acted with due diligence and reasonable care if the Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement.

(q)      Each Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each Issuing Bank shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article VIII with respect to any acts taken or omissions suffered by the Issuing Banks in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article VIII included such Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Issuing Banks.

(r)      In the event of a direct conflict between the provisions of this Section 2.05 and any provision contained in any Issuer Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other.  In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.05 shall control and govern.

(s)       The provisions of this Section 2.05 shall survive the termination of this Agreement and the repayment in full of the Loan Obligations with respect to any Letters of Credit that remain outstanding.

(t)       At the Borrower’s cost and expense, the Borrower shall execute and deliver to the Issuing Banks such additional certificates, instruments and/or documents and take such additional action as may be reasonably requested by an Issuing Bank to enable such Issuing Bank to issue any Letter of Credit pursuant to this Agreement and related Issuer Document, to protect, exercise and/or enforce the Issuing Bank’s rights and interests under this Agreement or to give effect to the terms and provisions of this Agreement or any Issuer Document.  The Borrower irrevocably appoints each Issuing Bank as its attorney-in-fact and authorizes each Issuing Bank, without notice to the Borrower, to execute and deliver ancillary documents and letters customary in the letter of credit business that may include but are not limited to advisements, indemnities, checks, bills of exchange and issuance documents.  The power of attorney granted by the Borrower is limited solely to such actions related to the issuance, confirmation or amendment of any Letter of Credit and to ancillary documents or letters customary in the letter of credit business.  This appointment is coupled with an interest.

(b)         Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with clause (a) of this Section 2.06 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of (A) the Federal Funds Effective Rate and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of a payment to be made by the Borrower or a Subsidiary Borrower, the interest rate applicable to ABR Loans at such time.  If the Borrower or any Subsidiary Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower or the applicable Subsidiary Borrower the amount of such interest paid by the Borrower or such Subsidiary Borrower for such period.  If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower or a Subsidiary Borrower shall be without prejudice to any claim the Borrower or such Subsidiary Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

(c)         The foregoing notwithstanding, the Administrative Agent, in its sole discretion, may from its own funds make a Revolving Facility Loan on behalf of the Lenders (including by means of Swingline Loans to the Borrower).  In such event, the applicable Lenders on behalf of whom the Administrative Agent made the Revolving Facility Loan shall reimburse the Administrative Agent for all or any portion of such Revolving Facility Loan made on its behalf upon written notice given to each applicable Lender not later than 2:00 p.m., Local Time, on the Business Day such reimbursement is requested.  The entire amount of interest attributable to such Revolving Facility Loan for the period from and including the date on which such Revolving Facility Loan was made on such Lender’s behalf to but excluding the date the Administrative Agent is reimbursed in respect of such Revolving Facility Loan by such Lender shall be paid to the Administrative Agent for its own account.

(b)         To make an election pursuant to this Section 2.07, the Borrower shall notify the Administrative Agent of such election in writing by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such Interest Election Request shall be irrevocable and shall be made by electronic means to the Administrative Agent of a written Interest Election Request signed by the Borrower.

(c)          Each Interest Election Request shall specify the following information in compliance with Section 2.02:

(i)      the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii)       the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii)     whether the resulting Borrowing is to be an ABR Borrowing, Term SOFR Borrowing, Term CORRA Borrowing or Canadian Prime Rate Borrowing; and

(iv)      if the resulting Borrowing is a Term Benchmark Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period.”

(d)         Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender to which such Interest Election Request relates of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e)          If the Borrower fails to deliver a timely Interest Election Request with respect to (A) a Term Benchmark Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (x) each Term SOFR Borrowing shall be converted to an ABR Borrowing and (y) each Term CORRA Borrowing shall be converted to a Canadian Prime Rate Borrowing.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i)(A) no outstanding Borrowing denominated in Dollars may be converted to or continued as a Term SOFR Borrowing and (B) unless repaid, each such Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and (ii)(A) no outstanding Borrowing denominated in Canadian Dollars may be converted to or continued as a Term CORRA Borrowing and (B) unless repaid, each such Borrowing shall be converted to a Canadian Prime Rate Borrowing at the end of the Interest Period applicable thereto.

(a)       Unless previously terminated, the Revolving Facility Commitments of each Class shall terminate on the applicable Revolving Facility Maturity Date for such Class.

(b)         The Borrower may at any time terminate, or from time to time reduce, the Revolving Facility Commitments of any Class; provided, that (i) each reduction of the Revolving Facility Commitments of any Class shall be in an amount that is an integral multiple of $250,000 and not less than $1,000,000 (or, if less, the remaining amount of the Revolving Facility Commitments of such Class) and (ii) the Borrower shall not terminate or reduce the Revolving Facility Commitments of any Class if, after giving effect to any concurrent prepayment of the Revolving Facility Loans in accordance with Section 2.11 and any Cash Collateralization of Letters of Credit in accordance with Section 2.05(l), the Revolving Facility Credit Exposure of such Class (excluding any Cash Collateralized Letter of Credit) would exceed the total Revolving Facility Commitments of such Class.

(c)       The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Facility Commitments of any Class under paragraph (b) of this Section 2.08 at least three (3) Business Days prior to the effective date of such termination or reduction (or such shorter period reasonably acceptable to the Administrative Agent), specifying such election and the effective date thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the applicable Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant to this Section 2.08 shall be irrevocable; provided, that a notice of termination or reduction of the Revolving Facility Commitments of any Class delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, indentures or similar agreements or other transactions, in which case such notice may be delayed until such time as such condition is satisfied or revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied (or waived by the Borrower in its sole discretion) and/or rescinded at any time by the Borrower if the Borrower determines in its sole discretion that any or all of such conditions will not be satisfied (or waived).  Any termination or reduction of the Commitments shall be permanent.  Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.

(b)          Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower or any Subsidiary Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c)          The Administrative Agent shall maintain an account on its books in the name of the Borrower (the “Loan Account”) which will reflect (i) all Loans and other advances made by the Lenders to the Borrower or any Subsidiary Borrower or for the Borrower’s or any Subsidiary Borrower’s account, (ii) all L/C Disbursements and fees and interest that have become payable with respect thereto as herein set forth and (iii) any and all other monetary Loan Obligations that have become payable.  The Loan Account will be credited with all amounts received by the Administrative Agent from the Borrower or from other persons for the Borrower’s account, including all amounts received in the Collateral Agent Account pursuant to Section 5.11, and the amounts so credited shall be applied as set forth in and to the extent required by Section 7.02. After the end of each month, the Administrative Agent shall send to the Borrower a statement accounting for the charges (including interest), loans, advances and other transactions occurring among and between the Administrative Agent, the Lenders and the Borrower during that month.

(d)         The entries made in the accounts maintained pursuant to clause (b) or (c) of this Section 2.09 shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower or any Subsidiary Borrower to repay the Loans in accordance with the terms of this Agreement.

(e)         Any Lender may request that Loans made by it be evidenced by a promissory note (a “Note”).  In such event, the Borrower and each applicable Subsidiary Borrower shall prepare, execute and deliver to such Lender a Note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent and reasonably acceptable to the Borrower.  Thereafter, unless otherwise agreed to by the applicable Lender, the Loans evidenced by such Note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more Notes in such form payable to the payee named therein (or, if requested by such payee, to such payee and its registered assigns).

(b)        Subject to Section 2.01(b) and (c), in the event that the aggregate amount of the Revolving Facility Credit Exposure exceeds Maximum Availability in effect at such time (other than as a result of changes in currency exchange rates), then the Borrower and each Subsidiary Borrower shall promptly repay outstanding Revolving Facility Loans and/or Cash Collateralize Revolving L/C Exposure in accordance with Section 2.05(l) in an aggregate amount equal to such excess.

(c)          [Reserved].

(d)          [Reserved].

(e)         Subject to Section 2.01(b) and (c), in the event that the aggregate amount of Revolving Facility Credit Exposure of any Class exceeds the total Revolving Facility Commitments of such Class (other than as a result of changes in currency exchange rates), the Borrower and each applicable Subsidiary Borrower shall promptly prepay Revolving Facility Borrowings or Swingline Borrowings of such Class (or, if no such Borrowings are outstanding, provide Cash Collateral in respect of outstanding Letters of Credit pursuant to Section 2.05(l)) in an aggregate amount equal to such excess.

(f)          In the event that the Revolving L/C Exposure exceeds the Letter of Credit Sublimit (other than as a result of changes in currency exchange rates), at the request of the Administrative Agent, the Borrower and each applicable Subsidiary Borrower shall provide Cash Collateral pursuant to Section 2.05(l) in an aggregate amount equal to such excess.

(g)         Subject to Section 2.01(b) and (c), if as a result of changes in currency exchange rates, on any Revaluation Date, (i) the total Revolving Facility Credit Exposure exceeds the Maximum Availability in effect at such time, (ii) the aggregate amount of Revolving Facility Credit Exposure of any Class exceeds the aggregate Revolving Facility Commitments of such Class or (iii) the Revolving L/C Exposure exceeds the Letter of Credit Sublimit, the Borrower and each applicable Subsidiary Borrower shall, at the request of the Administrative Agent, within 10 days of such Revaluation Date (A) prepay Revolving Facility Borrowings or Swingline Borrowings or (B) provide Cash Collateral pursuant to Section 2.05(l), in an aggregate amount such that the applicable exposure does not exceed the applicable commitment sublimit or amount set forth above.

(b)         The Borrower and each Subsidiary Borrower from time to time agrees to pay (i) to each Revolving Facility Lender of each Class (other than any Defaulting Lender), through the Administrative Agent, on the date that is 15 days after the last day of each fiscal quarter of each year and on the date on which the Revolving Facility Commitments of all the Lenders shall be terminated as provided herein, a fee in Dollars (an “L/C Participation Fee”) on such Lender’s Revolving Facility Percentage of the daily average Revolving L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C Disbursements or Cash Collateralized Letters of Credit) of such Class, during the preceding quarter (or shorter period commencing with the Closing Date or ending with the Revolving Facility Maturity Date or the date on which the Revolving Facility Commitments of such Class shall be terminated) at the rate per annum equal to (x) in the case of Standby Letters of Credit, the Applicable Margin for Term Benchmark Revolving Facility Borrowings of such Class effective for each day in such period or (y) in the case of Trade Letters of Credit, 50% of the Applicable Margin for SOFR Revolving Facility Borrowings of such Class effective for each day in such period, in each case, accrued up to and including the last day of such fiscal quarter (or such date on which the Commitments of all Lenders are terminated) and (ii) to each Issuing Bank, for its own account (x) the date that is five (5) Business Days after the last day of each fiscal quarter of each year and on the date on which the Revolving Facility Commitments of all the Lenders shall be terminated, a fronting fee in respect of each Letter of Credit issued by such Issuing Bank for the period from and including the date of issuance of such Letter of Credit to and including the termination of such Letter of Credit, computed at a rate equal to 1/8 of 1.00% per annum of the Dollar Equivalent of the average daily stated amount of such Letter of Credit, plus (y) in connection with the issuance, amendment or transfer of any such Letter of Credit or any L/C Disbursement thereunder, such Issuing Bank’s customary documentary and processing fees and charges (collectively, “Issuing Bank Fees”).  All L/C Participation Fees and Issuing Bank Fees that are payable on a per annum basis shall be computed on the basis of the actual number of days elapsed in a year of 360 days.

(c)       The Borrower and each Subsidiary Borrower agrees to pay to the Administrative Agent, for the account of the Administrative Agent, the “ABL Facility Administration Fee” as set forth in the Fee Letter, as may be amended, restated, supplemented or otherwise modified from time to time, at the times specified therein (the “Administrative Agent Fees”).

(d)          All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders, except that Issuing Bank Fees shall be paid directly to the applicable Issuing Banks.  Once paid, none of the Fees shall be refundable under any circumstances.

(b)        (i) The Loans comprising each Term SOFR Borrowing shall bear interest at the applicable Term SOFR for the Interest Period in effect for such Borrowing plus the Applicable Margin and (ii) the Loans comprising each Term CORRA Borrowing shall bear interest at the applicable Term CORRA for the Interest Period in effect for such Borrowing plus the Applicable Margin.

(c)        Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or other amount payable by the Borrower or any Subsidiary Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in the preceding clauses of this Section 2.13 or (ii) in the case of any other overdue amount, 2.00% plus the rate applicable to ABR Loans of such Class as provided in clause (a) of this Section 2.13; provided, that this clause (c) shall not apply to any Event of Default that has been waived by the Lenders pursuant to Section 9.08.

(d)        Accrued interest on each Loan shall be payable in arrears (i) on each Interest Payment Date for such Loan and (ii)  upon termination of the applicable Revolving Facility Commitments; provided, that (A) interest accrued pursuant to clause (c) of this Section 2.13 shall be payable on demand, (B) in the event of any repayment or prepayment of any Loan (other than a prepayment of a Revolving Facility Loan that is an ABR Loan that is not made in conjunction with a permanent commitment reduction), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (C) in the event of any conversion of any Term Benchmark Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(e)         All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the ABR at times when the ABR is based on the Prime Rate and/or by reference to the Canadian Prime Rate at times when the Canadian Prime Rate is based on clause (c) of the definition thereof and/or by reference to Term CORRA shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable ABR, Term SOFR, Term CORRA and Canadian Prime Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

(f)        In connection with the use or administration of Term SOFR, the Administrative Agent will have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.  The Administrative Agent will promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.

(a)         Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.14, if on or prior to the first day of any Interest Period for any Term Benchmark Loan:

(i)        the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining Term SOFR or Term CORRA (including because the Relevant Screen Rate is not available or published on a current basis), for the applicable Agreed Currency and for such Interest Period, or

(ii)       the Administrative Agent is advised by the Required Lenders that Term SOFR or Term CORRA for the applicable Agreed Currency and for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining such Loan included in such Borrowing for the applicable Agreed Currency and such Interest Period,

(b)         (i) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any such Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5^th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis.

(ii)       No swap agreement shall be deemed to be a “Loan Document” for purposes of this Section 2.14).

(c)          In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

(d)         The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement.  The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.14(e) and (y) the commencement of any Benchmark Unavailability Period.  For the avoidance of doubt, any notice required to be delivered by the Administrative Agent as set forth in this Section 2.14 may be provided, at the option of the Administrative Agent (in its sole discretion), in one or more notices and may be delivered together with, or as part of any amendment which implements any Benchmark Replacement or any Conforming Changes in connection with any Benchmark Replacement.  Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.14.

(h)        the financial statements, information and other documents required to be provided in clauses (a) and (b) of this Section 5.04 may be those of the Borrower, Holdings or any Parent Entity (any such entity that produces such financial statements, information or other documents, the “Reporting Entity”), so long as in the case of any Parent Entity either (1) such Parent Entity shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any material business or operations other than its direct or indirect ownership of all of the Equity Interests in, and its management of, the Borrower or (2) if otherwise, the financial information so delivered shall be accompanied by a reasonably detailed description of the quantitative differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand;

 (i)        subject to the second to last, third to last, fourth to last and fifth to last paragraphs of the definition of “Borrowing Base” (which for the avoidance of doubt shall override this clause (i)), on or before the twentieth Business Day (or, in the case of the first three full fiscal quarters beginning after the Closing Date, thirtieth Business Day), following the end of each fiscal quarter, commencing with the first full fiscal quarter ending after the Closing Date (or, in each case, at the option of the Borrower, any earlier date), a Borrowing Base Certificate from the Borrower as of the last day of the immediately preceding fiscal quarter; provided that the Borrowing Base Certificate shall not be required to reflect purchase accounting adjustments.  Notwithstanding the foregoing, but subject to the second to last, third to last, fourth to last and fifth to last paragraphs of the definition of “Borrowing Base” (which for the avoidance of doubt shall override this clause (i)) (x) after the occurrence and during the continuance of a Weekly Reporting Triggering Event, the Borrower shall, if requested by the Administrative Agent, execute and deliver to the Administrative Agent Borrowing Base Certificates weekly on or before the fifth Business Day following the end of each week, (y) after the occurrence and during the continuance of a Monthly Reporting Triggering Event, the Borrower shall, if requested by the Administrative Agent, execute and deliver to the Administrative Agent Borrowing Base Certificates monthly on or before the twentieth Business Day following the end of each month and (z) the Borrower shall, (A) in connection with an Asset Sale pursuant to Section 6.05(g) that decreases the Borrowing Base by more than the Borrowing Base Threshold and (B) as provided in the definition of “Unrestricted Subsidiary” (in each case, after giving effect thereto on a Pro Forma Basis), deliver an updated Borrowing Base Certificate to the Administrative Agent giving effect thereto on a Pro Forma Basis.  The Borrower may, at its option, deliver Borrowing Base Certificates more frequently than required by the foregoing provisions of this Section 5.04(i); provided, that, if the Borrower elects to deliver a Borrowing Base Certificate more frequently than required by the foregoing provisions of this Section 5.04(i), the Borrower shall continue to deliver Borrowing Base Certificates with such frequency for no less than 30 days after such election.  The Borrower and the Administrative Agent may implement a system of electronic collateral reporting in order to provide electronic reporting of the Borrowing Base Certificate.  Borrower and the Administrative Agent hereby agree that the delivery of the Borrowing Base Certificate through the Administrative Agent’s electronic platform or portal or, subject to the Administrative Agent’s authentication process, by such other electronic method as may be approved by the Administrative Agent from time to time in its sole discretion shall in each case be deemed to satisfy the obligation of the Borrower to deliver such Borrowing Base Certificate, with the same legal effect as if such Borrowing Base Certificate had been manually executed by the Borrower and delivered to the Administrative Agent;

 

(j)       at any time that (a) Specified Availability is less than the greater of (x) 10% of Maximum Availability at such time and (y) $120,000,000 for five (5) consecutive Business Days or (b) a Specified Default shall have occurred and be continuing (a “Weekly Cash Reporting Triggering Event”), on the second Business Day of each week (commencing with the week immediately following the occurrence of a Weekly Cash Reporting Triggering Event), a report setting forth the aggregate amount of Qualified Cash as of the close of business on the last Business Day of the immediately preceding week. Once occurred, a Weekly Cash Reporting Triggering Event described in clause (a) above shall be deemed to be continuing until such time as Specified Availability is at least equal to the amount required in the immediately preceding sentence for twenty consecutive calendar days, and a Weekly Reporting Triggering Event described in clause (b) above shall be deemed to be continuing until such Specified Default is no longer continuing; and

 

(k)         no later than 10 Business Days after the delivery of the financial statements required pursuant to clauses (a) and (b) of this Section 5.04, commencing with the financial statements for the first full fiscal period ending after the Closing Date, the Borrower shall hold a customary conference call for Lenders; provided that, for so long as the Borrower or any Parent Entity is a public company, no conference call will be required for any fiscal period unless the Borrower or such Parent Entity, as applicable, holds a public earnings call in respect of such fiscal period (and, in that case, the quarterly conference call required pursuant to this paragraph will be held no later than ten Business Days after the date of such public earnings call); provided, further, to the extent that the Borrower holds a customary conference call for lenders under its Term Loan Credit Agreement, and the Borrower elects to makes such call available to the Lenders hereunder to attend, holding such conference call for lenders under its Term Loan Credit Agreement shall satisfy its obligations hereunder.

 

The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

 

Section 5.05    Litigation and Other Notices.  Furnish to the Administrative Agent (which will promptly thereafter furnish to the Lenders) written notice of the following promptly after any Responsible Officer of Holdings (prior to a Qualified IPO of the Borrower) or the Borrower obtains actual knowledge thereof:

 

(a)         any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;

 

(b)         the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against Holdings (prior to a Qualified IPO of the Borrower), the Borrower or any of the Subsidiaries as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect;

 

(c)         any other development specific to Holdings (prior to a Qualified IPO of the Borrower), the Borrower or any of the Subsidiaries that is not a matter of general public knowledge and that has had, or would reasonably be expected to have, a Material Adverse Effect; and

 

(d)         the occurrence of any ERISA Event that, together with all other ERISA Events that have occurred, would reasonably be expected to have a Material Adverse Effect.

 

Section 5.06    Compliance with Laws.  Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; provided, that this Section 5.06 shall not apply to Environmental Laws, which are the subject of Section 5.09, or to laws related to Taxes, which are the subject of Section 5.03.  The Borrower shall have adopted and will maintain in effect and enforce policies and procedures reasonably designed to ensure compliance in all material respects by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions Laws in connection with the Borrower’s or its Subsidiaries’ business operations.

 

Section 5.07      Maintaining Records; Access to Properties and Inspections; Collateral Audits; Appraisals.

 

(a)        Maintain all financial records in accordance with GAAP and permit any persons designated by the Administrative Agent or, upon the occurrence and during the continuance of an Event of Default, any Lender to visit and inspect (other than in connection with a Collateral Audit or an appraisal pursuant to clause (b) or (c) of this Section 5.07) the financial records and the properties of Holdings (prior to a Qualified IPO of the Borrower), the Borrower or any of the Subsidiaries at reasonable times, upon reasonable prior notice to Holdings (prior to a Qualified IPO of the Borrower) or the Borrower, and as often as reasonably requested and to make extracts from and copies of such financial records, and permit any persons designated by the Administrative Agent or, upon the occurrence and during the continuance of an Event of Default, any Lender upon reasonable prior notice to Holdings (prior to a Qualified IPO of the Borrower) or the Borrower to discuss the affairs, finances and condition of Holdings (prior to a Qualified IPO of the Borrower), the Borrower or any of the Subsidiaries with the officers thereof and independent accountants therefor (so long as the Borrower has the opportunity to participate in any such discussions with such accountants), in each case, subject to reasonable requirements of confidentiality, including requirements imposed by law or by contract.  The visitation and inspection rights of the Administrative Agent and its designees, including in connection with any Collateral Audit or appraisal, shall be subject to at least five Business Days’ prior notice (or, if a Specified Default has occurred and is continuing, at least two Business Days’ prior notice) and shall be at such reasonable times, during normal business hours and without undue disruption to the business of Holdings, the Borrower or any of the Subsidiaries.

 

(b)        Unless a Specified Default has occurred and is continuing, during any twelve‑month period, the Administrative Agent (in the case of any appraisal, either by itself or by an Acceptable Appraiser or another third‑party consultant reasonably satisfactory to the Administrative Agent and the Borrower) shall not conduct more than one Collateral Audit and one appraisal during such twelve‑month period; provided, that after the occurrence of a Collateral Audit Triggering Event, the Administrative Agent may conduct (in the case of an appraisal, either by itself or by an Acceptable Appraiser or another third‑party consultant reasonably satisfactory to the Administrative Agent and the Borrower) up to one additional Collateral Audit and one additional appraisal during such twelve‑month period in which such Collateral Audit Triggering Event occurred.  If a Specified Default has occurred and is continuing, the Administrative Agent (in the case of an appraisal, either by itself or by an Acceptable Appraiser or another third‑party consultant reasonably satisfactory to the Administrative Agent and the Borrower) may conduct Collateral Audits or appraisals as are deemed necessary by the Administrative Agent in its Reasonable Credit Judgment without limitation on the number thereof or otherwise counting against the number of Collateral Audits or appraisals that may be conducted under this clause (b).  Any New Asset Review shall count as a Collateral Audit or appraisal for purposes of this clause (b) if such New Asset Review covers all the assets acquired in connection with such acquisition in addition to the existing assets included in the Borrowing Base.  The Borrower agrees to reimburse the Administrative Agent for its actual and documented out-of-pocket charges, costs and expenses reasonably incurred in connection with the Collateral Audits and appraisals referred to in this clause (b).  Any such Collateral Audits and appraisals shall be subject to at least five Business Days’ prior notice (or, if a Specified Default has occurred and is continuing, at least two Business Days’ prior notice) and shall be at such reasonable times, during normal business hours and without undue disruption to the business of Holdings, the Borrower or any of the Subsidiaries.

 

(c)         At any time and from time to time, at the request of the Borrower and at the Borrower’s expense, the Administrative Agent shall conduct additional Collateral Audits or appraisals or updates thereof of any or all of the Eligible Inventory (in the case of an appraisal, either by itself or by an Acceptable Appraiser or another third‑party consultant reasonably satisfactory to the Administrative Agent and the Borrower) prepared in a form reasonably satisfactory to the Administrative Agent, in which case such Collateral Audits or appraisals or updates thereof shall be used in connection with the determination of the Net Orderly Liquidation Percentage with respect to Eligible Inventory and the calculation of the Borrowing Base hereunder.  With respect to each Collateral Audit or appraisal or update thereof made pursuant to this Section 5.07(c), (i) the Administrative Agent and the Borrower shall each be given a reasonable amount of time to review and comment on a draft form of the Collateral Audit or appraisal prior to its finalization and (ii) any adjustments to the Net Orderly Liquidation Percentage with respect to Eligible Inventory or the Borrowing Base hereunder as a result of such Collateral Audit or appraisal or update thereof shall become effective upon finalization and delivery thereof to the Administrative Agent.  For the avoidance of doubt no such Collateral Audit or appraisal shall count toward the limitations on the number of Collateral Audits and appraisals contained in Section 5.07(b).

 

Section 5.08     Use of Proceeds.  Use the proceeds of the Loans made and use the Letters of Credit issued in the manner contemplated by Section 3.12.

 

Section 5.09     Compliance with Environmental Laws.  Comply, and make reasonable efforts to cause all lessees and other persons occupying its properties to comply, with all Environmental Laws applicable to its operations and properties; and obtain and renew all material authorizations and permits required pursuant to Environmental Law for its operations and properties, in each case in accordance with Environmental Laws, except, in each case with respect to this Section 5.09, to the extent the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

Section 5.10     Further Assurances; Additional Security.  Subject to the ABL Intercreditor Agreement and any other applicable Intercreditor Agreement:

 

(a)         Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and Account Control Agreements (to the extent required by Section 5.11) and other documents), that the Administrative Agent may reasonably request (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request by the Administrative Agent, evidence readily available to the Borrower that is reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.

 

(b)        If any asset that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than $20,000,000 is acquired by the Borrower or any Subsidiary Loan Party after the Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof and (y) assets constituting Excluded Property), the Borrower or such Subsidiary Loan Party, as applicable, will (i) notify the Collateral Agent and the Administrative Agent of such acquisition or ownership and (ii) cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations and take, and cause such Subsidiary Loan Party, as applicable, to take, such actions as shall be reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in clause (a) of this Section 5.10, all at the expense of the Loan Parties, subject to clause (g) below and Section 5.11.

 

(c)         [Reserved].

 

(d)       If any additional direct or indirect Subsidiary of the Borrower is formed or acquired after the Closing Date (including, without limitation, pursuant to a Delaware LLC Division) (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within 15 Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent and the Administrative Agent thereof and, within 20 Business Days after the date such Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion (or such longer period as set forth in the definition of “Collateral and Guarantee Requirement” or Section 5.11 or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject to clause (g) below and Section 5.11.

 

(e)      If any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of the Borrower or any Subsidiary Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent and the Administrative Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject to clause (g) below.

 

(f)         Furnish to the Collateral Agent and the Administrative Agent prompt written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s jurisdiction of organization or (D) in the location of the chief executive office of any Loan Party that is not a registered organization; provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Administrative Agent may agree in its reasonable discretion), under the Uniform Commercial Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.

 

(g)        The Collateral and Guarantee Requirement and the other provisions of this Section 5.10, Section 5.11 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property, (ii) (1) motor vehicles and other assets subject to certificates of title, (2) letter of credit rights (other than to the extent a Lien on such assets or such rights can be perfected by filing a Uniform Commercial Code financing statement) and (3) commercial tort claims with a value of less than $20,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is (1) binding on such assets (x) on the Closing Date or (y) on the date of the acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i)) or (2) entered into in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i)) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable provisions under Article 9 of the Uniform Commercial Code) or which could require consent, approval, license or authorization of a Governmental Authority to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate applicable law or violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions under Article 9 of the Uniform Commercial Code, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest in favor of the Secured Parties or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental or regulatory licenses or state, provincial, territorial, municipal or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions under Article 9 of the Uniform Commercial Code, (viii) any “intent-to-use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. §1051, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the Lanham Act has been filed with or accepted by the United States Patent and Trademark Office, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security Documents or otherwise separately agreed in writing between the Administrative Agent and the Borrower, (x) Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold, including in connection with any Permitted Securitization Financing or other factoring, securitization, receivables sale, receivables financing or similar arrangement not prohibited under this Agreement, and any other assets subject to Liens securing Permitted Securitization Financings or other factoring, securitization, receivables sale, receivables financing or similar arrangement not prohibited under this Agreement, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j), (p), (u), (aa), (ee), (ff), (mm) or (oo) of Section 6.02 or is otherwise subject to acquired debt, purchase money debt, a Sale and Lease-Back Transaction or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt, Sale and Lease-Back Transaction or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions under Article 9 of the Uniform Commercial Code or other applicable law), (xiv) all assets of Holdings other than, prior to a Qualified IPO of the Borrower, Equity Interests of the Borrower directly held by Holdings and pledged pursuant to the Holdings Guarantee and Pledge Agreement, (xv) any Excluded Deposit Accounts, (xvi) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent, and (xvii) in the case of assets that would otherwise constitute Shared Term Collateral, any asset at any time that does not constitute collateral under the Term Loan Credit Agreement; provided, that (i) no Accounts, Inventory or Qualified Cash included in the calculation of the Borrowing Base shall constitute Excluded Property and (ii) the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property”; provided that if the Borrower makes such election with respect to any Real Property, no Real Property shall become Collateral unless the Administrative Agent and the Lenders shall have satisfied with the results of reasonable diligence and completion of customary “flood documentation” with respect to such Real Property.  Notwithstanding anything herein or in any other Loan Document to the contrary, (A) the Administrative Agent may grant extensions of time or waivers of requirements for the creation or perfection of security interests or other Liens in or the obtaining of Account Control Agreements, insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, (B) except as required by Section 5.11, no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers shall be required (it being understood that Rent Reserves against the Borrowing Base may be taken in the Administrative Agent’s Reasonable Credit Judgment), (D) no security documents governed by a law other than the laws of the U.S. or perfection under a law other than the laws of the U.S. or, solely to the extent there is a Canadian Borrower, Canada shall be required, (E) no notice shall be required to be sent to insurers, account debtors or other contractual third parties when no Event of Default has occurred and is continuing and (F) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents, the ABL Intercreditor Agreement and any other applicable Intercreditor Agreement.  In addition, notwithstanding anything herein to the contrary, so long as the ABL Intercreditor Agreement or any other applicable Intercreditor Agreement is in effect, the representations, warranties and covenants made in this Agreement and the other Loan Documents with respect to delivery, possession, perfection or priority of any Collateral, the security interest in which may be perfected by possession or control, shall be deemed satisfied by delivery and possession of such Collateral to or by the Applicable Collateral Agent.

 

Section 5.11      Cash Management Systems; Application of Proceeds of Accounts.

 

(a)        Within 120 days after the Closing Date (or such longer period as the Administrative Agent may agree in its reasonable discretion, such extensions not to be unreasonably withheld, delayed or conditioned), the Borrower and each Subsidiary Loan Party shall use commercially reasonable efforts to enter into a customary account control agreement, in a form reasonably satisfactory to the Administrative Agent and the Borrower (each, an “Account Control Agreement”) with the Collateral Agent and any bank or other financial institution with which the Borrower or Subsidiary Loan Party maintains a primary concentration account or any other deposit account into which the proceeds of any Eligible Accounts are collected that exist on the Closing Date and do not qualify as Exempted Accounts.  In the event that such Account Control Agreements are not entered into within 120 days after the Closing Date (or such longer period as the Administrative Agent may agree in its reasonable discretion, such extensions not to be unreasonably withheld or delayed), the Administrative Agent shall have the right to require that the Borrower move such accounts to the Collateral Agent or another bank that will provide such Account Control Agreements.  In addition, the Borrower and each applicable Subsidiary Loan Party shall use commercially reasonable efforts to enter into an Account Control Agreement with respect to any new primary concentration account or any other new deposit account with any bank or other financial institution into which the proceeds of any Eligible Accounts are collected that does not qualify as, or any account that ceases to be, an Exempted Account, in each case within 120 days (or such longer period as the Administrative Agent may reasonably agree) after such account is established, acquired or ceases to be an Exempted Account, as applicable; provided that, in the event that such Account Control Agreements are not entered into within 120 days after such account is established, acquired or ceases to be an Exempted Account (or such longer period as the Administrative Agent may agree in its reasonable discretion, such extensions not to be unreasonably withheld or delayed), the Administrative Agent shall have the right to require that the Borrower move such accounts to the Collateral Agent or another bank that will provide such Account Control Agreements.

 

(b)       At any time after the occurrence and during the continuance of a Cash Dominion Triggering Event, the Collateral Agent shall have the right to deliver an Access Termination Notice or Notice of Exclusive Control (or similar term, as defined in each Account Control Agreement) with respect to each Controlled Account and to transfer or cause to be transferred all available cash balances and cash receipts, including the then contents or then entire ledger balance of each Controlled Account net of such minimum balance (not to exceed (i) in the case of any collection or concentration account, $1,000,000 individually and $4,000,000 in the aggregate and (ii) in the case of any other Controlled Account, $1,000,000 individually and $4,000,000 in the aggregate or, in each case, such other amount approved by the Administrative Agent in its Reasonable Credit Judgment), if any, to an account of, and maintained by, the Collateral Agent (the “Collateral Agent Account”).  Subject to the terms of the Collateral Agreement and, if applicable, Sections 2.18(b) and 7.02, all amounts received in the Collateral Agent Account shall be distributed and applied on a daily basis by the Administrative Agent to repay outstanding Loans and, if an Event of Default has occurred and is continuing, to Cash Collateralize any Revolving L/C Exposure in respect of outstanding Letters of Credit in accordance with Section 2.05(l); provided that, for the avoidance of doubt, any repayment or prepayment of the Revolving Facility Loans pursuant to this sentence shall not reduce the Revolving Facility Commitments then in effect.

 

(c)        The Collateral Agent Account shall at all times be under the sole dominion and control of the Collateral Agent.  The funds on deposit in the Collateral Agent Account shall be applied in accordance with this Agreement and the ABL Intercreditor Agreement and/or another Permitted Intercreditor Agreement, if applicable.

 

(d)        The Borrower and Subsidiary Loan Parties may close and/or open any account (including any Controlled Account) maintained at any bank or other financial institution subject to the applicable requirements of Section 5.11(a).

 

(e)         So long as no Cash Dominion Triggering Event has occurred and is continuing, the Borrower and Subsidiary Loan Parties shall have full and complete access to, and may direct, and shall have sole control over, the manner of disposition of funds in all Controlled Accounts.

 

(f)         At any time after the occurrence and during the continuance of a Cash Dominion Triggering Event, (i) any cash or cash equivalents owned by the Borrower and any Subsidiary Loan Party (other than (w) the aggregate amount that is on deposit in a segregated account which the Borrower designates in writing to the Administrative Agent as being the “uncontrolled cash account” (the “Designated Disbursement Account”) (provided that the aggregate amount on deposit constituting proceeds of Shared ABL Collateral shall not exceed $20,000,000), (x) de minimis cash or cash equivalents from time to time inadvertently misapplied by the Borrower or any Subsidiary Loan Party or (y) cash or cash equivalents in any Exempted Accounts) that are deposited to any account, or held or invested in any manner, otherwise than in a Controlled Account, shall be transferred to a Controlled Account no less frequently than once per Business Day and (ii) no funds on deposit in the Designated Disbursement Account shall be used for any purpose other than (A) general corporate purposes, including the payment of trade payables and operating expenses incurred by the Loan Parties in the ordinary course of business (including any debt service payment due in respect of any Indebtedness of the Loan Parties otherwise permitted hereunder) and (B) for such other purposes permitted hereunder as the Loan Parties may deem appropriate.

 

(g)         The Administrative Agent shall promptly (but in any event within one Business Day of obtaining knowledge thereof) (a) furnish written notice to each person with whom a Controlled Account is maintained of any termination of a Cash Dominion Triggering Event or (b) take such other action and execute such other documents as may be reasonably requested by the Borrower or the applicable Subsidiary Loan Party in connection with any termination of a Cash Dominion Triggering Event.

 

(h)        Notwithstanding anything herein to the contrary, it is understood and agreed that no blocked account or other control agreements shall be required with respect to (a) any Excluded Deposit Accounts, (b) the Designated Disbursement Account or (c) any other accounts (including deposit accounts) with an average monthly balance of less than $20,000,000 individually or $35,000,000 in the aggregate for all such accounts (or, in each case, such greater amounts to which the Administrative Agent may reasonably agree) (any such excluded accounts in this clause (h), the “Exempted Accounts”).

 

(i)         Any amounts held or received in the Collateral Agent Account (including all interest and other earnings with respect thereto, if any) (x) upon the occurrence of the Termination Date or (y) when no Cash Dominion Triggering Event exists, shall (subject in the case of subclause (x) to the provisions of the ABL Intercreditor Agreement and/or another Permitted Intercreditor Agreement, if applicable) be remitted to an account of the Borrower designated by the Borrower to the Administrative Agent.

 

Section 5.12     Post-Closing. Take all necessary actions to satisfy the items described on Schedule 5.12 within the applicable period of time specified in such Schedule (or such longer period as the Administrative Agent may agree in its reasonable discretion).

 

Section 5.13      Transactions with Affiliates.

 

(a)        Take actions to not and to not permit any of the Subsidiaries to, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transaction with, any of its Affiliates (other than the Borrower, Holdings, and the Subsidiaries or any person that becomes a Subsidiary as a result of such transaction) in a transaction (or series of related transactions) involving aggregate consideration in excess of the greater of $350,000,000 and 5% of Consolidated Total Assets, unless such transaction is (i) otherwise permitted (or required) under this Agreement, (ii) upon terms that are substantially no less favorable, when taken as a whole, to the Borrower or such Subsidiary, as applicable, than would be obtained in a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of the Borrower or such Subsidiary in good faith or (iii) approved by a majority of the Disinterested Directors of the Borrower.

 

(b)         The foregoing clause (a) shall not apply to the following, to the extent not otherwise prohibited under this Agreement,

 

(i)       any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options and stock ownership plans approved by the Board of Directors of Holdings (or any Parent Entity) or of the Borrower,

 

(ii)        loans or advances to officers, directors, employees or consultants of Holdings (or any Parent Entity), the Borrower or any of the Subsidiaries in accordance with Section 6.04(e),

 

(iii)       transactions among the Borrower or any Subsidiary or any entity that becomes a Subsidiary as a result of such transaction (including via merger, consolidation or amalgamation in which the Borrower or a Subsidiary is the surviving or continuing entity),

 

(iv)       the payment of fees, reasonable out-of-pocket costs and indemnities and employment and severance arrangements provided to, or on behalf of or for the benefit of, directors, officers, consultants and employees of Holdings, any Parent Entity, the Borrower or any of the Subsidiaries in the ordinary course of business,

 

(v)       subject to the limitations set forth in Section 5.13(b)(xiv), if applicable, the Transactions and any transactions pursuant to the Transaction Documents and permitted transactions, agreements and arrangements in existence on the Closing Date and, to the extent involving aggregate consideration in excess of $10,000,000, set forth on Schedule 5.13 or any amendment thereto or replacement thereof or similar arrangement to the extent such amendment, replacement or arrangement is not materially adverse to the Lenders when taken as a whole (as determined by the Borrower in good faith),

 

(vi)        (A) any employment agreements entered into by the Borrower or any of the Subsidiaries in the ordinary course of business, (B) any subscription agreement or similar agreement pertaining to the repurchase of Equity Interests pursuant to put/call rights or similar rights with employees, officers or directors, and (C) any employee compensation, benefit plan or arrangement, any health, disability or similar insurance plan which covers employees, and any reasonable employment contract and transactions pursuant thereto,

 

(vii)     Restricted Payments permitted under Section 6.06, including payments to Holdings (or any Parent Entity), Investments permitted under Section 6.04 and payments or other distributions of, or in respect of, Junior Financing permitted by Section 6.09(b)(i),

 

(viii)     any purchase by Holdings of the Equity Interests of the Borrower; provided, that any Equity Interests of the Borrower purchased by Holdings (prior to a Qualified IPO of the Borrower) shall be pledged to the Collateral Agent (and Holdings shall deliver the relevant certificates or other instruments (if any) representing such Equity Interests to the Collateral Agent) on behalf of the Secured Parties to the extent required by the Holdings Guarantee and Pledge Agreement,

 

(ix)       payments by the Borrower or any of the Subsidiaries to any Co-Investor made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the majority of the Board of Directors of the Borrower in good faith,

 

(x)        transactions for the purchase or sale of goods, equipment, products, parts and services (including property management and similar services) entered into in the ordinary course of business or consistent with past practice or industry norm,

 

(xi)       any transaction in respect of which the Borrower delivers to the Administrative Agent a letter addressed to the Board of Directors of the Borrower from an accounting, appraisal or investment banking firm, in each case of nationally recognized standing that is in the good faith determination of the Borrower qualified to render such letter, which letter states that (i) such transaction is on terms that are substantially no less favorable, when taken as a whole, to the Borrower or the applicable Subsidiary, as applicable, than would be obtained in a comparable arm’s-length transaction with a person that is not an Affiliate or (ii) such transaction is fair, when taken as a whole, to the Borrower or the applicable Subsidiary, as applicable, from a financial point of view,

 

(xii)     subject to subclause (xiv) below, if applicable, the payment of all fees, expenses, bonuses and awards related to the Transactions, including fees to any Co-Investor,

 

(xiii)     transactions with joint ventures for the purchase or sale of goods, equipment, products, parts and services entered into in the ordinary course of business or consistent with past practice or industry norm,

 

(xiv)     any agreement to pay, and the payment of, monitoring, consulting, management, transaction, advisory or similar fees payable to Parent, any Co-Investor or any other direct or indirect holder of Equity Interests of the Borrower (A) in an aggregate amount in any fiscal year not to exceed the sum of (1) the greater of $175,000,000 and 2.5% of Consolidated Total Assets, plus reasonable out of pocket costs and expenses in connection therewith in any fiscal year and unpaid amounts for any prior periods from and including the fiscal year in which the Closing Date occurs; plus (2) any deferred, accrued or other fees in respect of any fiscal years from and including the fiscal year in which the Closing Date occurs (to the extent such fees in the aggregate do not exceed the amounts described in clause (A)(1) above in respect of such fiscal years), plus (B) 1.00% of the value of transactions with respect to which any Co-Investor (or such other direct or indirect holder of Equity Interests of the Borrower) provides any transaction, advisory or other services (including in connection with the Transactions), plus (C) the present value of all future amounts payable pursuant to any agreement referred to in clause (A)(1) above in connection with the termination of such agreement,

 

(xv)       the issuance, sale or transfer of Equity Interests of the Borrower or any Subsidiary to Holdings (or any Parent Entity) and capital contributions by Holdings (or any Parent Entity) to the Borrower or any Subsidiary,

 

(xvi)     the issuance, sale or transfer of Equity Interests to the management of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with the Transactions,

 

(xvii)    the entering into of any tax sharing agreement or arrangement and payments by Holdings (or any Parent Entity), the Borrower and the Subsidiaries pursuant to a tax sharing agreement or arrangement (whether written or as a matter of practice) to the extent that such payment complies with clause (v) of Section 6.06(b),

 

(xviii)   transactions pursuant to any Permitted Securitization Financing or a receivables sale or financing,

 

(xix)     payments, loans (or cancellation of loans) or advances to officers, directors, employees or consultants that are (i) approved by a majority of the Disinterested Directors of Holdings (or any Parent Entity) or the Borrower in good faith, (ii) made in compliance with applicable law and (iii) otherwise permitted under this Agreement,

 

(xx)      transactions with customers, clients, lessors, landlords, suppliers, contractors or purchasers or sellers of goods or services, in each case in the ordinary course of business or consistent with past practice or industry norm otherwise in compliance with the terms of this Agreement that are fair to the Borrower or the Subsidiaries (in the good faith determination of the Borrower),

 

(xxi)     transactions between the Borrower or any of the Subsidiaries and any person, a director of which is also a director of the Borrower or any direct or indirect parent company of the Borrower; provided, however, that (A) such director abstains from voting as a director of the Borrower or such direct or indirect parent company, as the case may be, on any matter involving such other person and (B) such person is not an Affiliate of the Borrower for any reason other than such director’s acting in such capacity,

 

(xxii)    transactions not prohibited by, and complying with, the provisions of Section 6.05,

 

(xxiii)   intercompany transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Borrower and the Subsidiaries and not for the purpose of circumventing any covenant set forth herein, and

 

(xxiv)   (i) investments by Affiliates of the Borrower in securities or loans of the Borrower or any Subsidiary (and payment of reasonable out-of-pocket fees and expenses incurred by the Co-Investors in connection therewith) so long as the investment is being generally offered to other investors on the same or more favorable terms and (ii) payments to Affiliates of the Borrower in respect of securities or loans or other investments of the Borrower or any Subsidiary contemplated in the foregoing subclause (i) or that were acquired from persons other than the Borrower or any Subsidiary, in each case in accordance with the terms of such securities or loans or other investments (or other terms not materially less favorable to the Borrower or such Subsidiary, taken as a whole, than such terms (as determined by the Borrower in good faith)).

 

Notwithstanding the foregoing, the Co-Investors and their respective Affiliates, shall in each case not be considered an Affiliate of the Borrower or its Subsidiaries with respect to any transaction so long as such transaction is in the ordinary course of business or pursuant to an operations management agreement, management services agreement, transition services agreement, license agreement, commercial agreement, supply agreement, shared services agreement or other similar agreement entered into with the Borrower and/or its Subsidiaries or, in each case, amendments, modifications or supplements thereto or replacements thereof that are not materially adverse, taken as a whole, to the Borrower or its Subsidiaries (as determined by the Borrower in good faith).

 

Section 5.14    Business of the Borrower and the Subsidiaries. Take actions to not engage at any time to any material respect in any business or business activity substantially different from a business or business activities conducted by the Borrower or the Subsidiaries on the Closing Date or any Similar Business, or in the case of a Special Purpose Securitization Subsidiary, Permitted Securitization Financings.

 

Section 5.15    Fiscal Year. In the case of the Borrower, maintain its fiscal year as in effect on the Closing Date unless prior notice has been given to the Administrative Agent, in which case, the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect any such change in fiscal year.

 

ARTICLE VI

 

Negative Covenants

 

The Borrower covenants and agrees with each Lender that, until the Termination Date, unless the Required Lenders shall otherwise consent in writing, the Borrower will not, and will not permit any of the Subsidiaries to:

 

Section 6.01     Indebtedness.  Incur, create, assume or permit to exist any Indebtedness, except:

 

(a)         (i) Indebtedness existing or committed on the Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and (y) in excess of $10,000,000 shall be set forth on Schedule 6.01) and (ii) any Permitted Refinancing Indebtedness in respect thereof (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);

 

(b)         (i) Indebtedness created hereunder (including pursuant to Section 2.21) and under the other Loan Documents and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(c)         Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes, Commercial Agreements entered into in the ordinary course of business and for non-speculative purposes and Supply Chain Financings;

 

(d)        (i) Indebtedness constituting reimbursement obligations with respect to letters of credit, bankers acceptances and bank guarantees or similar credit transactions issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from governmental authorities, letters of credit issued to any Governmental Authority or required by any Governmental Authority, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims and (ii) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to L/C Instruments and similar instruments) in respect of performance, bid, appeal and surety bonds, performance and completion guarantees and similar obligations provided by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm, or issued to any Governmental Authority or required by such Governmental Authority;

 

(e)         Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, cash pooling, tax and accounting operations of the Borrower and its Subsidiaries) Indebtedness owed by any Loan Party to any Subsidiary that is not a Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit H hereto or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative Agent and the Borrower;

 

(f)        Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees, trade contracts, tender, stay, statutory, judgment, appeal, advance payment, indemnities, supply chain financing transactions, export or import transactions, customs, sales, value added or similar taxes, revenue bonds and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry norm, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry norm or issued to any Governmental Authority or required by such Governmental Authority;

 

(g)        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 or other cash management services;

 

(h)         (i) Indebtedness of a Subsidiary acquired after the Closing Date or a person amalgamated, merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition or merger, consolidation or amalgamation) or other Investments or New Projects, where such acquisition, merger, consolidation, amalgamation, Investment or New Project is not prohibited by this Agreement; provided, that (1) (x) in the case of any such Indebtedness secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, amalgamation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 4.30 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (y) in the case of any such Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Term B Loans, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, amalgamation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 4.80 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto and (z) in the case of any other such Indebtedness (other than Indebtedness secured by Liens on the Shared ABL Collateral ranking senior to or pari passu with the liens on the Shared ABL Collateral securing the Loan Obligations), either (I) the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, amalgamation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (A) not less than 2.00 to 1.00 or (B) no less than the Interest Coverage Ratio in effect immediately prior thereto or (II) the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, amalgamation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (A) not greater than 5.05 to 1.00 or (B) no greater than the Net Total Leverage Ratio in effect immediately prior thereto and (2) an additional amount of Indebtedness in excess of the amount permitted by the foregoing clause (1) shall be permitted pursuant to this Section 6.01(h)(i) so long as, immediately after giving effect to the incurrence or assumption of such Indebtedness and the use of proceeds thereof, the aggregate outstanding principal amount of such Indebtedness, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(h)(i)(2), would not exceed the greater of $1,050,000,000 and 15% of Consolidated Total Assets and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;

 

(i)         (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 365 days after the acquisition, lease, construction, installation, maintenance, service, repair, replacement, remodeling, modernization, expansion, upgrade, development, update or improvement of the respective property (real or personal), equipment or other asset (whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, maintenance, services, repair, replacement, remodeling, modernization, upgrade, development, expansion, update or improvement, in an aggregate principal amount outstanding that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $520,000,000 and 7.5% of Consolidated Total Assets, (ii) Indebtedness (including Capitalized Lease Obligations) incurred by the Borrower or any Subsidiary to finance (whether prior to or within 365 days after) the acquisition, lease, construction, installation, maintenance, service, repair, replacement, remodeling, modernization, expansion, upgrade, development, update or improvement of property (real or personal), equipment or other assets (whether through the direct purchase of property or the Equity Interest of any person owning such property) used or useful in the business of the Borrower and its Subsidiaries, (iii) Indebtedness (including Capitalized Lease Obligations) incurred by the Borrower or any Subsidiary to finance (whether prior to or within 365 days after) the acquisition, lease, construction, installation, maintenance, service, repair, replacement, remodeling, modernization, expansion, upgrade, development, update or improvement of property (real or personal), equipment or other assets (whether through the direct purchase of property or the Equity Interest of any person owning such property) so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Payment Conditions are satisfied on a Pro Forma Basis and (iv) any Permitted Refinancing Indebtedness in respect of the foregoing;

 

(j)         (i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;

 

(k)        (i) Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $1,050,000,000 and 15% of Consolidated Total Assets, and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(l)         (i) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 200% of the amount of net cash proceeds received by the Borrower after the Closing Date (x) from the issuance or sale of its Qualified Equity Interests, (y) from a contribution to its common equity or (z) that becomes part of the capital of the Borrower through consolidation, amalgamation or merger achieved through the issuance of, or in exchange for, Equity Interests of the Borrower, Holdings or any Parent Entity (in each case of (x), (y) and (z), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions or Cure Amounts and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(m)       Guarantees by the Borrower or any Subsidiary of any Indebtedness of the Borrower or any Subsidiary permitted to be incurred under this Agreement; provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated to such other Indebtedness;

 

(n)        Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price, deferred purchase price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, any New Projects, other Investments or the acquisition or disposition of any business, assets or a Subsidiary not prohibited by this Agreement;

 

(o)      Indebtedness in respect of L/C Instruments or similar instruments issued to support performance obligations and commercial letters of credit (other than obligations in respect of other Indebtedness), in each case, in the ordinary course of business or consistent with past practice or industry norm;

 

(p)       Guarantees by the Borrower or any Subsidiary of Indebtedness under customer financing lines of credit entered into in the ordinary course of business or consistent with past practice or industry norm;

 

(q)        (i) Indebtedness secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is (I) not greater than 4.30 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(r)        (i) Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Term B Loans so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is (I) not greater than 4.80 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(s)        (i) Indebtedness (other than Indebtedness secured by Liens on the Shared ABL Collateral ranking senior to or pari passu with the liens on the Shared ABL Collateral securing the Loan Obligations) so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, either (x) the Interest Coverage Ratio on a Pro Forma Basis is (I) not less than 2.00 to 1.00 or (II) no less than the Interest Coverage Ratio in effect immediately prior thereto or (y) the Net Total Leverage Ratio on a Pro Forma Basis is (I) not greater than 5.05 to 1.00 or (II) no greater than the Net Total Leverage Ratio in effect immediately prior thereto and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(t)          (i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $1,050,000,000 and 15% of Consolidated Total Assets, and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(u)         (i) Indebtedness incurred in the ordinary course of business or consistent with past practice or industry norm in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business or consistent with past practice or industry norm and not in connection with the borrowing of money or any Hedging Agreements and (ii) to the extent constituting Indebtedness, customer deposits and advance payments (including progress payments) received in the ordinary course of business or consistent with past practice or industry norm from customers for goods and services;

 

(v)        Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business or consistent with past practice or industry norm;

 

(w)        (i) Indebtedness in connection with (x) Permitted Securitization Financings, (y) receivables sales and financings, factorings or similar arrangements; provided that, in the case of this clause (y), recourse to the Borrower or any Guarantor in connection with such transactions shall be limited to the extent customary (as determined by the Borrower in good faith) for similar transactions in the applicable jurisdictions and (z) other receivables sales and financings, factorings or similar arrangements in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(w)(i)(z), would not exceed the greater of $240,000,000 and 3.5% of Consolidated Total Assets and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(x)         obligations in respect of Cash Management Agreements;

 

(y)         [reserved];

 

(z)        (i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(aa)       (i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Available RP Capacity Amount available at such time and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(bb)      (i) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $700,000,000 and 10% of Consolidated Total Assets, and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(cc)       Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors, employees or consultants thereof or of Holdings or any Parent Entity, their respective Immediate Family Members to finance the purchase or redemption of Equity Interests of the Borrower, Holdings or any Parent Entity not prohibited by Section 6.06;

 

(dd)      Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisitions, New Projects or any other Investment or acquisition permitted hereunder;

 

(ee)       Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business or consistent with past practice or industry norm in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower and its Subsidiaries;

 

(ff)       Indebtedness consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or consistent with past practice or industry norm or (iii) obligations to reacquire assets in connection with customer financing arrangements in the ordinary course of business or consistent with past practice or industry norm;

 

(gg)      Indebtedness (i) supported by a Letter of Credit, in a principal amount not in excess of the available balance of such Letter of Credit (or a letter of credit or bank guarantee issued under any other revolving credit facility or letter of credit facility not prohibited by Section 6.01) or (ii) in respect of cash management services;

 

(hh)      (i) Indebtedness, including in respect of the Term Loan Credit Agreement, in an aggregate principal amount outstanding pursuant to this Section 6.01(hh)(i) not to exceed the sum of (x) $2,250,000,000 plus (y) the greater of $1,075,000,000 and 1.00 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period at the time of incurrence and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(ii)          (i) Indebtedness under bilateral, working capital or local facilities in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(ii)(i), would not exceed the greater of $520,000,000 and 7.5% of Consolidated Total Assets, (ii) Indebtedness under bilateral, working capital or local facilities incurred for working capital purposes and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;

 

(jj)        (i) Indebtedness, including in respect of the Senior Secured Notes, in an aggregate principal amount outstanding pursuant to this Section 6.01(jj)(i) not to exceed $2,250,000,000 and (ii) any Permitted Refinancing Indebtedness in respect thereof;

 

(kk)     Indebtedness (other than Indebtedness secured by Liens on the Shared ABL Collateral ranking senior to or pari passu with the liens on the Shared ABL Collateral securing the Loan Obligations) so long as the Payment Conditions are satisfied on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof;

 

(ll)       guarantees in respect of obligations to suppliers, customers, franchisees, lessors, licensees, sub-licensees and distribution partners incurred in the ordinary course of business or consistent with past practice or industry norm;

 

(mm)    until such time as any such Indebtedness is released therefrom, Indebtedness the proceeds of which have been deposited into escrow pursuant to customary escrow arrangements pending the release thereof; and

 

(nn)      all premium (if any, including tender premiums) expenses, defeasance costs, interest (including post-petition interest or capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (mm) above or refinancings thereof.

 

For purposes of determining compliance with this Section 6.01 or Section 6.02, the amount of any Indebtedness or Liens denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness or Liens incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness or Liens incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date on which such Indebtedness or Liens were incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided, that if such Indebtedness or Liens are incurred to refinance other Indebtedness or Liens denominated in a currency other than Dollars (or in a different currency from the Indebtedness or Liens being refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness or Liens does not exceed (i) the outstanding or, if greater, committed principal amount of such Indebtedness or Liens being refinanced plus (ii) an amount equal to the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), accrued interest, defeasance costs and other costs and expenses (including original issue discount) incurred in connection with such refinancing.

 

Further, for purposes of determining compliance with this Section 6.01, (A) Indebtedness (or portion thereof) need not be permitted solely by reference to one category of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (nn) (including, for the avoidance of doubt, with respect to the clauses set forth in the definition of “Incremental Amount” or “Available RP Capacity Amount”) but may be permitted in part under any combination thereof, (B) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (nn) (including, for the avoidance of doubt, with respect to the clauses set forth in the definition of “Incremental Amount” or “Available RP Capacity Amount”), the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later time), such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 and at the time of incurrence, division, classification or reclassification will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof) without giving pro forma effect to such item (or any portion thereof) when calculating the amount of Indebtedness (or any portion thereof) that may be incurred, divided, classified or reclassified pursuant to any other clause (or any portion thereof) at such time (including, for the avoidance of doubt, with respect to the clauses set forth in the definition of “Incremental Amount” or “Available RP Capacity Amount”); provided, that (x) all Indebtedness outstanding on the Closing Date under this Agreement shall at all times be deemed to have been incurred pursuant to clause (b) of this Section 6.01, (y) all Indebtedness outstanding on the Closing Date under the Term Loan Credit Agreement shall at all times be deemed to have been incurred pursuant to clause (hh) of this Section 6.01 and (z) all Indebtedness outstanding on the Closing Date in respect of the Senior Secured Notes shall at all times be deemed to have been incurred pursuant to clause (jj) of this Section 6.01, (C) in connection with (1) the incurrence of revolving loan Indebtedness under this Section 6.01 or (2) any commitment or other transaction relating to the incurrence of Indebtedness under this Section 6.01 (including, for the avoidance of doubt, with respect to the clauses set forth in the definition of “ Incremental Amount” or “Available RP Capacity Amount”) and the granting of any Lien to secure such Indebtedness, the Borrower may designate the incurrence of such Indebtedness and the granting of such Lien therefor as having occurred on the date of first incurrence of such revolving loan Indebtedness or commitment or intention to consummate such transaction (such date, the “Deemed Date”) (or, at the election of the Borrower or applicable Subsidiary, on any date subsequent thereto, even if a prior date was previously the Deemed Date hereunder, in which case from and after such election such subsequent date shall be deemed the “Deemed Date” hereunder), and any related subsequent actual incurrence and the granting of such Lien therefor will be deemed for purposes of this Section 6.01 and Section 6.02 of this Agreement to have been incurred or granted on such Deemed Date, including, without limitation, for purposes of calculating usage of any baskets hereunder (if applicable), Consolidated Total Assets, the Net Total Leverage Ratio, the Net Secured Leverage Ratio, the Net First Lien Leverage Ratio, the Interest Coverage Ratio and EBITDA (and all such calculations, without duplication, on the Deemed Date and on any subsequent date until such commitment is funded or terminated or such transaction is consummated or abandoned or such election is rescinded shall be made on a Pro Forma Basis after giving effect to the deemed incurrence, the granting of any Lien therefor and related transactions in connection therewith) and (D) for purposes of calculating the Interest Coverage Ratio, the Net Total Leverage Ratio, the Net Secured Leverage Ratio and the Net First Lien Leverage Ratio under Section 6.01(h), (q), (r) and/or (s) on any date of incurrence of Indebtedness pursuant to such Section 6.01(h), (q), (r) and/or (s), the net cash proceeds funded by financing sources upon the incurrence of such Indebtedness incurred at such time of calculation shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Interest Coverage Ratio, the Net Total Leverage Ratio, the Net Secured Leverage Ratio or the Net First Lien Leverage Ratio, as applicable, at such time.  In addition, with respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.

 

This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral.  In addition, notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, for all purposes of this Agreement, with respect to any Indebtedness secured by Liens on “the Collateral,” such Indebtedness may also be secured by Real Property of the Loan Parties, irrespective of whether or not such Real Property constitutes Collateral securing the Obligations.

 

Section 6.02     Liens.  Create, incur, assume or permit to exist any Lien on any property or assets (including stock or other securities of any person) of the Borrower or any Subsidiary at any time owned by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, “Permitted Liens”):

 

(a)        Liens on property or assets of the Borrower and the Subsidiaries existing on the Closing Date (or created following the Closing Date pursuant to agreements in existence on the Closing Date (or refinancings thereof) requiring the creation of such Liens) and, to the extent securing Indebtedness in an aggregate principal amount in excess of $10,000,000, set forth on Schedule 6.02 and any modifications, replacements, renewals or extensions thereof; provided, that such Liens shall secure only those obligations that they secure on the Closing Date or are obligated to secure as of the Closing Date (and any Permitted Refinancing Indebtedness in respect of such obligations permitted by Section 6.01) and shall not subsequently apply to any other property or assets of the Borrower or any Subsidiary other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien, (B) proceeds and products thereof and (C) improvements or accessions to the property covered by such Lien;

 

(b)      any Lien created under the Loan Documents (including Liens created under the Security Documents securing obligations in respect of Secured Hedge Agreements, Secured Cash Management Agreements, Secured Commercial Agreements and Secured Supply Chain Financings);

 

(c)       any Lien on any property or asset of the Borrower or any Subsidiary securing Indebtedness or Permitted Refinancing Indebtedness permitted by Section 6.01(h); provided, that in the case of Liens that do not extend to the Collateral, such Lien does not apply to any other property or assets of the Borrower or any of the Subsidiaries not securing such Indebtedness at the date of the acquisition of such property or asset, Investment or New Project, and, in each case, accessions and additions thereto and proceeds and products thereof (and other than after-acquired property required to be subjected to such Lien pursuant to the terms of such Indebtedness (and refinancings thereof));

 

(d)         Liens for Taxes, assessments or other governmental charges or levies not yet delinquent by more than 30 days or that are being contested in compliance with Section 5.03;

 

(e)       Liens imposed by law, such as landlord’s (including for this purpose landlord’s Liens created pursuant to the applicable lease), carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, supplier’s, construction or other like Liens, securing obligations that are not overdue by more than 30 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, the Borrower or any Subsidiary shall have set aside on its books reserves in accordance with GAAP;

 

(f)         (i) pledges and deposits or other security provided and other Liens made in the ordinary course of business in compliance with the Federal Employers Liability Act or any other workers’ compensation, health, disability or other employee benefits, unemployment insurance, employers’ health tax and other social security laws or regulations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (ii) pledges and deposits and other Liens 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 Subsidiary;

 

(g)        deposits and other Liens to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capitalized Lease Obligations), statutory obligations, surety, indemnity, warranty, release, appeal or similar bonds, performance and return of money bonds, bids, leases, government contracts, trade contracts, agreements with utilities, and other obligations of a like nature (including L/C Instruments in lieu of any such bonds or to support the issuance thereof) incurred in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry norm;

 

(h)      zoning restrictions, easements, survey exceptions, ground leases, trackage rights, leases (other than Capitalized Lease Obligations), licenses, special assessments, rights-of-way, covenants, conditions, servitudes, declarations, homeowners’ associations and similar agreements and other restrictions (including minor defects and irregularities in title and similar encumbrances) on or with respect to the use of Real Property, towers, electric lines, telegraph and telephone and cable television lines, servicing agreements, development agreements, site plan agreements and other similar encumbrances incurred in the ordinary course of business and title defects or irregularities that are of a minor nature and that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Borrower or any Subsidiary or consistent with past practice or industry norm;

 

(i)        Liens securing Indebtedness permitted by Section 6.01(i) or (j); provided, that such Liens do not apply to any property or assets of the Borrower or any Subsidiary other than the property or assets acquired, leased, constructed, installed, maintained, serviced, replaced, repaired, remodeled, modernized, upgraded, developed, updated or improved with such Indebtedness (or the Indebtedness Refinanced thereby) or Disposed of in the applicable Sale and Lease-Back Transaction, and accessions and additions thereto, proceeds and products thereof, customary security deposits and related property (and other after-acquired property required to be subjected to such Liens pursuant to the terms of such Indebtedness (and refinancings thereof)); provided, further, that individual financings provided by one lender may be cross-collateralized to other financings provided by such lender (and its Affiliates) (it being understood that with respect to any Liens on the Shared ABL Collateral being incurred under this clause (i) to secure Permitted Refinancing Indebtedness, if Liens on the Shared ABL Collateral securing the Indebtedness being Refinanced (if any) were junior to the Liens thereon securing the Loan Obligations, then any Liens on such Shared ABL Collateral being incurred under this clause (i) to secure Permitted Refinancing Indebtedness shall also be junior to the Liens thereon securing the Loan Obligations);

 

(j)          Liens arising out of Sale and Lease-Back Transactions, so long as such Liens attach only to the property Disposed of and being leased in such transaction and any accessions and additions thereto, proceeds and products thereof, customary security deposits and related property (and other after-acquired property required to be subjected to such Liens pursuant to the terms of such Indebtedness (and refinancings thereof));

 

(k)          Liens securing judgments that do not constitute an Event of Default under Section 7.01(j);

 

(l)        Liens registered on the title insurance policies and any replacement, extension or renewal of any such Lien; provided, that such replacement, extension or renewal Lien shall not cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal (unless such prior Lien provided for it to apply to additional Real Property upon acquisition by the Borrower or a Subsidiary of such additional Real Property) and any accessions and additions thereto or proceeds and products thereof and related property; provided, further, that the Indebtedness and other obligations secured by such replacement, extension or renewal Lien are permitted by this Agreement;

 

(m)        any interest or title of a lessor or sublessor under any leases or subleases entered into by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm;

 

(n)      Liens that are contractual rights of set-off (and related pledges) (i) relating to the establishment of depository relations with banks and other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposits, sweep accounts, reserve accounts or similar accounts of the Borrower or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Subsidiary, including with respect to credit card charge-backs and similar obligations, or (iii) relating to purchase orders and other agreements entered into with customers, suppliers or service providers of the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm;

 

(o)       Liens (i) arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, (iii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts incurred in the ordinary course of business and not for speculative purposes, (iv) in respect of Third Party Funds or (v) in favor of credit card companies pursuant to agreements therewith;

 

(p)        Liens securing obligations in respect of trade-related letters of credit, bankers’ acceptances or similar obligations and completion guarantees permitted under Section 6.01(f), (k) or (o) and covering the property (or the documents of title in respect of such property) financed by such letters of credit, bankers’ acceptances or similar obligations and completion guarantees and the proceeds and products thereof;

 

(q)        leases or subleases, licenses or sublicenses (including with respect to Intellectual Property) granted to others in the ordinary course of business or consistent with past practice or industry norm (including rights granted to lessees related to quiet enjoyment and purchase rights at the end of such leasing arrangement) not interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole;

 

(r)          Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods;

 

(s)        Liens solely on any cash earnest money deposits made by the Borrower or any of the Subsidiaries in connection with any letter of intent or purchase agreement in respect of any Permitted Business Acquisition or other Investment or acquisition or New Project permitted hereunder;

 

(t)         (i) Liens with respect to property or assets of any Subsidiary that is not a Loan Party securing obligations of a Subsidiary that is not a Loan Party permitted under Section 6.01 and (ii) Liens with respect to property or assets of the applicable joint venture or the Equity Interests of such joint venture securing Indebtedness permitted under Section 6.01(bb) (it being understood that with respect to any Liens on the Shared ABL Collateral being incurred under this clause (t)(ii) to secure Permitted Refinancing Indebtedness, if Liens on the Shared ABL Collateral securing the Indebtedness being Refinanced (if any) were junior to the Liens thereon securing the Loan Obligations, then any Liens on such Shared ABL Collateral being incurred under this clause (t)(ii) to secure Permitted Refinancing Indebtedness shall also be junior to the Liens thereon securing the Loan Obligations);

 

(u)        Liens on any amounts held by a trustee or agent under any indenture or other debt agreement issued in escrow pursuant to customary escrow arrangements pending the release thereof, or under any indenture or other debt agreement pursuant to customary discharge, redemption or defeasance provisions;

 

(v)          the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;

 

(w)       agreements to subordinate any interest of the Borrower or any Subsidiary in any accounts receivable or other proceeds arising from inventory or equipment consigned by the Borrower or any of its Subsidiaries pursuant to an agreement entered into in the ordinary course of business;

 

(x)        Liens arising from precautionary Uniform Commercial Code financing statements regarding operating leases or other obligations not constituting Indebtedness or purported Liens evidenced by the filing of precautionary Uniform Commercial Code financing statements or equivalent filings;

 

(y)        Liens (i) on Equity Interests of, or loans to, joint ventures (A) securing obligations of such joint venture or (B) pursuant to the relevant joint venture agreement or arrangement and (ii) on Equity Interests of, or loans to, Unrestricted Subsidiaries;

 

(z)          Liens on securities that are the subject of repurchase agreements constituting Permitted Investments under clause (c) of the definition thereof;

 

(aa)       Liens in respect of (i) Permitted Securitization Financings and (ii) receivables sales and financings, factorings or similar arrangements that extend only to the assets subject thereto (and the related collection accounts, insurance policies and other assets customarily securing such types of financings) and, in the case of Permitted Securitization Financings, Equity Interests of Special Purpose Securitization Subsidiaries;

 

(bb)       Liens securing insurance premiums financing arrangements; provided, that such Liens are limited to the applicable unearned insurance premiums;

 

(cc)       in the case of Real Property that constitutes a leasehold interest, any Lien to which the fee simple interest (or any superior leasehold interest) is subject;

 

(dd)      Liens securing Indebtedness or other obligations of the Borrower or a Subsidiary in favor of the Borrower or any Subsidiary;

 

(ee)       Liens (i) on not more than $15,000,000 of deposits securing Hedging Agreements and Commercial Agreements entered into for non-speculative purposes and (ii) on cash or Permitted Investments securing Hedging Agreements and Commercial Agreements in the ordinary course of business submitted for clearing in accordance with applicable Requirements of Law;

 

(ff)        Liens on goods, inventory or equipment the purchase, shipment or storage price of which is financed by a letter of credit, bank guarantee, warehouse receipt or bankers’ acceptance issued or created for the account of the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm; provided, that such Lien secures only the obligations of the Borrower or such Subsidiaries in respect of such letter of credit, bank guarantee, warehouse receipt or banker’s acceptance to the extent permitted under Section 6.01;

 

(gg)      (i) Liens on Shared ABL Collateral that are junior to the Liens thereon securing the Loan Obligations (provided that if such Liens secure notes or additional credit facilities, such junior Liens are subject to the ABL Intercreditor Agreement or another Permitted Intercreditor Agreement) and (ii) Liens on Shared Term Collateral, including Liens that are senior to, pari passu with or junior to the Liens thereon securing the Loan Obligations (provided that if such Liens secure notes or additional credit facilities, such Liens are subject to the ABL Intercreditor Agreement or another Permitted Intercreditor Agreement);

 

(hh)       [reserved];

 

(ii)          (i) Liens with respect to any property or assets of the Borrower or any Subsidiary (other than Liens on Shared ABL Collateral that rank senior to or pari passu with the Liens on the Shared ABL Collateral securing the Loan Obligations) securing Indebtedness permitted by Section 6.01(h), 6.01(k), 6.01(l), 6.01(q), 6.01(r), 6.01(z), 6.01(aa), 6.01(hh), 6.01(jj) or 6.01(kk) (and, in each case, Permitted Refinancing Indebtedness in respect thereof) (provided that with respect to any Liens on Shared ABL Collateral that secure notes or additional credit facilities, such Liens are subject to the ABL Intercreditor Agreement or another Permitted Intercreditor Agreement) and obligations in respect of Hedging Agreements, Cash Management Agreements, Commercial Agreements and Supply Chain Financings and (ii) Liens to secure Indebtedness permitted by Section 6.01(b), 6.01(i) and 6.01(ii) (and, in each case, Permitted Refinancing Indebtedness in respect thereof);

 

(jj)        (i) Liens arising out of conditional sale, title retention or similar arrangements for the sale or purchase of goods or equipment by the Borrower or any of the Subsidiaries in the ordinary course of business or consistent with past practice or industry norm, (ii) Liens solely on any cash earnest money deposits made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement not prohibited by this Agreement and (iii) Liens (A) on cash advances in favor of (x) the seller of any property to be acquired in an Investment permitted hereunder to be applied against the purchase price for such Investment or (y) the buyer of any property to be disposed of to secure obligations in respect of indemnification, termination fee or similar seller obligations and (B) consisting of an agreement to dispose of any property in a disposition, in each case, solely to the extent such Investment or disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

 

(kk)      Liens to secure any Indebtedness issued or incurred to Refinance (or successive Indebtedness issued or incurred for subsequent Refinancings) as a whole, or in part, any Indebtedness secured by any Lien not prohibited by this Section 6.02; provided, however, that (u) with respect to any Liens on the Shared ABL Collateral being incurred under this clause (kk), if Liens on the Shared ABL Collateral securing the Indebtedness being Refinanced (if any) were junior to the Liens thereon securing the Loan Obligations, then such Liens on the Shared ABL Collateral being incurred under this clause (kk) shall also be junior to the Liens thereon securing the Loan Obligations, (v) with respect to any Liens on the Shared ABL Collateral being incurred under this clause (kk), if Liens on the Shared ABL Collateral securing the Indebtedness being Refinanced (if any) were pari passu with the Liens thereon securing the Loan Obligations, then such Liens on the Shared ABL Collateral being incurred under this clause (kk) may also be pari passu with the Liens thereon securing the Loan Obligations or may be junior to the Liens thereon securing the Loan Obligations, (w) with respect to any Liens on the Shared Term Collateral being incurred under this clause (kk), such Liens on the Shared Term Collateral being incurred under this clause (kk) may be senior to, pari passu with or junior to the Liens thereon securing the Loan Obligations, (x) (other than Liens contemplated by the foregoing clauses (u), (v) and (w)) such new Lien shall be limited to all or part of the same type of property that secured the original Lien (plus improvements on and accessions to such property, proceeds and products thereof, customary security deposits and any other assets pursuant to after-acquired property clauses to the extent such assets secured (or would have secured) the Indebtedness being Refinanced), (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount (or accreted value, if applicable) or, if greater, committed amount of the applicable Indebtedness at the time the original Lien became a Lien permitted hereunder, (B) an amount equal to unpaid accrued interest and premium (including tender premiums) and (C) an amount equal to any associated fees, underwriting discounts, premiums (including tender premiums), accrued interest, defeasance costs, commissions and other costs and expenses (including original issue discount and mortgage and similar taxes), and (z) on the date of the incurrence or issuance of the Indebtedness secured by such Liens, the grantors of any such Liens shall be no different from the grantors of the Liens securing the Indebtedness being Refinanced or grantors that would have been obligated to secure such Indebtedness or a Loan Party;

 

(ll)       Liens (other than Liens on Shared ABL Collateral that rank senior to or pari passu with the Liens on the Shared ABL Collateral securing the Loan Obligations) with respect to property or assets of the Borrower or any Subsidiary securing obligations in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such obligations, together with the aggregate principal amount outstanding of any other obligations secured by Liens pursuant to this Section 6.02(ll), would not exceed the greater of $1,050,000,000 and 15% of Consolidated Total Assets (provided that with respect to any Liens on Shared ABL Collateral that secure notes or additional credit facilities, such Liens are subject to the ABL Intercreditor Agreement or another Permitted Intercreditor Agreement);

 

(mm)    Liens on property of, or on Equity Interests or Indebtedness of, any person existing at the time (A) such person becomes a Subsidiary of the Borrower or (B) such person or property is acquired by the Borrower or any Subsidiary; provided that (i) such Liens do not extend to any other assets of the Borrower or any Subsidiary (other than accessions and additions thereto and proceeds or products thereof and other than after-acquired property) and (ii) such Liens secure only those obligations which they secure on the date such person becomes a Subsidiary or the date of such acquisition (and any extensions, renewals, replacements or refinancings thereof);

 

(nn)      Liens (i) on inventory held by and granted to a local distribution company in the ordinary course of business and (ii) in accounts purchased and collected by and granted to a local distribution company that has agreed to make payments to the Borrower or any of its Subsidiaries for such amounts in the ordinary course of business;

 

(oo)      deposits with the owner or lessor of premises leased and operated by the Borrower or any of its Subsidiaries in the ordinary course of business or consistent with past practice or industry norm of the Borrower and such Subsidiary to secure the performance of the Borrower’s or such Subsidiary’s obligations under the terms of the lease for such premises;

 

(pp)       Liens on equipment of the Borrower or any Subsidiary granted in the ordinary course of business or consistent with past practice or industry norm;

 

(qq)       Liens on property or assets not constituting Collateral to the extent securing obligations that are otherwise permitted under this Agreement;

 

(rr)       Liens, deposits and security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations or business of the Borrower and its Subsidiaries in the ordinary course of business or consistent with past practice or industry norm;

 

(ss)       receipt of progress payments and advances from customers in the ordinary course of business or consistent with past practice or industry norm to the extent the same creates a Lien on the related inventory and proceeds thereof and Liens on property or assets under construction arising from progress or partial payments by a third party relating to such property or assets;

 

(tt)      Liens arising pursuant to Section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act or similar provision of any environmental law;

 

(uu)      the reservations, limitations, provisos and conditions, if any, expressed in any original grants from the Crown under Canadian law and any statutory exceptions to title under Canadian law;

(vv)       pledges or deposits or other security provided to secure the utility obligations of the Borrower or any Subsidiary incurred in the ordinary course of business or consistent with past practice or industry norm;

 

(ww)     restrictions by Governmental Authorities on the operations, business or assets of the Borrower or any Subsidiary that are customary in the Borrower’s or such Subsidiary’s businesses;

 

(xx)      (i) mortgages, Liens, security interests, encumbrances or any other matters that have been placed by Governmental Authority, developer, landlord or other third party on property over which the Borrower or any Subsidiary has easement rights or on any leased property and subordination or similar arrangements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any Real Property;

 

(yy)       Liens arising under the PBA or other applicable pension standards legislation in Canada in respect of pension plan contribution amounts not yet due; and

 

(zz)       the rights reserved or vested in any person by the terms of any lease, license, franchise, grant or permit held by the Borrower or any of its Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof.

 

For purposes of determining compliance with this Section 6.02, (A) a Lien securing an item of Indebtedness (or portion thereof) need not be permitted solely by reference to one category of permitted Liens (or any portion thereof) described in Sections 6.02(a) through (zz) but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens (or any portion thereof) described in Sections 6.02(a) through (zz), the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later time), such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.02 and at the time of incurrence, division, classification or reclassification will be entitled to only include the amount and type of such Lien or such item of Indebtedness secured by such Lien (or any portion thereof) in one of the above clauses (or any portion thereof) and such Lien securing such item of Indebtedness (or any portion thereof) will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof) without giving pro forma effect to such item (or any portion thereof) when calculating the amount of Liens or Indebtedness (or any portion thereof) that may be incurred, divided, classified or reclassified pursuant to any other clause (or any portion thereof) at such time.  In addition, with respect to any Indebtedness that is designated to be incurred on any Deemed Date pursuant to clause (C) of the second to last paragraph of Section 6.01, any Lien that does or that shall secure such Indebtedness may also be designated by the Borrower or any Subsidiary to be incurred on such Deemed Date and, in such event, any related subsequent actual incurrence of such Lien shall be deemed for purposes of Section 6.01 and 6.02 of this Agreement, without duplication, to be incurred on such prior date (and on any subsequent date until such commitment is funded or terminated or such election is rescinded or until such time as the related Indebtedness is no longer deemed outstanding pursuant to clause (C) of the second to last paragraph of Section 6.01), including for purposes of calculating usage of any Permitted Lien.  In addition, with respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness.

 

Section 6.03     [Reserved].

 

Section 6.04    Investments, Loans and Advances.  (i) Purchase or acquire (including pursuant to any merger or amalgamation with a person that is not a Wholly Owned Subsidiary immediately prior to such merger or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of any other person, (ii) make any loans or advances to or Guarantees of the Indebtedness of any other person (other than in respect of (A) intercompany liabilities incurred in connection with the cash management, cash pooling, tax and accounting operations of the Borrower and the Subsidiaries and (B) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business or consistent with past practice or industry norm), or (iii) purchase or otherwise acquire, in one transaction or a series of related transactions, (x) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, line of business or division of such person (each of the foregoing, an “Investment”), except:

 

(a)          the Transactions;

 

(b)        (i) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary (or any entity that will become a Subsidiary as a result of such Investment); (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary;

 

(c)          Permitted Investments and Investments that were Permitted Investments when made;

 

(d)          Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;

 

(e)          loans and advances to, or Guarantees of Indebtedness of, officers, directors, employees or consultants of Holdings (or any Parent Entity), the Borrower or any Subsidiary (i) in the ordinary course of business or consistent with past practice or industry norm in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent change in value) not to exceed the greater of $70,000,000 and 1.0% of Consolidated Total Assets, (ii) in respect of payroll payments and expenses in the ordinary course of business or consistent with past practice or industry norm, (iii) for business-related travel expenses, moving expenses and other similar expenses, in each case, incurred in the ordinary course of business or consistent with past practice or industry norm and (iv) in connection with such person’s purchase of Equity Interests of the Borrower or Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;

 

(f)          accounts receivable, security deposits and prepayments arising and trade credit granted or prepayments to suppliers or loans, advances made to distributors or investments made in connection with obtaining, maintaining or renewing client contracts in the ordinary course of business or consistent with past practice or industry norm and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers or customers made in the ordinary course of business or consistent with past practice or industry norm;

 

(g)         Hedging Agreements, Commercial Agreements and Supply Chain Financings that are not prohibited by this Agreement;

 

(h)        Investments existing on, or contractually committed as of, the Closing Date (provided that any such Investment that is in excess of $10,000,000 shall be set forth on Schedule 6.04) and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment or contractual commitment as in existence on the Closing Date or as otherwise not prohibited by this Section 6.04);

 

(i)          Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee), (ll) and (oo);

 

(j)          Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent change in value) not to exceed the sum of (X) the greater of $1,050,000,000 and 15% of Consolidated Total Assets, plus (Y) any portion of the Available Amount on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y), and plus (Z) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, repurchases, redemptions, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) and not in reliance on this Section 6.04(j);

 

(k)          Investments constituting Permitted Business Acquisitions;

 

(l)          intercompany loans between Subsidiaries and Guarantees by Subsidiaries permitted by Section 6.01(m);

 

(m)       Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or consistent with past practice or industry norm or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;

 

(n)       Investments of a person that becomes a Subsidiary after the Closing Date (including by means of a Delaware LLC Division) or of a person consolidated, amalgamated or merged with or into the Borrower or amalgamated with or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, amalgamation, merger or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, amalgamation, merger or consolidation, in accordance with Section 6.05 (other than Section 6.05(e)(i)) and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, amalgamation, merger or consolidation and were in existence or contractually required on the date of such acquisition, amalgamation, merger or consolidation;

 

(o)        acquisitions by the Borrower or any Subsidiary of obligations of one or more directors, consultants, officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such directors, consultants, officers or employees in connection with the acquisition of any such obligations;

 

(p)       Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm;

 

(q)       Investments to the extent that payment for such Investments is made with or financed with the proceeds of the sale or issuance of Equity Interests of the Borrower, Holdings or any Parent Entity; provided, that any proceeds of such sale or issuance of Equity Interests are not included in any determination of the Available Amount;

 

(r)          Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by Holdings, the Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that the fair market value of such assets, determined in good faith by the Borrower, so contributed pursuant to this clause (r) shall not in the aggregate exceed the greater of $70,000,000 and 1.0% of Consolidated Total Assets;

 

(s)          Investments consisting of Restricted Payments permitted under Section 6.06;

 

(t)       Investments in the ordinary course of business or consistent with past practice or industry norm consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;

 

(u)         Investments of assets relating to non-qualified deferred payment plans in the ordinary course of business or consistent with past practice or industry norm;

 

(v)         Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);

 

(w)        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 such Subsidiary;

 

(x)       Investments by the Borrower and its Subsidiaries, including loans to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (valued at the time of the making thereof, and without giving effect to any subsequent changes in value) (provided, that the outstanding amount of any such Investment shall also be deemed to utilize Restricted Payment capacity under the appropriate clause of Section 6.06 solely for purposes of determining available capacity thereunder);

 

(y)       Investments consisting of Securitization Assets or arising as a result of Permitted Securitization Financings or a factoring, securitization, receivables sale, receivables financing or similar arrangement, including Investments of funds held in accounts permitted or required by the arrangements governing a Permitted Securitization Financing or receivables sales or receivables financings or any related Indebtedness;

 

(z)         Investments made in connection with obtaining, maintaining or renewing client and customer contracts in the ordinary course of business or consistent with past practice or industry norm;

 

(aa)       to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials, services and equipment or purchases of contract rights or licenses or sublicenses, leases or contributions of Intellectual Property;

 

(bb)     Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower, Holdings or any Parent Entity; provided that the issuance of such Equity Interests are not included in any determination of the Available Amount;

 

(cc)      Investments in joint ventures; provided that the aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent changes in value) of Investments made after the Closing Date pursuant to this Section 6.04(cc) shall not exceed the sum of (X) the greater of $700,000,000 and 10% of Consolidated Total Assets, plus (Y) an aggregate amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, repurchases, redemptions, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this Section 6.04(cc) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) and not in reliance on this Section 6.04(cc);

 

(dd)      Investments in or related to a Similar Businesses in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent changes in value) not to exceed the sum of (X) the greater of $700,000,000 and 10% of Consolidated Total Assets plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, repurchases, redemptions, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this Section 6.04(dd) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) and not in reliance on this Section 6.04(dd);

 

(ee)      Investments in any Unrestricted Subsidiaries after giving effect to the applicable Investments, in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent changes in value) not to exceed the sum of (X) the greater of $520,000,000 and 7.5% of Consolidated Total Assets plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, repurchases, redemptions, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this Section 6.04(ee) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) and not in reliance on this Section 6.04(ee);

 

(ff)        any Investment so long as, immediately after giving effect to such Investment, the Payment Conditions are satisfied on a Pro Forma Basis;

 

(gg)       Investments made pursuant to the Merger Agreement;

 

(hh)      Investments made (i) in connection with the exercise of any subscriptions, options, warrants, calls, puts or other rights or commitments pursuant to agreements set forth on Schedule 3.08(b) or (ii) in satisfaction of obligations under joint venture agreements;

 

(ii)       Investments in advances, deposits, guarantees, L/C Instruments, prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business or consistent with past practice or industry norm;

 

(jj)       any Investment by any Captive Insurance Subsidiary (i) in connection with its provision of insurance to the Borrower or any of its Subsidiaries, which Investment is made in the ordinary course of business or consistent with past practice or industry norm of such Captive Insurance Subsidiary, or (ii) by reason of applicable law, rule, regulation or order, or that is required or approved by any regulatory authority having jurisdiction over such Captive Insurance Subsidiary or its business, as applicable; and