exhibit101-creditagreeme






EXECUTION VERSION  CHAR1\1823738v3      CREDIT AGREEMENT  Dated as of November 8, 2021  among  ARHAUS, INC.,  as the Borrower,  CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO,  as the Guarantors,  BANK OF AMERICA, N.A.,  as the Administrative Agent, the L/C Issuer, and the Swingline Lender,  and  THE LENDERS PARTY HERETO  BOFA SECURITIES, INC.,  as Sole Lead Arranger and Sole Bookrunner      





 






    i  CHAR1\1823738v3  TABLE OF CONTENTS  Page  ARTICLE I  DEFINITIONS AND ACCOUNTING TERMS ..................................................................... 1  1.01 Defined Terms. ................................................................................................................... 1  1.02 Other Interpretive Provisions. ........................................................................................... 34  1.03 Accounting Terms. ............................................................................................................ 35  1.04 Rounding. .......................................................................................................................... 37  1.05 Times of Day. ................................................................................................................... 37  1.06 Letter of Credit Amounts. ................................................................................................. 37  1.07 UCC Terms. ...................................................................................................................... 37  1.08 Rates. ................................................................................................................................ 37  1.09 Negative Covenant Compliance. ...................................................................................... 38  ARTICLE II  COMMITMENTS AND CREDIT EXTENSIONS ............................................................. 38  2.01 Revolving Loans. .............................................................................................................. 38  2.02 Revolving Borrowings; Conversions and Continuations of Revolving Loans. ................ 38  2.03 Letters of Credit. ............................................................................................................... 41  2.04 Swingline Loans. .............................................................................................................. 49  2.05 Prepayments. ..................................................................................................................... 52  2.06 Termination or Reduction of Revolving Facility. ............................................................. 53  2.07 Repayment of Loans. ........................................................................................................ 54  2.08 Interest and Default Rate. ................................................................................................. 54  2.09 Fees. .................................................................................................................................. 55  2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate............. 55  2.11 Evidence of Debt. ............................................................................................................. 56  2.12 Payments Generally; Administrative Agent’s Clawback. ................................................. 56  2.13 Sharing of Payments by Lenders. ..................................................................................... 58  2.14 Cash Collateral. ................................................................................................................. 59  2.15 Defaulting Lenders. .......................................................................................................... 60  ARTICLE III  TAXES, YIELD PROTECTION AND ILLEGALITY ...................................................... 62  3.01 Taxes. ................................................................................................................................ 62  3.02 Illegality. ........................................................................................................................... 66  3.03 Inability to Determine Rates. ............................................................................................ 67  3.04 Increased Costs. ................................................................................................................ 69  3.05 Compensation for Losses. ................................................................................................. 70  3.06 Mitigation Obligations; Replacement of Lenders. ............................................................ 71  3.07 Survival. ............................................................................................................................ 71  ARTICLE IV  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS ............................................. 71  4.01 Conditions to Effectiveness and Initial Credit Extension. ................................................ 71  4.02 Conditions to all Credit Extensions. ................................................................................. 74  ARTICLE V  REPRESENTATIONS AND WARRANTIES .................................................................... 74  5.01 Existence, Qualification and Power. ................................................................................. 74  5.02 Authorization; No Contravention. .................................................................................... 75  5.03 Governmental Authorization; Other Consents. ................................................................. 75  5.04 Binding Effect. .................................................................................................................. 75  5.05 Financial Statements; No Material Adverse Effect........................................................... 75  5.06 Litigation. .......................................................................................................................... 76  5.07 No Default......................................................................................................................... 76  5.08 Ownership of Property. ..................................................................................................... 76  





 






    ii  CHAR1\1823738v3  5.09 Environmental Compliance. ............................................................................................. 76  5.10 Insurance. .......................................................................................................................... 77  5.11 Taxes. ................................................................................................................................ 77  5.12 ERISA Compliance. .......................................................................................................... 77  5.13 Margin Regulations; Investment Company Act................................................................ 78  5.14 Disclosure. ........................................................................................................................ 78  5.15 Compliance with Laws. .................................................................................................... 79  5.16 Solvency............................................................................................................................ 79  5.17 Sanctions Concerns and Anti-Corruption Laws................................................................ 79  5.18 Subsidiaries; Equity Interests; Loan Parties...................................................................... 79  5.19 Collateral Representations. ............................................................................................... 80  5.20 Affected Financial Institutions. ......................................................................................... 80  5.21 Covered Entities. ............................................................................................................... 80  ARTICLE VI  AFFIRMATIVE COVENANTS ........................................................................................ 80  6.01 Financial Statements. ........................................................................................................ 80  6.02 Certificates; Other Information. ........................................................................................ 82  6.03 Notices. ............................................................................................................................. 84  6.04 Payment of Taxes. ............................................................................................................. 84  6.05 Preservation of Existence, Etc. ......................................................................................... 85  6.06 Maintenance of Properties. ............................................................................................... 85  6.07 Maintenance of Insurance. ................................................................................................ 85  6.08 Compliance with Laws. .................................................................................................... 85  6.09 Books and Records. .......................................................................................................... 86  6.10 Inspection Rights. ............................................................................................................. 86  6.11 Use of Proceeds. ............................................................................................................... 86  6.12 Covenant to Guarantee Obligations. ................................................................................. 86  6.13 Covenant to Give Security. ............................................................................................... 87  6.14 Further Assurances. .......................................................................................................... 87  6.15 Anti-Corruption Laws; Sanctions. .................................................................................... 87  ARTICLE VII  NEGATIVE COVENANTS .............................................................................................. 88  7.01 Liens. ................................................................................................................................ 88  7.02 Indebtedness...................................................................................................................... 90  7.03 Investments. ...................................................................................................................... 92  7.04 Fundamental Changes. ...................................................................................................... 93  7.05 Dispositions. ..................................................................................................................... 93  7.06 Restricted Payments. ......................................................................................................... 94  7.07 Change in Nature of Business. .......................................................................................... 94  7.08 Transactions with Affiliates. ............................................................................................. 95  7.09 Burdensome Agreements. ................................................................................................. 95  7.10 Use of Proceeds. ............................................................................................................... 96  7.11 Financial Covenants. ......................................................................................................... 96  7.12 Amendments of Organization Documents; Changes in Fiscal Year, Legal Name,  State of Organization, or Form of Entity; Accounting Changes. ...................................... 96  7.13 Junior Debt Payments. ...................................................................................................... 96  7.14 Amendment, Etc. of Junior Debt. ..................................................................................... 97  7.15 Sanctions. .......................................................................................................................... 97  7.16 Anti-Corruption Laws. ...................................................................................................... 97  ARTICLE VIII  EVENTS OF DEFAULT AND REMEDIES ................................................................... 97  8.01 Events of Default. ............................................................................................................. 97  





 






    iii  CHAR1\1823738v3  8.02 Remedies upon Event of Default. ..................................................................................... 99  8.03 Application of Funds. ..................................................................................................... 100  ARTICLE IX  ADMINISTRATIVE AGENT .......................................................................................... 101  9.01 Appointment and Authority. ........................................................................................... 101  9.02 Rights as a Lender. .......................................................................................................... 102  9.03 Exculpatory Provisions. .................................................................................................. 102  9.04 Reliance by Administrative Agent. ................................................................................. 103  9.05 Delegation of Duties. ...................................................................................................... 103  9.06 Resignation of Administrative Agent. ............................................................................ 104  9.07 Non-Reliance on Administrative Agent, Arranger and Other Lenders. .......................... 105  9.08 No Other Duties, Etc. ...................................................................................................... 106  9.09 Administrative Agent May File Proofs of Claim; Credit Bidding. ................................. 106  9.10 Collateral and Guaranty Matters. .................................................................................... 107  9.11 Secured Cash Management Agreements and Secured Hedge Agreements. ................... 108  9.12 Certain ERISA Matters. .................................................................................................. 108  9.13 Recovery of Erroneous Payments. .................................................................................. 109  ARTICLE X  CONTINUING GUARANTY ........................................................................................... 110  10.01 Guaranty.......................................................................................................................... 110  10.02 Rights of Lenders. ........................................................................................................... 110  10.03 Certain Waivers. ............................................................................................................. 111  10.04 Obligations Independent. ................................................................................................ 111  10.05 Subrogation. .................................................................................................................... 111  10.06 Termination; Reinstatement. ........................................................................................... 111  10.07 Stay of Acceleration. ....................................................................................................... 112  10.08 Condition of Borrower. ................................................................................................... 112  10.09 Appointment of Borrower. .............................................................................................. 112  10.10 Right of Contribution. ..................................................................................................... 112  10.11 Keepwell. ........................................................................................................................ 112  ARTICLE XI  MISCELLANEOUS ......................................................................................................... 113  11.01 Amendments, Etc. ........................................................................................................... 113  11.02 Notices; Effectiveness; Electronic Communications. ..................................................... 115  11.03 No Waiver; Cumulative Remedies; Enforcement. .......................................................... 117  11.04 Expenses; Indemnity; Damage Waiver. .......................................................................... 117  11.05 Payments Set Aside. ....................................................................................................... 119  11.06 Successors and Assigns. ................................................................................................. 119  11.07 Treatment of Certain Information; Confidentiality. ........................................................ 124  11.08 Right of Setoff. ............................................................................................................... 125  11.09 Interest Rate Limitation. ................................................................................................. 126  11.10 Integration; Effectiveness. .............................................................................................. 126  11.11 Survival of Representations and Warranties. .................................................................. 126  11.12 Severability. .................................................................................................................... 126  11.13 Replacement of Lenders. ................................................................................................ 126  11.14 Governing Law; Jurisdiction; Etc. .................................................................................. 127  11.15 Waiver of Jury Trial. ....................................................................................................... 129  11.16 Subordination. ................................................................................................................. 129  11.17 No Advisory or Fiduciary Responsibility. ...................................................................... 129  11.18 Electronic Execution; Electronic Records; Counterparts. ............................................... 130  11.19 USA PATRIOT Act Notice. ........................................................................................... 131  11.20 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. .............. 131  





 






    iv  CHAR1\1823738v3  11.21 Acknowledgement Regarding Any Supported QFCs. .................................................... 131  11.22 Release of Liens; Release of Guarantors. ....................................................................... 132  11.23 ENTIRE AGREEMENT. ................................................................................................ 132       





 






    v  CHAR1\1823738v3  SCHEDULES  Schedule 1.01(a)  Administrative Agent’s Office; Certain Addresses for Notices  Schedule 1.01(b) Commitments and Applicable Percentages  Schedule 5.18(a) Subsidiaries, Joint Ventures, Partnerships and Other Equity Investments  Schedule 5.18(b)  Loan Parties  Schedule 5.19(b)  Intellectual Property  Schedule 7.01   Existing Liens  Schedule 7.02   Existing Indebtedness  Schedule 7.03   Existing Investments  Schedule 7.08   Existing Transactions with Affiliates  Schedule 7.09   Existing Burdensome Agreements  EXHIBITS  Exhibit A   Form of Assignment and Assumption  Exhibit B   Form of Compliance Certificate  Exhibit C   Form of Joinder Agreement  Exhibit D   Form of Loan Notice  Exhibit E   Form of Notice of Loan Prepayment  Exhibit F   Form of Secured Party Designation Notice  Exhibit G   Form of Solvency Certificate  Exhibit H   Form of Swingline Loan Notice  Exhibit I   Form of Note  Exhibit J   Forms of U.S. Tax Compliance Certificates    





 






  1  CHAR1\1823738v3  CREDIT AGREEMENT  This CREDIT AGREEMENT is entered into as of November 8, 2021, among ARHAUS, INC., a  Delaware corporation (the “Borrower”), the Guarantors party hereto, the Lenders party hereto, and BANK  OF AMERICA, N.A., as the Administrative Agent, the L/C Issuer, and the Swingline Lender.  PRELIMINARY STATEMENTS:  WHEREAS, the Borrower has requested that the Lenders, the L/C Issuer, and the Swingline Lender  make loans and other financial accommodations to the Borrower and its Subsidiaries; and  WHEREAS, the Lenders, the L/C Issuer, and the Swingline Lender have agreed to make such loans  and other financial accommodations to the Borrower and its Subsidiaries, on the terms and subject to the  conditions set forth herein.  NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained,  the parties hereto covenant and agree as follows:  ARTICLE I    DEFINITIONS AND ACCOUNTING TERMS  1.01 Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:  “Acquisition” means the acquisition, whether through a single transaction or a series of related  transactions, of (a) a majority of the Voting Stock or other controlling ownership interest in another Person  (including the purchase of an option, warrant or convertible or similar type security to acquire such a  controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such  equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of  securities into, such equity or other ownership interest, or (b) assets of another Person which constitute all  or substantially all of the assets of such Person or of a division, line of business or other business unit of  such Person.  “Acquisition Consideration” means, with respect to any Permitted Acquisition, the purchase  consideration for such Permitted Acquisition and all other payments by the Borrower or any Subsidiary in  exchange for, or as part of, or in connection with, such Permitted Acquisition, whether paid in cash or by  exchange of Equity Interests or of properties or otherwise and whether payable at or prior to the  consummation of such Permitted Acquisition or deferred for payment at any future time, whether or not  any such future payment is subject to the occurrence of any contingency, including any and all payments  representing the purchase price and any assumptions of Indebtedness, deferred purchase price, Contingent  Acquisition Obligations and other agreements to make any payment the amount of which is, or the terms  of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or  profits (or the like) of any Person.  For purposes of determining the Acquisition Consideration for any  Permitted Acquisition, the amount of any Contingent Acquisition Obligations shall be deemed to be the  maximum amount thereof in respect of such Permitted Acquisition as specified in the documents relating  to such Permitted Acquisition.  “Additional Secured Obligations” means (a) all obligations arising under Secured Cash  Management Agreements and Secured Hedge Agreements, and (b) all costs and expenses incurred in  





 






  2  CHAR1\1823738v3  connection with enforcement and collection of the foregoing, including the fees, charges and disbursements  of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or  contingent, due or to become due, now existing or hereafter arising and including interest, expenses and  fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any  proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless  of whether such interest, expenses and fees are allowed claims in such proceeding; provided, that,  Additional Secured Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect  to such Guarantor.  “Administrative Agent” means Bank of America (or any of its designated branch offices or  affiliates), in its capacity as administrative agent under any of the Loan Documents, or any successor  administrative agent.  “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 1.01(a), or such other address or account as the Administrative Agent may  from time to time notify the Borrower and the Lenders.  “Administrative Questionnaire” means an Administrative Questionnaire in a form approved by the  Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial  Institution.  “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  Person specified.  “Aggregate Commitments” means, as of any date of determination, the Commitments of all the  Lenders as of such date.  “Agreement” means this Credit Agreement.  “Applicable Percentage” means, with respect to any Lender at any time, the percentage (carried out  to the ninth decimal place) of the Revolving Facility represented by such Lender’s Commitment at such  time, subject to adjustment as provided in Section 2.15.  If the Commitments of all of the Lenders to make  Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated  pursuant to Section 8.02, or if the Commitments have expired, then the Applicable Percentage of each  Lender in respect of the Revolving Facility shall be determined based on the Applicable Percentage of such  Lender in respect of the Revolving Facility most recently in effect, giving effect to any subsequent  assignments and to any Lender’s status as a Defaulting Lender at the time of determination.  The initial  Applicable Percentage of each Lender in respect of the Revolving Facility is set forth opposite the name of  such Lender on Schedule 1.01(b), in the Assignment and Assumption pursuant to which such Lender  becomes a party hereto, or in such other documentation pursuant to which such Lender becomes a party  hereto, as applicable.  “Applicable Rate” means, with respect to the Revolving Loans, the Letter of Credit Fee, the  Swingline Loans and the Commitment Fee, the following percentages per annum, based upon the  Consolidated Rent-Adjusted Total Leverage Ratio as set forth in the most recent Compliance Certificate  received by the Administrative Agent pursuant to Section 6.02(a):  





 






  3  CHAR1\1823738v3  Pricing  Tier  Consolidated Rent- Adjusted Total  Leverage Ratio  BSBY Rate  Loans  Base Rate  Loans and  Swingline  Loans  Letter of  Credit Fee  Commitment  Fee  I < 2.00 to 1.0 1.50% 0.50% 1.50% 0.20%  II  > 2.00 to 1.0 but  < 3.00 to 1.0  1.75% 0.75% 1.75% 0.25%  III > 3.00 to 1.0 2.00% 1.00% 2.00% 0.30%  Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Rent-Adjusted  Total Leverage Ratio shall become effective as of the first (1st) Business Day immediately following the  date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, that, if a Compliance  Certificate is not delivered when due in accordance with Section 6.02(a), then, upon the request of the  Required Lenders, Pricing Tier III shall apply as of the first (1st) Business Day after the date on which such  Compliance Certificate was required to have been delivered and shall remain in effect until the first (1st)  Business Day immediately following the date on which such Compliance Certificate is delivered in  accordance with Section 6.02(a), whereupon the Applicable Rate shall be adjusted based upon the  calculation of the Consolidated Rent-Adjusted Total Leverage Ratio contained in such Compliance  Certificate.  The Applicable Rate in effect from the Closing Date until the first (1st) Business Day  immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a) for the  Fiscal Year ending December 31, 2021 shall be determined based upon Pricing Tier II.  Notwithstanding  anything to the contrary contained in this definition, the determination of the Applicable Rate for any period  shall be subject to the provisions of Section 2.10(b).  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender, or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Arhaus LLC” means Arhaus, LLC, a Delaware limited liability company.  “Arranger” means BofA Securities, Inc., in its capacities as the sole lead arranger and the sole  bookrunner.  “Assignment and Assumption” means an assignment and assumption entered into by a Lender and  an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and  accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form (including  an electronic documentation form generated by use of an electronic platform) approved by the  Administrative Agent.  “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any  Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of  such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation of any Person, the  capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable  agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in  accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized  Lease, (c) in respect of any Securitization Transaction, the amount of obligations outstanding under the  legal documents entered into as part of such Securitization Transaction on such date that corresponds to the  outstanding net investment (including loans) of, or cash purchase price paid by, the unaffiliated third party  purchasers or financial institutions participating in such transaction and, as such, would be characterized as  principal if such transaction were structured as a secured lending transaction rather than as a purchase (or,  





 






  4  CHAR1\1823738v3  to the extent structured as a secured lending transaction, is principal), and (d) in respect of any Sale and  Leaseback Transaction, the present value (discounted in accordance with GAAP at the debt rate implied in  the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.  “Audited Financial Statements” means the audited Consolidated balance sheet of Arhaus LLC and  its Subsidiaries for the Fiscal Year ended December 31, 2020, and the related Consolidated statements of  income, stockholders’ equity and cash flows for such Fiscal Year, including the notes thereto.  “Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(ii).  “Availability Period” means the period from and including the Closing Date to the earliest of (a)  the Maturity Date, (b) the date of termination of the Revolving Facility pursuant to Section 2.06, and (c)  the date of termination of the Commitment of each Lender to make Revolving Loans and of the obligation  of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law, rule, regulation, or requirement for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of  the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or  rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment  firms or other financial institutions or their affiliates (other than through liquidation, administration or other  insolvency proceedings).  “Bank of America” means Bank of America, N.A. and its successors.  “Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a)  the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from  time to time by Bank of America as its “prime rate,” and (c) the BSBY Rate plus 1.00%; provided, that, if  the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.  The  “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs  and desired return, general economic conditions and other factors, and is used as a reference point for  pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such  prime rate announced by Bank of America shall take effect at the opening of business on the day specified  in the public announcement of such change.  If the Base Rate is being used as an alternate rate of interest  pursuant to Section 3.03, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be  determined without reference to clause (c) above.  “Base Rate Loan” means a Revolving Loan that bears interest based on the Base Rate.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership required  by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code, or (c) any Person  





 






  5  CHAR1\1823738v3  whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA  or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted  in accordance with, 12 U.S.C. 1841(k)) of such party.  “Bloomberg” means Bloomberg Index Services Limited.   “Borrower” has the meaning specified in the introductory paragraph hereto.  “Borrower Materials” has the meaning specified in Section 6.02.  “Borrowing” means a Revolving Borrowing or a Swingline Borrowing, as the context may require.  “BSBY” means the Bloomberg Short-Term Bank Yield Index rate.  “BSBY Rate” means: (a) for any Interest Period with respect to a BSBY Rate Loan, the rate per  annum equal to the BSBY Screen Rate two Business Days prior to the commencement of such Interest  Period with a term equivalent to such Interest Period; provided, that, if the rate is not published on such  determination date, then BSBY Rate means the BSBY Screen Rate on the first Business Day immediately  prior thereto; and (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per  annum equal to the BSBY Screen Rate with a term of one month commencing that day; provided, that, if  the BSBY Rate determined in accordance with either of the foregoing clauses (a) or (b) of this definition  would otherwise be less than zero, the BSBY Rate shall be deemed zero for purposes of this Agreement.  “BSBY Rate Loan” means a Revolving Loan that bears interest at a rate based on clause (a) of the  definition of “BSBY Rate.”  “BSBY Replacement Date” has the meaning specified in Section 3.03(b).  “BSBY Screen Rate” means the Bloomberg Short-Term Bank Yield Index rate administered by  Bloomberg and published on the applicable Reuters screen page (or such other commercially available  source providing such quotations as may be designated by the Administrative Agent from time to time).  “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative  Agent’s Office is located and, if such day relates to any BSBY Rate Loan, in New York City.  “Capitalized Lease” means any lease that has been or is required to be, in accordance with GAAP,  recorded, classified and accounted for as a capitalized lease or finance lease.  “Cash Collateralize” means, to pledge and deposit with or deliver to the Administrative Agent, for  the benefit of the L/C Issuer or the Swingline Lender (as applicable) or the Lenders, as collateral for L/C  Obligations, Obligations in respect of Swingline Loans, or obligations of the Lenders to fund participations  in respect of L/C Obligations or Swingline Loans (as the context may require), (a) cash or deposit account  balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the  Administrative Agent and the L/C Issuer, and/or (c) if the Administrative Agent and the L/C Issuer or the  Swingline Lender shall agree, in their sole discretion, other credit support, in each case, in Dollars and  pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer  or the Swingline Lender (as applicable).  “Cash Collateral” shall have a meaning correlative to the foregoing  and shall include the proceeds of such cash collateral and other credit support.  





 






  6  CHAR1\1823738v3  “Cash Equivalents” means any of the following types of Investments, to the extent owned by the  Borrower or any of its Subsidiaries free and clear of all Liens (other than Permitted Liens): (a) readily  marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency  or instrumentality thereof having maturities of not more than three hundred sixty days (360) days from the  date of acquisition thereof; provided, that, the full faith and credit of the United States is pledged in support  thereof; (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial  bank that (i)(A) is a Lender, or (B) is organized under the laws of the United States, any state thereof or the  District of Columbia or is the principal banking subsidiary of a bank holding company organized under the  laws of the United States, any state thereof or the District of Columbia, and is a member of the Federal  Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause  (c) of this definition, and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with  maturities of not more than one hundred eighty (180) days from the date of acquisition thereof; (c)  commercial paper issued by any Person organized under the laws of any state of the United States and rated  at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade)  by S&P, in each case with maturities of not more than one hundred eighty (180) days from the date of  acquisition thereof; and (d) Investments, classified in accordance with GAAP as current assets of the  Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment  Company Act of 1940, which are administered by financial institutions that have the highest rating  obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of  the character, quality and maturity described in clauses (a), (b) and (c) of this definition.  “Cash Management Agreement” means any agreement that is not prohibited by the terms hereof to  provide treasury or cash management services, including deposit accounts, overnight draft, credit cards,  debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated  clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox,  account reconciliation, Cash Pooling Arrangements, and reporting and trade finance services and other cash  management services.  “Cash Management Bank” means any Person, in its capacity as a party to a Cash Management  Agreement, that (a) at the time it enters into a Cash Management Agreement with the Borrower or a  Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender,  is a party to a Cash Management Agreement with the Borrower or a Subsidiary (in each case, even if such  Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, that, for any of  the foregoing to be included as a “Secured Cash Management Agreement” on any date of determination by  the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or  an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the  Administrative Agent prior to such date of determination.  “Cash Pooling Arrangements” means any centralized cash pooling arrangement among any of the  Borrower and any of its Subsidiaries with cash pooling banks under which such Persons make deposits with  and receive advances from such cash pooling banks in order to facilitate the efficient deployment and  management of cash of such Persons.  “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act  of 1980.  “CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability  Information System maintained by the U.S. Environmental Protection Agency.  “CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.  





 






  7  CHAR1\1823738v3  “CFC Holdco” means any Domestic Subsidiary all or substantially all of the assets of which consist  of Equity Interests of one or more CFCs.  “Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the  adoption or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation  or treaty or in the administration, interpretation, implementation or application thereof by any  Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether  or not having the force of law) by any Governmental Authority; provided, that, notwithstanding anything  herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,  rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof,  and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements,  the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States  or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a  “Change in Law”, regardless of the date enacted, adopted, issued or implemented.  “Change of Control” means an event or series of events by which:  (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the  Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its  subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or  administrator of any such plan), other than the Permitted Holder, becomes the “beneficial owner”  (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a  person or group shall be deemed to have “beneficial ownership” of all securities that such person  or group has the right to acquire, whether such right is exercisable immediately or only after the  passage of time (such right, an “option right”)), directly or indirectly, of thirty-five percent (35%)  or more of the equity securities of the Borrower entitled to vote for members of the board of  directors or other equivalent governing body of the Borrower on a fully-diluted basis (and taking  into account all such securities that such “person” or “group” has the right to acquire pursuant to  any option right); or  (b) during any period of twelve (12) consecutive months, a majority of the members  of the board of directors or other equivalent governing body of the Borrower cease to be composed  of individuals (i) who were members of that board or other equivalent governing body on the first  day of such period, (ii) whose election or nomination to that board or other equivalent governing  body was nominated, appointed or approved by individuals referred to in clause (b)(i) above  constituting at the time of such election or nomination at least a majority of that board or other  equivalent governing body, or (iii) whose election or nomination to that board or other equivalent  governing body was nominated, appointed or approved by individuals referred to in clauses (b)(i)  and (b)(ii) above constituting at the time of such election or nomination at least a majority of that  board or other equivalent governing body.  “Closing Date” means November 8, 2021.  “Code” means the Internal Revenue Code of 1986.  “Collateral” means a collective reference to all personal property with respect to which Liens in  favor of the Administrative Agent, for the benefit of the Secured Parties, are purported to be granted  pursuant to and in accordance with the terms of the Collateral Documents; provided, that, “Collateral” shall  not include any Excluded Property.  





 






  8  CHAR1\1823738v3  “Collateral Document” means each of the Security Agreement, each Joinder Agreement, each other  security agreement, pledge agreement or other similar agreement delivered to the Administrative Agent  pursuant to Section 6.13, and each other agreement, instrument or document that creates or purports to  create a Lien in favor of the Administrative Agent, for the benefit of the Secured Parties.  “Commitment” means, as to each Lender, such Lender’s obligation to (a) make Revolving Loans  to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase  participations in Swingline Loans, in an aggregate principal amount at any one time outstanding not to  exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b) under the caption  “Commitment” or opposite such caption in the Assignment and Assumption or other documentation  pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from  time to time in accordance with this Agreement.  The aggregate amount of all of the Commitments of all  of the Lenders on the Closing Date is $50,000,000.  “Commitment Fee” has the meaning specified in Section 2.09(a).  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).  “Communication” means this Agreement, any other Loan Document, or any other document,  amendment, approval, consent, information, notice, certificate, request, statement, disclosure or  authorization related to any Loan Document.  “Compliance Certificate” means a certificate substantially in the form of Exhibit B.  “Conforming Changes” means, with respect to the use, administration of, or any conventions  associated with, BSBY or any proposed Successor Rate, as applicable, any conforming changes to the  definition of “Base Rate,” the definition of “BSBY,” the definition of “Interest Period,” timing and  frequency of determining rates and making payments of interest and other technical, administrative or  operational matters (including, for the avoidance of doubt, the definition of “Business Day,” timing of  borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as  may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and  implementation of such applicable rate, and to permit the administration thereof by the Administrative  Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines  that adoption of any portion of such market practice is not administratively feasible or that no market  practice for the administration of such rate exists, in such other manner of administration as the  Administrative Agent determines is reasonably necessary in connection with the administration of this  Agreement and any other Loan Document).  “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by  net income (however denominated) or that are franchise Taxes or branch profits Taxes.  “Consolidated” means, when used with reference to financial statements or financial statement  items of the Borrower and its Subsidiaries or any other Person, such statements or items on a consolidated  basis in accordance with the consolidation principles of GAAP.  “Consolidated Adjusted Funded Indebtedness” means, as of any date of determination, the sum of  (a) Consolidated Funded Indebtedness as of such date, plus (b) an amount equal to the product of (i)  Consolidated Rent Expense for the Measurement Period most recently ended on or prior to such date,  multiplied by (ii) five (5).  





 






  9  CHAR1\1823738v3  “Consolidated Cash Taxes” means, for any period, for the Borrower and its Subsidiaries on a  Consolidated basis, the aggregate of all taxes, as determined in accordance with GAAP, to the extent the  same are paid in cash for such period.  “Consolidated EBITDAR” means, for any period, for the Borrower and its Subsidiaries on a  Consolidated basis, an amount equal to: (a) Consolidated Net Income for such period; plus (b) the  following, without duplication, to the extent deducted in calculating such Consolidated Net Income: (i)  Consolidated Interest Charges for such period; (ii) the provision for federal, state, local and foreign income  taxes paid or payable for such period; (iii) depreciation and amortization expense for such period; (iv)  Consolidated Rent Expense for such period; (v) any non-cash expenses, losses or charges (other than any  non-cash expense, loss or charge relating to write-offs, write-downs or reserves with respect to accounts or  inventory) for such period (including any non-cash stock based compensation expense for such period)  which do not represent a cash item in such period or any other period; (vi) fees, costs and expenses incurred  in such period in connection with the negotiation, execution and delivery of this Agreement and the other  Loan Documents and the consummation of the other Transactions; (vii) fees, costs and expenses incurred  in such period in connection with the negotiation, execution and delivery of any amendments or  modifications to the Loan Documents; (viii) fees, costs, and expenses incurred in such period in connection  with the issuance of Equity Interests or Indebtedness, the consummation of Permitted Acquisitions, and the  consummation of other Investments permitted pursuant to Section 7.03 (in each case whether consummated  before or after the Closing Date), whether or not such transaction is actually consummated; (ix) any charges,  losses or expenses incurred in such period and related to signing, retention or completion bonuses or  recruiting costs, and, to the extent related to Permitted Acquisitions, integration and systems establishment  costs; (x) severance and relocation costs incurred in such period, and pre-opening, opening, closing and  consolidation costs and expenses with respect to any facilities incurred in such period; (xi) to the extent  covered by insurance under which the insurer has been properly notified and has affirmed or consented to  coverage in writing, expenses incurred in such period with respect to liability or casualty events or business  interruption; (xii) to the extent actually reimbursed in cash (other than any such reimbursement by the  Borrower or any of its Subsidiaries and to the extent Not Otherwise Applied), expenses incurred in such  period that are covered by indemnification provisions in any agreement to which the Borrower or any of its  Subsidiaries is a party; (xiii) the amount of “run rate” net cost savings, synergies and operating expense  reductions relating to any transaction permitted pursuant to this Agreement that are projected by the  Borrower in good faith to result from actions taken or with respect to which substantial steps have been  taken, in each case, within twelve (12) months of such transaction (calculated on a Pro Forma Basis as  though such cost savings, operating expense reductions and synergies had been realized on the first day of  the period for which Consolidated EBITDAR is being determined and if such cost savings, operating  expense reductions and synergies were realized during the entirety of such period), net of the amount of  actual benefits realized during such period from such actions; provided, that, such cost savings, operating  expense reductions and synergies are reasonably identifiable and factually supportable (it is understood and  agreed that “run-rate” means the full recurring benefit for a period that is associated with any action taken  or with respect to which substantial steps have been taken); and (xiv) other extraordinary, unusual or non- recurring losses or expenses in such period; minus (c) the following, without duplication, to the extent  included in calculating such Consolidated Net Income: (i) non-cash income or gains for such period; (ii)  federal, state, local and foreign income tax credits received in such period; and (iii) extraordinary, unusual  or non-recurring gains in such period; provided, that, the sum of (A) the aggregate amount added back in  any period pursuant to clauses (b)(ix), (b)(x) and (b)(xiii) above, plus (B) the aggregate amount of cash  losses or expenses added back pursuant to clause (b)(xiv) above, shall not exceed an aggregate amount  equal to ten percent (10%) of Consolidated EBITDAR for such period (determined prior to giving effect to  all such add-backs).  “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of  (a) the total of (i) Consolidated EBITDAR for the Measurement Period most recently ended on or prior to  





 






  10  CHAR1\1823738v3  such date, minus (ii) Consolidated Cash Taxes for such period, minus (iii) the aggregate amount of all  Designated Restricted Payments made in such period, to (b) the sum of (i) Consolidated Interest Charges  for the Measurement Period most recently ended on or prior to such date to the extent paid in cash, plus (ii)  Consolidated Scheduled Funded Debt Payments for such period, plus (iii) Consolidated Rent Expense for  such period.  “Consolidated Funded Indebtedness” means, as of any date of determination, Funded Indebtedness  of the Borrower and its Subsidiaries on a Consolidated basis as of such date.  “Consolidated Interest Charges” means, for any period, for the Borrower and its Subsidiaries on a  Consolidated basis, the sum, without duplication, of (a) all interest, premium payments, debt discount, fees,  charges and related expenses in connection with borrowed money (including capitalized interest) or in  connection with the deferred purchase price of assets, in each case with respect to such period and to the  extent treated as interest in accordance with GAAP, plus (b) all interest paid or payable with respect to  discontinued operations for such period, plus (c) the portion of rent expense under Capitalized Leases for  such period that is treated as interest in accordance with GAAP.  “Consolidated Net Income” means, for any period, the net income (or loss) of the Borrower and its  Subsidiaries on a Consolidated basis for such period, as determined in accordance with GAAP; provided,  that, Consolidated Net Income shall exclude (a) the net income of any Subsidiary during such period to the  extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such  income is not permitted by operation of the terms of its Organization Documents or any agreement,  instrument or Law applicable to such Subsidiary during such period, except that the Borrower’s equity in  any net loss of any such Subsidiary for such period shall be included in determining Consolidated Net  Income, and (b) any income (or loss) for such period of any Person if such Person is not a Subsidiary,  except that the Borrower’s equity in the net income of any such Person for such period shall be included in  Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during  such period to the Borrower or a Subsidiary as a dividend or other distribution (and in the case of a dividend  or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount  to the Borrower as described in clause (a) of this proviso).  “Consolidated Rent-Adjusted Total Leverage Ratio” means, as of any date of determination, the  ratio of (a) Consolidated Adjusted Funded Indebtedness as of such date, to (b) Consolidated EBITDAR for  the Measurement Period most recently ended on or prior to such date.  “Consolidated Rent Expense” means, for any period, for the Borrower and its Subsidiaries on a  Consolidated basis, all rent and lease expense relating to real properties for such period.  “Consolidated Scheduled Funded Debt Payments” means, for any period, for the Borrower and its  Subsidiaries on a Consolidated basis, the sum of all scheduled payments of principal on Consolidated  Funded Indebtedness during such period.  For purposes of this definition, “scheduled payments of  principal” (a) shall be determined without giving effect to any reduction of such scheduled payments  resulting from the application of any voluntary or mandatory prepayments made during the applicable  period, (b) shall be deemed to include scheduled payments on any Attributable Indebtedness, and (c) shall  not include (i) any voluntary prepayments or mandatory prepayments with respect to any Consolidated  Funded Indebtedness, (ii) the repayment of Indebtedness arising under the Existing Term Loan Agreement  made on December 28, 2020, or (iii) any balloon payments required to be made at the stated maturity of  any Consolidated Funded Indebtedness.  “Contingent Acquisition Obligations” means, with respect to an Acquisition or other Investment  permitted pursuant to Section 7.03, all obligations of the Borrower or any Subsidiary to make earn out or  





 






  11  CHAR1\1823738v3  other contingency payments (including purchase price adjustments, non-competition and consulting  agreements, or other indemnity obligations) pursuant to the documentation relating to such Acquisition or  such other Investment, as applicable.  “Contingent Disposition Obligations” means, with respect to a Disposition, all obligations of the  Borrower or any Subsidiary to make contingency payments (including purchase price adjustments, non- competition and consulting agreements, or other indemnity obligations) pursuant to the documentation  relating to such Disposition.  “Contractual Obligation” means, as to any Person, any provision of any security issued by such  Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it  or any of its property is bound.  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction  of the management or policies of a Person, whether through the ability to exercise voting power, by contract  or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.  “Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. § 382.2(b).  “Covered Party” has the meaning specified in Section 11.21.  “Credit Extension” means each of the following: (a) a Borrowing; and (b) an L/C Credit Extension.  “Daily Simple SOFR” means, with respect to any applicable determination date, the secured  overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as  the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New  York’s website (or any successor source).  “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other  applicable jurisdictions from time to time in effect.  “Default” means any event or condition that constitutes an Event of Default or that, with the giving  of any notice, the passage of time, or both, would be an Event of Default.  “Default Rate” means (a) with respect to any Obligation for which a rate is specified, a rate per  annum equal to two percent (2%) in excess of the rate otherwise applicable thereto, and (b) with respect to  any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus  the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%), in each case, to  the fullest extent permitted by applicable Law.  “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all  or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded  hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such  





 






  12  CHAR1\1823738v3  failure is the result of such Lender’s determination that one or more conditions precedent to funding (each  of which conditions precedent, together with any applicable default, shall be specifically identified in such  writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender  or any other Lender any other amount required to be paid by it hereunder (including in respect of its  participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due,  (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swingline Lender in writing  that it does not intend to comply with its funding obligations hereunder, or has made a public statement to  that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan  hereunder and states that such position is based on such Lender’s determination that a condition precedent  to funding (which condition precedent, together with any applicable default, shall be specifically identified  in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after  written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative  Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided,  that, such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such  written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect  parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had  appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of  creditors or similar Person charged with reorganization or liquidation of its business or assets, including the  Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a  capacity, or (iii) become the subject of a Bail-In Action; provided, that, a Lender shall not be a Defaulting  Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct  or indirect parent company thereof by a Governmental Authority so long as such ownership interest does  not result in or provide such Lender with immunity from the jurisdiction of courts within the United States  or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such  Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with  such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under  any one or more of clauses (a) through (d) above, and the effective date of such status, shall be conclusive  and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to  Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written notice of such  determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the  Swingline Lender and each other Lender promptly following such determination.  “Designated Jurisdiction” means any country, region or territory to the extent that such country,  region or territory is the subject of any Sanction.  “Designated Restricted Payment” means any Restricted Payment made by the Borrower or any of  its Subsidiaries in reliance on Section 7.06(a) (to the extent made to any Person other than the Borrower or  any Subsidiary) or Section 7.06(d).  For the avoidance of doubt, neither (a) the Pre-IPO Dividend, or (b)  the exit fee paid in connection with the Existing Term Loan Agreement, in either case, shall constitute a  Designated Restricted Payment for purposes of this Agreement.  “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including  any Sale and Leaseback Transaction) of any property (including the Equity Interests in any Subsidiary)  owned by the Borrower or any Subsidiary (or the granting of any option or other right to do any of the  foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes  or accounts receivable or any rights and claims associated therewith.  “Disqualified Capital Stock” means any Equity Interest which, by its terms (or by the terms of any  security into which it is convertible or for which it is exchangeable), or upon the happening of any event,  (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is  redeemable at the option of the holder thereof, in whole or in part, prior to the ninety-first (91st) day after  





 






  13  CHAR1\1823738v3  the Maturity Date, (b) requires the payment of any cash dividends, (c) is convertible into or exchangeable  for (i) debt securities, or (ii) any Equity Interests referred to in clause (a) or (b) above, in each case at any  time prior to the ninety-first (91st) day after the Maturity Date, or (d) contains any repurchase obligation  which may come into effect prior to the Facility Termination Date; provided, that, any Equity Interests that  would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the  holders of any security into or for which such Equity Interests are convertible, exchangeable or exercisable)  the right to require the issuer thereof to redeem or repurchase such Equity Interests upon the occurrence of  a change in control or an asset sale occurring prior to the ninety-first (91st) day after the Maturity Date shall  not constitute Disqualified Capital Stock if such Equity Interests provide that the issuer thereof may not  redeem or repurchase any such Equity Interests pursuant to such provisions prior to the Facility Termination  Date.  “Dollar” and “$” mean lawful money of the United States.  “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States,  any state thereof, or the District of Columbia.  “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of  an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with  its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.  “Electronic Copy” has the meaning specified in Section 11.18.  “Electronic Record” has the meaning assigned to that term in 15 U.S.C. §7006.  “Electronic Signature” has the meaning assigned to that term in 15 U.S.C. §7006.  “Eligible Assets” means property that is used or useful in the same or a related line of business as  the Borrower and its Subsidiaries were engaged in on the Closing Date (or any business reasonably related,  incidental or ancillary thereto or reasonable extensions thereof).  “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section  11.06 (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).  “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil,  surface and subsurface strata, and natural resources such as wetland, flora and fauna.  “Environmental Law” means any federal, state, local, and foreign statute, law (including common  law), regulation, standard, ordinance, rule, judgment, interpretation, order, decree, permit, agreement or  governmental restriction relating to pollution or the protection of the Environment or human health (to the  extent related to exposure to hazardous materials), including those relating to the manufacture, generation,  





 






  14  CHAR1\1823738v3  handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials, air emissions  and discharges to waste or public systems.  “Environmental Liability” means any liability, contingent or otherwise (including any liability for  damages, costs of environmental remediation, fines, penalties or indemnities) whether based in contract,  tort, implied or express warranty, strict liability, criminal or civil statute or common law, directly or  indirectly relating to (a) any Environmental Law, (b) the generation, use, handling, transportation, storage,  treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) Release or  threatened Release of any Hazardous Materials, or (e) any contract, agreement or other consensual  arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.  “Environmental Permit” means any permit, certification, registration, approval, identification  number, license or other authorization required under any Environmental Law.  “Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other  ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or  acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such  Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other  ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition  from such Person of such shares (or such other interests), and all of the other ownership or profit interests  in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and  whether or not such shares, warrants, options, rights or other interests are outstanding on any date of  determination.  “ERISA” means the Employee Retirement Income Security Act of 1974.  “ERISA Affiliate” means any trade or business (whether or not incorporated) under common  control with the Borrower within the meaning of Section 414(b) or Section 414(c) of the Code (and Sections  414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).  “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan, (b) the withdrawal  of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a  plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or  a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA, (c) a  complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan, (d) the  filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under  Section 4041 or 4041A of ERISA, (e) the institution by the PBGC of proceedings to terminate a Pension  Plan, (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination  of, or the appointment of a trustee to administer, any Pension Plan, (g) the determination that any Pension  Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections  430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA, (h) the imposition of any liability  under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of  ERISA, upon the Borrower or any ERISA Affiliate, or (i) a failure by the Borrower or any ERISA Affiliate  to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether  or not waived, or the failure by the Borrower or any ERISA Affiliate to make any required contribution to  a Multiemployer Plan.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.  “Event of Default” has the meaning specified in Section 8.01.   





 






  15  CHAR1\1823738v3  “Excluded Property” means, with respect to any Loan Party: (a)(i) any owned real property of such  Loan Party, and (ii) any leased real property of such Loan Party; (b) any personal property (including motor  vehicles, airplanes and other assets subject to certificates of title) of such Loan Party in respect of which  perfection of a Lien is not either (i) governed by the UCC, or (ii) effected by appropriate evidence of the  Lien being filed in either the United States Copyright Office or the United States Patent and Trademark  Office; (c) the Equity Interests of any Foreign Subsidiary owned by such Loan Party to the extent not  required to be pledged to secure the Secured Obligations pursuant to Section 6.13(a); (d) any property of  such Loan Party which, subject to the terms of Section 7.09, is subject to a Lien of the type described in  Section 7.01(c) pursuant to documents that prohibit such Loan Party from granting any other Liens in such  property; (e) any general intangible, permit, lease, license, contract or other instrument of such Loan Party  to the extent the grant of a security interest in such general intangible, permit, lease, license, contract or  other instrument in the manner contemplated by the Collateral Documents, under the terms thereof or under  applicable Law, is prohibited and would result in the termination thereof or give the other parties thereto  the right to terminate, accelerate or otherwise alter such Loan Party’s rights, titles and interests thereunder  (including upon the giving of notice or the lapse of time or both); provided, that, (i) any such limitation  described in the foregoing clause (e) on the security interests granted pursuant to the Collateral Documents  shall only apply to the extent that any such prohibition is not rendered ineffective pursuant to the UCC or  other applicable Law (including Debtor Relief Laws) or principles of equity, and (ii) in the event of the  termination or elimination of any such prohibition or the requirement for any consent contained in any  applicable Law, general intangible, permit, lease, license, contract or other instrument, to the extent  sufficient to permit any such item to become Collateral, or upon the granting of any such consent, or waiving  or terminating any requirement for such consent, or the elimination of such limitation, as applicable, a  security interest in such general intangible, permit, lease, license, contract or other instrument shall be  automatically and simultaneously granted under the Collateral Documents and shall be included as  Collateral; (f) any asset of such Loan Party if the pledge of, or the granting of a security interest in, such  asset is prohibited by any Law applicable to such Loan Party; provided, that, (i) any such prohibition  described in this clause (f) on the security interests granted pursuant to the Collateral Documents shall only  apply to the extent that any such prohibition would not be rendered ineffective pursuant to the UCC or any  other applicable Law (including Debtor Relief Laws) or principles of equity, and (ii) in the event of the  termination or elimination of any such prohibition contained in any applicable Law, a security interest in  such asset shall be automatically and simultaneously granted under the Collateral Documents and shall be  included as Collateral; (g) any “intent-to-use” application for registration of a Trademark (as defined in the  Security Agreement) of such Loan Party filed in the United States Patent and Trademark Office pursuant  to Section 1(b) of the Lanham Act, 15 U.S.C. §1051, prior to the filing of a “Statement of Use” pursuant to  Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham  Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which the  grant of a security interest therein would impair the validity or enforceability of any registration that issues  from such intent-to-use application under applicable federal law; and (h) any asset of such Loan Party as to  which the Administrative Agent and the Borrower agree in writing that the cost or other consequences of  obtaining a security interest therein or perfection thereof are excessive in view of the benefits to be obtained  by the Secured Parties therefrom.  “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to  the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor a Lien  to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity  Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the  application or official interpretation thereof) by virtue of such Guarantor’s failure for any reason to  constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after  giving effect to Section 10.11 and any other “keepwell, support or other agreement” for the benefit of such  Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the  time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect  





 






  16  CHAR1\1823738v3  to such Swap Obligation.  If a Swap Obligation arises under a Master Agreement governing more than one  Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable  to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first  sentence of this definition.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient  or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured  by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed  as a result of such Recipient being organized under the laws of, or having its principal office or, in the case  of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision  thereof), or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. federal withholding Taxes  imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in  a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such  interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under  Section 11.13), or (ii) such Lender changes its Lending Office, except in each case to the extent that,  pursuant to Sections 3.01(b) or (d), amounts with respect to such Taxes were payable either to such Lender’s  assignor immediately before such Lender became a party hereto or to such Lender immediately before it  changed its Lending Office; (c) Taxes attributable to such Recipient’s failure to comply with Section  3.01(f); and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.  “Existing Term Loan Agreement” means that certain Credit Agreement, dated as of June 26, 2017,  by and among Arhaus LLC, the lenders party thereto, and Deutsche Bank Trust Company Americas, as  disbursing agent and collateral agent.  “Facility Termination Date” means the date as of which all of the following shall have occurred:  (a) the Aggregate Commitments have terminated; (b) all Obligations have been paid in full in cash (other  than contingent indemnification obligations for which no claim has been asserted); and (c) all Letters of  Credit have terminated or expired (other than Letters of Credit as to which other arrangements with respect  thereto satisfactory to the Administrative Agent and the L/C Issuer shall have been made).   “FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards  Board.  “FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended  or successor version that is substantively comparable and not materially more onerous to comply with), any  current or future regulations or official interpretations thereof, any agreements entered into pursuant to  Section 1471(b)(1) of the Code, and any intergovernmental agreement (and related fiscal or regulatory  legislation, or related official rules or practices) implementing the foregoing.  “Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve  Bank of New York based on such day’s federal funds transactions by depository institutions (as determined  in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to  time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the  federal funds effective rate; provided, that, if the Federal Funds Rate as so determined would be less than  zero, such rate shall be deemed to be zero for the purposes of this Agreement.  “Fee Letter” means the fee letter agreement, dated the Closing Date, between the Borrower and  Bank of America.  “Fiscal Quarter” means each fiscal quarter of the Borrower (or, with respect to any fiscal quarter  ending prior to the Closing Date, each fiscal quarter of Arhaus LLC).  





 






  17  CHAR1\1823738v3  “Fiscal Year” means each fiscal year of the Borrower (or, with respect to any fiscal year ending  prior to the Closing Date, each fiscal year of Arhaus LLC).  “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person,  and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a  jurisdiction other than that in which the Borrower is resident for tax purposes.  For purposes of this  definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute  a single jurisdiction.  “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.  “FRB” means the Board of Governors of the Federal Reserve System of the United States.  “Fronting Exposure” means, at any time there is a Defaulting Lender that is a Lender, (a) with  respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C  Obligations, other than L/C Obligations as to which such Defaulting Lender’s participation obligation has  been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with  respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans, other  than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated  to other Lenders or Cash Collateralized in accordance with the terms hereof.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.  “Funded Indebtedness” means, as to any Person at a particular time, without duplication, all of the  following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all  obligations of such Person, whether current or long-term, for borrowed money (including the Obligations)  and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar  instruments; (b) all purchase money Indebtedness of such Person; (c) the principal portion of all obligations  of such Person under conditional sale or other title retention agreements relating to property purchased by  such Person or any Subsidiary thereof (other than customary reservations or retentions of title under  agreements with suppliers entered into in the ordinary course of business); (d) all unreimbursed obligations  of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances,  bank guaranties, surety bonds and similar instruments; (e) all obligations of such Person in respect of the  deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course  of business and not past due for more than ninety (90) days, and (ii) any Contingent Acquisition Obligations  until such time as such Contingent Acquisition Obligations become liabilities on the balance sheet of such  Person in accordance with GAAP); (f) all Attributable Indebtedness of such Person; (g) all obligations of  such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any  Disqualified Capital Stock in such Person or any other Person, valued, in the case of a redeemable preferred  interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid  dividends; (h) all Funded Indebtedness of other Persons secured by (or for which the holder of such Funded  Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out  of the proceeds of production from, property owned or acquired by such Person, whether or not the  obligations secured thereby have been assumed; (i) all Guarantees provided by such Person with respect to  Funded Indebtedness of another Person; and (j) all Funded Indebtedness of any partnership or joint venture  (other than a joint venture that is itself a corporation or limited liability company) in which such Person is  a general partner or joint venturer, except to the extent that such Funded Indebtedness is expressly made  non-recourse to such Person.  For purposes hereof, the amount of Funded Indebtedness of any Person for  purposes of clause (h) above (unless such Funded Indebtedness has been assumed by such Person, in which  





 






  18  CHAR1\1823738v3  case it shall be deemed to the aggregate unpaid amount of such Funded Indebtedness) shall be deemed to  be equal to the lesser of (i) the aggregate unpaid amount of such Funded Indebtedness, and (ii) the fair  market value of the property encumbered thereby as determined by such Person in good faith.  “Funding Indemnity Letter” means a funding indemnity letter, in form and substance satisfactory  to the Administrative Agent.  “GAAP” means generally accepted accounting principles in the United States set forth from time  to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute  of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards  Board (or agencies with similar functions of comparable stature and authority within the accounting  profession), including the FASB ASC, that are applicable to the circumstances as of the date of  determination, consistently applied and subject to Section 1.03.  “Governmental Authority” means the government of the United States or any other nation, or of  any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,  regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,  regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).  “Guarantee” means, as to any Person (a) any obligation, contingent or otherwise, of such Person  guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable  or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and  including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply  funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease  property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or  other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain  working capital, equity capital or any other financial statement condition or liquidity or level of income or  cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other  obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of  such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee  against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing  any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other  obligation is assumed or expressly undertaken by such Person (or any right, contingent or otherwise, of any  holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be  an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof,  in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably  anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term  “Guarantee” as a verb has a corresponding meaning.  “Guaranteed Obligations” has the meaning specified in Section 10.01.  “Guarantor” means each of (a) each Person identified under the heading “Guarantors” on the  signature pages hereto, (b) each Domestic Subsidiary that is or may from time to time become a Guarantor  pursuant to Section 6.12, and (c) with respect to (i) Additional Secured Obligations owing by any Loan  Party or any Subsidiary, and (ii) any Swap Obligation of a Specified Loan Party (determined before giving  effect to Sections 10.01 and 10.11) under the Guaranty, the Borrower.  Notwithstanding the foregoing, no  Immaterial Subsidiary shall be required to become or remain a Guarantor.  “Guaranty” means, collectively, the Guarantee made by the Guarantors under Article X in favor of  the Secured Parties, together with each other guaranty delivered pursuant to Section 6.12.  





 






  19  CHAR1\1823738v3  “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous  or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, natural gas,  natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic  mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or  compounds of any nature in any form regulated pursuant to any Environmental Law.  “Hedge Bank” means any Person, in its capacity as a party to a Swap Contract, that, (a) at the time  it enters into a Swap Contract not prohibited by this Agreement with the Borrower or a Subsidiary, is a  Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a  Swap Contract not prohibited by this Agreement with the Borrower or a Subsidiary, in each case, even if  such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender; provided, that, in the  case of a Secured Hedge Agreement with a Person who is no longer a Lender (or an Affiliate of a Lender),  such Person shall be considered a Hedge Bank only through the stated termination date (without extension  or renewal) of such Secured Hedge Agreement; provided, further, that, for any of the foregoing to be  included as a “Secured Hedge Agreement” on any date of determination by the Administrative Agent, the  applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent)  must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of  determination.   “Historical Financial Statements” means (a) prior to the delivery of financial statements pursuant  to Section 6.01(d) for the Fiscal Quarter ended September 30, 2021, the Interim Financial Statements, and  (b) from and after the delivery of financial statements pursuant to Section 6.01(d) for the Fiscal Quarter  ended September 30, 2021 (but, for the avoidance of doubt, only until the date on which financial statements  are delivered pursuant to Section 6.01(a) for the Fiscal Year ending December 31, 2021), the financial  statements delivered pursuant to Section 6.01(d).  “HMT” has the meaning specified in the definition of “Sanction.”  “Immaterial Subsidiary” means, as of any date of determination, any Subsidiary that (a) as of the  last day of the Measurement Period most recently ended for which financial statements have been delivered  pursuant to Section 6.01(a) or Section 6.01(b), did not have total assets in excess of five percent (5%) of  the consolidated total assets of the Borrower and its Subsidiaries as of such date, and (b) for the  Measurement Period most recently ended for which financial statements have been delivered pursuant to  Section 6.01(a) or Section 6.01(b), did not have revenues in excess of five percent (5%) of the consolidated  revenues of the Borrower and its Subsidiaries for such period; provided, that, if, as of the date financial  statements are (or are required to be) delivered pursuant to Section 6.01(a) or Section 6.01(b), (i) total assets  of all Immaterial Subsidiaries as of the last day of the Measurement Period most recently ended exceeds  fifteen percent (15%) of the consolidated total assets of the Borrower and its Subsidiaries as of such date,  or (ii) total revenues of all Immaterial Subsidiaries for the Measurement Period most recently ended exceeds  fifteen percent (15%) of the consolidated revenues of the Borrower and its Subsidiaries for such period,  then, in either such case, within thirty (30) days after the date of delivery of such financial statements (or  such longer period of time as is agreed by the Administrative Agent in its sole discretion), the Borrower  shall cause one or more of such Immaterial Subsidiaries to comply with the provisions of Section 6.12 such  that, after giving effect thereto, the total assets or total revenues, as applicable, of all Immaterial Subsidiaries  then in existence does not exceed the limits set forth in clauses (i) and (ii) above.  “Indebtedness” means, as to any Person at a particular time, without duplication, all of the  following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all  obligations of such Person, whether current or long-term, for borrowed money (including the Obligations)  and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar  instruments; (b) all purchase money Indebtedness of such Person; (c) the principal portion of all obligations  





 






  20  CHAR1\1823738v3  of such Person under conditional sale or other title retention agreements relating to property purchased by  such Person or any Subsidiary thereof (other than customary reservations or retentions of title under  agreements with suppliers entered into in the ordinary course of business); (d) all obligations of such Person  arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties,  surety bonds and similar instruments; (e) all obligations of such Person in respect of the deferred purchase  price of property or services (other than trade accounts payable in the ordinary course of business and not  past due for more than ninety (90) days), including any Contingent Acquisition Obligations; (f) all  Attributable Indebtedness of such Person; (g) all obligations of such Person to purchase, redeem, retire,  defease or otherwise make any payment in respect of any Equity Interests in such Person or any other  Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary  liquidation preference plus accrued and unpaid dividends; (h) all Indebtedness of other Persons secured by  (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured  by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such  Person, whether or not the obligations secured thereby have been assumed; (i) the Swap Termination Value  of any Swap Contract entered into by Person; (j) all Guarantees provided by such Person with respect to  Indebtedness of another Person; and (k) all Indebtedness of any partnership or joint venture (other than a  joint venture that is itself a corporation or limited liability company) in which such Person is a general  partner or joint venturer, except to the extent that such Indebtedness is expressly made non-recourse to such  Person.  For purposes hereof, (i) the amount of any obligation arising under letters of credit (including  standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments shall  be the maximum amount available to be drawn thereunder, and (ii) the amount of Contingent Acquisition  Obligations shall be deemed to be the aggregate liability in respect thereof, as determined in accordance  with GAAP.  “Indemnified Taxes” means all (a) Taxes, other than Excluded Taxes, imposed on or with respect  to any payment made by or on account of any obligation of any Loan Party under any Loan Document, and  (b) to the extent not otherwise described in clause (a) above, Other Taxes.  “Indemnitee” has the meaning specified in Section 11.04(b).  “Information” has the meaning specified in Section 11.07.  “Initial Public Offering” the issuance by the Borrower of its common Equity Interests in an  underwritten primary public offering pursuant to that certain Registration Statement on Form S-1  (Registration No. 333-260015), initially publicly filed with the SEC on October 4, 2021 (as such  Registration Statement on Form S-1 may be amended from time to time) in accordance with the  requirements of the Securities Act.  “Intellectual Property” means all intellectual property rights, whether registered or unregistered,  including all registered trademarks and service marks, trademark applications, trade names, copyright  registrations, copyright applications, patents, patent applications, and intellectual property licenses.  “Intercompany Debt” has the meaning specified in Section 7.02(f).  “Interest Payment Date” means: (a) as to any BSBY Rate Loan, the last day of each Interest Period  applicable to such Loan and the Maturity Date; provided, that, if any Interest Period for a BSBY Rate Loan  exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such  Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or any Swingline  Loan, the last Business Day of each March, June, September and December and the Maturity Date.  





 






  21  CHAR1\1823738v3  “Interest Period” means, as to each BSBY Rate Loan, the period commencing on the date such  BSBY Rate Loan is disbursed or converted to or continued as a BSBY Rate Loan and ending on the date  one (1), three (3) or six (6) months thereafter (in each case, subject to availability), as selected by the  Borrower in its Loan Notice; provided, that: (a) any Interest Period that would otherwise end on a day that  is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls  in another calendar month, in which case such Interest Period shall end on the next preceding Business  Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which  there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall  end on the last Business Day of the calendar month at the end of such Interest Period; and (c) no Interest  Period shall extend beyond the Maturity Date.  “Interim Financial Statements” means the unaudited Consolidated balance sheet of Arhaus LLC  and its Subsidiaries for the Fiscal Quarter ended June 30, 2021, and the related Consolidated statements of  income, stockholders’ equity and cash flows for such Fiscal Quarter and for the portion of the Fiscal Year  then ended, including the notes thereto.  “Investment” means, as to any Person, any direct or indirect acquisition or investment by such  Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b)  a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other  acquisition of any other debt or interest in, another Person (including any partnership or joint venture  interest in such other Person and any arrangement pursuant to which the investor guaranties Indebtedness  of such other Person), or (c) an Acquisition.  For purposes of covenant compliance, the amount of any  Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases  in the value of such Investment.  “Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or  other taking for public use of, any property of any Loan Party or any Subsidiary.  “IRS” means the United States Internal Revenue Service.  “ISP” means the International Standby Practices, International Chamber of Commerce Publication  No. 590 (or such later version thereof as may be in effect at the applicable time).  “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application  and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any  Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.  “Joinder Agreement” means a joinder agreement substantially in the form of Exhibit C executed  and delivered in accordance with the provisions of Section 6.12.  “Junior Debt” means any Indebtedness that is subordinated in right of payment to the Secured  Obligations.  “Junior Debt Payment” means any voluntary or optional payment or prepayment of principal of, or  any redemption, purchase, retirement, extinguishment, defeasance, discharge or other satisfaction prior to  the scheduled maturity of (including any optional redemption, refinancing, conversion, required repurchase,  exchange, open market purchase, or privately negotiated purchase), any Junior Debt.  “Law” or “law” means any international, foreign, federal, state or local statute, treaty, rule,  guideline, regulation, ordinance, code or administrative or judicial precedent or authority, including the  interpretation or administration thereof by any Governmental Authority charged with the enforcement,  





 






  22  CHAR1\1823738v3  interpretation or administration thereof, and any applicable administrative order, directed duty, request,  license, authorization or permit of, or agreement with, any Governmental Authority, in each case whether  or not having the force of law.  “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or  extension of the expiry date thereof, or the increase of the amount thereof.  “L/C Disbursement” means any payment made by the L/C Issuer pursuant to a Letter of Credit.  “L/C Issuer” means Bank of America, in its capacity as issuer of Letters of Credit hereunder.  “L/C Obligations” means, as at any date of determination, (a) the aggregate amount available to be  drawn under all outstanding Letters of Credit as of such date, plus (b) the aggregate of all Unreimbursed  Amounts as of such date.  For purposes of computing the amount available to be drawn under any Letter of  Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  For all  purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but  any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter  of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.  “Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each  other Person that becomes a “Lender” in accordance with this Agreement, and their successors and assigns  and, unless the context requires otherwise, includes the Swingline Lender.  “Lender Party” means each of each Lender, the L/C Issuer, and the Swingline Lender.  “Lending Office” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office  or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other  office or offices as such Person may from time to time notify the Borrower and the Administrative Agent;  which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or  such Affiliate.  “Letter of Credit” means any standby letter of credit issued hereunder.  “Letter of Credit Application” means an application and agreement for the issuance or amendment  of a Letter of Credit in the form from time to time in use by the L/C Issuer.  “Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date  (or, if such day is not a Business Day, the next preceding Business Day).  “Letter of Credit Fee” has the meaning specified in Section 2.03(l).  “Letter of Credit Sublimit” means, as of any date of determination, an amount equal to the lesser  of (a) $10,000,000, and (b) the amount of the Revolving Facility as of such date.  The Letter of Credit  Sublimit is part of, and not in addition to, the Revolving Facility.  “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,  encumbrance, lien (statutory or otherwise), charge, or preference, priority or other security interest or  preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any  conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title  to real property and any financing lease having substantially the same economic effect as any of the  foregoing).  





 






  23  CHAR1\1823738v3  “Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a  Revolving Loan or a Swingline Loan.  “Loan Document” means each of this Agreement, each Note, the Guaranty, each Collateral  Document, the Fee Letter, each Issuer Document, each other agreement, instrument or document designated  by its terms as a “Loan Document,” and each agreement creating or perfecting rights in Cash Collateral  pursuant to the provisions of Section 2.14 (but specifically excluding any Secured Hedge Agreement or any  Secured Cash Management Agreement).  “Loan Notice” means a notice of (a) a Revolving Borrowing, (b) a conversion of Revolving Loans  from one Type to the other pursuant to Section 2.02(a), or (c) a continuation of BSBY Rate Loans pursuant  to Section 2.02(a), which shall be substantially in the form of Exhibit D or such other form as may be  approved by the Administrative Agent (including any form on an electronic platform or electronic  transmission system as shall be approved by the Administrative Agent), appropriately completed and signed  by a Responsible Officer of the Borrower.  “Loan Party” means each of the Borrower and each Guarantor.  “Master Agreement” has the meaning specified in the definition of “Swap Contract.”  “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect  upon, the operations, business, properties, liabilities (actual or contingent), or condition (financial or  otherwise) of the Borrower and its Subsidiaries, taken as a whole, or (b) a material adverse effect on (i) the  ability of the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents, (ii)  the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to  which it is a party, or (iii) the rights, remedies and benefits available to, or conferred upon, the  Administrative Agent, the L/C Issuer or any Lender under any Loan Documents.  “Maturity Date” means November 8, 2026; provided, that, if such date is not a Business Day, the  Maturity Date shall be the immediately preceding Business Day.  “Maximum Rate” has the meaning specified in Section 11.09.  “Measurement Period” means, at any date of determination, the four (4) Fiscal Quarters most  recently ended on or prior to such date of determination.  “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during any period  when a Lender constitutes a Defaulting Lender, an amount equal to one hundred three percent (103%) of  the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such  time, and (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in  accordance with any provision of this Agreement (other than for the purposes described in clause (a) above),  an amount equal to one hundred three percent (103%) of the Outstanding Amount of all L/C Obligations,  plus any accrued and unpaid interest thereon.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3)  of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or  during the preceding five (5) plan years, has made or been obligated to make contributions.  





 






  24  CHAR1\1823738v3  “Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including  the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan  is described in Section 4064 of ERISA.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or  amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms  of Section 11.01, and (b) has been approved by the Required Lenders.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.  “Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(ii).  “Non-Reimbursement Notice” has the meaning specified in Section 2.03(f).  “Non-Wholly Owned Subsidiary” means any Subsidiary that is not a Wholly Owned Subsidiary of  the Borrower.  “Not Otherwise Applied” means, with reference to any proceeds of any transaction or event that is  proposed to be applied to a particular use or transaction, that such amount has not previously been (and is  not simultaneously being) applied to anything other than such particular use or transaction.  “Note” has the meaning specified in Section 2.11(a).  “Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be  substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent  (including any form on an electronic platform or electronic transmission system as shall be approved by the  Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.  “NPL” means the National Priorities List under CERCLA.  “Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of,  any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit,  and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing,  including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including  those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter  arising and including interest, expenses and fees that accrue after the commencement by or against any  Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such  Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed  claims in such proceeding; provided, that, Obligations of a Guarantor shall exclude any Excluded Swap  Obligations with respect to such Guarantor.  “OFAC” means the Office of Foreign Assets Control of the United States Department of the  Treasury.  “Organization Documents” means: (a) with respect to any corporation, the charter or certificate or  articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect  to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of  formation or organization and operating agreement or limited liability company agreement (or equivalent  or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership,  joint venture, trust or other form of business entity, the partnership, joint venture or other applicable  





 






  25  CHAR1\1823738v3  agreement of formation or organization (or equivalent or comparable documents with respect to any non- U.S. jurisdiction); (d) with respect to all entities, any agreement, instrument, filing or notice with respect  thereto filed in connection with its formation or organization with the applicable Governmental Authority  in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to  any non-U.S. jurisdiction); and (e) with respect to all entities, any agreement among the holders of the  Equity Interests of such entity concerning the organization, operation, governance or management of such  entity or the rights and obligations of such holders.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in any  other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan  or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing  or similar Taxes that arise from any payment made under, from the execution, delivery, performance,  enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with  respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with  respect to an assignment (other than an assignment made pursuant to Section 3.06).  “Outstanding Amount” means (a) with respect to Revolving Loans and Swingline Loans on any  date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and  prepayments or repayments of Revolving Loans and Swingline Loans, as the case may be, occurring on  such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on  such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in  the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements  by the Borrower of Unreimbursed Amounts.  “Participant” has the meaning specified in Section 11.06(d).  “Participant Register” has the meaning specified in Section 11.06(d).  “PATRIOT Act” has the meaning specified in Section 11.19.  “PBGC” means the Pension Benefit Guaranty Corporation.  “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding  standards with respect to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code  and Sections 302, 303, 304 and 305 of ERISA.  “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or  a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate or  with respect to which the Borrower or any ERISA Affiliate has any liability and is either covered by Title  IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.  “Permitted Acquisition” means an Acquisition by any Loan Party; provided, that, (a) no Default  shall have occurred and be continuing or would result from such Acquisition; (b) the property acquired (or  the property of the Person acquired) shall constitute Eligible Assets; (c) the Person acquired in connection  with such Acquisition will become a Loan Party and/or the assets acquired shall be subject to Liens in favor  of the Administrative Agent, in each case in accordance with, and to the extent required by, Section 6.12  





 






  26  CHAR1\1823738v3  and Section 6.13; (d) such Acquisition shall not be a “hostile” acquisition and shall have been approved by  the board of directors and/or the shareholders (or equivalent) of the applicable Loan Party and the Person  acquired in connection with such Acquisition; (e) upon giving Pro Forma Effect to such Acquisition, the  Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 as of the most  recently ended Fiscal Quarter for which the Borrower was required to deliver financial statements pursuant  to Section 6.01(a) or Section 6.01(b), as applicable; and (f) the aggregate Acquisition Consideration for all  Permitted Acquisitions consummated in any Fiscal Year shall not exceed $15,000,000.  “Permitted Holder” means, collectively, (a) John Reed, an individual resident in the State of Ohio  as of the Closing Date, (b) any trust, entity, family partnership, or other similar estate planning vehicle  established by or on behalf of, and for the primary benefit of, the individual referenced in clause (a) above,  and (c) after the individual referenced in clause (a) above dies or becomes incapacitated, the heirs or  beneficiaries of the individual referenced in clause (a) above.  “Permitted Liens” has the meaning specified in Section 7.01.  “Permitted Real Property Encumbrances” means (a) as to any particular real property at any time,  such easements, encroachments, covenants, restrictions, rights of way, minor defects, irregularities or  encumbrances on title which do not materially impair such real property for the purpose for which it is held  by the applicable Loan Party, applicable Subsidiary, or owner, as the case may be, (b) municipal and zoning  laws, regulations, codes and ordinances which are not violated in any material respect by the existing  improvements and the present use made by the applicable Loan Party, the applicable Subsidiary, or owner,  as the case may be, of such real property, (c) general real estate taxes and assessments not yet delinquent,  and (d) leases and subleases of real property entered into in the ordinary course of business so long as such  leases and subleases do not interfere in any material respect with the business of the Borrower and its  Subsidiaries or materially impair the use (for its intended purpose) or value of the real property subject  thereto.  “Permitted Refinancing” means, with respect to any Indebtedness of any Person, any modification,  refinancing, refunding, renewal or extension of such Indebtedness; provided, that, (a) the principal amount  (or accreted value, if applicable) thereof does not exceed the outstanding principal amount (or accreted  value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended on the  date of such modification, refinancing, refund, renewal or extension, except by an amount equal to (i)  unpaid accrued interest and premiums thereon (including tender premiums), plus reasonable fees and  expenses (including upfront fees and original issue discount) incurred in connection with such modification,  refinancing, refunding, renewal or extension, plus (ii) any existing commitments unutilized thereunder, (b)  other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section  7.02(c), such modification, refinancing, refunding, renewal or extension has (i) a final maturity date equal  to or later than the final maturity date of the Indebtedness being modified, refinanced, refunded, renewed  or extended, and (ii) a Weighted Average Life to Maturity equal to or longer than the then-remaining  Weighted Average Life to Maturity of the Indebtedness being modified, refinanced, refunded, renewed or  extended, (c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted  pursuant to Section 7.02(c), immediately before and after giving effect thereto, (i) no Default shall have  occurred and be continuing, and (ii) the Loan Parties shall be in compliance on a Pro Forma Basis with the  financial covenants set forth in Section 7.11 as of the most recently ended Fiscal Quarter for which the  Borrower was required to deliver financial statements pursuant to Section 6.01(a) or (b), (d) the direct and  contingent obligors of such Indebtedness shall not be changed, as a result of or in connection with such  modification, refinancing, refunding, renewal or extension, (e) if the Indebtedness being modified,  refinanced, refunded, renewed or extended is subordinated in right of payment to the Secured Obligations,  such modification, refinancing, refunding, renewal or extension shall be subordinated to the Secured  Obligations on terms at least as favorable, taken as a whole, to the Secured Parties as those contained in the  





 






  27  CHAR1\1823738v3  documentation governing the Indebtedness being so modified, refinanced, refunded, renewed or extended,  and (f) if the Indebtedness being modified, refinanced, refunded, renewed or extended is unsecured, such  modification, refinancing, refunding, renewal or extension shall be unsecured.  “Permitted Transfer” means: (a) Dispositions of used, obsolete, damaged, worn-out or surplus  equipment and other property, or property no longer used in or useful in the conduct of the business of the  Borrower and its Subsidiaries or otherwise economically impracticable to maintain whether now owned or  hereafter acquired, in the ordinary course of business; (b) Dispositions to landlords of improvements made  to real property pursuant to customary terms of leases in the ordinary course of business of the Borrower  and its Subsidiaries; (c) Disposition of inventory and other goods held for sale, in each case in the ordinary  course of business; (d) Dispositions of property to the extent that (i) such property is exchanged for credit  against the purchase price of similar replacement property, or (ii) the proceeds of such Disposition are  reasonably promptly applied to the purchase price of such replacement property; (e) Dispositions of  property (including Equity Interests) to the Borrower or to a Subsidiary; provided, that, if the transferor of  such property is a Loan Party, (i) the transferee thereof must be a Loan Party, or (ii) if such Disposition  constitutes an Investment, it is permitted pursuant to Section 7.03 (without reference to this definition or to  Section 7.05 (or, in each case, to any clause hereof or thereof)); (f) to the extent constituting Dispositions,  fundamental changes permitted pursuant to Section 7.04 and Restricted Payments permitted pursuant to  Section 7.06 (in each case, without reference to this definition or to Section 7.05 (or, in each case, to any  clause hereof or thereof)); (g) non-exclusive licenses of Intellectual Property in the ordinary course of  business; (h) the lapse or abandonment of any registration, or application for registration, of Intellectual  Property, in each case in the ordinary course of business and which do not interfere in any material respect  with the business of the Borrower and its Subsidiaries taken as a whole; (i) Dispositions of credit card  receivables, accounts receivable and similar obligations in connection with the collection or compromise  thereof; (j) licenses, sublicenses, leases, and subleases of property (other than Intellectual Property), and  the termination or non-renewal thereof, in each case in the ordinary course of business and which do not  interfere in any material respect with the business of the Borrower and its Subsidiaries taken as a whole;  (k)(i) Dispositions of cash and Cash Equivalents for fair market value; and (ii) the use or transfer of cash  and Cash Equivalents to consummate any transaction permitted pursuant to this Agreement (other than by  reference to this definition or to Section 7.05 (or any clause hereof or thereof)); (l) Involuntary Dispositions;  (m) Dispositions in connection with the termination or unwinding of Swap Contracts; (n) the sale or  issuance by the Borrower of its Equity Interests to the extent not constituting a Change of Control; and (o)  Dispositions of Investments (including Equity Interests) in, and issuances of Equity Interests by, any joint  venture, to the extent required by, or made pursuant to, customary buy/sell arrangements between parties  to such joint venture and set forth in the joint venture agreement, operating agreement, shareholders’  agreement or similar agreement governing such joint venture.  “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or other entity.  “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including  a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to  which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.  “Platform” has the meaning specified in Section 6.02.  “Pre-IPO Dividend” means, collectively, the dividends made to the holders of the Equity Interests  of Arhaus LLC on or about November 4, 2021 in an aggregate amount of $100,000,000.  “Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, in respect of a  Specified Transaction, that such Specified Transaction and the following transactions in connection  





 






  28  CHAR1\1823738v3  therewith (to the extent applicable) shall be deemed to have occurred on and as of the first day of the  relevant Measurement Period: (a)(i) with respect to any Disposition, Involuntary Disposition or sale,  transfer or other disposition that results in a Person ceasing to be a Subsidiary, income statement and cash  flow statement items (whether positive or negative) attributable to the Person or property disposed of shall  be excluded, and (ii) with respect to any Acquisition or other Investment that results in a Person becoming  a Subsidiary, income statement and cash flow statement items (whether positive or negative) attributable to  the Person or property acquired shall be included to the extent relating to any period applicable in such  calculations to the extent (A) such items are not otherwise included in such income statement items for the  Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth  in Section 1.01, and (B) such items are supported by financial statements or other information reasonably  satisfactory to the Administrative Agent; (b) any retirement of Indebtedness (it being understood and agreed  that in connection with any retirement of Indebtedness, interest accrued during the relevant Measurement  Period shall be excluded from the applicable calculations); and (c) any incurrence or assumption of  Indebtedness by the Borrower or any of its Subsidiaries (and if such Indebtedness has a floating or formula  rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this  definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness  as at the relevant date of determination); provided, that, (x) Pro Forma Basis, Pro Forma Compliance and  Pro Forma Effect in respect of any Specified Transaction shall be calculated in a reasonable and factually  supportable manner, and (y) any such calculation shall be subject to the applicable limitations set forth in  the definition of “Consolidated EBITDAR.”  “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as  any such exemption may be amended from time to time.  “Public Lender” has the meaning specified in Section 6.02.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).  “QFC Credit Support” has the meaning specified in Section 11.21.  “Qualified Capital Stock” of any Person means any Equity Interests of such Person that are not  Disqualified Capital Stock.  “Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding  $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity  Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time  under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  “Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of  any payment to be made by or on account of any obligation of any Loan Party hereunder.  “Register” has the meaning specified in Section 11.06(c).  “Regulation U” means Regulation U of the FRB, as in effect from time to time and all official  rulings and interpretations thereunder or thereof.  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors, consultants, service  providers, and representatives of such Person and of such Person’s Affiliates.  





 






  29  CHAR1\1823738v3  “Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping,  pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any  building, structure, or facility.  “Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or  the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of  Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor  thereto.  “Removal Effective Date” has the meaning specified in Section 9.06(b).  “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty (30) day notice period has been waived.  “Request for Credit Extension” means (a) with respect to a Revolving Borrowing, or a conversion  or continuation of Revolving Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of  Credit Application, and (c) with respect to a Swingline Borrowing, a Swingline Loan Notice.  “Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more  than fifty percent (50%) of the Total Credit Exposures of all Lenders at such time.  The Total Credit  Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time;  provided, that, the amount of any participation in any Swingline Loan and Unreimbursed Amounts that  such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender  shall be deemed to be held by the Lender that is the Swingline Lender or the L/C Issuer, as the case may  be, in making such determination.  Solely for purposes of determining Required Lenders pursuant to Section  3.03(b), each Lender that either has not made, or does not have an obligation under this Agreement to make,  the relevant Loans in Dollars shall be excluded from any determination of Required Lenders.  “Rescindable Amount” has the meaning specified in Section 2.12(b)(ii).  “Resignation Effective Date” has the meaning specified in Section 9.06(a).  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means, with respect to any Loan Party, (a) the chief executive officer,  president, chief financial officer, vice president - finance, treasurer, assistant treasurer or controller of such  Loan Party (or, if such Loan Party is a limited liability company or a limited partnership, the chief executive  officer, president, chief financial officer, treasurer, assistant treasurer or controller of the manager, member  or general partner of such Loan Party, as applicable), (b) solely for purposes of the delivery of incumbency  certificates pursuant to this Agreement, the secretary or any assistant secretary of such Loan Party, and (c)  solely for purposes of notices given pursuant to Article II, (i) any other officer or employee of such Loan  Party so designated by any of the officers of such Loan Party identified in clause (a) above or clause (b)  above in a notice to the Administrative Agent, or (ii) any other officer or employee of such Loan Party  designated in or pursuant to an agreement between such Loan Party and the Administrative Agent.  Any  document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively  presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of  such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of  such Loan Party.  To the extent requested by the Administrative Agent, each Responsible Officer will  provide an incumbency certificate and to the extent requested by the Administrative Agent, appropriate  authorization documentation, in form and substance satisfactory to the Administrative Agent.  





 






  30  CHAR1\1823738v3  “Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account  of any shares (or equivalent) of any class of Equity Interests of the Borrower or any Subsidiary, now or  hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other  acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of the  Borrower or any Subsidiary, now or hereafter outstanding, and (c) any payment made to retire, or to obtain  the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Equity  Interests of the Borrower or any Subsidiary, now or hereafter outstanding.  “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the  same Type and, in the case of BSBY Rate Loans, having the same Interest Period made by each of the  Lenders pursuant to Section 2.01.  “Revolving Exposure” means, as to any Lender at any time, the aggregate principal amount of such  Lender’s (a) outstanding Revolving Loans at such time, plus (b) participation in L/C Obligations at such  time, plus (c) participation in Swingline Loans at such time.  “Revolving Facility” means, at any time, the aggregate amount of the Lenders’ Commitments at  such time.  “Revolving Loan” has the meaning specified in Section 2.01.  “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and  any successor thereto.  “Sale and Leaseback Transaction” means, with respect to any Loan Party or any Subsidiary, any  arrangement, directly or indirectly, with any Person whereby such Loan Party or such Subsidiary shall sell  or transfer any property used or useful in its business, whether now owned or hereafter acquired, and  thereafter rent or lease such property or other property that it intends to use for substantially the same  purpose or purposes as the property being sold or transferred.  “Sanction” means any sanction administered or enforced by the United States Government  (including OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury  (“HMT”) or other relevant sanctions authority.  “Scheduled Unavailability Date” has the meaning specified in Section 3.03(b)(ii).  “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.  “Secured Cash Management Agreement” means any Cash Management Agreement between any  Loan Party or any Subsidiary and any Cash Management Bank.  “Secured Hedge Agreement” means any interest rate, currency, foreign exchange, or commodity  Swap Contract not prohibited by this Agreement between any Loan Party or any Subsidiary and any Hedge  Bank.  “Secured Obligations” means all Obligations and all Additional Secured Obligations.  “Secured Party” means each of the Administrative Agent, each Lender, the L/C Issuer, each Hedge  Bank, each Cash Management Bank, each Indemnitee, and each co-agent or sub-agent appointed by the  Administrative Agent from time to time pursuant to Section 9.05.  





 






  31  CHAR1\1823738v3  “Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender  substantially in the form of Exhibit F.  “Securities Act” means the Securities Act of 1933.  “Securitization Transaction” means, with respect to any Person, any financing transaction or series  of financing transactions (including factoring arrangements) pursuant to which such Person or any  Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts,  payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special  purpose subsidiary or affiliate of such Person.  “Security Agreement” means the security and pledge agreement, dated as of the Closing Date,  executed in favor of the Administrative Agent by each of the Loan Parties.  “SOFR” has the meaning specified in the definition of “Daily Simple SOFR.”  “SOFR Adjustment” means: (a) with respect to Daily Simple SOFR, 0.11448% (11.448 basis  points); and (b) with respect to Term SOFR, 0.11448% (11.448 basis points) for an interest period of one- month’s duration, 0.26161% (26.161 basis points) for an interest period of three-month’s duration,  0.42826% (42.826 basis points) for an interest period of six-months’ duration, and 0.71513% (71.513 basis  points) for an interest period of twelve–months’ duration.  “Solvency Certificate” means a solvency certificate in substantially in the form of Exhibit G.   “Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on  such date (a) the fair value of the property of such Person is greater than the total amount of liabilities,  including contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such  Person is not less than the amount that will be required to pay the probable liability of such Person on its  debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it  will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature,  (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a  transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such  Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature  in the ordinary course of business.  The amount of contingent liabilities at any time shall be computed as  the amount that, in the light of all the facts and circumstances existing at such time, represents the amount  that can reasonably be expected to become an actual or matured liability.  “Specified Loan Party” means any Loan Party that is not then an “eligible contract participant”  under the Commodity Exchange Act (determined prior to giving effect to Section 10.11).  “Specified Transaction” means (a) any Acquisition, any Disposition, any sale, transfer or other  disposition that results in a Person ceasing to be a Subsidiary, any Involuntary Disposition, or any  Investment that results in a Person becoming a Subsidiary, (b) any incurrence or repayment of Indebtedness,  or (c) any other event that by the terms of the Loan Documents requires Pro Forma Compliance with a test  or covenant, calculation as to Pro Forma Effect with respect to a test or covenant, or requires such test or  covenant to be calculated on a Pro Forma Basis.  “Subordinating Loan Party” has the meaning specified in Section 11.16.  “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company  or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned,  





 






  32  CHAR1\1823738v3  or the management of which is otherwise controlled, directly, or indirectly through one or more  intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary”  or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.  “Successor Rate” has the meaning specified in Section 3.03(b).  “Supported QFC” has the meaning specified in Section 11.21.  “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative  transactions, forward rate transactions, commodity swaps, commodity options, forward commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward bond or forward bond price or forward bond index transactions, interest rate options, forward  foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b)  any and all transactions of any kind, and the related confirmations, which are subject to the terms, and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement (any such master agreement, together with any related schedules, a “Master Agreement”),  including any such obligations or liabilities under any Master Agreement.  “Swap Obligations” means, with respect to any Guarantor, any obligation to pay or perform under  any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of  the Commodity Exchange Act.   “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into  account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any  date on or after the date such Swap Contracts have been closed out and termination value(s) determined in  accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause  (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based  upon one or more mid-market or other readily available quotations provided by any recognized dealer in  such Swap Contracts (which may include a Lender or any Affiliate of a Lender).  “Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.04.  “Swingline Lender” means Bank of America, in its capacity as provider of Swingline Loans.  “Swingline Loan” has the meaning specified in Section 2.04(a).  “Swingline Loan Notice” means a notice of a Swingline Borrowing pursuant to Section 2.04(b),  which shall be substantially in the form of Exhibit H or such other form as approved by the Administrative  Agent (including any form on an electronic platform or electronic transmission system as shall be approved  by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the  Borrower.  “Swingline Sublimit” means, as of any date of determination, an amount equal to the lesser of (a)  $5,000,000, and (b) the amount of the Revolving Facility as of such date.  The Swingline Sublimit is part  of, and not in addition to, the Revolving Facility.  





 






  33  CHAR1\1823738v3  “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called  synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property  (including Sale and Leaseback Transactions), in each case, creating obligations that do not appear on the  balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person,  would be characterized as the indebtedness of such Person (without regard to accounting treatment).   “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.  “Term SOFR” means, for the applicable corresponding Interest Period of BSBY (or if any Interest  Period does not correspond to an interest period applicable to SOFR, the closest corresponding interest  period of SOFR, and if such interest period of SOFR corresponds equally to two Interest Periods of BSBY,  the corresponding interest period of the shorter duration shall be applied) the forward-looking term rate  based on SOFR that has been selected or recommended by the Relevant Governmental Body.  “Threshold Amount” means $10,000,000.  “Total Credit Exposure” means, as to any Lender at any time, (a) the unused Commitments of such  Lender at such time, plus (b) the Revolving Exposure of such Lender at such time.  “Total Revolving Outstandings” means, at any time, (a) the aggregate Outstanding Amount of all  Revolving Loans at such time, plus (b) the aggregate Outstanding Amount of all Swingline Loans at such  time, plus (c) the aggregate Outstanding Amount of all L/C Obligations at such time.  “Transactions” means, collectively, (a) the consummation of the Initial Public Offering, (b) the  entering into of the Loan Documents and the incurrence of the initial Credit Extensions under this  Agreement, in each case on the Closing Date, (c) the consummation by the Borrower and its Subsidiaries  of all other transactions occurring substantially simultaneously with the Closing Date, and (d) the payment  of all fees and expenses in connection with the foregoing.  “Type” means, with respect to a Loan, its character as a Base Rate Loan or a BSBY Rate Loan.  “UCC” means the Uniform Commercial Code as in effect in the State of New York; provided, that,  if perfection or the effect of perfection or non-perfection or the priority of any security interest in any  Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State  of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other  jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non- perfection or priority.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA  Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time)  promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions  and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative authority  having responsibility for the resolution of any UK Financial Institution.  “United States” and “U.S.” mean the United States of America.  





 






  34  CHAR1\1823738v3  “Unreimbursed Amount” has the meaning specified in Section 2.03(f).  “U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30)  of the Code.  “U.S. Special Resolution Regimes” has the meaning specified in Section 11.21.  “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(f)(ii)(B)(3).  “Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the  holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors  (or persons performing similar functions) of such Person, even though the right to so vote has been  suspended by the happening of such contingency.  “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date of  determination, the number of years obtained by dividing (a) the sum of the products obtained by multiplying  (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments  of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated  to the nearest one twelfth) that will elapse between such date of determination and the making of such  payment by (b) the then outstanding principal amount of such Indebtedness as of such date of determination.  “Wholly Owned Subsidiary” means, as to any Person, (a) any corporation one hundred percent  (100%) of whose Equity Interests (other than directors’ qualifying shares or Equity Interests that are  required to be held by another person in order to satisfy a foreign requirement of Law prescribing an equity  owner resident in the local jurisdiction) is at the time owned by such Person and/or one or more Wholly  Owned Subsidiaries of such Person, and (b) any partnership, association, joint venture, limited liability  company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such  Person have a one hundred percent (100%) equity interest at such time.  “Withholding Agent” means the Borrower and the Administrative Agent, and, in the case of U.S.  federal withholding Taxes, any applicable withholding agent.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are  described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers  of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change  the form of a liability of any UK Financial Institution or any contract or instrument under which that liability  arises, to convert all or part of that liability into shares, securities or obligations of that person or any other  person, to provide that any such contract or instrument is to have effect as if a right had been exercised  under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  1.02 Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein  or in such other Loan Document:  (a) The definitions of terms herein shall apply equally to the singular and plural forms  of the terms defined.  Whenever the context may require, any pronoun shall include the  corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and  





 






  35  CHAR1\1823738v3  “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will”  shall be construed to have the same meaning and effect as the word “shall.”  Unless the context  requires otherwise, (i) any definition of or reference to any agreement, instrument or other  document (including the Loan Documents and any Organization Document) shall be construed as  referring to such agreement, instrument or other document as from time to time amended, amended  and restated, modified, extended, restated, replaced or supplemented from time to time (subject to  any restrictions on such amendments, supplements or modifications set forth herein or in any other  Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s  successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of  similar import when used in any Loan Document, shall be construed to refer to such Loan  Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan  Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed  to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the  Loan Document in which such references appear, (v) any reference to any law shall include all  statutory and regulatory rules, regulations, orders and provisions consolidating, amending,  replacing or interpreting such law, and any reference to any law, rule or regulation shall, unless  otherwise specified, refer to such law, rule or regulation as amended, modified, extended, restated,  replaced or supplemented from time to time, and (vi) the words “asset” and “property” shall be  construed to have the same meaning and effect and to refer to any and all tangible and intangible  assets and properties, including cash, securities, accounts and contract rights.  (b) In the computation of periods of time from a specified date to a later specified date,  the word “from” means “from and including;” the words “to” and “until” each mean “to but  excluding;” and the word “through” means “to and including.”  (c) Section headings herein and in the other Loan Documents are included for  convenience of reference only and shall not affect the interpretation of this Agreement or any other  Loan Document.  (d) Any reference herein to a merger, transfer, consolidation, amalgamation,  assignment, sale, or disposition, or similar term, shall be deemed to apply to a division of or by a  limited liability company, or an allocation of assets to a series of a limited liability company (or the  unwinding of such a division or allocation), as if it were a merger, transfer, consolidation,  amalgamation, assignment, sale, or disposition, or similar term, as applicable, to, of or with a  separate Person.  Any division of a limited liability company shall constitute a separate Person  hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or  any other like term shall also constitute such a Person).  1.03 Accounting Terms.  (a) Generally.  All accounting terms not specifically or completely defined herein shall  be construed in conformity with, and all financial data (including financial ratios and other financial  calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity  with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner  consistent with that used in preparing the Audited Financial Statements, except as otherwise  specifically prescribed herein.  Notwithstanding the foregoing, for purposes of determining  compliance with any covenant (including the computation of any financial covenant) contained  herein, (i) Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at one  hundred percent (100%) of the outstanding principal amount thereof, and the effects of FASB ASC  825 and FASB ASC 470-20 on financial liabilities shall be disregarded, (ii) all liability amounts  shall be determined excluding any liability relating to any operating lease, all asset amounts shall  





 






  36  CHAR1\1823738v3  be determined excluding any right-of-use assets relating to any operating lease, all amortization  amounts shall be determined excluding any amortization of a right-of-use asset relating to any  operating lease, and all interest amounts shall be determined excluding any deemed interest  comprising a portion of fixed rent payable under any operating lease, in each case to the extent that  such liability, asset, amortization or interest pertains to an operating lease under which the  covenantor or a member of its consolidated group is the lessee and would not have been accounted  for as such under GAAP as in effect on December 31, 2015, and (iii) all terms of an accounting or  financial nature used herein shall be construed, and all computations of amounts and ratios referred  to herein shall be made, without giving effect to any election under FASB ASC Topic 825  “Financial Instruments” (or any other financial accounting standard having a similar result or  effect) to value any Indebtedness of the Borrower or any Subsidiary at “fair value”, as defined  therein. For purposes of determining the amount of any outstanding Indebtedness, no effect shall  be given to any election by the Borrower to measure an item of Indebtedness using fair value (as  permitted by Financial Accounting Standards Board Accounting Standards Codification 825–10– 25 (formerly known as FASB 159) or any similar accounting standard).  (b) Changes in GAAP.  If at any time any change in GAAP would affect the  computation of any financial ratio or requirement set forth in any Loan Document, and either the  Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the  Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original  intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders,  not to be unreasonably withheld, conditioned or delayed); provided, that, until so amended, (i) such  ratio or requirement shall continue to be computed in accordance with GAAP prior to such change  therein, and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial  statements and other documents required under this Agreement or as reasonably requested  hereunder setting forth a reconciliation between calculations of such ratio or requirement made  before and after giving effect to such change in GAAP.    (c) Consolidation of Variable Interest Entities. All references herein to Consolidated  financial statements of the Borrower and its Subsidiaries or to the determination of any amount for  the Borrower and its Subsidiaries on a Consolidated basis or any similar reference shall, in each  case, be deemed to include each variable interest entity that the Borrower is required to consolidate  pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary.   (d) Pro Forma Calculations.  Notwithstanding anything to the contrary contained  herein, all calculations of the Consolidated Rent-Adjusted Total Leverage Ratio (including for  purposes of determining the Applicable Rate or compliance with any financial covenant set forth  in Section 7.11) and the Consolidated Fixed Charge Coverage Ratio, in each case, shall be made  on a Pro Forma Basis with respect to all Specified Transactions occurring during the applicable  Measurement Period to which such calculation relates, and/or subsequent to the end of such  Measurement Period but not later than the date of such calculation; provided, that, notwithstanding  the foregoing, when calculating the Consolidated Rent-Adjusted Total Leverage Ratio or the  Consolidated Fixed Charge Coverage Ratio, in each case, for purposes of determining (i)  compliance with Section 7.11, and/or (ii) the Applicable Rate, any Specified Transaction and any  related adjustment contemplated in the definition of “Pro Forma Basis” that occurred subsequent  to the end of the applicable Measurement Period shall not be given Pro Forma Effect.  For purposes  of determining compliance with any provision of this Agreement which requires Pro Forma  Compliance with any financial covenant set forth in Section 7.11, (A) in the case of any such  compliance required after delivery of financial statements for the Fiscal Year ending December 31,  2021, such Pro Forma Compliance shall be determined by reference to the maximum Consolidated  Rent-Adjusted Total Leverage Ratio and/or the minimum Consolidated Fixed Charge Coverage  





 






  37  CHAR1\1823738v3  Ratio, as applicable, permitted for the Fiscal Quarter most recently then ended for which financial  statements have been delivered (or were required to have been delivered) in accordance with  Section 6.01(a) or (b), as applicable, and (B) in the case of any such compliance required prior to  the delivery referred to in clause (A) above, such Pro Forma Compliance shall be determined by  reference to the maximum Consolidated Rent-Adjusted Total Leverage Ratio and/or the minimum  Consolidated Fixed Charge Coverage Ratio, as applicable, permitted for the Fiscal Quarter ending  December 31, 2021.  (e) Determinations or Calculations Made by Reference to Most Recently Delivered  Financial Statements.  Notwithstanding anything to the contrary set forth herein, prior to the  delivery of financial statements pursuant to Section 6.01(a) for the Fiscal Year ending December  31, 2021, any calculation or other determination to be made pursuant to this Agreement by  reference to the most recently delivered financial statements shall be calculated or determined, as  applicable, by reference to the Historical Financial Statements.  1.04 Rounding.    Any financial ratios required to be maintained by the Loan Parties pursuant to this Agreement shall  be calculated by dividing the appropriate component by the other component, carrying the result to one  place more than the number of places by which such ratio is expressed herein and rounding the result up or  down to the nearest number (with a rounding-up if there is no nearest number).  1.05 Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern time  (daylight or standard, as applicable).  1.06 Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to  be the stated amount of such Letter of Credit in effect at such time; provided, that, with respect to any Letter  of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more  automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be  the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not  such maximum stated amount is in effect at such time.  1.07 UCC Terms.  Terms defined in the UCC in effect on the Closing Date and not otherwise defined herein shall,  unless the context otherwise indicates, have the meanings provided by those definitions.  Subject to the  foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.  1.08 Rates.  The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative  Agent have any liability with respect to the administration, submission or any other matter related to the  rates in the definition of “BSBY Rate” or with respect to any rate (including, for the avoidance of doubt,  the selection of such rate and any related spread or other adjustment) that is an alternative or replacement  for or successor to any of such rates (including any Successor Rate) or the effect of any of the foregoing,  or of any Conforming Changes.  





 






  38  CHAR1\1823738v3  1.09 Negative Covenant Compliance.  It is understood and agreed that any Lien, Indebtedness or Investment need not be permitted solely  by reference to one category of permitted Lien, Indebtedness or Investment under Section 7.01, Section  7.02 or Section 7.03, as applicable, but may instead be permitted in part under any combination thereof.  ARTICLE II    COMMITMENTS AND CREDIT EXTENSIONS  2.01 Revolving Loans.  Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans  (each such loan, a “Revolving Loan”) to the Borrower, in Dollars, from time to time, on any Business Day  during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of  such Lender’s Commitment; provided, that, after giving effect to any Revolving Borrowing, (a) the Total  Revolving Outstandings shall not exceed the Revolving Facility, and (b) the Revolving Exposure of any  Lender shall not exceed such Lender’s Commitment.  Within the limits of each Lender’s Commitment, and  subject to the other terms and conditions hereof, the Borrower may borrow Revolving Loans, prepay  Revolving Loans under Section 2.05, and reborrow Revolving Loans under this Section 2.01.  Revolving  Loans may be Base Rate Loans or BSBY Rate Loans, as further provided herein; provided, that, any  Revolving Borrowing made on the Closing Date or any of the three (3) Business Days following the Closing  Date shall be made as Base Rate Loans unless the Borrower delivers a Funding Indemnity Letter not less  than three (3) Business Days prior to the date of such Revolving Borrowing.  2.02 Revolving Borrowings; Conversions and Continuations of Revolving Loans.  (a) Notice of Borrowing, Conversion or Continuation.  Each Revolving Borrowing,  each conversion of Revolving Loans from one Type to the other, and each continuation of BSBY  Rate Loans, in each case, shall be made upon the Borrower’s irrevocable notice to the  Administrative Agent, which may be given by telephone or a Loan Notice; provided, that, any  telephonic notice must be confirmed promptly by delivery to the Administrative Agent of a Loan  Notice.  Each Loan Notice must be received by the Administrative Agent not later than 11:00 a.m.  (i) three (3) Business Days prior to the requested date of any Revolving Borrowing of, conversion  to or continuation of BSBY Rate Loans or of any conversion of BSBY Rate Loans to Base Rate  Loans, and (ii) on the requested date of any Revolving Borrowing of Base Rate Loans.  Each  Revolving Borrowing of, conversion to or continuation of BSBY Rate Loans shall be in a principal  amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in  Sections 2.03(f) and 2.04(c), each Revolving Borrowing of or conversion to Base Rate Loans shall  be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Loan  Notice and each telephonic notice shall specify (A) whether the Borrower is requesting a Revolving  Borrowing, a conversion of Revolving Loans from one Type to the other, or a continuation of  Revolving Loans, as the case may be, (B) the requested date of such Revolving Borrowing,  conversion, or continuation, as the case may be (which shall be a Business Day), (C) the principal  amount of Revolving Loans to be borrowed, converted, or continued, (D) the Type of Revolving  Loans to be borrowed or to which existing Revolving Loans are to be converted, and (E) if  applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify  a Type of Revolving Loan in a Loan Notice or if the Borrower fails to give a timely notice  requesting a conversion or continuation, then the applicable Revolving Loans shall be made as, or  converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be  effective as of the last day of the Interest Period then in effect with respect to the applicable BSBY  





 






  39  CHAR1\1823738v3  Rate Loans.  If the Borrower requests a Revolving Borrowing of, conversion to, or continuation of  BSBY Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed  to have specified an Interest Period of one (1) month.  Notwithstanding anything to the contrary  herein, this Section 2.02 shall not apply to Swingline Loans or Swingline Borrowings.  (b) Advances.  Following receipt of a Loan Notice, the Administrative Agent shall  promptly notify each Lender of the amount of its Applicable Percentage of the applicable  Revolving Loans, and if no timely notice of a conversion or continuation is provided by the  Borrower, the Administrative Agent shall notify each Lender of the details of any automatic  conversion to Base Rate Loans described in Section 2.02(a).  In the case of a Revolving Borrowing,  each Lender shall make the amount of its Revolving Loan available to the Administrative Agent in  immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the  Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicable  conditions set forth in Section 4.02 (and, if such Revolving Borrowing is the initial Credit  Extension, Section 4.01), the Administrative Agent shall make all funds so received available to  the Borrower in like funds as received by the Administrative Agent either by (i) crediting the  account of the Borrower on the books of Bank of America with the amount of such funds, or (ii)  wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably  acceptable to) the Administrative Agent by the Borrower; provided, that, if on the date a Loan  Notice with respect to a Revolving Borrowing is given by the Borrower, there are Unreimbursed  Amounts outstanding, then the proceeds of such Revolving Borrowing, first, shall be applied to the  payment in full of any such Unreimbursed Amounts, and second, shall be made available to the  Borrower as provided above.   (c) BSBY Rate Loans.  Except as otherwise provided herein, a BSBY Rate Loan may  be continued or converted only on the last day of an Interest Period for such BSBY Rate Loan.   During the existence of a Default, no Revolving Loans may be requested as, converted to or  continued as BSBY Rate Loans without the consent of the Required Lenders, and the Required  Lenders may demand that any or all of the outstanding BSBY Rate Loans be converted immediately  to Base Rate Loans.  (d) Interest Rates. Each determination of an interest rate by the Administrative Agent  pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and  the Lenders in the absence of manifest error.  (e) Interest Periods.  After giving effect to all Revolving Borrowings, all conversions  of Revolving Loans from one Type to the other, and all continuations of Revolving Loans as the  same Type, there shall not be more than five (5) Interest Periods in effect in respect of the Revolving  Facility.   (f) Cashless Settlement Mechanism.  Notwithstanding anything to the contrary in this  Agreement, any Lender may exchange, continue or rollover all or the portion of its Loans in  connection with any refinancing, extension, loan modification or similar transaction permitted by  the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the  Borrower, the Administrative Agent and such Lender.  (g) Conforming Changes.  The Administrative Agent shall have the right to make  Conforming Changes from time to time and, notwithstanding anything the contrary herein or in any  other Loan Document, any amendment 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; provided, that, with respect to any such amendment effected, the Administrative  





 






  40  CHAR1\1823738v3  Agent shall post such amendment implementing such Conforming Changes to the Borrower and  the Lenders reasonably promptly after such amendment becomes effective.  (h) Increases in Revolving Facility.  The Borrower may at any time after the Closing  Date and prior to the Maturity Date, upon prior written notice by the Borrower to the Administrative  Agent, increase the Revolving Facility (but not the Letter of Credit Sublimit or the Swingline  Sublimit) with additional Commitments from any Lender or new Commitments from one or more  other Persons selected by the Borrower and acceptable to the Administrative Agent, the Swingline  Lender and the L/C Issuer (so long as such Persons would be Eligible Assignees); provided, that:  (i) the maximum aggregate amount for all such increases during the term of  this Agreement shall not exceed $25,000,000;  (ii) any such increase shall be in a minimum principal amount of $10,000,000  and in integral multiples of $1,000,000 in excess thereof (or such other amount as the  Administrative Agent shall agree in its sole discretion);  (iii) no Default shall exist and be continuing at the time of any such increase  or would exist immediately after giving effect thereto;  (iv) no existing Lender shall be under any obligation to increase its  Commitment in connection with such increase, and any such decision whether to  participate in such increase shall be in such Lender’s sole and absolute discretion;  (v) (A) any new Lender shall join this Agreement by executing such joinder  documents as are required by the Administrative Agent, and/or (B) any existing Lender  electing to increase its Commitment in connection with such increase shall have executed  a commitment agreement satisfactory to the Administrative Agent;  (vi) before and after giving effect to such increase, the representations and  warranties of the Borrower and each other Loan Party contained in this Agreement or any  other Loan Document, or which are contained in any document furnished at any time under  or in connection herewith or therewith, shall (A) with respect to representations and  warranties that contain a materiality qualification, be true and correct on and as of the date  of such increase, except to the extent that such representations and warranties specifically  refer to an earlier date, in which case they shall be true and correct as of such earlier date,  and (B) with respect to representations and warranties that do not contain a materiality  qualification, be true and correct in all material respects on and as of the date of such  increase, except to the extent that such representations and warranties specifically refer to  an earlier date, in which case they shall be true and correct in all material respects as of  such earlier date, and except that for purposes of this Section 2.02(h)(vi), the  representations and warranties contained in Sections 5.05(a) and (b) shall be deemed to  refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b),  respectively (it being understood and agreed that the references to Arhaus LLC set forth in  Sections 5.05(a) and (b) shall be deemed to be references to the Borrower for such  purpose);  (vii) the Administrative Agent shall have received (A) a certificate from a  Responsible Officer of the Borrower certifying that (1) the conditions set forth in Sections  2.02(h)(iii) and (g)(vi) have been satisfied, and (2) the condition set forth in Section  2.02(h)(viii) has been satisfied (which certification shall include reasonably detailed  





 






  41  CHAR1\1823738v3  calculations to demonstrate the satisfaction of such condition), (B) a certificate from a  Responsible Officer of each Loan Party certifying and attaching the resolutions adopted by  such Loan Party approving or consenting to such increase, and (C) if requested by the  Administrative Agent, an opinion or opinions of counsel for the Loan Parties, dated as of  the date of such increase and addressed to the Administrative Agent, the L/C Issuer and the  Lenders (including each Lender participating in such increase), in form and substance  acceptable to the Administrative Agent;  (viii) upon giving Pro Forma Effect to any such increase (and assuming for the  purposes of such calculation that such increase is fully drawn), the Loan Parties would be  in compliance with the financial covenants set forth in Section 7.11 as of the most recently  ended Fiscal Quarter for which the Borrower was required to deliver financial statements  pursuant to Section 6.01(a) or Section 6.01(b);  (ix) any such increase shall (A) rank pari passu in right of payment with the  Obligations and in respect of the Collateral, and (B) be on the same terms and pursuant to  the same documentation applicable to the Revolving Facility; and  (x) in connection with any such increase, the Borrower shall prepay any  Revolving Loans outstanding on the date of such increase (and pay any additional amounts  required pursuant to Section 3.05) to the extent necessary to keep the outstanding  Revolving Loans ratable with any revised Commitments arising from any non-ratable  increase in the Revolving Facility pursuant to this Section 2.02(h).  This Agreement and the other Loan Documents shall be amended to give effect to any  increase in the Revolving Facility pursuant to documentation executed by lenders providing such  increase, the Administrative Agent and the Loan Parties, without the consent of any other Person  (including any existing Lender), including amendments (a) to reflect the existence and terms of  such increase, and (b) to effect such other amendments to the this Agreement and the other Loan  Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative  Agent, to effect the provisions of any such increase.  2.03 Letters of Credit.  (a) The Letter of Credit Commitment.  Subject to the terms and conditions set forth  herein, in addition to the Revolving Loans provided for in Section 2.01, the Borrower may request  that the L/C Issuer, in reliance on the agreements of the Lenders set forth in this Section 2.03, issue,  at any time and from time to time during the Availability Period, Letters of Credit denominated in  Dollars for its own account or the account of any of its Subsidiaries in such form as is acceptable  to the Administrative Agent and the L/C Issuer in its reasonable determination. Letters of Credit  issued hereunder shall constitute utilization of the Revolving Facility.  (b) Notice of Issuance, Amendment, Extension, Reinstatement or Renewal.  (i) To request the issuance of a Letter of Credit (or the amendment of the  terms and conditions, extension of the terms and conditions, extension of the expiration  date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), the  Borrower shall deliver (or transmit by electronic communication, if arrangements for doing  so have been approved by the L/C Issuer) to the L/C Issuer and to the Administrative Agent  not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the  Administrative Agent and the L/C Issuer may agree in a particular instance in their sole  





 






  42  CHAR1\1823738v3  discretion) prior to the proposed issuance date or date of amendment, as the case may be,  a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to  be amended, extended, reinstated or renewed, and specifying the date of issuance,  amendment, extension, reinstatement or renewal (which shall be a Business Day), the date  on which such Letter of Credit is to expire (which shall comply with Section 2.03(d)), the  amount of such Letter of Credit, the name and address of the beneficiary thereof, the  purpose and nature of the requested Letter of Credit and such other information as shall be  necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If requested  by the L/C Issuer, the Borrower also shall submit a Letter of Credit Application and a  reimbursement agreement on the L/C Issuer’s standard form in connection with any request  for a Letter of Credit. In the event of any inconsistency between the terms and conditions  of this Agreement and the terms and conditions of any Letter of Credit Application, any  reimbursement agreement, any other Issuer Document or any other agreement submitted  by the Borrower to, or entered into by the Borrower with, the L/C Issuer relating to any  Letter of Credit, the terms and conditions of this Agreement shall control.  (ii) If the Borrower so requests in any applicable Letter of Credit Application  (or the amendment of an outstanding Letter of Credit), the L/C Issuer may, in its sole  discretion, agree to issue a Letter of Credit that has automatic extension provisions (each,  an “Auto-Extension Letter of Credit”); provided, that, any such Auto-Extension Letter of  Credit shall permit the L/C Issuer to prevent any such extension at least once in each twelve  (12)-month period (commencing with the date of issuance of such Letter of Credit) by  giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension  Notice Date”) in each such twelve (12)-month period to be agreed upon by the Borrower  and the L/C Issuer at the time such Letter of Credit is issued. Unless otherwise directed by  the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C  Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued,  the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to  permit the extension of such Letter of Credit at any time to an expiration date not later than  the date permitted pursuant to Section 2.03(d); provided, that, the L/C Issuer shall not (A)  permit any such extension if (1) the L/C Issuer has determined that it would not be  permitted, or would have no obligation, at such time to issue such Letter of Credit in its  extended form under the terms hereof (except that the expiration date may be extended to  a date that is no more than one (1) year from the then-current expiration date), or (2) it has  received notice (which may be in writing or by telephone (if promptly confirmed in  writing)) on or before the day that is seven (7) Business Days before the Non-Extension  Notice Date from the Administrative Agent that the Required Lenders have elected not to  permit such extension, or (B) be obligated to permit such extension if it has received notice  (which may be in writing or by telephone (if promptly confirmed in writing)) on or before  the day that is seven (7) Business Days before the Non-Extension Notice Date from the  Administrative Agent, any Lender or the Borrower that one or more of the applicable  conditions set forth in Section 4.02 is not then satisfied, and in each such case directing the  L/C Issuer not to permit such extension.  (c) Limitations on Amounts, Issuance and Amendment.   (i) A Letter of Credit shall be issued, amended, extended, reinstated or  renewed only if (and upon issuance, amendment, extension, reinstatement or renewal of  each Letter of Credit the Borrower shall be deemed to represent and warrant that), after  giving effect to such issuance, amendment, extension, reinstatement or renewal (A) the  aggregate L/C Obligations shall not exceed the Letter of Credit Sublimit, (B) the Revolving  





 






  43  CHAR1\1823738v3  Exposure of any Lender shall not exceed such Lender’s Commitment, and (C) the Total  Revolving Outstandings shall not exceed the Revolving Facility.  (ii) The L/C Issuer shall not be under any obligation to issue any Letter of  Credit if:  (A) any order, judgment or decree of any Governmental Authority or  arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing  the Letter of Credit, or any Law applicable to the L/C Issuer or any request or  directive (whether or not having the force of law) from any Governmental  Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the  L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of  Credit in particular or shall impose upon the L/C Issuer with respect to such Letter  of Credit any restriction, reserve or capital requirement (for which the L/C Issuer  is not otherwise compensated hereunder) not in effect on the Closing Date, or shall  impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not  applicable on the Closing Date and which the L/C Issuer in good faith deems  material to it;  (B) the issuance of such Letter of Credit would violate one or more  policies of the L/C Issuer applicable to letters of credit generally;  (C) except as otherwise agreed by the Administrative Agent and the  L/C Issuer, such Letter of Credit is in an initial stated amount less than $500,000;   (D) such Letter of Credit is to be denominated in a currency other than  Dollars;  (E) any Lender is at that time a Defaulting Lender, unless the L/C  Issuer has entered into arrangements, including the delivery of Cash Collateral,  satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such  Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after  giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising  from either the Letter of Credit then proposed to be issued or that Letter of Credit  and all other L/C Obligations as to which the L/C Issuer has actual or potential  Fronting Exposure, as it may elect in its sole discretion; or  (F) such Letter of Credit contains any provisions for automatic  reinstatement of the stated amount after any drawing thereunder.  (iii) The L/C Issuer shall not be under any obligation to amend any Letter of  Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of  Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of  Credit does not accept the proposed amendment to the Letter of Credit.  (d) Expiration Date.  Each Letter of Credit shall have a stated expiration date no later  than the earlier of: (i) the date twelve (12) months after the date of the issuance of such Letter of  Credit (or, in the case of any extension of the expiration date thereof, whether automatic or by  amendment, twelve (12) months after the then current expiration date of such Letter of Credit); and  (ii) the Letter of Credit Expiration Date; provided, that, to the extent agreed by the L/C Issuer in its  sole discretion, the foregoing provisions of this Section 2.03(d) shall not apply to any Letter of  





 






  44  CHAR1\1823738v3  Credit that has otherwise been Cash Collateralized or backstopped, in each case on terms  satisfactory to the L/C Issuer.  (e) Participations.  (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit  increasing the amount or extending the expiration date thereof), and without any further  action on the part of the L/C Issuer or the Lenders, the L/C Issuer hereby grants to each  Lender, and each Lender hereby acquires from the L/C Issuer, a participation in such Letter  of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available  to be drawn under such Letter of Credit. Each Lender acknowledges and agrees that its  obligation to acquire participations pursuant to this Section 2.03(e)(i) in respect of Letters  of Credit is absolute, unconditional and irrevocable and shall not be affected by any  circumstance whatsoever, including any amendment, extension, reinstatement or renewal  of any Letter of Credit or the occurrence and continuance of a Default or reduction or  termination of the Revolving Facility.  Each Lender further acknowledges and agrees that  its participation in each Letter of Credit will be automatically adjusted to reflect such  Lender’s Applicable Percentage of the aggregate amount available to be drawn under such  Letter of Credit at each time such Lender’s Commitment is amended pursuant to the  provisions of this Agreement.  (ii) In consideration and in furtherance of the foregoing, upon receipt of any  Non-Reimbursement Notice, each Lender hereby absolutely, unconditionally and  irrevocably agrees to pay to the Administrative Agent, for account of the L/C Issuer, such  Lender’s Applicable Percentage of each L/C Disbursement made by the L/C Issuer not  later than 1:00 p.m. on the Business Day specified in such Non-Reimbursement Notice,  until such L/C Disbursement is reimbursed by the Borrower or at any time after any  reimbursement payment is required to be refunded to the Borrower for any reason,  including after the Maturity Date. Such payment shall be made without any offset,  abatement, withholding or reduction whatsoever and shall otherwise be made in the same  manner as provided in Section 2.02 with respect to Revolving Loans made by such Lender  (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Lenders  pursuant to this Section 2.03(e)(ii)).  The Administrative Agent shall promptly pay to the  L/C Issuer the amounts so received by it from the Lenders. Promptly following receipt by  the Administrative Agent of any payment from the Borrower pursuant to Section 2.03(f),  the Administrative Agent shall distribute such payment to the L/C Issuer or, to the extent  that the Lenders have made payments pursuant to this Section 2.03(e) to reimburse the L/C  Issuer, then to such Lenders and the L/C Issuer as their interests may appear. Any payment  made by a Lender pursuant to this Section 2.03(e) to reimburse the L/C Issuer for any L/C  Disbursement (other than, for the avoidance of doubt, any Revolving Loan made by a  Lender pursuant to the first proviso set forth in Section 2.03(f)) shall not constitute a  Revolving Loan and shall not relieve the Borrower of its obligation to reimburse such L/C  Disbursement.  (iii) If any Lender fails to make available to the Administrative Agent for the  account of the L/C Issuer any amount required to be paid by such Lender pursuant to the  foregoing provisions of Section 2.03(e)(ii), then, without limiting the other provisions of  this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting  through the Administrative Agent), on demand, such amount with interest thereon for the  period from the date such payment is required to the date on which such payment is  immediately available to the L/C Issuer at a rate per annum equal to the greater of the  





 






  45  CHAR1\1823738v3  Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking  industry rules on interbank compensation, plus any administrative, processing or similar  fees customarily charged by the L/C Issuer in connection with the foregoing. A certificate  of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect  to any amounts owing under this Section 2.03(e)(iii) shall be conclusive absent manifest  error.  (f) Reimbursement. If the L/C Issuer shall make any L/C Disbursement in respect of  a Letter of Credit, the Borrower shall reimburse the L/C Issuer in respect of such L/C Disbursement  by paying to the Administrative Agent an amount equal to such L/C Disbursement not later than  12:00 Noon on (i) the Business Day that the Borrower receives notice of such L/C Disbursement,  if such notice is received prior to 10:00 a.m., or (ii) the Business Day immediately following the  day that the Borrower receives such notice, if such notice is not received prior to such time;  provided, that, the Borrower may, subject to the conditions to borrowing set forth herein (other than  the minimums and multiples required for Base Rate Loans pursuant to Section 2.02), request in  accordance with Section 2.02 that such payment be financed with a Revolving Borrowing of Base  Rate Loans in an equivalent amount and, to the extent so financed, the Borrower’s obligation to  make such payment shall be discharged and replaced by the resulting Revolving Borrowing of Base  Rate Loans. If the Borrower fails to make such payment when due, the Administrative Agent shall  notify each Lender of the applicable L/C Disbursement, the payment then due from the Borrower  in respect thereof (the “Unreimbursed Amount”) and such Lender’s Applicable Percentage thereof  (each such notice, a “Non-Reimbursement Notice”).  Promptly upon receipt of any Non- Reimbursement Notice, each Lender shall pay to the Administrative Agent its Applicable  Percentage of the Unreimbursed Amount pursuant to Section 2.03(e)(ii), subject to the amount of  the unutilized portion of the Revolving Facility. Any notice given by the L/C Issuer or the  Administrative Agent pursuant to this Section 2.03(f) may be given by telephone if promptly  confirmed in writing; provided, that, the lack of such a prompt confirmation shall not affect the  conclusiveness or binding effect of such notice.  (g) Obligations Absolute. The Borrower’s obligation to reimburse L/C Disbursements  as provided in Section 2.03(f) shall be absolute, unconditional and irrevocable, and shall be  performed strictly in accordance with the terms of this Agreement under any and all circumstances  whatsoever and irrespective of:  (i) any lack of validity or enforceability of this Agreement, any other Loan  Document or any Letter of Credit, or any term or provision herein or therein;  (ii) the existence of any claim, counterclaim, setoff, defense or other right that  the Borrower or any Subsidiary may have at any time against any beneficiary or any  transferee of such Letter of Credit (or any Person for whom any such beneficiary or any  such transferee may be acting), the L/C Issuer or any other Person, whether in connection  with this Agreement, the Transactions or the other transactions contemplated hereby or by  such Letter of Credit or any agreement or instrument relating thereto, or any unrelated  transaction;  (iii) any draft, demand, certificate or other document presented under such  Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or  any statement in such draft or other document being untrue or inaccurate in any respect; or  any loss or delay in the transmission or otherwise of any document required in order to  make a drawing under such Letter of Credit;  





 






  46  CHAR1\1823738v3  (iv) waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s  protection and not the protection of the Borrower or any waiver by the L/C Issuer which  does not in fact materially prejudice the Borrower;  (v) honor of a demand for payment presented electronically even if such Letter  of Credit requires that demand be in the form of a draft;  (vi) any payment made by the L/C Issuer in respect of an otherwise complying  item presented after the date specified as the expiration date of, or the date by which  documents must be received under, such Letter of Credit if presentation after such date is  authorized by the UCC or the ISP, as applicable;  (vii) payment by the L/C Issuer under such Letter of Credit against presentation  of a draft or certificate that does not strictly comply with the terms of such Letter of Credit;  or any payment made by the L/C Issuer under such Letter of Credit to any Person  purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of  creditors, liquidator, receiver or other representative of or successor to any beneficiary or  any transferee of such Letter of Credit, including any arising in connection with any  proceeding under any Debtor Relief Law; or  (viii) any other event or circumstance, whether or not similar to any of the  foregoing, that might, but for the provisions of this Section 2.03, constitute a legal or  equitable discharge of, or provide a right of setoff against, the Borrower’s obligations  hereunder.  (h) Examination. The Borrower shall promptly examine a copy of each Letter of Credit  and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance  with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the L/C  Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C  Issuer and its correspondents unless such notice is given as aforesaid.  (i) Liability. None of the Administrative Agent, any Lender, the L/C Issuer, or any of  their respective Related Parties shall have any liability or responsibility by reason of or in  connection with the issuance or transfer of any Letter of Credit by the L/C Issuer or any payment  or failure to make any payment thereunder (irrespective of any of the circumstances referred to in  Section 2.03(g)), or any error, omission, interruption, loss or delay in transmission or delivery of  any draft, notice or other communication under or relating to any Letter of Credit (including any  document required to make a drawing thereunder), any error in interpretation of technical terms,  any error in translation or any consequence arising from causes beyond the control of the L/C  Issuer; provided, that, the foregoing shall not be construed to excuse the L/C Issuer from liability  to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims  in respect of which are hereby waived by the Borrower to the extent permitted by applicable Law)  suffered by the Borrower that are (x) caused by the L/C Issuer’s failure to exercise care when  determining whether drafts and other documents presented under a Letter of Credit comply with  the terms thereof, or (y) determined by a court of competent jurisdiction by final and non-appealable  judgment to have resulted from the gross negligence, willful misconduct or bad faith of the L/C  Issuer.  The parties hereto expressly agree that, in the absence of gross negligence, willful  misconduct or bad faith on the part of the L/C Issuer (as finally determined by a court of competent  jurisdiction), the L/C Issuer shall be deemed to have exercised care in each such determination, and  that:  





 






  47  CHAR1\1823738v3  (i) the L/C Issuer may replace a purportedly lost, stolen, or destroyed original  Letter of Credit or missing amendment thereto with a certified true copy marked as such  or waive a requirement for its presentation;  (ii) the L/C Issuer may accept documents that appear on their face to be in  substantial compliance with the terms of a Letter of Credit without responsibility for further  investigation, regardless of any notice or information to the contrary, and may make  payment upon presentation of documents that appear on their face to be in substantial  compliance with the terms of such Letter of Credit and without regard to any non- documentary condition in such Letter of Credit;  (iii) the L/C Issuer shall have the right, in its sole discretion, to decline to accept  such documents and to make such payment if such documents are not in strict compliance  with the terms of such Letter of Credit; and  (iv) this sentence shall establish the standard of care to be exercised by the L/C  Issuer when determining whether drafts and other documents presented under a Letter of  Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent  permitted by applicable Law, any standard of care inconsistent with the foregoing).    Without limiting the foregoing, none of the Administrative Agent, any Lender, the L/C  Issuer, or any of their respective Related Parties shall have any liability or responsibility by reason  of (A) any presentation that includes forged or fraudulent documents or that is otherwise affected  by the fraudulent, bad faith, or illegal conduct of the beneficiary or other Person, (B) the L/C Issuer  declining to take-up documents and make payment, (C) against documents that are fraudulent,  forged, or for other reasons by which that it is entitled not to honor, (D) following the Borrower’s  waiver of discrepancies with respect to such documents or request for honor of such documents, or  (E) the L/C Issuer retaining proceeds of a Letter of Credit based on an apparently applicable  attachment order, blocking regulation, or third-party claim notified to the L/C Issuer.  (j) Applicability of ISP.  Unless otherwise expressly agreed by the L/C Issuer and the  Borrower when a Letter of Credit is issued by it, the rules of the ISP shall apply to each Letter of  Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Borrower for,  and the L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action  or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required  or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order  of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP, or  in the decisions, opinions, practice statements, or official commentary of the ICC Banking  Commission, the Bankers Association for Finance and Trade – International Financial Services  Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or  not any Letter of Credit chooses such law or practice.  (k) Benefits.  The L/C Issuer shall act on behalf of the Lenders with respect to any  Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have  all of the benefits and immunities (i) provided to the Administrative Agent in Article IX with  respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of  Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters  of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C  Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect  to the L/C Issuer.  





 






  48  CHAR1\1823738v3  (l) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent, for the  account of each Lender, in accordance with each such Lender’s Applicable Percentage, a Letter of  Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times  the daily amount available to be drawn under such Letter of Credit. For purposes of computing the  daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit  shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (A) payable on  the first Business Day following the end of each March, June, September and December,  commencing with the first such date to occur after the issuance of such Letter of Credit, and (B)  accrued through and including the last day of each calendar quarter in arrears. If there is any change  in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter  of Credit shall be computed and multiplied by the Applicable Rate separately for each period during  such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary  contained herein, upon the request of the Required Lenders, while any Event of Default exists, all  Letter of Credit Fees shall accrue at the Default Rate.  (m) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The  Borrower shall pay directly to the L/C Issuer, for its own account, a fronting fee with respect to  each Letter of Credit, at the rate per annum equal to the percentage separately agreed upon between  the Borrower and the L/C Issuer, computed on the daily amount available to be drawn under such  Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable no later  than the tenth (10th) Business Day after the end of each March, June, September and December in  the most recently-ended quarterly period (or portion thereof, in the case of the first payment),  commencing with the first such date to occur after the issuance of such Letter of Credit, on the  Maturity Date and thereafter on demand. For purposes of computing the daily amount available to  be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in  accordance with Section 1.06. In addition, the Borrower shall pay directly to the L/C Issuer, for its  own account, the customary issuance, presentation, amendment and other processing fees, and  other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time  in effect. Such customary fees and standard costs and charges are due and payable on demand and  are nonrefundable.  (n) Disbursement Procedures. The L/C Issuer shall, within the time allowed by  applicable Laws or the specific terms of the Letter of Credit following its receipt thereof, examine  all documents purporting to represent a demand for payment under such Letter of Credit.  The L/C  Issuer shall promptly after such examination notify the Administrative Agent and the Borrower in  writing of such demand for payment if the L/C Issuer has made or will make an L/C Disbursement  thereunder; provided, that, any failure to give or delay in giving such notice shall not relieve the  Borrower of its obligation to reimburse the L/C Issuer and the Lenders with respect to any such  L/C Disbursement.  (o) Interim Interest. If the L/C Issuer shall make any L/C Disbursement, then, unless  the Borrower shall reimburse such L/C Disbursement in full on the date such L/C Disbursement is  made, the unpaid amount thereof shall bear interest, for each day from and including the date such  L/C Disbursement is made to but excluding the date that the Borrower reimburses such L/C  Disbursement, at the rate per annum then applicable to Base Rate Loans; provided, that, if the  Borrower fails to reimburse such L/C Disbursement when due pursuant to Section 2.03(f), then  Section 2.08(b) shall apply. Interest accrued pursuant to this Section 2.03(o) shall be for account  of the L/C Issuer, except that interest accrued on and after the date of payment by any Lender  pursuant to Section 2.03(f) to reimburse the L/C Issuer shall be for account of such Lender to the  extent of such payment.  





 






  49  CHAR1\1823738v3  (p) Cash Collateralization.   (i) If any Event of Default shall occur and be continuing, on the Business Day  that the Borrower receives notice from the Administrative Agent or the Required Lenders  (or, if the maturity of the Revolving Loans has been accelerated, Lenders with L/C  Obligations representing at least fifty percent (50%) of the total L/C Obligations)  demanding the deposit of Cash Collateral pursuant to this Section 2.03(p), the Borrower  shall immediately deposit into an account established and maintained on the books and  records of the Administrative Agent an amount in cash equal to the Minimum Collateral  Amount; provided, that, the obligation to deposit such Cash Collateral shall become  effective immediately, and such deposit shall become immediately due and payable,  without demand or other notice of any kind, upon the occurrence of any Event of Default  described in Section 8.01(f) or Section 8.01(g).  Such deposit shall be held by the  Administrative Agent as collateral for the payment and performance of the obligations of  the Borrower under this Agreement. In addition, if any L/C Obligations remain outstanding  after the expiration date specified in Section 2.03(d), the Borrower shall immediately  deposit into an account established and maintained on the books and records of the  Administrative Agent an amount in cash equal to the Minimum Collateral Amount as  collateral for such L/C Obligations.  (ii) The Administrative Agent shall have exclusive dominion and control,  including the exclusive right of withdrawal, over any Cash Collateral deposited pursuant  to this Section 2.03(p). Other than any interest earned on the investment of such deposits,  which investments shall be made at the option and sole discretion of the Administrative  Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest  or profits, if any, on such investments shall accumulate in the accounts into which such  Cash Collateral is deposited. Cash Collateral deposited pursuant to this Section 2.03(p)  shall be applied by the Administrative Agent to reimburse the L/C Issuer for L/C  Disbursements for which it has not been reimbursed, together with related fees, costs, and  customary processing charges, and, to the extent not so applied, shall be held for the  satisfaction of the reimbursement obligations of the Borrower for the L/C Obligations at  such time or, if the maturity of the Revolving Loans has been accelerated (but subject to  the consent of Lenders with L/C Obligations representing at least fifty percent (50%) of  the total L/C Obligations), be applied to satisfy other obligations of the Borrower under  this Agreement. If the Borrower is required to provide an amount of Cash Collateral  hereunder as a result of the occurrence of an Event of Default, such amount (to the extent  not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days  after all Events of Default have been cured or waived.  (q) Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit  issued or outstanding hereunder is in support of any obligations of, or is for the account of, a  Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all  drawings under such Letter of Credit.  The Borrower hereby acknowledges that the issuance of  Letters of Credit for the account of a Subsidiary inures to the benefit of the Borrower, and that the  Borrower’s business derives substantial benefits from the business of such Subsidiary.  2.04 Swingline Loans.  (a) The Swingline.  Subject to the terms and conditions set forth herein, the Swingline  Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in  its sole discretion make loans to the Borrower (each such loan, a “Swingline Loan”).  Each such  





 






  50  CHAR1\1823738v3  Swingline Loan may be made, subject to the terms and conditions set forth herein, to the Borrower,  in Dollars, from time to time on any Business Day during the Availability Period in an aggregate  amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided, that,  (i) after giving effect to any Swingline Loan, (A) the Total Revolving Outstandings shall not exceed  the Revolving Facility, and (B) the Revolving Exposure of any Lender shall not exceed such  Lender’s Commitment, (ii) the Borrower shall not use the proceeds of any Swingline Loan to  refinance any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any  obligation to make any Swingline Loan if it shall determine (which determination shall be  conclusive and binding absent manifest error) that it has, or by such Credit Extension may have,  Fronting Exposure.  Within the foregoing limits, and subject to the other terms and conditions  hereof, the Borrower may borrow Swingline Loans under this Section 2.04, prepay Swingline  Loans under Section 2.05, and reborrow Swingline Loans under this Section 2.04.  Immediately  upon the making of a Swingline Loan, each Lender shall be deemed to, and hereby irrevocably and  unconditionally agrees to, purchase from the Swingline Lender a risk participation in such  Swingline Loan in an amount equal to the product of such Lender’s Applicable Percentage times  the amount of such Swingline Loan.  (b) Borrowing Procedures.  Each Swingline Borrowing shall be made upon the  Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent, which may  be given by telephone or a Swingline Loan Notice; provided, that, any telephonic notice must be  confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a  Swingline Loan Notice.  Each such Swingline Loan Notice must be received by the Swingline  Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and  shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the  requested date of the Swingline Borrowing (which shall be a Business Day).  Promptly after receipt  by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will confirm with  the Administrative Agent (by telephone or in writing) that the Administrative Agent has also  received such Swingline Loan Notice and, if not, the Swingline Lender will notify the  Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swingline  Lender has received notice (by telephone or in writing) from the Administrative Agent (including  at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Borrowing  (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations  set forth in the proviso to the second sentence of Section 2.04(a), or (B) that one or more of the  applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and  conditions hereof, the Swingline Lender may make the amount of its Swingline Loan available to  the Borrower at its office by crediting the account of the Borrower on the books of the Swingline  Lender in immediately available funds.  (c) Refinancing of Swingline Loans.  (i) The Swingline Lender at any time in its sole and absolute discretion may  request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline  Lender to so request on its behalf), that each Lender make a Revolving Loan that is a Base  Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of  Swingline Loans then outstanding.  Such request shall be made in writing (which written  request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with  the requirements of Section 2.02, without regard to the minimum and multiples specified  therein for the principal amount of Base Rate Loans, but subject to the unutilized portion  of the Revolving Facility and the conditions set forth in Section 4.02.  The Swingline  Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after  delivering such notice to the Administrative Agent.  Each Lender shall make an amount  





 






  51  CHAR1\1823738v3  equal to its Applicable Percentage of the amount specified in such Loan Notice available  to the Administrative Agent in immediately available funds for the account of the  Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day  specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that  so makes funds available shall be deemed to have made a Revolving Loan that is a Base  Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds  so received to the Swingline Lender.  (ii) If for any reason any Swingline Loan cannot be refinanced by such a  Revolving Borrowing in accordance with Section 2.04(c)(i) (including the failure to satisfy  the conditions set forth in Section 4.02), the request for Base Rate Loans submitted by the  Swingline Lender as set forth herein shall be deemed to be a request by the Swingline  Lender that each of the Lenders fund its risk participation in the relevant Swingline Loan  and each Lender’s payment to the Administrative Agent for the account of the Swingline  Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such  participation.  (iii) If any Lender fails to make available to the Administrative Agent for the  account of the Swingline Lender any amount required to be paid by such Lender pursuant  to the foregoing provisions of this Section 2.04(c) by the time specified in Section  2.04(c)(i), the Swingline Lender shall be entitled to recover from such Lender (acting  through the Administrative Agent), on demand, such amount with interest thereon for the  period from the date such payment is required to the date on which such payment is  immediately available to the Swingline Lender at a rate per annum equal to the greater of  the Federal Funds Rate and a rate determined by the Swingline Lender in accordance with  banking industry rules on interbank compensation, plus any administrative, processing or  similar fees customarily charged by the Swingline Lender in connection with the foregoing.   If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid  shall constitute such Lender’s Revolving Loan included in the relevant Revolving  Borrowing or funded participation in the relevant Swingline Loan, as the case may be.  A  certificate of the Swingline Lender submitted to any Lender (through the Administrative  Agent) with respect to any amounts owing under this Section 2.04(c)(iii) shall be  conclusive absent manifest error.  (iv) Each Lender’s obligation to make Revolving Loans or to purchase and  fund risk participations in Swingline Loans pursuant to this Section 2.04(c) shall be  absolute and unconditional and shall not be affected by any circumstance, including (A)  any setoff, counterclaim, recoupment, defense or other right which such Lender may have  against the Swingline Lender, the Borrower or any other Person for any reason whatsoever,  (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or  condition, whether or not similar to any of the foregoing; provided, that, each Lender’s  obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to the  conditions set forth in Section 4.02 (other than delivery by the Borrower of a Loan Notice).   No such funding of risk participations shall relieve or otherwise impair the obligation of  the Borrower to repay Swingline Loans, together with interest as provided herein.    (d) Repayment of Participations.  (i) At any time after any Lender has purchased and funded a risk participation  in a Swingline Loan, if the Swingline Lender receives any payment on account of such  





 






  52  CHAR1\1823738v3  Swingline Loan, the Swingline Lender will distribute to such Lender its Applicable  Percentage thereof in the same funds as those received by the Swingline Lender.  (ii) If any payment received by the Swingline Lender in respect of principal  or interest on any Swingline Loan is required to be returned by the Swingline Lender under  any of the circumstances described in Section 11.05 (including pursuant to any settlement  entered into by the Swingline Lender in its discretion), each Lender shall pay to the  Swingline Lender its Applicable Percentage thereof on demand of the Administrative  Agent, plus interest thereon from the date of such demand to the date such amount is  returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent  will make such demand upon the request of the Swingline Lender.  The obligations of the  Lenders under this Section 2.04(d)(ii) shall survive the Facility Termination Date and the  termination of this Agreement.  (e) Interest for Account of Swingline Lender.  The Swingline Lender shall be  responsible for invoicing the Borrower for interest on the Swingline Loans.  Until each Lender  funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such  Lender’s Applicable Percentage of any Swingline Loan, interest in respect of such Applicable  Percentage shall be solely for the account of the Swingline Lender.  (f) Payments Directly to Swingline Lender.  The Borrower shall make all payments  of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.  2.05 Prepayments.  (a) Optional.  (i) The Borrower may, upon notice to the Administrative Agent pursuant to  delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from  time to time voluntarily prepay Revolving Loans in whole or in part without premium or  penalty (subject to Section 3.05); provided, that, unless otherwise agreed by the  Administrative Agent: (A) such notice must be received by the Administrative Agent not  later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of BSBY  Rate Loans, and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of  BSBY Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of  $1,000,000 in excess thereof (or, if less, the entire principal amount thereof then  outstanding); and (C) any prepayment of Base Rate Loans shall be in a principal amount  of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire  principal amount thereof then outstanding).  Each such notice shall specify the date and  amount of such prepayment and the Type(s) of Revolving Loans to be prepaid and, if  BSBY Rate Loans are to be prepaid, the Interest Period(s) of such BSBY Rate Loans.  The  Administrative Agent will promptly notify each Lender of its receipt of each such notice,  and of the amount of such Lender’s ratable portion of such prepayment (based on such  Lender’s Applicable Percentage).  If such notice is given by the Borrower, the Borrower  shall make such prepayment and the payment amount specified in such notice shall be due  and payable on the date specified therein.  Any prepayment of any Loan shall be  accompanied by all accrued interest on the amount prepaid, together with, in the case of  any BSBY Rate Loan, any additional amounts required pursuant to Section 3.05.  Subject  to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their  respective Applicable Percentages.  





 






  53  CHAR1\1823738v3  (ii) The Borrower may, upon notice to the Swingline Lender pursuant to  delivery to the Swingline Lender of a Notice of Loan Prepayment (with a copy to the  Administrative Agent), at any time or from time to time, voluntarily prepay Swingline  Loans in whole or in part without premium or penalty; provided, that, unless otherwise  agreed by the Swingline Lender, (A) such notice must be received by the Swingline Lender  and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and  (B) any such prepayment shall be in a minimum principal amount of $100,000 or a whole  multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then  outstanding).  Each such notice shall specify the date and amount of such prepayment.  If  such notice is given by the Borrower, the Borrower shall make such prepayment and the  payment amount specified in such notice shall be due and payable on the date specified  therein.  (b) Mandatory.  If for any reason the Total Revolving Outstandings at any time exceed  the Revolving Facility at such time, the Borrower shall immediately prepay Revolving Loans,  Swingline Loans and Unreimbursed Amounts (together with all accrued but unpaid interest  thereon) and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such  excess; provided, that, the Borrower shall not be required to Cash Collateralize the L/C Obligations  pursuant to this Section 2.05(b) unless, after the prepayment of the Revolving Loans and Swingline  Loans, the Total Revolving Outstandings at such time exceed the Revolving Facility at such time.   Prepayments made pursuant to this Section 2.05(b) shall be applied first to Base Rate Loans and  then to BSBY Rate Loans in direct order of Interest Period maturities.  All prepayments under this  Section 2.05(b) shall be subject to Section 3.05, but otherwise without premium or penalty, and  shall be accompanied by interest on the principal amount prepaid through the date of prepayment.  2.06 Termination or Reduction of Revolving Facility.  (a) Optional.  The Borrower may, upon notice to the Administrative Agent, terminate  the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to  time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline  Sublimit; provided, that, unless otherwise agreed by the Administrative Agent, (i) any such notice  shall be received by the Administrative Agent not later than 11:00 a.m. five (5) Business Days prior  to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate  amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii) the Borrower  shall not terminate or reduce (A) the Revolving Facility if, after giving effect thereto and to any  concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Revolving  Facility, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of  L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit  Sublimit, or (C) the Swingline Sublimit if, after giving effect thereto and to any concurrent  prepayments hereunder, the Outstanding Amount of Swingline Loans would exceed the Swingline  Sublimit.  (b) Mandatory.  The Revolving Facility shall automatically terminate on the Maturity  Date.  If after giving effect to any reduction or termination of Revolving Facility under this Section  2.06, the Letter of Credit Sublimit or the Swingline Sublimit at such time exceeds the Revolving  Facility at such time, the Letter of Credit Sublimit or the Swingline Sublimit, as the case may be,  shall be automatically reduced by the amount of such excess.  (c) Application of Commitment Reductions; Payment of Fees.  The Administrative  Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit  Sublimit, the Swingline Sublimit or the Revolving Facility under this Section 2.06.  Upon any  





 






  54  CHAR1\1823738v3  reduction of the Revolving Facility, the Commitment of each Lender shall be reduced by such  Lender’s Applicable Percentage of such reduction amount.  All fees in respect of the Revolving  Facility accrued until the effective date of any termination of the Revolving Facility shall be paid  on the effective date of such termination.  2.07 Repayment of Loans.  (a) Revolving Loans.  The Borrower shall repay to the Lenders on the Maturity Date  the aggregate principal amount of all Revolving Loans outstanding on such date.  (b) Swingline Loans.  The Borrower shall repay each Swingline Loan on the earlier to  occur of (i) the date ten (10) Business Days after such Swingline Loan is made, and (ii) the Maturity  Date.  2.08 Interest and Default Rate.  (a) Interest.  Subject to the provisions of Section 2.08(b), (i) each BSBY Rate Loan  shall bear interest on the outstanding principal amount thereof for each Interest Period from the  applicable borrowing date at a rate per annum equal to the BSBY Rate for such Interest Period plus  the Applicable Rate for BSBY Rate Loans; (ii) each Base Rate Loan shall bear interest on the  outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal  to the Base Rate plus the Applicable Rate for Base Rate Loans; and (iii) each Swingline Loan shall  bear interest on the outstanding principal amount thereof from the applicable borrowing date at a  rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans.  To the extent  that any calculation of interest or any fee required to be paid under this Agreement shall be based  on (or result in) a calculation that is less than zero, such calculation shall be deemed zero for  purposes of this Agreement.  (b) Default Rate.  (i) If (A) any amount of principal of any Loan is not paid when due (without  regard to any applicable grace periods), whether at stated maturity, by acceleration or  otherwise, or (B) an Event of Default pursuant to Section 8.01(f) or Section 8.01(g) exists,  all outstanding Obligations shall thereafter bear interest at a fluctuating interest rate per  annum at all times equal to the Default Rate to the fullest extent permitted by applicable  Laws.  (ii) If any amount (other than principal of any Loan) payable by any Loan  Party under any Loan Document is not paid when due (without regard to any applicable  grace periods), whether at stated maturity, by acceleration or otherwise, then upon the  request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating  interest rate per annum at all times equal to the Default Rate to the fullest extent permitted  by applicable Laws.    (iii) Upon the request of the Required Lenders, while any Event of Default  exists, all outstanding Obligations (including Letter of Credit Fees) shall accrue at a  fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent  permitted by applicable Laws.  (iv) Accrued and unpaid interest on past due amounts (including interest on  past due interest) shall be due and payable upon demand.  





 






  55  CHAR1\1823738v3  (c) Interest Payments.  Interest on each Loan shall be due and payable in arrears on  each Interest Payment Date applicable thereto and at such other times as may be specified herein.   Interest hereunder shall be due and payable in accordance with the terms hereof before and after  judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.  2.09 Fees.  In addition to certain fees described in Sections 2.03(l) and (m):  (a) Commitment Fee.  The Borrower shall pay to the Administrative Agent, for the  account of each Lender, in accordance with its Applicable Percentage, a commitment fee (the  “Commitment Fee”) equal to the Applicable Rate times the actual daily amount by which the  Revolving Facility exceeds the sum of (i) the Outstanding Amount of Revolving Loans, plus (ii)  the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15.   For the avoidance of doubt, the Outstanding Amount of Swingline Loans shall not be counted  towards or considered usage of the Revolving Facility for purposes of determining the Commitment  Fee.  The Commitment Fee shall accrue at all times during the Availability Period, including at any  time during which one or more of the conditions in Article IV is not met, and shall be due and  payable quarterly in arrears on the last Business Day of each March, June, September and  December, commencing with the first such date to occur after the Closing Date, and on the last day  of the Availability Period.  The Commitment Fee shall be calculated quarterly in arrears, and if  there is any change in the Applicable Rate during any quarter, the actual daily amount shall be  computed and multiplied by the Applicable Rate separately for each period during such quarter that  such Applicable Rate was in effect.  (b) Other Fees.  (i) The Borrower shall pay to the Administrative Agent and the Arranger, for  their own respective accounts, fees in the amounts and at the times specified in the Fee  Letter.  Such fees shall be fully earned when paid and shall not be refundable for any reason  whatsoever.  (ii) The Borrower shall pay to the Lenders such fees as shall have been  separately agreed upon in writing in the amounts and at the times so specified.  Such fees  shall be fully earned when paid and shall not be refundable for any reason whatsoever.  2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.  (a) Computation of Interest and Fees.  All computations of interest for Base Rate  Loans (including Base Rate Loans determined by reference to the BSBY Rate) shall be made on  the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other  computations of fees and interest shall be made on the basis of a 360-day year and actual days  elapsed (which results in more fees or interest, as applicable, being paid than if computed on the  basis of a 365 day year).  Interest shall accrue on each Loan for the day on which the Loan is made,  and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion  is paid; provided, that, any Loan that is repaid on the same day on which it is made shall, subject  to Section 2.12(a), bear interest for one (1) day.  Each determination by the Administrative Agent  of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest  error.  





 






  56  CHAR1\1823738v3  (b) Financial Statement Adjustments or Restatements.  If, as a result of any  restatement of or other adjustment to the financial statements of the Borrower and its Subsidiaries  or for any other reason, the Borrower or the Lenders determine that (i) the Consolidated Rent- Adjusted Total Leverage Ratio as calculated by the Borrower as of any applicable date was  inaccurate, and (ii) a proper calculation of the Consolidated Rent-Adjusted Total Leverage Ratio  would have resulted in higher pricing and fees for such period, the Borrower shall immediately and  retroactively be obligated to pay to the Administrative Agent for the account of the applicable  Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent  (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the  Borrower under the Bankruptcy Code of the United States, automatically and without further action  by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the  amount of interest and fees that should have been paid for such period over the amount of interest  and fees actually paid for such period.  This Section 2.10(b) shall not limit the rights of the  Administrative Agent, any Lender or the L/C Issuer, as the case may be, under any provision of  this Agreement to payment of any Obligations hereunder at the Default Rate or under Article VIII.   The Borrower’s obligations under this Section 2.10(b) shall survive the termination of the Facility  Termination Date.  2.11 Evidence of Debt.  (a) Maintenance of Accounts.  The Credit Extensions made by each Lender shall be  evidenced by one or more accounts or records maintained by such Lender in the ordinary course of  business.  The Administrative Agent shall maintain the Register in accordance with Section  11.06(c).  The accounts or records maintained by each Lender shall be conclusive absent manifest  error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest  and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit  or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect  to the Obligations.  In the event of any conflict between the accounts and records maintained by  any Lender and the Register, the Register shall control in the absence of manifest error.  Upon the  request of any Lender made through the Administrative Agent, the Borrower shall execute and  deliver to such Lender (through the Administrative Agent) a promissory note in the form of Exhibit  I (each, a “Note”), which shall evidence such Lender’s Loans in addition to such accounts or  records.  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if  applicable), amount and maturity of its Loans and payments with respect thereto.  (b) Maintenance of Records.  In addition to the accounts and records referred to in  Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its  usual practice accounts or records evidencing the purchases and sales by such Lender of  participations in Letters of Credit and Swingline Loans.  In the event of any conflict between the  accounts and records maintained by the Administrative Agent and the accounts and records of any  Lender in respect of such matters, the accounts and records of the Administrative Agent shall  control in the absence of manifest error.  2.12 Payments Generally; Administrative Agent’s Clawback.  (a) General.  All payments to be made by the Borrower shall be made free and clear  of and without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except  as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to  the Administrative Agent, for the account of the respective Lenders to which such payment is owed,  at the Administrative Agent’s Office in Dollars and in immediately available funds not later than  2:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each  





 






  57  CHAR1\1823738v3  Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in  like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by  the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business  Day and any applicable interest or fee shall continue to accrue.  Except as otherwise specifically  provided for in this Agreement, if any payment to be made by the Borrower shall come due on a  day other than a Business Day, payment shall be made on the next following Business Day, and  such extension of time shall be reflected in computing interest or fees, as the case may be.  (b) (i) Funding by Lenders; Presumption by Administrative Agent.  Unless the  Administrative Agent shall have received notice from a Lender prior to the proposed date  of any Borrowing of BSBY Rate Loans (or, in the case of any Borrowing of Base Rate  Loans, prior to 12:00 Noon on the date of such 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 Section 2.02 (or, in the case of a Borrowing of Base Rate Loans,  that such Lender has made such share available in accordance with and at the time required  by Section 2.02) and may, in reliance upon such assumption, make available to the  Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share  of the applicable Borrowing available to the Administrative Agent, then the applicable  Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on  demand such corresponding amount in immediately available funds 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 (A) in the case of a  payment to be made by such Lender, the greater of the Federal Funds Rate and a rate  determined by the Administrative Agent in accordance with banking industry rules on  interbank compensation, plus any administrative, processing or similar fees customarily  charged by the Administrative Agent in connection with the foregoing, and (B) in the case  of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.   If the Borrower and such Lender shall pay such interest to the Administrative Agent for  the same or an overlapping period, the Administrative Agent shall promptly remit to the  Borrower the amount of such interest paid by the Borrower for such period.  If such Lender  pays its share of the applicable Borrowing to the Administrative Agent, then the amount  so paid shall constitute such Lender’s Loan included in such Borrowing.  Any payment by  the Borrower shall be without prejudice to any claim the Borrower may have against a  Lender that shall have failed to make such payment to the Administrative Agent.  (ii) Payments by Borrower; Presumptions by Administrative Agent.  Unless  the Administrative Agent shall have received notice from the Borrower prior to the date on  which any payment is due to the Administrative Agent for the account of the Lenders or  the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative  Agent may assume that the Borrower has made such payment on such date in accordance  herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C  Issuer, as the case may be, the amount due.  With respect to any payment that the  Administrative Agent makes for the account of the Lenders or the L/C Issuer hereunder as  to which the Administrative Agent determines (which determination shall be conclusive  absent manifest error) that any of the following applies (such payment referred to as the  “Rescindable Amount”): (A) the Borrower has not in fact made such payment; (B) the  Administrative Agent has made a payment in excess of the amount so paid by the Borrower  (whether or not then owed); or (C) the Administrative agent has for any reason otherwise  erroneously made such payment; then each of the Lenders or the L/C Issuer, as the case  may be, severally agrees to repay to the Administrative Agent forthwith on demand the  





 






  58  CHAR1\1823738v3  Rescindable Amount so distributed to such Lender or the L/C Issuer, in immediately  available funds with interest thereon, for each day from and including the date such amount  is distributed to it to but excluding the date of payment to the Administrative Agent, at the  greater of the Federal Funds Rate and a rate determined by the Administrative Agent in  accordance with banking industry rules on interbank compensation.  A notice of the Administrative Agent to any Lender or the Borrower with respect to any  amount owing under this Section 2.12(b) shall be conclusive, absent manifest error.  (c) Failure to Satisfy Conditions Precedent.  If any Lender makes available to the  Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing  provisions of this Article II, and such funds are not made available to the Borrower by the  Administrative Agent because the conditions to the applicable Credit Extension set forth in Article  IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall  return such funds (in like funds as received from such Lender) to such Lender, without interest.  (d) Obligations of Lenders Several.  The obligations of the Lenders hereunder to make  Revolving Loans, to fund participations in Letters of Credit and Swingline Loans, and to make  payments pursuant to Section 11.04(c) are several and not joint.  The failure of any Lender to make  any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any  date required hereunder shall not relieve any other Lender of its corresponding obligation to do so  on such date, and no Lender shall be responsible for the failure of any other Lender to so make its  Loan, to purchase its participation or to make its payment under Section 11.04(c).  (e) Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain  the funds for any Loan in any particular place or manner or to constitute a representation by any  Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.  (f) Pro Rata Treatment.  Except to the extent otherwise provided herein: (i) each  Borrowing (other than Swingline Borrowings) shall be made from the Lenders, each payment of  fees under Section 2.03(l), Section 2.03(m) and Section 2.09 shall be made for account of the  Lenders, and each termination or reduction of the amount of the Commitments shall be applied to  the respective Commitments of the Lenders, pro rata according to the amounts of their respective  Commitments; (ii) each Borrowing shall be allocated pro rata among the Lenders according to the  amounts of their respective Commitments (in the case of the making of Revolving Loans) or their  respective Loans that are to be included in such Borrowing (in the case of conversions and  continuations of Loans); (iii) each payment or prepayment of principal of Loans by the Borrower  shall be made for account of the Lenders pro rata in accordance with the respective unpaid principal  amounts of the Loans held by them; and (iv) each payment of interest on Loans by the Borrower  shall be made for account of the Lenders pro rata in accordance with the amounts of interest on  such Loans then due and payable to the respective Lenders.  2.13 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment  in respect of (a) Obligations due and payable to such Lender hereunder and under the other Loan Documents  at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations  due and payable to such Lender at such time, to (ii) the aggregate amount of the Obligations due and payable  to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the  Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time  obtained by all the Lenders at such time, or (b) Obligations owing (but not due and payable) to such Lender  





 






  59  CHAR1\1823738v3  hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the  proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such  time, to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders  hereunder and under the other Loan Documents at such time) of payments on account of the Obligations  owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time  obtained by all of the Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender  receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase  (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swingline  Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all  such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of  Obligations then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the  case may be; provided, that: (1) if any such participations or subparticipations are purchased and all or any  portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be  rescinded and the purchase price restored to the extent of such recovery, without interest; and (2) the  provisions of this Section 2.13 shall not be construed to apply to (x) any payment made by or on behalf of  the Borrower pursuant to and in accordance with the express terms of this Agreement (including the  application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash  Collateral provided for in Section 2.14, or (z) any payment obtained by a Lender as consideration for the  assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or  Swingline Loans to any assignee or participant, other than an assignment to any Loan Party or any Affiliate  thereof (as to which the provisions of this Section 2.13 shall apply).  Each Loan Party consents to the  foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring  a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff  and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such  Loan Party in the amount of such participation.  2.14 Cash Collateral.  (a) Obligation to Cash Collateralize.  At any time there shall exist a Defaulting Lender,  within one (1) Business Day following the written request of the Administrative Agent or the L/C  Issuer (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the L/C  Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect  to Section 2.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount  not less than the Minimum Collateral Amount.  (b) Grant of Security Interest.  The Borrower, and to the extent provided by any  Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the  Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders,  and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all  balances therein, and all other property so provided as Collateral pursuant hereto, and in all  proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be  applied pursuant to Section 2.14(c).  If at any time the Administrative Agent determines that Cash  Collateral is subject to any right or claim of any Person other than the Administrative Agent or the  L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the  Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative  Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount  sufficient to eliminate such deficiency (determined in the case of Cash Collateral provided pursuant  to Section 2.15(a)(v), after giving effect to Section 2.15(a)(v) and any Cash Collateral provided by  the Defaulting Lender). All Cash Collateral (other than credit support not constituting funds subject  to deposit) shall be maintained in one or more blocked, non-interest bearing deposit accounts at  Bank of America.  The Borrower shall pay on demand therefor from time to time all customary  





 






  60  CHAR1\1823738v3  account opening, activity and other administrative fees and charges in connection with the  maintenance and disbursement of Cash Collateral.   (c) Application.  Notwithstanding anything to the contrary contained in this  Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15 or  8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C  Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by  a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the  Cash Collateral was so provided, prior to any other application of such property as may be provided  for herein.  (d) Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce  Fronting Exposure or to secure other obligations shall be released promptly following (i) the  elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including  by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its  assignee following compliance with Section 11.06(b)(vi))), or (ii) the determination by the  Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided, that,  (A) any such release shall be without prejudice to, and any disbursement or other transfer of Cash  Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and  the other applicable provisions of the Loan Documents, and (B) the Person providing Cash  Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held  to support future anticipated Fronting Exposure or other obligations.  2.15 Defaulting Lenders.  (a) Adjustments.  Notwithstanding anything to the contrary contained in this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no  longer a Defaulting Lender, to the extent permitted by applicable Law:   (i) Waivers and Amendments.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be  restricted as set forth in the definition of “Required Lenders” and Section 11.01.   (ii) Defaulting Lender Waterfall.  Any payment of principal, interest, fees or  other amounts received by the Administrative Agent for the account of such Defaulting  Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise)  or received by the Administrative Agent from a Defaulting Lender pursuant to Section  11.08 shall be applied at such time or times as may be determined by the Administrative  Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender  to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any  amounts owing by such Defaulting Lender to the L/C Issuer or the Swingline Lender  hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to  such Defaulting Lender in accordance with Section 2.14; fourth, as the Borrower may  request (so long as no Default exists), to the funding of any Loan in respect of which such  Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as  determined by the Administrative Agent; fifth, if so determined by the Administrative  Agent and the Borrower, to be held in a deposit account and released pro rata in order to  (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to  Loans under this Agreement, and (B) Cash Collateralize the L/C Issuer’s future Fronting  Exposure with respect to such Defaulting Lender with respect to future Letters of Credit  issued under this Agreement, in accordance with Section 2.14; sixth, to the payment of any  





 






  61  CHAR1\1823738v3  amounts owing to the Lenders, the L/C Issuer or the Swingline Lender as a result of any  judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or  the Swingline Lender against such Defaulting Lender as a result of such Defaulting  Lender’s breach of its obligations under this Agreement; seventh, so long as no Default  exists, to the payment of any amounts owing to the Borrower as a result of any judgment  of a court of competent jurisdiction obtained by the Borrower against such Defaulting  Lender as a result of such Defaulting Lender’s breach of its obligations under this  Agreement; and eighth, to such Defaulting Lender or as otherwise as may be required under  the Loan Documents in connection with any Lien conferred thereunder or directed by a  court of competent jurisdiction; provided, that, if (1) such payment is a payment of the  principal amount of any Loans or Unreimbursed Amounts in respect of which such  Defaulting Lender has not fully funded its appropriate share, and (2) such Loans were made  or the related Letters of Credit were issued at a time when the conditions set forth in Section  4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of,  and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being  applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting  Lender until such time as all Loans and funded and unfunded participations in L/C  Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the  Commitments hereunder without giving effect to Section 2.15(a)(v).  Any payments,  prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or  held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to  this Section 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,  and each Lender irrevocably consents hereto.   (iii) Certain Fees.  (A) Fees.  No Defaulting Lender shall be entitled to receive any  portion of the Commitment Fee payable under Section 2.09(a) for any period  during which that Lender is a Defaulting Lender (and the Borrower shall not be  required to pay any portion of the Commitment Fee that otherwise would have  been required to have been paid to that Defaulting Lender).  (B) Letter of Credit Fees.  Each Defaulting Lender shall be entitled to  receive Letter of Credit Fees for any period during which that Lender is a  Defaulting Lender only to the extent allocable to its Applicable Percentage of the  stated amount of Letters of Credit for which it has provided Cash Collateral  pursuant to Section 2.14.    (C) Defaulting Lender Fees. With respect to any Letter of Credit Fee  not required to be paid to any Defaulting Lender pursuant to clause (B) above, the  Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee  otherwise payable to such Defaulting Lender with respect to such Defaulting  Lender’s participation in L/C Obligations that has been reallocated to such Non- Defaulting Lender pursuant to clause (iv) below, (2) pay to the L/C Issuer the  amount of any such fee otherwise payable to such Defaulting Lender to the extent  allocable to the L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (3)  not be required to pay the remaining amount of any such fee.   (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.  All  or any part of such Defaulting Lender’s participation in L/C Obligations and Swingline  Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their  





 






  62  CHAR1\1823738v3  respective Applicable Percentages (calculated without regard to such Defaulting Lender’s  Commitment) but only to the extent that such reallocation does not cause the aggregate  Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting  Lender’s Commitment.  Subject to Section 11.20, no reallocation hereunder shall constitute  a waiver or release of any claim of any party hereunder against a Defaulting Lender arising  from that Lender having become a Defaulting Lender, including any claim of a Non- Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure  following such reallocation.  (v) Cash Collateral, Repayment of Swingline Loans.  If the reallocation  described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower  shall, without prejudice to any right or remedy available to it hereunder or under applicable  Law, (A) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s  Fronting Exposure, and (B) second, Cash Collateralize the L/C Issuer’s Fronting Exposure  in accordance with the procedures set forth in Section 2.14.  (b) Defaulting Lender Cure.  If the Borrower, the Administrative Agent, the Swingline  Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the  Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified  in such notice and subject to any conditions set forth therein (which may include arrangements with  respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that  portion of outstanding Loans of the other Lenders or take such other actions as the Administrative  Agent may determine to be necessary to cause the Loans and funded and unfunded participations  in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance  with their Applicable Percentages (without giving effect to Section 2.15(a)(iv)), whereupon such  Lender will cease to be a Defaulting Lender; provided, that, no adjustments will be made  retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while  that Lender was a Defaulting Lender; provided, further, that, except to the extent otherwise  expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender  will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s  having been a Defaulting Lender.  (c) New Swingline Loans/Letters of Credit. So long as any Lender is a Defaulting  Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is  satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan, and (ii)  the L/C Issuer shall not be required to issue, extend, increase, reinstate or renew any Letter of Credit  unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.  ARTICLE III    TAXES, YIELD PROTECTION AND ILLEGALITY  3.01 Taxes.  (a) Defined Terms.  For purposes of this Section 3.01, the term “applicable Law”  includes FATCA and the term “Lender” includes the L/C Issuer.  (b) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.   Any and all payments by or on account of any obligation of any Loan Party under any Loan  Document shall be made without deduction or withholding for any Taxes, except as required by  applicable Laws.  If any applicable Laws (as determined in the good faith discretion of an applicable  





 






  63  CHAR1\1823738v3  Withholding Agent) require the deduction or withholding of any Tax from any such payment by a  Withholding Agent, then the applicable Withholding Agent shall be entitled to make such  deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant  Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified  Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after  any required withholding or the making of all required deductions (including deductions applicable  to additional sums payable under this Section 3.01) the applicable Recipient receives an amount  equal to the sum it would have received had no such withholding or deduction been made.  (c) Payment of Other Taxes by the Loan Parties.  The Loan Parties shall timely pay to  the relevant Governmental Authority in accordance with applicable Law, or at the option of the  Administrative Agent timely reimburse it for the payment of, any Other Taxes.  (d) Tax Indemnifications.  (i) Each of the Loan Parties shall, and does hereby, jointly and severally  indemnify each Recipient, and shall make payment in respect thereof within ten (10) days  after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified  Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01)  payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or  with respect thereto, whether or not such Indemnified Taxes were correctly or legally  imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount  of such payment or liability delivered to the Borrower by a Lender (with a copy to the  Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a  Lender, shall be conclusive absent manifest error.  Each of the Loan Parties shall also, and  does hereby, jointly and severally indemnify the Administrative Agent, and shall make  payment in respect thereof within ten (10) days after demand therefor, for any amount  which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as  required pursuant to Section 3.01(d)(ii).  (ii) Each Lender shall, and does hereby, severally indemnify and shall make  payment in respect thereof within ten (10) days after demand therefor, (A) the  Administrative Agent against any Indemnified Taxes attributable to such Lender (but only  to the extent that any Loan Party has not already indemnified the Administrative Agent for  such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so),  (B) the Administrative Agent and the Loan Parties, as applicable, against any Taxes  attributable to such Lender’s failure to comply with the provisions of Section 11.06(d)  relating to the maintenance of a Participant Register, and (C) the Administrative Agent and  the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender, in  each case, that are payable or paid by the Administrative Agent or a Loan Party in  connection with any Loan Document, and any reasonable expenses arising therefrom or  with respect thereto, whether or not such Taxes were correctly or legally imposed or  asserted by the relevant Governmental Authority.  A certificate as to the amount of such  payment or liability delivered to any Lender by the Administrative Agent shall be  conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent  to set off and apply any and all amounts at any time owing to such Lender under any Loan  Document or otherwise payable by the Administrative Agent to the Lender from any other  source against any amount due to the Administrative Agent under this Section 3.01(d)(ii).  





 






  64  CHAR1\1823738v3  (e) Evidence of Payments.  As soon as practicable after any payment of Taxes by any  Loan Party to a Governmental Authority, as provided in this Section 3.01, the Borrower shall  deliver to the Administrative Agent the original or a certified copy of a receipt issued by such  Governmental Authority evidencing such payment, a copy of any return reporting such payment or  other evidence of such payment reasonably satisfactory to the Administrative Agent.  (f) Status of Lenders; Tax Documentation.   (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document shall deliver  to the Borrower and the Administrative Agent, at the time or times reasonably requested  by the Borrower or the Administrative Agent, such properly completed and executed  documentation reasonably requested by the Borrower or the Administrative Agent as will  permit such payments to be made without withholding or at a reduced rate of withholding.   In addition, any Lender, if reasonably requested by the Borrower or the Administrative  Agent, shall deliver such other documentation prescribed by applicable Law or reasonably  requested by the Borrower or the Administrative Agent as will enable the Borrower or the  Administrative Agent to determine whether or not such Lender is subject to backup  withholding or information reporting requirements.  Notwithstanding anything to the  contrary in the preceding two sentences, the completion, execution and submission of such  documentation (other than such documentation set forth in Section 3.01(f)(ii)(A), (ii)(B)  and (ii)(D)) shall not be required if in the Lender’s reasonable judgment such completion,  execution or submission would subject such Lender to any material unreimbursed cost or  expense or would materially prejudice the legal or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the  Borrower is a U.S. Person,  (A) any Lender that is a U.S. Person shall deliver to the Borrower and  the Administrative Agent on or prior to the date on which such Lender becomes a  Lender under this Agreement (and from time to time thereafter upon the reasonable  request of the Borrower or the Administrative Agent), executed copies of IRS  Form W-9 certifying that such Lender is exempt from U.S. federal backup  withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number of copies  as shall be requested by the recipient) on or prior to the date on which such Foreign  Lender becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of the Borrower or the Administrative Agent),  whichever of the following is applicable:  (1) in the case of a Foreign Lender claiming the benefits of  an income tax treaty to which the United States is a party (x) with respect  to payments of interest under any Loan Document, executed copies of IRS  Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption  from, or reduction of, U.S. federal withholding Tax pursuant to the  “interest” article of such tax treaty, and (y) with respect to any other  applicable payments under any Loan Document, IRS Form W-8BEN-E  (or W-8BEN, as applicable) establishing an exemption from, or reduction  





 






  65  CHAR1\1823738v3  of, U.S. federal withholding Tax pursuant to the “business profits” or  “other income” article of such tax treaty;  (2) executed copies of IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits of  the exemption for portfolio interest under Section 881(c) of the Code, (x)  a certificate substantially in the form of Exhibit J-1 to the effect that such  Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A)  of the Code, a “10 percent shareholder” of the Borrower within the  meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign  corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax  Compliance Certificate”), and (y) executed copies of IRS Form W-8BEN- E (or W-8BEN, as applicable); or  (4) to the extent a Foreign Lender is not the beneficial owner,  executed copies of IRS Form W-8IMY, accompanied by IRS Form W- 8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax  Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit  J-3, IRS Form W-9, and/or other certification documents from each  beneficial owner, as applicable; provided, that, if the Foreign Lender is a  partnership and one or more direct or indirect partners of such Foreign  Lender are claiming the portfolio interest exemption, such Foreign Lender  may provide a U.S. Tax Compliance Certificate substantially in the form  of Exhibit J-4 on behalf of each such direct and indirect partner;  (C) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number of copies  as shall be requested by the recipient) on or prior to the date on which such Foreign  Lender becomes a Lender under this Agreement (and from time to time thereafter  upon the reasonable request of the Borrower or the Administrative Agent),  executed copies (or originals, as required) of any other form prescribed by  applicable Law as a basis for claiming exemption from or a reduction in U.S.  federal withholding Tax, duly completed, together with such supplementary  documentation as may be prescribed by applicable Law to permit the Borrower or  the Administrative Agent to determine the withholding or deduction required to be  made; and  (D) if a payment made to a Lender under any Loan Document would  be subject to U.S. federal withholding Tax imposed by FATCA if such Lender  were to fail to comply with the applicable reporting requirements of FATCA  (including those contained in Section 1471(b) or 1472(b) of the Code, as  applicable), such Lender shall deliver to the Borrower and the Administrative  Agent at the time or times prescribed by law and at such time or times reasonably  requested by the Borrower or the Administrative Agent such documentation  prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i)  of the Code) and such additional documentation reasonably requested by the  Borrower or the Administrative Agent as may be necessary for the Borrower and  the Administrative Agent to comply with their obligations under FATCA and to  determine that such Lender has complied with such Lender’s obligations under  FATCA or to determine the amount to deduct and withhold from such payment.   





 






  66  CHAR1\1823738v3  Solely for purposes of this clause (f)(ii)(D), “FATCA” shall include any  amendments made to FATCA after the Closing Date.  (iii) Each Lender agrees that if any form or certification it previously delivered  pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it  shall update such form or certification or promptly notify the Borrower and the  Administrative Agent in writing of its legal inability to do so.  (g) Treatment of Certain Refunds.  Unless required by applicable Laws, at no time  shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a  Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted  from funds paid for the account of such Lender.  If any Recipient determines, in its sole discretion  exercised in good faith, that it has received a refund of any Taxes as to which it has been  indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts  pursuant to this Section 3.01, it shall pay to such Loan Party an amount equal to such refund (but  only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party  under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket  expenses (including Taxes) incurred by such Recipient, as the case may be, and without interest  (other than any interest paid by the relevant Governmental Authority with respect to such refund);  provided, that, each Loan Party, upon the request of the Recipient, agrees to repay the amount paid  over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant  Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund  to such Governmental Authority.  Notwithstanding anything to the contrary in this Section 3.01(g),  in no event will the applicable Recipient be required to pay any amount to such Loan Party pursuant  to this Section 3.01(g) the payment of which would place the Recipient in a less favorable net after- Tax position than such Recipient would have been in if the Tax subject to indemnification and  giving rise to such refund had not been deducted, withheld or otherwise imposed and the  indemnification payments or additional amounts with respect to such Tax had never been paid.   This Section 3.01(g) shall not be construed to require any Recipient to make available its tax returns  (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any  other Person.  (h) Survival.  Each party’s obligations under this Section 3.01 shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Aggregate Commitments and the repayment,  satisfaction or discharge of all other Obligations.  3.02 Illegality.  If any Lender determines that any Law has made it unlawful, or that any Governmental Authority  has asserted that it is unlawful, for any Lender or its Lending Office to perform any of its obligations  hereunder or to make, maintain or fund or charge interest with respect to any Credit Extension, or to  determine or charge interest rates based upon the BSBY Rate, or any Governmental Authority has imposed  material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in  the London interbank market, then, on notice thereof by such Lender to the Borrower through the  Administrative Agent, (a) any obligation of such Lender to perform such obligations, to issue, make,  maintain, fund or charge interest with respect to any such Credit Extension or to continue BSBY Rate Loans  or to convert Base Rate Loans to BSBY Rate Loans shall be suspended, and (b) if such notice asserts the  illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined  by reference to the BSBY Rate component of the Base Rate, the interest rate on which Base Rate Loans of  such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without  





 






  67  CHAR1\1823738v3  reference to the BSBY Rate component of the Base Rate, in each case until such Lender notifies the  Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer  exist.  Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to  the Administrative Agent), prepay or, if applicable, convert all BSBY Rate Loans of such Lender to Base  Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such  illegality, be determined by the Administrative Agent without reference to the BSBY Rate component of  the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue  to maintain such BSBY Rate Loans to such day, or immediately, if such Lender may not lawfully continue  to maintain such BSBY Rate Loans, and (ii) if such notice asserts the illegality of such Lender determining  or charging interest rates based upon the BSBY Rate, the Administrative Agent shall during the period of  such suspension compute the Base Rate applicable to such Lender without reference to the BSBY Rate  component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer  illegal for such Lender to determine or charge interest rates based upon the BSBY Rate.  Upon any such  prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or  converted, together with any additional amounts required pursuant to Section 3.05.  3.03 Inability to Determine Rates.  (a) If in connection with any request for a BSBY Rate Loan or a conversion to or  continuation thereof, as applicable, (i) the Administrative Agent determines (which determination  shall be conclusive absent manifest error) that (A) no Successor Rate has been determined in  accordance with Section 3.03(b), and the circumstances under Section 3.03(b)(i) or the Scheduled  Unavailability Date has occurred (as applicable), or (B) adequate and reasonable means do not  otherwise exist for determining BSBY for any requested Interest Period with respect to a proposed  BSBY Rate Loan or in connection with an existing or proposed Base Rate Loan, or (ii) the  Administrative Agent or the Required Lenders determine that for any reason that the BSBY Rate  for any requested Interest Period with respect to a proposed BSBY Rate Loan does not adequately  and fairly reflect the cost to the Lenders of funding such BSBY Rate Loan, the Administrative  Agent will promptly so notify the Borrower and each Lender. Thereafter, (1) the obligation of the  Lenders to make or maintain BSBY Rate Loans or to convert Base Rate Loans to BSBY Rate Loans  shall be suspended (to the extent of the affected BSBY Rate Loans or Interest Periods), and (2) in  the event of a determination described in the preceding sentence with respect to the BSBY Rate  component of the Base Rate, the utilization of the BSBY Rate component in determining the Base  Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a  determination by the Required Lenders described in Section 3.03(a)(ii), until the Administrative  Agent upon instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice,  (x) the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation  of BSBY Rate Loans (to the extent of the affected BSBY Rate Loans or Interest Periods) or, failing  that, will be deemed to have converted such request into a request for a Borrowing of Base Rate  Loans in the amount specified therein, and (y) any outstanding BSBY Rate Loans shall be deemed  to have been converted to Base Rate Loans immediately at the end of their respective applicable  Interest Periods.   (b) Notwithstanding anything to the contrary in this Agreement or any other Loan  Documents, but without limiting Section 3.03(a), if the Administrative Agent determines (which  determination shall be conclusive and binding upon all parties hereto absent manifest error), or the  Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required  Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have  determined (which determination likewise shall be conclusive and binding upon all parties hereto  absent manifest error), that:  





 






  68  CHAR1\1823738v3  (i) adequate and reasonable means do not exist for ascertaining one month,  three month and six month interest periods of BSBY, including because the BSBY Screen  Rate is not available or published on a current basis and such circumstances are unlikely to  be temporary; or   (ii) Bloomberg or any successor administrator of the BSBY Screen Rate or a  Governmental Authority having or purporting to have jurisdiction over the Administrative  Agent or Bloomberg or such administrator has made a public statement identifying a  specific date after which one month, three month and six month interest periods of BSBY  or the BSBY Screen Rate shall or will no longer be representative or made available, or  used for determining the interest rate of loans, or shall or will otherwise cease; provided,  that, at the time of such statement, there is no successor administrator that is satisfactory to  the Administrative Agent that will continue to provide such representative interest periods  of BSBY after such specific date (the latest date on which one month, three month, six  month interest periods of BSBY or the BSBY Screen Rate are no longer representative or  available permanently or indefinitely, the “Scheduled Unavailability Date”);  then, on a date and time determined by the Administrative Agent (any such date, the “BSBY  Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest  payment date, as applicable, for interest calculated and, solely with respect to Section 3.03(b)(ii),  no later than the Scheduled Unavailability Date, BSBY will be replaced hereunder and under any  Loan Document with, subject to the proviso below, the first available alternative set forth in the  order below for any payment period for interest calculated that can be determined by the  Administrative Agent, in each case, without any amendment to, or further action or consent of any  other party to, this Agreement or any other Loan Document (any such replacement, a “Successor  Rate”): (A) Term SOFR, plus the SOFR Adjustment; and (B) Daily Simple SOFR, plus the SOFR  Adjustment; provided, that, if initially BSBY is replaced with the rate contained in clause (B)  above, and subsequent to such replacement, the Administrative Agent determines that Term SOFR  has become available and is administratively feasible for the Administrative Agent in its sole  discretion, and the Administrative Agent notifies the Borrower and each Lender of such  availability, then from and after the beginning of the Interest Period, relevant interest payment date  or payment period for interest calculated, in each case, commencing no less than thirty (30) days  after the date of such notice, the applicable Successor Rate shall be Term SOFR, plus the SOFR  Adjustment.  If the applicable Successor Rate is Daily Simple SOFR plus the SOFR Adjustment,  all interest payments will be payable on a monthly basis.  Notwithstanding anything to the contrary herein, (a) if the Administrative Agent  determines that neither of the alternatives set forth in clauses (A) and (B) in the immediately  preceding paragraph are available on or prior to the BSBY Replacement Date, or (b) if the events  or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to  the Successor Rate then in effect, then in each case, the Administrative Agent and the Borrower  may amend this Agreement solely for purpose of replacing BSBY or any then-current Successor  Rate in accordance with this Section 3.03(b) at the end of any Interest Period, relevant interest  payment date or payment period for interest calculated, as applicable, with another alternate  benchmark rate giving due consideration to any evolving or then-existing convention for similar  Dollar-denominated credit facilities syndicated and agented in the United States for such alternative  benchmarks and, in each case, including any mathematical or other adjustments to such benchmark  giving due consideration to any evolving or then-existing convention for similar Dollar- denominated credit facilities syndicated and agented in the United States for such benchmarks  which adjustment or method for calculating such adjustment shall be published on an information  service as selected by the Administrative Agent from time to time in its reasonable discretion and  





 






  69  CHAR1\1823738v3  may be periodically updated.  For the avoidance of doubt, any such proposed rate and adjustments  shall constitute a “Successor Rate.”  Any such amendment shall become effective at 5:00 p.m. on  the fifth (5th) Business Day after the Administrative Agent shall have posted such proposed  amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the  Required Lenders have delivered to the Administrative Agent written notice that such Required  Lenders object to such amendment.  The Administrative Agent will promptly (in one or more notices) notify the Borrower and  each Lender of the implementation of any Successor Rate.  Any Successor Rate shall be applied in  a manner consistent with market practice; provided, that, to the extent such market practice is not  administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a  manner as otherwise reasonably determined by the Administrative Agent.  Notwithstanding  anything else herein, if at any time any Successor Rate as so determined would otherwise be less  than zero, such Successor Rate will be deemed to be zero for the purposes of this Agreement and  the other Loan Documents.  If any Successor Rate includes a SOFR-based rate, then, as of the  BSBY Replacement Date, the Applicable Rate that applies to the Commitment Fee shall increase  by the percentage points equal to the SOFR Adjustment for an interest period of one month’s  duration.  In connection with the implementation of a Successor Rate, the Administrative Agent will  have the right 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; provided, that, with respect to any such amendment effected, the Administrative  Agent shall post each such amendment implementing such Conforming Changes to the Borrower  and the Lenders reasonably promptly after such amendment becomes effective.  3.04 Increased Costs.  (a) Increased Costs Generally.  If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit,  compulsory loan, insurance charge or similar requirement against assets of, deposits with  or for the account of, or credit extended or participated in by, any Lender (except any  reserve requirement) or the L/C Issuer;   (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B)  Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes,” and (C)  Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or  other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or  (iii) impose on any Lender or the L/C Issuer any other condition, cost or  expense affecting this Agreement or BSBY Rate Loans made by such Lender or any Letter  of Credit or participation therein;   and the result of any of the foregoing shall be to increase the cost to such Lender of making,  converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any  such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or  maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any  Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the  L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of  





 






  70  CHAR1\1823738v3  such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case  may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as  the case may be, for such additional costs incurred or reduction suffered.  (b) Capital Requirements.  If any Lender or the L/C Issuer determines that any Change  in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or the L/C  Issuer or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity  requirements has or would have the effect of reducing the rate of return on such Lender’s or the  L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any,  as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or  participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit  issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s  or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into  consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the  L/C Issuer’s holding company with respect to capital adequacy and liquidity), then from time to  time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional  amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C  Issuer’s holding company for any such reduction suffered.  (c) Certificates for Reimbursement.  A certificate of a Lender or the L/C Issuer setting  forth in reasonable detail the amount or amounts necessary to compensate such Lender or the L/C  Issuer or its holding company, as the case may be, as specified in Section 3.04(a) or Section 3.04(b)  and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay  such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate  within ten (10) days after receipt thereof.  (d) Delay in Requests.  Failure or delay on the part of any Lender or the L/C Issuer to  demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute  a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation; provided, that,  the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the  foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered  more than nine (9) months prior to the date that such Lender or the L/C Issuer, as the case may be,  notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of  such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the  Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9)  month period referred to above shall be extended to include the period of retroactive effect thereof).  3.05 Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the  Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost  or expense incurred by it as a result of:  (a) any continuation, conversion, payment or prepayment of any BSBY Rate Loan on  a day other than the last day of the Interest Period for such BSBY Rate Loan (whether voluntary,  mandatory, automatic, by reason of acceleration, or otherwise);  (b) any failure by the Borrower (for a reason other than the failure of such Lender to  make a Loan) to prepay, borrow, continue or convert any BSBY Rate Loan on the date or in the  amount notified by the Borrower; or  





 






  71  CHAR1\1823738v3  (c) any assignment of a BSBY Rate Loan on a day other than the last day of the Interest  Period therefor as a result of a request by the Borrower pursuant to Section 11.13;  including any loss of anticipated profits and any loss or expense arising from the liquidation or  reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits  from which such funds were obtained.  The Borrower shall also pay any customary administrative fees  charged by such Lender in connection with the foregoing.  3.06 Mitigation Obligations; Replacement of Lenders.  (a) Designation of a Different Lending Office.  If any Lender requests compensation  under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts  to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the  L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then  at the request of the Borrower, such Lender or the L/C Issuer shall, as applicable, use reasonable  efforts to designate a different Lending Office for funding or booking its Loans hereunder or to  assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the  judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or  reduce amounts payable pursuant to Section 3.01 or Section 3.04, as the case may be, in the future,  or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case,  would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or  expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case  may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any  Lender or the L/C Issuer in connection with any such designation or assignment.  (b) Replacement of Lenders.  If any Lender requests compensation under Section 3.04,  or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender  or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each  case, such Lender has declined or is unable to designate a different lending office in accordance  with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 11.13.  3.07 Survival.    All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate  Commitments, repayment of all other Obligations hereunder, resignation of the Administrative Agent and  the Facility Termination Date.  ARTICLE IV    CONDITIONS PRECEDENT TO CREDIT EXTENSIONS  4.01 Conditions to Effectiveness and Initial Credit Extension.  The effectiveness of this Agreement and the obligation of the L/C Issuer and each Lender to make  its initial Credit Extension hereunder are subject to satisfaction (or waiver) of the following conditions  precedent:  (a) Execution of Credit Agreement; Loan Documents.  The Administrative Agent  shall have received counterparts of this Agreement and each other Loan Document to be executed  and delivered on the Closing Date, in each case each executed (i) by a Responsible Officer of the  signing Loan Party, and (ii) in the case of this Agreement, by each Lender and the L/C Issuer.   





 






  72  CHAR1\1823738v3  (b) Organization Documents, Resolutions, Etc.  The Administrative Agent shall have  received the following: (i) copies of the Organization Documents of each Loan Party certified to  be true and complete as of a recent date by the appropriate Governmental Authority of the  jurisdiction of its organization and certified by a Responsible Officer of such Loan Party to be true  and correct as of the Closing Date; (ii) such certificates of resolutions or other action, incumbency  certificates, and/or other certificates of Responsible Officers of each Loan Party as the  Administrative Agent may reasonably require evidencing the identity, authority and capacity of  each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this  Agreement and the other Loan Documents to which such Loan Party is a party; (iii) such documents  and certifications as the Administrative Agent may reasonably require to evidence that each Loan  Party is duly organized or formed, and is validly existing, in good standing and qualified to engage  in business in its jurisdiction of organization.  (c) Legal Opinions of Counsel.  The Administrative Agent shall have received an  opinion or opinions of counsel for the Loan Parties, dated the Closing Date and addressed to the  Administrative Agent and the Lenders, in form and substance acceptable to the Administrative  Agent.  (d) Financial Statements.  The Administrative Agent shall have received copies of (i)  the Audited Financial Statements, (ii) the Interim Financial Statements, and (iii) projections for the  five (5) Fiscal Years ending after the Closing Date, in form and substance satisfactory to the  Administrative Agent.  (e) No Material Adverse Effect.  Since December 31, 2020, there shall not have  occurred any event or condition that has had or could be reasonably expected, either individually  or in the aggregate, to have a Material Adverse Effect.  (f) Collateral Deliverables; Insurance.  The Administrative Agent shall have received:  (i)(A) searches of UCC filings in the jurisdiction of organization of each Loan Party and each  jurisdiction where any Collateral is located or where a filing would need to be made in order to  perfect the Administrative Agent’s security interest in the Collateral, copies of the financing  statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens,  and (B) tax lien and judgment searches; (ii) searches of ownership of registered and pending  Intellectual Property in the United States Copyright Office and the United States Patent and  Trademark Office and duly executed notices of grant of security interest in the form required by  the Collateral Documents as are necessary to perfect the Administrative Agent’s security interest  in such Intellectual Property; (iii) completed UCC financing statements for each appropriate  jurisdiction as is necessary to perfect the Administrative Agent’s security interest in the Collateral;  (iv) to the extent required to be delivered pursuant to the terms of the Collateral Documents, stock,  equity, share or membership certificates and endorsements of, or recordings of, or notations on,  such certificates evidencing Equity Interests pledged pursuant to the terms of the Collateral  Documents, together with, where applicable, undated stock or transfer powers duly executed in  blank; (v) to the extent required to be delivered pursuant to the terms of the Collateral Documents,  all instruments, documents and chattel paper in the possession of any of the Loan Parties, together  with allonges or assignments as may be necessary to perfect the Administrative Agent’s security  interest in the Collateral; and (vi) copies of insurance certificates and endorsements of insurance  evidencing insurance meeting the requirements set forth herein or in the Collateral Documents.  (g) Solvency Certificate.  The Administrative Agent shall have received a Solvency  Certificate signed by the chief financial officer of the Borrower certifying that the Borrower and its  Subsidiaries, on a Consolidated basis after giving effect to the Transactions, are Solvent.  





 






  73  CHAR1\1823738v3  (h) Officer’s Certificate.  The Administrative Agent shall have received a certificate  signed by a Responsible Officer of the Borrower certifying that (i) the conditions specified in  Sections 4.01(e) and (i) have been satisfied, and (ii) substantially concurrently with the Closing  Date, the Initial Public Offering shall be consummated.  (i) Accuracy of Representations and Warranties; No Default or Event of Default.   After giving effect to the Transactions, (i) no Default shall have occurred and be continuing, and  (ii) the representations and warranties of the Borrower and each other Loan Party contained in this  Agreement or any other Loan Document, or which are contained in any document furnished at any  time under or in connection herewith or therewith, shall (i) with respect to representations and  warranties that contain a materiality qualification, be true and correct on and as of the Closing Date,  except to the extent that such representations and warranties specifically refer to an earlier date, in  which case they shall be true and correct as of such earlier date, and (ii) with respect to  representations and warranties that do not contain a materiality qualification, be true and correct in  all material respects on and as of the Closing Date, except to the extent that such representations  and warranties specifically refer to an earlier date, in which case they shall be true and correct in  all material respects as of such earlier date.  (j) Existing Indebtedness.  Substantially concurrently with the Closing Date, all of the  existing Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness permitted to  exist pursuant to Section 7.02) shall be repaid in full, all commitments in connection therewith shall  be terminated, all guarantees, liens and security interests related thereto shall be terminated, and all  fees with respect thereto shall have been paid.  (k) Due Diligence; PATRIOT Act; Beneficial Ownership.  The Administrative Agent  and each Lender shall have completed a due diligence investigation of the Borrower and its  Subsidiaries in scope, and with results, satisfactory to the Administrative Agent or such Lender,  including U.S. Department of Treasury, Office of Foreign Assets Control, Foreign Corrupt  Practices Act and “know your customer” due diligence.  The Loan Parties shall have provided to  the Administrative Agent and each Lender the documentation and other information requested by  the Administrative Agent or such Lender in order to comply with applicable law, including the  PATRIOT Act.  If any Loan Party qualifies as a “legal entity customer” under the Beneficial  Ownership Regulation, such Loan Party shall deliver, to each Lender that so requests, a Beneficial  Ownership Certification in relation to such Loan Party.  (l) Fees.  The Administrative Agent shall have received all fees owing and required  to be paid on the Closing Date to the Administrative Agent, the Lenders, or the Arranger, as  applicable, pursuant to the Loan Documents (including the Fee Letter).  (m) Expenses.  The Loan Parties shall have paid all expenses of the Administrative  Agent required to be reimbursed by the Loan Parties, including the reasonable and documented  fees, charges and disbursements of Moore & Van Allen PLLC, as counsel to the Administrative  Agent (directly to such counsel if requested by the Administrative Agent), to the extent invoiced  prior to or on the Closing Date, plus such additional amounts of such reasonable fees, charges and  disbursements of Moore & Van Allen PLLC as shall constitute its reasonable estimate of such fees,  charges and disbursements incurred or to be incurred by it through the closing proceedings  (provided, that, such estimate shall not thereafter preclude a final settling of accounts among the  Loan Parties and the Administrative Agent).  Without limiting the generality of the provisions of Sections 9.03 and 9.04, for purposes of  determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this  





 






  74  CHAR1\1823738v3  Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each  document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory  to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the  proposed Closing Date specifying its objection thereto.  4.02 Conditions to all Credit Extensions.  The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension is  subject to the following conditions precedent:  (a) Representations and Warranties. The representations and warranties of the  Borrower and each other Loan Party contained in this Agreement or any other Loan Document, or  which are contained in any document furnished at any time under or in connection herewith or  therewith, shall (i) with respect to representations and warranties that contain a materiality  qualification, be true and correct on and as of the date of such Credit Extension, except to the extent  that such representations and warranties specifically refer to an earlier date, in which case they shall  be true and correct as of such earlier date, and (ii) with respect to representations and warranties  that do not contain a materiality qualification, be true and correct in all material respects on and as  of the date of such Credit Extension, except to the extent that such representations and warranties  specifically refer to an earlier date, in which case they shall be true and correct in all material  respects as of such earlier date, and except that for purposes of this Section 4.02(a), the  representations and warranties contained in Sections 5.05(a) and (b) shall be deemed to refer to the  most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively (it being  understood and agreed that the references to Arhaus LLC set forth in Sections 5.05(a) and (b) shall  be deemed to be references to the Borrower for such purpose).  (b) Default. No Default shall exist, or would result from such proposed Credit  Extension or from the application of the proceeds thereof.  (c) Request for Credit Extension. The Administrative Agent and, if applicable, the L/C  Issuer or the Swingline Lender, shall have received a Request for Credit Extension in accordance  with the requirements hereof.  Each Request for Credit Extension submitted by the Borrower shall be deemed to be a representation and  warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date  of the applicable Credit Extension.  ARTICLE V    REPRESENTATIONS AND WARRANTIES  Each Loan Party represents and warrants to the Administrative Agent, the Lenders and the L/C  Issuer, as of the date made or deemed made, that:  5.01 Existence, Qualification and Power.  Each Loan Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and,  as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b)  has all requisite power and authority and all requisite governmental licenses, authorizations, consents and  approvals to (i) own or lease its assets and carry on its business, and (ii) execute, deliver and perform its  obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and,  





 






  75  CHAR1\1823738v3  as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation  of properties or the conduct of its business requires such qualification or license; except in each case referred  to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a  Material Adverse Effect.  5.02 Authorization; No Contravention.  (a) The execution, delivery, and performance by each Loan Party of each Loan  Document to which such Person is or is to be a party have been duly authorized by all necessary  corporate or other organizational action.   (b) The execution, delivery, and performance by each Loan Party of each Loan  Document to which such Person is or is to be a party does not and will not (i) contravene the terms  of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention  of, or the creation of any Lien under (other than Permitted Liens), or require any payment to be  made under (A) any Contractual Obligation to which such Person is a party or affecting such Person  or the properties of such Person or any of its Subsidiaries, or (B) any order, injunction, writ or  decree of any Governmental Authority or any arbitral award to which such Person or its property  is subject, or (iii) violate any Law; except in each case referred to in clause (ii) or (iii) above, to the  extent that failure to do so would not, individually or in the aggregate, reasonably be expected to  have a Material Adverse Effect.  5.03 Governmental Authorization; Other Consents.  No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any  Governmental Authority or any other Person is necessary or required in connection with (a) the execution,  delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan  Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents,  (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the first  priority nature thereof), or (d) the exercise by the Administrative Agent or any Lender of its rights under  the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents,  other than (i) authorizations, approvals, actions, notices and filings which have been duly obtained, (ii)  filings to perfect the Liens created by the Collateral Documents, and (iii) authorizations, approvals, actions,  notices and filings the failure of which to obtain could not reasonably be expected, individually or in the  aggregate, to have a Material Adverse Effect.  5.04 Binding Effect.  Each Loan Document has been duly executed and delivered by each Loan Party that is party thereto.   Each Loan Document when so delivered constitutes a legal, valid and binding obligation of each Loan Party  that is party thereto, enforceable against each such Loan Party in accordance with its terms, subject to  applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights  generally and subject to general principles of equity.  5.05 Financial Statements; No Material Adverse Effect.  (a) The Audited Financial Statements (i) were prepared in accordance with GAAP  consistently applied throughout the period covered thereby, except as otherwise expressly noted  therein, and (ii) fairly present, in all material respects, the financial condition of Arhaus LLC and  its Subsidiaries as of the date thereof and their results of operations, cash flows and changes in  





 






  76  CHAR1\1823738v3  stockholders’ equity for the period covered thereby in accordance with GAAP consistently applied  throughout the period covered thereby, except as otherwise expressly noted therein.    (b) The Interim Financial Statements (i) were prepared in accordance with GAAP  consistently applied throughout the period covered thereby, except as otherwise expressly noted  therein, and (ii) fairly present, in all material respects, the financial condition of Arhaus LLC and  its Subsidiaries as of the date thereof and their results of operations, cash flows and changes in  stockholders’ equity for the period covered thereby, subject, in the case of clauses (i) and (ii), to  the absence of footnotes and to normal year-end audit adjustments.    (c) Since December 31, 2020, there has been no event or circumstance, either  individually or in the aggregate, that has had or could reasonably be expected to have a Material  Adverse Effect.    5.06 Litigation.  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the  Loan Parties, threatened or contemplated, at law, in equity, in arbitration or before any Governmental  Authority, by or against any Loan Party or any Subsidiary or against any of their properties or revenues that  (a) purport to affect or pertain to this Agreement or any other Loan Document, the Transactions or any of  the other transactions contemplated hereby, or (b) either individually or in the aggregate could reasonably  be expected to have a Material Adverse Effect.  5.07 No Default.  Neither any Loan Party nor any Subsidiary is in default under or with respect to, or a party to, any  Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect.  No Default has occurred and is continuing or would result from the consummation  of the Transactions or the other transactions contemplated by this Agreement or any other Loan Document.  5.08 Ownership of Property.  Each Loan Party and each of its Subsidiaries has good record and marketable title in fee simple to,  or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business,  except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have  a Material Adverse Effect.  5.09 Environmental Compliance.  Except as could not, individually or in the aggregate, reasonably be expected to result in any  Material Adverse Effect: (a)(i) none of the properties currently or formerly owned, leased or operated by  any Loan Party or any of its Subsidiaries is listed or formally proposed for listing on the NPL or on the  CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; (ii) there are no,  and to the best knowledge of the Loan Parties and their Subsidiaries never have been any, underground or  above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which  Hazardous Materials are being or have been treated, stored or disposed on any property currently owned,  leased or operated by any Loan Party or any of its Subsidiaries or, to the best of the knowledge of the Loan  Parties, on any property formerly owned, leased or operated by any Loan Party or any of its Subsidiaries;  (iii) there is no and, to the knowledge of the Loan Parties and their respective Subsidiaries, never has been  any, asbestos or asbestos-containing material on, at or in any property currently owned, leased or operated  by any Loan Party or any of its Subsidiaries; (iv) Hazardous Materials have not been released on, at, under  





 






  77  CHAR1\1823738v3  or from any property currently or formerly owned, leased or operated by any Loan Party or any of its  Subsidiaries or any property by or on behalf, or otherwise arising from the operations, of any Loan Party  or any of its Subsidiaries; and (v) no Loan Party or any of its Subsidiaries has become subject to any  Environmental Liability or knows of any facts or circumstances that could reasonably be expected to give  rise to any Environmental Liability; (b)(i) neither any Loan Party nor any of its Subsidiaries is undertaking,  and has not completed, either individually or together with other potentially responsible parties, any  investigation or assessment or remedial or response action relating to any actual or threatened Release of  Hazardous Materials at, on, under, or from any site, location or operation, either voluntarily or pursuant to  the order of any Governmental Authority or the requirements of any Environmental Law; and (ii) all  Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property  currently or formerly owned, leased or operated by any Loan Party or any of its Subsidiaries have been  disposed of in a manner which could not reasonably expected to result in liability to any Loan Party or any  of its Subsidiaries; and (c) the Loan Parties and their respective Subsidiaries: (i) are, and within the period  of all applicable statutes of limitation have been, in compliance with all applicable Environmental Laws;  (ii) hold all Environmental Permits (each of which is in full force and effect) required for any of their current  or intended operations or for any property owned, leased, or otherwise operated by any of them; (iii) are,  and within the period of all applicable statutes of limitation have been, in compliance with all of their  Environmental Permits; (iv) to the extent within the control of the Loan Parties and their respective  Subsidiaries, will timely renew and comply with each of their Environmental Permits and any additional  Environmental Permits that may be required of any of them without material expense, and timely comply  with any current, future or potential Environmental Law without material expense; and (v) are not, to the  Loan Parties’ knowledge, aware of any requirements proposed for adoption or implementation under any  Environmental Law.  5.10 Insurance.  The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable  insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering  such risks as are customarily carried by companies engaged in similar businesses and owning similar  properties in localities where the applicable Loan Party or the applicable Subsidiary operates.  5.11 Taxes.  Except as could not, individually or in the aggregate, reasonably be expected to result in any  Material Adverse Effect, each Loan Party and each of its Subsidiaries have timely (taking into account valid  extensions) filed all federal, state and other tax returns and reports required to be filed, and have timely paid  all federal, state and other Taxes (whether or not shown on a tax return), including in its capacity as a  withholding agent, levied or imposed upon them or their properties, income or assets otherwise due and  payable, except those which are being contested in good faith by appropriate proceedings diligently  conducted and for which adequate reserves have been provided in accordance with GAAP.  There is no  proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material  Adverse Effect, nor is there any tax sharing agreement applicable to the Borrower or any Subsidiary.  5.12 ERISA Compliance.  (a) Each Plan is in compliance in all material respects with the applicable provisions  of ERISA, the Code and other federal or state laws.  Each Pension Plan that is intended to be a  qualified plan under Section 401(a) of the Code has received a favorable determination letter or is  subject to a favorable opinion letter from the IRS to the effect that the form of such Plan is qualified  under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to  be exempt from federal income tax under Section 501(a) of the Code, or an application for such a  





 






  78  CHAR1\1823738v3  letter is currently being processed by the IRS.  To the knowledge of the Loan Parties, nothing has  occurred that would prevent, or cause the loss of, such tax-qualified status.  (b) There are no pending or, to the best knowledge of the Loan Parties, threatened  claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that  could reasonably be expected to have a Material Adverse Effect.  There has been no prohibited  transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted  or could reasonably be expected to result in a Material Adverse Effect.  (c) (i) No ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is  aware of any fact, event or circumstance that could reasonably be expected to constitute or result  in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) as of the most  recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in  Section 430(d)(2) of the Code) is sixty percent (60%) or higher and no Loan Party nor any ERISA  Affiliate knows of any facts or circumstances that could reasonably be expected to cause the  funding target attainment percentage for any such plan to drop below sixty percent (60%) as of the  most recent valuation date; (iii) no Loan Party nor any ERISA Affiliate has incurred any liability  to the PBGC other than for the payment of premiums, and there are no premium payments which  have become due that are unpaid; (iv) neither the Borrower nor any ERISA Affiliate has engaged  in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (v) no  Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event  or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to  institute proceedings under Title IV of ERISA to terminate any Pension Plan.  (d) As of the Closing Date, the Borrower is not and will not be using “plan assets”  (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with  respect to the Borrower’s entrance into, participation in, administration of and performance of the  Loans, the Letters of Credit, the Commitments or this Agreement.  5.13 Margin Regulations; Investment Company Act.  (a) Neither the Borrower nor any Subsidiary is engaged or will engage, principally or  as one of its important activities, in the business of purchasing or carrying margin stock (within the  meaning of Regulation U), or extending credit for the purpose of purchasing or carrying margin  stock.  Following the application of the proceeds of each Borrowing or drawing under each Letter  of Credit, not more than twenty-five percent (25%) of the value of the assets (either of the Borrower  only or of the Borrower and its Subsidiaries on a Consolidated basis) subject to the provisions of  Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument  between the Borrower or any Subsidiary and any Lender or any Affiliate of any Lender relating to  Indebtedness and within the scope of Section 8.01(e) will be margin stock.  (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is  or is required to be registered as an “investment company” under the Investment Company Act of  1940.    5.14 Disclosure.  No report, financial statement, certificate or other written information (other than projected  financial information and information of a general economic or industry-specific nature) furnished by or  on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the Transactions  and the other transactions contemplated hereby and the negotiation of this Agreement or delivered  





 






  79  CHAR1\1823738v3  hereunder or under any other Loan Document (in each case as modified or supplemented by other  information so furnished), when taken as a whole, contains any material misstatement of fact or omits to  state any material fact necessary to make the statements therein, in the light of the circumstances under  which they were made, not materially misleading.  All projected financial information furnished by or on  behalf of any Loan Party to the Administrative Agent or any Lender in connection with the Transactions  and the other transactions contemplated hereby and the negotiation of this Agreement, or delivered  hereunder or under any other Loan Document, has been prepared in good faith based upon assumptions  believed to be reasonable at the time such information was furnished.  As of the Closing Date, the  information included in any Beneficial Ownership Certification delivered to the Administrative Agent or  any Lender, if applicable, is true and correct in all respects.  5.15 Compliance with Laws.  Each Loan Party and each Subsidiary is in compliance with the requirements of all Laws and all  orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which  (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by  appropriate proceedings diligently conducted, or (b) the failure to comply therewith, either individually or  in the aggregate, could not reasonably be expected to have a Material Adverse Effect.  5.16 Solvency.  The Borrower and its Subsidiaries, on a Consolidated basis, are Solvent.  5.17 Sanctions Concerns and Anti-Corruption Laws.  (a) No Loan Party, nor any Subsidiary, nor, to the knowledge of the Loan Parties and  their Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an  individual or entity that is, or is owned or controlled by one or more individuals or entities that is,  (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially  Designated Nationals, or HMT’s Consolidated List of Financial Sanctions Targets, or any similar  list enforced by any other relevant sanctions authority, or (iii) located, organized or resident in a  Designated Jurisdiction.  The Borrower and its Subsidiaries have conducted their businesses in  compliance with all applicable Sanctions and have instituted and maintained policies and  procedures designed to promote and achieve compliance with such Sanctions.  (b) The Loan Parties and their Subsidiaries have conducted their business in  compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977,  the UK Bribery Act 2010, if applicable, and other applicable anti-corruption legislation in other  jurisdictions, and have instituted and maintained policies and procedures designed to promote and  achieve compliance with such laws.  5.18 Subsidiaries; Equity Interests; Loan Parties.  (a) Set forth on Schedule 5.18(a) is a complete and accurate list as of the Closing Date  of: (i) all Subsidiaries, joint ventures and partnerships and other equity investments of the Loan  Parties; (ii) the number of shares of each class of Equity Interests in each Subsidiary outstanding;  (iii) the number and percentage of outstanding shares of each class of Equity Interests owned by  the Loan Parties and their Subsidiaries; and (iv) the class or nature of such Equity Interests (i.e.  voting, non-voting, preferred, etc.).  The outstanding Equity Interests in all Subsidiaries are validly  issued, fully paid and non-assessable and are owned free and clear of all Liens, except (A) those  created under the Collateral Documents, and (B) any non-consensual Lien that is a Permitted Lien.  





 






  80  CHAR1\1823738v3  (b) Set forth on Schedule 5.18(b) is a complete and accurate list as of the Closing Date  of each Loan Party’s: (i) exact legal name; (ii) any former legal names in the four (4) months prior  to the Closing Date, if any; (iii) jurisdiction of its incorporation or organization, as applicable; (iv)  address of its chief executive office (and address of its principal place of business if different than  its chief executive office address); (v) U.S. federal taxpayer identification number; and (vi)  organization identification number, if any.  5.19 Collateral Representations.  (a) The provisions of the Collateral Documents are effective to create in favor of the  Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable first  priority Lien (subject to Permitted Liens) on all right, title and interest of the respective Loan Parties  in the Collateral described therein, subject to making filings and taking other actions to be  completed on or prior to the Closing Date or as contemplated hereby or by the Collateral  Documents.  Except for filings and other actions completed on or prior to the Closing Date or as  contemplated hereby or by the Collateral Documents, no filing or other action will be necessary to  perfect such Liens.  (b) Set forth on Schedule 5.19(b), as of the Closing Date, is a list of all Intellectual  Property registered or pending registration with the United States Copyright Office or the United  States Patent and Trademark Office and owned by each Loan Party as of the Closing Date.  Except  for such claims and infringements that would not reasonably be expected to have a Material  Adverse Effect, no claim has been asserted and is pending by any Person challenging or questioning  the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor  does any Loan Party know of any such claim, and the use of any Intellectual Property by any Loan  Party or any of its Subsidiaries or the granting of a right or a license in respect of any Intellectual  Property from any Loan Party or any of its Subsidiaries does not, to the best of any Loan Party’s  knowledge, infringe on the rights of any Person.  As of the Closing Date, none of the Intellectual  Property registered or pending registration with the United States Copyright Office or the United  States Patent and Trademark Office and owned by any of the Loan Parties is subject to any licensing  agreement or similar arrangement (other than non-exclusive outbound licenses entered into in the  ordinary course of business) except as set forth on Schedule 5.19(b).  5.20 Affected Financial Institutions.  No Loan Party is an Affected Financial Institution.  5.21 Covered Entities.  No Loan Party is a Covered Entity.  ARTICLE VI    AFFIRMATIVE COVENANTS  Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until  the Facility Termination Date:  6.01 Financial Statements.  





 






  81  CHAR1\1823738v3  The Borrower shall deliver to the Administrative Agent (for further distribution to each Lender), in  form and detail satisfactory to the Administrative Agent:  (a) As soon as available, but in any event within ninety (90) days after the end of each  Fiscal Year (or, if earlier, fifteen (15) days after the date required to be filed with the SEC (without  giving effect to any extension permitted by the SEC)), commencing with the Fiscal Year ending  December 31, 2021, a Consolidated balance sheet of the Borrower and its Subsidiaries as at the end  of such Fiscal Year, and the related Consolidated statements of income, changes in stockholders’  equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the  figures for the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP,  audited and accompanied by a report and opinion of an independent certified public accountant of  nationally recognized standing reasonably acceptable to the Administrative Agent, which report  and opinion shall be prepared in accordance with generally accepted auditing standards and shall  not be subject to any “going concern” or like qualification or exception or any qualification or  exception as to the scope of such audit.   (b) As soon as available, but in any event within forty-five (45) days after the end of  each of the first three (3) Fiscal Quarter of each Fiscal Year (or, if earlier, five (5) days after the  date required to be filed with the SEC, (without giving effect to any extension permitted by the  SEC)), commencing with the Fiscal Quarter ending March 31, 2022, a Consolidated balance sheet  of the Borrower and its Subsidiaries as at the end of such Fiscal Quarter, and the related  Consolidated statements of income, changes in stockholders’ equity and cash flows for such Fiscal  Quarter and for the portion of the Fiscal Year then ended, setting forth in each case in comparative  form the figures for the corresponding Fiscal Quarter of the previous Fiscal Year and the  corresponding portion of the previous Fiscal Year, all in reasonable detail and prepared in  accordance with GAAP, certified by the chief executive officer, chief financial officer, treasurer or  controller who is a Responsible Officer of the Borrower as fairly presenting, in all material respects,  the financial condition, results of operations, stockholders’ equity and cash flows of the Borrower  and its Subsidiaries, subject only to normal year-end audit adjustments and the absence of  footnotes.  (c) As soon as available, but in any event no later than ninety (90) days after the  beginning of each Fiscal Year, projections and a budget for the Borrower and its Subsidiaries on a  Consolidated basis (including a balance sheet and related statements of income and cash flows), on  a quarterly basis for such Fiscal Year.  (d) As soon as available, but in any event by no later than November 14, 2021, a  Consolidated balance sheet of Arhaus LLC and its Subsidiaries as at the end of the Fiscal Quarter  ended September 30, 2021, and the related Consolidated statements of income, changes in  stockholders’ equity and cash flows for such Fiscal Quarter and for the portion of the Fiscal Year  then ended, setting forth in each case in comparative form the figures for the corresponding Fiscal  Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, all  in reasonable detail and prepared in accordance with GAAP, certified by the chief executive officer,  chief financial officer, treasurer or controller who is a Responsible Officer of the Borrower as fairly  presenting, in all material respects, the financial condition, results of operations, stockholders’  equity and cash flows of Arhaus LLC and its Subsidiaries, subject only to normal year-end audit  adjustments and the absence of footnotes.  As to any information contained in materials furnished pursuant to Section 6.02(c), the Borrower shall not  be separately required to furnish such information under Section 6.01(a), Section 6.01(b), Section 6.01(d),  or Section 6.02(a)(ii), but the foregoing shall not be in derogation of the obligation of the Borrower to  





 






  82  CHAR1\1823738v3  furnish the information and materials described in Sections 6.01(a), (b) and (d) and Section 6.02(a)(ii) at  the times specified therein.  6.02 Certificates; Other Information.  Each Loan Party shall, and shall cause each of its Subsidiaries to, deliver to the Administrative  Agent (for further distribution to each Lender), in form and detail satisfactory to the Administrative Agent:  (a) Concurrently with the delivery of the financial statements referred to in Sections  6.01(a) and (b), (i) a duly completed Compliance Certificate signed by the chief executive officer,  chief financial officer, treasurer or controller which is a Responsible Officer of the Borrower (it  being understood and agreed that unless the Administrative Agent or a Lender requests executed  originals, delivery of the Compliance Certificate may be by electronic communication including  fax or email and shall be deemed to be an original and authentic counterpart thereof for all  purposes), including (A) a certification that no Default has occurred and is continuing (or, if a  Default has occurred and is continuing, describing the nature and status of each such Default and  actions that have been taken or are proposed to be taken to cure such Default), (B) a certification  of compliance with the financial covenants set forth in Section 7.11, including financial covenant  calculations for the period covered by the Compliance Certificate, and (C) a listing of (1) all  applications with the United States Patent and Trademark Office or the United States Copyright  Office by any Loan Party, if any, for any Intellectual Property made since the date of the most  recent prior Compliance Certificate (or, in the case of the first Compliance Certificate delivered  after the Closing Date pursuant to this Section 6.02(a), the Closing Date), (2) all issuances of  registrations or letters on existing applications with the United States Patent and Trademark Office  or the United States Copyright Office by any Loan Party, if any, for any Intellectual Property  received since the date of the most recent prior Compliance Certificate (or, in the case of the first  Compliance Certificate delivered after the Closing Date pursuant to this Section 6.02(a), the  Closing Date), and (3) all licenses (other than non-exclusive outbound licenses entered into in the  ordinary course of business) entered into by any Loan Party since the date of the most recent prior  Compliance Certificate (or, in the case of the first Compliance Certificate delivered after the  Closing Date pursuant to this Section 6.02(a), the Closing Date) relating to any Intellectual Property  owned by any Loan Party and registered with the United States Patent and Trademark Office or the  United States Copyright Office, and (ii) a copy of management’s discussion and analysis with  respect to such financial statements.    (b) Promptly after any request by the Administrative Agent or any Lender, copies of  any detailed audit reports, management letters or recommendations submitted to the board of  directors (or the audit committee of the board of directors) of any Loan Party by independent  accountants in connection with the accounts or books of any Loan Party or any of its Subsidiaries,  or any audit of any of them.  (c) Promptly after the same are sent or filed, copies of each annual report, proxy or  financial statement or other report or communication sent to the stockholders of any Loan Party,  and copies of all annual, regular, periodic and special reports and registration statements which any  Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities  Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise  required to be delivered to the Administrative Agent pursuant hereto.  (d) Promptly after the furnishing thereof, copies of any statement or report furnished  to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms  of any indenture, loan or credit or similar agreement governing Indebtedness with in an aggregate  





 






  83  CHAR1\1823738v3  principal amount in excess of the Threshold Amount and not otherwise required to be furnished to  the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02.  (e) Promptly after receipt thereof by any Loan Party or any Subsidiary, copies of each  notice or other correspondence received from the SEC (or comparable agency in any applicable  non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by  such agency regarding financial or other operational results of any Loan Party or any Subsidiary.  (f) Promptly following any request therefor, information and documentation  reasonably requested by the Administrative Agent or any Lender for purposes of compliance with  applicable “know your customer” and anti-money-laundering rules and regulations, including the  PATRIOT Act and the Beneficial Ownership Regulation.  (g) To the extent any Loan Party qualifies as a “legal entity customer” under the  Beneficial Ownership Regulation, an updated Beneficial Ownership Certification promptly  following any change in the information provided in any Beneficial Ownership Certification  delivered to the Administrative Agent or any Lender in relation to such Loan Party that would result  in a change to the list of beneficial owners identified in such certification.  (h) Concurrently with the delivery of the financial statements referred to in Section  6.01(d), a certificate from the chief executive officer, chief financial officer, treasurer or controller  which is a Responsible Officer of the Borrower certifying that as of September 30, 2021, for the  Measurement Period ending on September 30, 2021, (i) the Consolidated Rent-Adjusted Total  Leverage Ratio is not greater than 3.50 to 1.0, and (ii) the Consolidated Fixed Charge Coverage  Ratio is not less than 1.20 to 1.0.  (i) Promptly, such additional information regarding the business, financial, legal or  corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan  Documents, as the Administrative Agent or any Lender may from time to time reasonably request.  Documents required to be delivered pursuant to Section 6.01(a), (b) or (d) or Section 6.02(c) (to the extent  any such documents are included in materials otherwise filed with the SEC) may be delivered electronically  and if so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts  such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address  listed on Schedule 1.01(a), or (b) on which such documents are posted on the Borrower’s behalf on an  Internet or intranet website, if any, to which each Lender and the Administrative Agent have access  (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided,  that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any  Lender upon its reasonable request to the Borrower to deliver such paper copies until a written request to  cease delivering paper copies is given by the Administrative Agent or such Lender, and (ii) the Borrower  shall notify the Administrative Agent and each Lender (by e-mail transmission) of the posting of any such  documents and provide to the Administrative Agent by e-mail electronic versions (i.e., soft copies) of such  documents.  The Administrative Agent shall have no obligation to request the delivery of or to maintain  paper copies of the documents referred to above, and in any event shall have no responsibility to monitor  compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely  responsible for requesting delivery to it or maintaining its copies of such documents.  The Borrower hereby acknowledges that (a) the Administrative Agent and/or an Affiliate thereof may, but  shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information  provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the  Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially similar electronic transmission  





 






  84  CHAR1\1823738v3  system (the “Platform”), and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who  do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the  respective securities of any of the foregoing, and who may be engaged in investment and other market- related activities with respect to such Persons’ securities.  The Borrower hereby agrees that it will use  commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed  to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked  “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first  page thereof, (ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have  authorized the Administrative Agent, any Affiliate thereof, the Arranger, the L/C Issuer and the Lenders to  treat such Borrower Materials as not containing any material non-public information (although it may be  sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States federal  and state securities laws (provided, that, to the extent such Borrower Materials constitute Information, they  shall be treated as set forth in Section 11.07), (iii) all Borrower Materials marked “PUBLIC” are permitted  to be made available through a portion of the Platform designated “Public Side Information,” and (iv) the  Administrative Agent and any Affiliate thereof and the Arranger shall be entitled to treat any Borrower  Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not  designated “Public Side Information.”  Notwithstanding the foregoing, the Borrower shall be under no  obligation to mark any Borrower Materials “PUBLIC”.  6.03 Notices.  Each Loan Party shall, and shall cause each of its Subsidiaries to, promptly, but in any event within  two (2) Business Days, notify the Administrative Agent (and, upon receipt of any such notice, the  Administrative Agent shall notify each Lender) of:  (a) the occurrence of any Default;  (b) any matter that has resulted or could reasonably be expected to result in a Material  Adverse Effect;  (c) the occurrence of any ERISA Event; or  (d) any material change in accounting policies or financial reporting practices by any  Loan Party or any Subsidiary, including any determination by the Borrower referred to in Section  2.10(b).  Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible  Officer of the Borrower setting forth details of the occurrence referred to therein and to the extent  applicable, stating what action the Borrower has taken and proposes to take with respect thereto.  Each  notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement  and any other Loan Document that have been breached.  6.04 Payment of Taxes.  Except as would not, individually or in the aggregate, reasonably be expected to have a Material  Adverse Effect, each Loan Party shall, and shall cause each of its Subsidiaries to, pay and discharge as the  same shall become due and payable, all tax liabilities, assessments and governmental charges or levies upon  it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings  diligently conducted and adequate reserves in accordance with GAAP are being maintained by the  Borrower or such Subsidiary.  





 






  85  CHAR1\1823738v3  6.05 Preservation of Existence, Etc.  (a) Each Loan Party shall, and shall cause each of its Subsidiaries to, preserve, renew  and maintain in full force and effect its legal existence and good standing under the Laws of the  jurisdiction of its organization, except in a transaction permitted by Section 7.04 or Section 7.05.  (b) Each Loan Party shall, and shall cause each of its Subsidiaries to, take all  reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or  desirable in the normal conduct of its business, except to the extent that failure to do so could not  reasonably be expected to have a Material Adverse Effect.  (c) Each Loan Party shall, and shall cause each of its Subsidiaries to, preserve or renew  all of its registered Intellectual Property, the non-preservation of which could reasonably be  expected to have a Material Adverse Effect.  6.06 Maintenance of Properties.  Except as would not, individually or in the aggregate, reasonably be expected to have a Material  Adverse Effect, each Loan Party shall, and shall cause each of its Subsidiaries to, (a) maintain, preserve  and protect all of its material properties and equipment necessary in the operation of its business in good  working order and condition, ordinary wear and tear and Involuntary Dispositions excepted, and (b) make  all necessary repairs thereto and renewals and replacements thereof.  6.07 Maintenance of Insurance.  (a) Each Loan Party shall, and shall cause each of its Subsidiaries to, maintain with  financially sound and reputable insurance companies not Affiliates of the Borrower, insurance with  respect to its properties and business against loss or damage of the kinds customarily insured against  by Persons engaged in the same or similar business, of such types and in such amounts as are  customarily carried under similar circumstances by such other Persons.  (b) Each Loan Party shall, and shall cause each of its Subsidiaries to, (i) cause the  Administrative Agent to be named as lenders’ loss payable and/or additional insured with respect  of any insurance providing liability coverage or coverage in respect of any Collateral, and use  commercially reasonable efforts to cause, unless otherwise agreed to by the Administrative Agent,  each provider of any such insurance to agree, by endorsement upon the policy or policies issued by  it or by independent instruments furnished to the Administrative Agent that it will give the  Administrative Agent thirty (30) days prior written notice before any such policy or policies shall  lapse, terminate or be cancelled (or ten (10) days prior notice in the case of cancellation due to the  nonpayment of premiums), and (ii) annually, upon expiration of current insurance coverage,  provide, or cause to be provided, to the Administrative Agent, such evidence of insurance as  required by the Administrative Agent, including, but not limited to, (A) evidence of such insurance  policies (including, as applicable, ACORD Form 28 certificates (or similar form of insurance  certificate) and ACORD Form 25 certificates (or similar form of insurance certificate)), and (B)  endorsements naming the Administrative Agent as lenders’ loss payable and/or additional insured  with respect of any such insurance.  6.08 Compliance with Laws.  Each Loan Party shall, and shall cause each of its Subsidiaries to, comply with the requirements of  all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except  





 






  86  CHAR1\1823738v3  in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested  in good faith by appropriate proceedings diligently conducted, or (b) the failure to comply therewith could  not reasonably be expected to have a Material Adverse Effect.   6.09 Books and Records.  Each Loan Party shall, and shall cause each of its Subsidiaries to, (a) maintain proper books of  record and account, in which full, true and correct (in all material respects) entries in conformity with GAAP  consistently applied shall be made of all financial transactions and matters involving the assets and business  of such Loan Party or such Subsidiary, as the case may be; and (b) maintain such books of record and  account in material conformity with all applicable requirements of any Governmental Authority having  regulatory jurisdiction over such Loan Party or such Subsidiary, as the case may be.  6.10 Inspection Rights.  Each Loan Party shall, and shall cause each of its Subsidiaries to, permit representatives and  independent contractors of the Administrative Agent and each Lender to visit and inspect any of its  properties to examine its corporate, financial and operating records, and make copies thereof or abstracts  therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent  public accountants, all at the expense of the Borrower and at such reasonable times during normal business  hours and no more than once per calendar year, upon reasonable advance notice to the Borrower; provided,  that, when an Event of Default exists, the Administrative Agent or any Lender (or any of their respective  representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at  any time, and as often as may be desired, during normal business hours and without advance notice;  provided, further, that, notwithstanding anything to the contrary herein, neither the Borrower nor any of its  Subsidiaries shall be required to disclose, permit the inspection, examination or making of copies of or  taking abstracts from, or discuss any document, information or other matter (a) that constitutes non- financial trade secrets or non-financial proprietary information of the Borrower and its Subsidiaries (and/or  any such information of any of their respective customers and/or suppliers), (b) in respect of which  disclosure to the Administrative Agent or any Lender (or any of their respective representatives or agents)  is prohibited by applicable Law, (c) that is subject to attorney-client or similar privilege or constitutes  attorney work product, or (d) in respect of which the Borrower or such Subsidiary owes confidentiality  obligations (to the extent not created in contemplation of the Borrower’s or such Subsidiary’s obligations  under this Section 6.10) to any third party.  6.11 Use of Proceeds.  Each Loan Party shall, and shall cause each of its Subsidiaries to, use the proceeds of the Credit  Extensions to finance working capital and for other general corporate purposes; provided, that, in no event  shall the proceeds of any Credit Extension be used in contravention of any Law or of any Loan Document.  6.12 Covenant to Guarantee Obligations.  Each Loan Party shall, and shall cause each of its Subsidiaries to, within thirty (30) days (or such  longer period of time as is agreed to by the Administrative Agent in its sole discretion) after the acquisition  or formation of any Subsidiary (or, with respect to any existing Subsidiary that is an Immaterial Subsidiary,  within thirty (30) days (or such longer period of time as is agreed to by the Administrative Agent in its sole  discretion) after such Subsidiary ceases to be an Immaterial Subsidiary), cause any such Subsidiary that is  a Domestic Subsidiary (other than any Immaterial Subsidiary or any CFC Holdco) to become a Guarantor  hereunder by way of execution of a Joinder Agreement in form and substance satisfactory to the  Administrative Agent and, in connection with the foregoing, deliver to the Administrative Agent, with  





 






  87  CHAR1\1823738v3  respect to each new Guarantor, substantially the same documentation required pursuant to Sections 4.01(b),  (f), and (k), Section 6.13, and, to the extent requested by the Administrative Agent, opinions of counsel to  such Person, and such other deliveries reasonably deemed necessary in connection therewith, all in form,  content and scope reasonably satisfactory to the Administrative Agent.  6.13 Covenant to Give Security.  Each Loan Party shall:  (a) Cause (i) one hundred percent (100%) of the issued and outstanding Equity  Interests directly owned by such Loan Party in each of its Domestic Subsidiaries (other than CFC  Holdcos), and (ii) sixty-five percent (65%) of the issued and outstanding Equity Interests entitled  to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and one hundred percent (100%)  of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas.  Reg. Section 1.956-2(c)(2)), in each case, directly owned by such Loan Party in each of its Foreign  Subsidiaries and in each CFC Holdco, in each case, to be subject at all times to a first priority,  perfected Lien in favor of the Administrative Agent, for the benefit of the Secured Parties, to secure  the Secured Obligations, pursuant to the terms and conditions of the Collateral Documents, together  with, to the extent requested by the Administrative Agent, opinions of counsel and any filings and  deliveries necessary in connection therewith to perfect the security interests therein, all in form and  substance satisfactory to the Administrative Agent.  (b) Cause all property of such Loan Party (other than Excluded Property of such Loan  Party) to be subject at all times to first priority (subject only to Permitted Liens), perfected Liens  in favor of the Administrative Agent, for the benefit of the Secured Parties, to secure the Secured  Obligations pursuant to the Collateral Documents or, with respect to any such property acquired  subsequent to the Closing Date, such other additional security documents as the Administrative  Agent shall reasonably request and, in connection with the foregoing, deliver to the Administrative  Agent such other documentation as the Administrative Agent may reasonably request including  filings and deliveries necessary to perfect such Liens, Organization Documents, resolutions, and,  to the extent requested by the Administrative Agent, favorable opinions of counsel, all in form,  content and scope reasonably satisfactory to the Administrative Agent.  6.14 Further Assurances.  Each Loan Party shall, and shall cause each of its Subsidiaries to, promptly upon request by the  Administrative Agent, or any Lender through the Administrative Agent, (a) correct any material defect or  error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or  recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and  re-register any and all such further acts, deeds, certificates, assurances and other instruments as the  Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time  to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) subject any Loan  Party’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of  the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the  Collateral Documents and any of the Liens intended to be created thereunder, and (iv) assure, convey, grant,  assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted  or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any  other instrument executed in connection with any Loan Document to which any Loan Party is or is to be a  party.  6.15 Anti-Corruption Laws; Sanctions.  





 






  88  CHAR1\1823738v3  Each Loan Party shall, and shall cause each of its Subsidiaries to, (a) conduct its business in  compliance in all material respects with (i) the United States Foreign Corrupt Practices Act of 1977, the  UK Bribery Act 2010 and other similar anti-corruption legislation in other jurisdictions, and (ii) all  applicable Sanctions, and (b) maintain policies and procedures designed to promote and achieve compliance  with (i) the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar  anti-corruption legislation in other jurisdictions, and (ii) all applicable Sanctions.  ARTICLE VII    NEGATIVE COVENANTS  Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until  the Facility Termination Date, no Loan Party shall, nor shall it permit any Subsidiary to:  7.01 Liens.  Directly or indirectly create, incur, assume or suffer to exist any Lien upon any of its property,  assets or revenues, whether now owned or hereafter acquired, except for the following (the “Permitted  Liens”):  (a) Liens pursuant to any Loan Document;  (b) (i) Liens existing on the Closing Date and listed on Schedule 7.01; and (ii) any  extension, renewal or replacement thereof; provided, that, in connection with any such extension,  renewal or replacement, (A) the property covered thereby is not changed, (B) the amount secured  or benefited thereby is not increased, (C) the direct or any contingent obligor with respect thereto  is not changed, and (D) any extension, renewal or replacement of the obligations secured or  benefited thereby is a Permitted Refinancing permitted by Section 7.02(b);  (c) Liens securing Indebtedness permitted under Section 7.02(c); provided, that: (i)  such Liens do not at any time encumber any property other than the property financed by such  Indebtedness together with any accessions thereto and proceeds thereof, and (ii) such Liens attach  to such property concurrently with or within two hundred seventy (270) days after the acquisition  thereof;  (d) Liens for taxes not yet due and payable or which are being contested in good faith  by appropriate proceedings diligently pursued; provided, that, (i) any proceedings commenced for  the enforcement of such Liens shall have been stayed or suspended within thirty (30) days of the  commencement thereof, and (ii) provision for the payment of all such taxes has been made on the  books of such Person to the extent required by GAAP;  (e) mechanic’s, processor’s, materialman’s, carrier’s, warehousemen’s, landlord’s  and similar Liens arising by operation of Law and arising in the ordinary course of business and  securing obligations of such Person that are not overdue for a period of more than ninety (90) days  or are being contested in good faith by appropriate proceedings diligently pursued; provided, that,  (i) any proceedings commenced for the enforcement of such Liens shall have been stayed or  suspended within sixty (60) days of the commencement thereof, and (ii) provision for the payment  of such Liens has been made on the books of such Person to the extent required by GAAP;  (f) Liens arising in connection with worker’s compensation, unemployment  insurance, old age pensions and social security benefits (other than Liens imposed by ERISA)  





 






  89  CHAR1\1823738v3  which are not overdue or are being contested in good faith by appropriate proceedings diligently  pursued; provided, that, (i) any proceedings commenced for the enforcement of such Liens shall  have been stayed or suspended within sixty (60) days of the commencement thereof, and (ii)  provision for the payment of such Liens has been made on the books of such Person to the extent  required by GAAP;  (g) Liens (i) incurred or deposits made in the ordinary course of business to secure the  performance of bids, tenders, statutory obligations, fee and expense arrangements with trustees and  fiscal agents (exclusive of obligations incurred in connection with the borrowing of money or the  payment of the deferred purchase price of property) and customary deposits granted in the ordinary  course of business under operating leases, (ii) incurred or deposits made securing workers’  compensation claims and related obligations and obligations in respect of surety, indemnity,  performance, appeal and release bonds incurred in the ordinary course of business, or (iii) incurred  or deposits made securing obligations owing to credit card processors in the ordinary course of  business; provided, that, in each case, full provision for the payment of all such obligations has  been made on the books of such Person to the extent required by GAAP;  (h) Permitted Real Property Encumbrances;  (i) attachment, judgment or other similar Liens arising in connection with court or  arbitration proceedings to the extent not constituting an Event of Default;  (j) leases or subleases granted to others not interfering in any material respect with  the business of the Borrower or any of its Subsidiaries and any interest or title of a lessor under any  lease permitted by the Loan Documents;  (k) customary rights of set off, revocation, refund or chargeback under deposit  agreements or under the UCC of banks or other financial institutions where the Borrower or any of  its Subsidiaries maintains deposits in the ordinary course of business permitted by the Loan  Documents;  (l) landlord’s Liens created pursuant to any lease entered into by the Borrower or any  of its Subsidiaries with a landlord in the ordinary course of business; provided, that, such Liens (i)  only encumber assets at the applicable leased property (and do not otherwise encumber other assets  of the Borrower and its Subsidiaries), and (ii) are granted solely to secure obligations arising under  such lease that are owing by the Borrower or such Subsidiary to the landlord under such lease (and  do not, in any event, secure any Indebtedness);  (m) Liens securing Indebtedness permitted pursuant to Section 7.02(d); provided, that,  (i) such Lien is not created in contemplation of or in connection with such acquisition, (ii) such  Lien shall not apply to any other property of the Borrower or any Subsidiary, and (iii) such Lien  shall secure only those obligations it secures on the date of acquisition;  (n) licenses (including non-exclusive licenses of Intellectual Property otherwise  permitted pursuant to this Agreement) or sublicenses granted to third parties in the ordinary course  of business and not interfering in any material respect with the business of the Borrower or any of  its Subsidiaries;  (o) Liens in favor of customs and revenue authorities arising as a matter of law which  secure payment of customs duties in connection with the importation of goods;  





 






  90  CHAR1\1823738v3  (p) any interest of title of a lessor under, and Liens arising from UCC financing  statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to,  any lease permitted pursuant to this Agreement and entered into by the Borrower or any Subsidiary  in the ordinary course of business;  (q) Liens arising from precautionary UCC financing statements (or equivalent filings,  registrations or agreements in foreign jurisdictions), but only to the extent such filing do not  evidence Liens securing Indebtedness;  (r) Liens (i) attaching solely to cash earnest money deposits in connection with any  letter of intent or purchase agreement entered into in connection with any Investment permitted  pursuant to Section 7.03, or (ii) constituting an agreement to Dispose of any property in a  Disposition permitted pursuant to Section 7.05;  (s) Liens (i) arising out of conditional sale, title retention, consignment or similar  arrangements for sale of goods entered into by the Borrower or any of its Subsidiaries in the  ordinary course of business, or (ii) relating to purchase orders and other agreements entered into  with customers of the Borrower or any Subsidiary in the ordinary course of business;  (t) Liens on insurance policies and the proceeds thereof securing the financing of the  premiums with respect thereto;  (u) until the date that is forty-five (45) days following the Closing Date (or such longer  period of time as is agreed by the Administrative Agent in its sole discretion), Liens granted by  Arhaus, LLC in favor of the U.S. Small Business Administration; provided, that, (i) the aggregate  amount of Indebtedness and other obligations secured by such Liens shall not exceed $0.00 at any  time outstanding, and (ii) by the date that is no later than forty-five (45) days following the Closing  Date (or such longer period of time as is agreed by the Administrative Agent in its sole discretion),  the Borrower shall deliver to the Administrative Agent evidence, in form and substance reasonably  satisfactory to the Administrative Agent, that such Indebtedness and other obligations have been  repaid in full (or such Indebtedness and obligations were never incurred) and that such Liens have  been terminated and released (including a file-stamped UCC-3 termination statement evidencing  the termination of the UCC-1 financing statement (file number OH00244714794) filed with the  Ohio Secretary of State on August 1, 2020); and  (v) other Liens not permitted by the foregoing clauses of this Section 7.01 securing  Indebtedness or other obligations permitted pursuant to this Agreement in an aggregate principal  amount at any one time outstanding not to exceed $10,000,000.  7.02 Indebtedness.  Directly or indirectly create, incur, assume or suffer to exist any Indebtedness, except:  (a) Indebtedness under the Loan Documents;  (b) Indebtedness outstanding on the Closing Date and listed on Schedule 7.02 (and  any Permitted Refinancing thereof);  (c) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and  purchase money obligations incurred to finance the purchase of fixed assets or to provide all or a  portion of the purchase price or cost of construction for an asset, and any Permitted Refinancing  





 






  91  CHAR1\1823738v3  thereof; provided, that, (i) the aggregate principal amount of all such Indebtedness shall not exceed  $75,000,000 at any one time outstanding, and (ii) such Indebtedness when initially incurred shall  not exceed the purchase price of the asset(s) financed or cost of construction of the asset;  (d) Indebtedness of any Person acquired after the Closing Date in a Permitted  Acquisition or other Acquisition permitted pursuant to Section 7.03 (and any Permitted Refinancing  thereof), in each case to the extent such Indebtedness was existing at the time of such Permitted  Acquisition or such other Acquisition; provided, that, (i) such Indebtedness shall not have been  incurred in contemplation of such Permitted Acquisition or such other Acquisition, and (ii) the  aggregate principal amount of all such Indebtedness outstanding at any one time shall not exceed  $10,000,000;  (e) (i) Indebtedness consisting of Contingent Acquisition Obligations incurred in  connection with Acquisitions or other Investments permitted pursuant to Section 7.03; and (ii) to  the extent constituting Indebtedness, Contingent Disposition Obligations incurred in connection  with Dispositions permitted pursuant to Section 7.05;  (f) intercompany Indebtedness permitted pursuant to Section 7.03 (“Intercompany  Debt”); provided, that, in the case of Indebtedness owing by a Loan Party to any Subsidiary that is  not a Loan Party, (i) such Indebtedness shall be subordinated to the Secured Obligations in a manner  and to the extent acceptable to the Administrative Agent, and (ii) such Indebtedness shall not be  prepaid unless no Default exists immediately prior to and after giving effect to such prepayment;  (g) obligations (contingent or otherwise) existing or arising under any Swap Contract;  provided, that, (i) such obligations are (or were) entered into by such Person in the ordinary course  of business for the purpose of directly mitigating risks associated with liabilities, commitments,  investments, assets, or property held or reasonably anticipated by such Person, or changes in the  value of securities issued by such Person, and not for purposes of speculation or taking a “market  view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting  party from its obligation to make payments on outstanding transactions to the defaulting party;  (h) (i) Indebtedness under Secured Cash Management Agreements; (ii) Indebtedness  under other Cash Management Agreements in an aggregate principal amount not to exceed  $1,300,000 at any time outstanding; and (iii) Indebtedness consisting of obligations owing to credit  card processors incurred in the ordinary course of business;  (i) (i) Guarantees with respect to Indebtedness of any Loan Party otherwise permitted  pursuant to this Section 7.02, and (ii) Guarantees consisting of a guarantee of any obligation (other  than Indebtedness) performable by the Borrower or any Subsidiary;  (j) Indebtedness in respect of workers’ compensation claims, self-insurance  obligations, performance bonds, customs, stay, surety, appeal or similar bonds and completion  guarantees provided by the Borrower and its Subsidiaries in the ordinary course of business;  (k) accrued or deferred expenses (including salaries, accrued vacation and other  compensation) arising in the ordinary course of business;  (l) Indebtedness consisting of obligations owing under any dealer, customer or  supplier incentive, supply, license or similar agreements entered into in the ordinary course of  business;  





 






  92  CHAR1\1823738v3  (m) to the extent constituting Indebtedness, customer deposits and advance payments  received in the ordinary course of business from customers for goods and services purchased in the  ordinary course of business;  (n) Indebtedness consisting of the financing of insurance premiums in the ordinary  course of business;  (o) Indebtedness not permitted by any of the foregoing clauses of this Section 7.02 in  an aggregate principal amount at any one time outstanding not to exceed $15,000,000; and  (p) all premiums (if any), interest (including post-petition interest), fees, expenses,  charges and additional or contingent interest on obligations incurred in reliance on Sections 7.02(a)  through (o).  7.03 Investments.  Directly or indirectly make or hold any Investments, except:  (a) Investments in the form of cash and Cash Equivalents;  (b) Investments existing as of the Closing Date and set forth on Schedule 7.03 and any  modification, replacement, renewal, reinvestment or extension thereof so long as the amount of the  original Investment is not increased in connection with such modification, replacement, renewal,  reinvestment or extension (unless such increase is otherwise permitted pursuant to another clause  of this Section 7.03);  (c) Investments in any Person that is a Loan Party prior to, or simultaneously with,  giving effect to such Investment;  (d) Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that  is not a Loan Party;  (e) loans and advances to officers, directors, consultants and employees of the  Borrower or any Subsidiary (i) made in the ordinary course of business, or (ii) made in connection  with such Person’s purchase of Equity Interests of the Borrower; provided, that, the aggregate  principal amount of all such loans and advances shall not exceed $1,000,000 at any one time  outstanding;  (f) Investments (i) consisting of extensions of credit in the nature of accounts  receivable or notes receivable arising from the grant of trade credit in the ordinary course of  business, or (ii) received in connection with the bankruptcy or reorganization of suppliers and  customers of the Borrower or any Subsidiary and in the settlement of delinquent obligations of, and  other disputes with, customers and suppliers of the Borrower or any Subsidiary arising in the  ordinary course of business;  (g) Swap Contracts permitted by Section 7.02(g);  (h) Permitted Acquisitions;  (i) (i) Guarantees permitted by Section 7.02 (other than by reference to this Section  7.03 (or any clause hereof)); and (ii) to the extent constituting Investments, the creation of Permitted  





 






  93  CHAR1\1823738v3  Liens, the consummation of fundamental changes permitted pursuant to Section 7.04, the  consummation of Dispositions permitted pursuant to Section 7.05, and the making of Restricted  Payments permitted pursuant to Section 7.06 (in each case, other than by reference to this Section  7.03 (or any clause hereof));  (j) Investments held by any Person that becomes a Subsidiary after the Closing Date  in a transaction permitted pursuant to this Agreement, to the extent that such Investments (i) were  in existence at the time such Person became a Subsidiary, and (ii) were not made in contemplation  of, or in connection with, such Person becoming a Subsidiary;  (k) promissory notes and other non-cash consideration received in connection with  any Disposition permitted pursuant to Section 7.05;  (l) Investments made with (i) net cash proceeds received by the Borrower after the  Closing Date (from any Person other than the Borrower or a Subsidiary) as a contribution to the  Borrower’s common equity capital, to the extent such net cash proceeds are Not Otherwise Applied,  (ii) net cash proceeds received by the Borrower from the issuance of Qualified Capital Stock of the  Borrower (to any Person other than the Borrower or a Subsidiary), to the extent such net cash  proceeds are Not Otherwise Applied, and (iii) Qualified Capital Stock of the Borrower; and  (m) other Investments (other than any Acquisition) not permitted by any of the  foregoing clauses of this Section 7.03; provided, that, (i) no Default shall exist or would result from  giving effect to any such Investment, and (ii) the aggregate amount of all such Investments shall  not exceed $15,000,000 during the term of this Agreement.  7.04 Fundamental Changes.  Directly or indirectly merge, dissolve, liquidate, consolidate with or into another Person, or Dispose  of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether  now owned or hereafter acquired) to or in favor of any Person; provided, that, notwithstanding the foregoing  provisions of this Section 7.04, but subject to the terms of Sections 6.12 and 6.13: (a) the Borrower may  merge or consolidate with any of its Subsidiaries; provided, that, the Borrower shall be the continuing or  surviving Person of such merger or consolidation; (b) any Loan Party (other than the Borrower) may merge  or consolidate with any other Loan Party (other than the Borrower); (c) any Subsidiary that is not a Loan  Party may merge or consolidate with any Loan Party; provided, that, such Loan Party shall be the continuing  or surviving Person of such merger or consolidation; (d) any Subsidiary that is not a Loan Party may merge  or consolidate with any other Subsidiary that is not a Loan Party; (e) the Borrower or any Subsidiary may  engage in a Disposition permitted pursuant to Section 7.05, an Investment permitted pursuant to Section  7.03, or a Restricted Payment permitted pursuant to Section 7.06 (in each case other than by reference to  this Section 7.04 (or any clause hereof)); and (f) any Subsidiary may be dissolved, liquidated or wound up;  provided, that, (i) such dissolution, liquidation or winding up could not reasonably be expected, individually  or in the aggregate, to have a Material Adverse Effect, and (ii) with respect to the dissolution, liquidation  or winding up of any Subsidiary that is a Loan Party, prior to or simultaneously with any such dissolution,  liquidation or winding up, all assets of such Subsidiary shall be transferred to a Loan Party.  7.05 Dispositions.  Directly or indirectly make any Disposition or enter into any agreement to make any Disposition,  except for:  (a) any Permitted Transfer; and  





 






  94  CHAR1\1823738v3  (b) any other Disposition; provided, that: (i) the consideration paid in cash or Cash  Equivalents in connection with such Disposition shall constitute not less than seventy five percent  (75%) of the aggregate consideration to be received in connection therewith, and the total  consideration paid in connection therewith shall be paid contemporaneous with consummation of  such Disposition and shall be in an amount not less than the fair market value of the assets disposed  of; (ii) such Disposition does not involve the sale or other disposition of a minority Equity Interest  in any Loan Party; (iii) no Default has occurred and is continuing both immediately prior to and  after giving effect to such Disposition; (iv) such Disposition does not involve a sale or other  disposition of receivables other than receivables owned by or attributable to other property  concurrently being disposed of in a transaction otherwise permitted hereunder; (v) upon giving Pro  Forma Effect to such Disposition, the Loan Parties would be in compliance with the financial  covenants set forth in Section 7.11 as of the most recently ended Fiscal Quarter for which the  Borrower was required to deliver financial statements pursuant to Section 6.01(a) or (b); and (vi)  the net cash proceeds of such Disposition, when taken together with the aggregate net cash proceeds  received from all other Dispositions made in reliance on this Section 7.05(b) in any Fiscal Year,  shall not exceed an amount equal to ten percent (10%) of Consolidated total assets of the Borrower  and its Subsidiaries (to be determined by reference to the balance sheet of the Borrower most  recently delivered pursuant to Section 6.01(a) or (b)).  7.06 Restricted Payments.  Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent  or otherwise) to do so, except:  (a) each Subsidiary may declare and make Restricted Payments to the Borrower and  to any Subsidiary that owns Equity Interests of such Subsidiary (and, in the case of a dividend or  other distribution by a Non-Wholly Owned Subsidiary of the Borrower, to the Borrower or other  Subsidiary and to each other owner of Equity Interests of such Non-Wholly Owned Subsidiary  ratably based on their relative ownership interests);  (b) the Borrower and each Subsidiary may declare and make Restricted Payments  payable solely in the Qualified Capital Stock of such Person;   (c) the Borrower and each Subsidiary may: (i) redeem, repurchase, retire or otherwise  acquire Equity Interests to the extent such redemption, repurchase, retirement or other acquisition  is deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the  exercise price of such options; and (ii) make cash payments in lieu of the issuance of fractional  shares or interests in connection with the exercise of warrants, options or other rights relating to  Equity Interests of the Borrower or any Subsidiary, so long as any such cash payment is not made  for the purpose of evading the limitations set forth in this Section 7.06 (as determined in good faith  by the board of directors of the Borrower); and  (d) the Borrower or any Subsidiary may make any Restricted Payment; provided, that,  (i) no Default shall have occurred and be continuing at the time of such Restricted Payment or  would result therefrom, and (ii) upon giving Pro Forma Effect to any such Restricted Payment, (A)  the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 as  of the most recently ended Fiscal Quarter for which the Borrower was required to deliver financial  statements pursuant to Section 6.01(a) or (b), and (B) the Consolidated Fixed Charge Coverage  Ratio is greater than or equal to 1.50 to 1.0.  7.07 Change in Nature of Business.  





 






  95  CHAR1\1823738v3  Directly or indirectly engage in any line of business substantially different from those lines of  business conducted by the Borrower and its Subsidiaries on the Closing Date, or any business reasonably  related, complimentary, ancillary or incidental thereto.  7.08 Transactions with Affiliates.  Directly or indirectly enter into or permit to exist any transaction or series of transactions with any  officer, director or Affiliate of such Person, other than (a) advances of working capital (i) by any Loan Party  to any other Loan Party, or (ii) by any Subsidiary that is not a Loan Party to any Loan Party or any other  Subsidiary, (b) transfers of cash and assets (i) by any Loan Party to any other Loan Party, or (ii) by any  Subsidiary to any Loan Party or any other Subsidiary, (c) transactions (i) expressly permitted by Section  7.02, Section 7.03, Section 7.04, Section 7.05 or Section 7.06 (in each case, other than by reference to this  Section 7.08 (or any clause hereof)), or (ii) solely among the Borrower and its Subsidiaries, (d) reasonable  and customary officer, director, consultant and employee compensation (including bonuses) and other  benefits (including retirement, health, stock option and other benefit plans) and reasonable indemnification  and severance arrangements, in each case in the ordinary course of business, (e) the consummation of the  Transactions, (f) transactions consummated pursuant to agreements in existence on the Closing Date and  set forth on Schedule 7.08, or any amendment thereto or replacement thereof to the extent such amendment  or replacement is not adverse to the Lenders in any material respect, and (g) except as otherwise specifically  prohibited in this Agreement, other transactions which are entered into in the ordinary course of such  Person’s business on terms and conditions substantially as favorable to such Person as would be obtainable  by it in a comparable arms-length transaction with a Person other than an officer, director or Affiliate.  7.09 Burdensome Agreements.  Directly or indirectly enter into, or permit to exist, any Contractual Obligation that (a) encumbers  or restricts the ability of any such Person to (i) make Restricted Payments to any Loan Party, (ii) pay any  Indebtedness or other obligations owed to any Loan Party, (iii) make loans or advances to any Loan Party,  (iv) transfer any of its property to any Loan Party, (v) pledge its property pursuant to the Loan Documents,  or (vi) act as a Loan Party pursuant to the Loan Documents, except (in respect of any of the matters referred  to in clauses (a)(i) through (a)(v) above) for (A) this Agreement and the other Loan Documents, (B) any  instrument governing Indebtedness assumed in connection with any Permitted Acquisition or other  Investment permitted pursuant to Section 7.03, which encumbrance or restriction is not applicable to any  Person, or the properties or assets of any Person, other than the Person or the properties or assets of the  Person so acquired, (C) any such encumbrance or restriction consisting of (1) customary non-assignment  provisions under any agreement entered into ordinary course of business, (2) customary restrictions in  leases, subleases or licenses otherwise permitted hereby so long as such restrictions relate solely to the  property interests, rights or assets subject thereto, and (3) customary non-assignment provisions in leases  or licenses restricting leasehold interests or licenses, as applicable, entered into in the ordinary course of  business, (D) customary provisions in joint venture agreements and other similar agreements that restrict  the transfer of ownership interests in such joint venture or provisions limiting the disposition or distribution  of assets or property (other than dividends on a pro rata basis based on ownership percentage), which  limitation is applicable only to the assets that are the subject of such agreements, (E) customary restrictions  and conditions contained in any agreement relating to the sale of any property permitted pursuant to Section  7.05 pending the consummation of such sale, (F) any document or instrument governing any Permitted  Lien, in each case, to the extent that any such restriction contained therein relates only to the asset or assets  subject to such Permitted Liens, (G)(1) encumbrances and restrictions in Contractual Obligations existing  on the Closing Date and set forth on Schedule 7.09, and (2) to the extent any Contractual Obligation  referenced in the foregoing clause (G)(1) governs any Indebtedness, any encumbrance or restriction in any  Contractual Obligation that modifies, replaces, renews, extends or refinances such Indebtedness, so long as  modification, replacement, renewal, extension or refinancing does not make such encumbrances or  





 






  96  CHAR1\1823738v3  restrictions more restrictive than the encumbrances and restrictions in existence prior to such modification,  replacement, renewal, extension or refinancing, and (H) encumbrances and restrictions imposed by any  Contractual Obligation governing Indebtedness permitted pursuant to Section 7.02 that are, taken as a  whole, in the good faith judgment of the Borrower, no more restrictive with respect to the Borrower or any  Subsidiary than customary market terms for Indebtedness of such type (and, in any event, taken as a whole,  are not materially more restrictive than the restrictions contained in this Agreement), so long as the  Borrower shall have determined in good faith that such encumbrances and restrictions will not affect its  obligation or ability to make any payments required hereunder or under any other Loan Document, or (b)  requires the grant of any security for any obligation if such property is given as security for the Secured  Obligations (except to the extent such grant constitutes a Permitted Lien).  7.10 Use of Proceeds.  Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately,  incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U) or to  extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness  originally incurred for such purpose.  7.11 Financial Covenants.  (a) Consolidated Rent-Adjusted Total Leverage Ratio.  Permit the Consolidated Rent- Adjusted Total Leverage Ratio as of the end of any Measurement Period ending as of the end of  any Fiscal Quarter ending on or after the Closing Date to be greater than 3.50 to 1.0.  (b) Consolidated Fixed Charge Coverage Ratio.  Permit the Consolidated Fixed  Charge Coverage Ratio as of the end of any Measurement Period ending as of the end of any Fiscal  Quarter ending on or after the Closing Date to be less than 1.20 to 1.0.  7.12 Amendments of Organization Documents; Changes in Fiscal Year, Legal Name, State of  Organization, or Form of Entity; Accounting Changes.  (a) Amend any of its Organization Documents in any manner that is materially adverse  to the Lenders.  (b) Change its fiscal year.  (c) Without providing ten (10) days prior written notice to the Administrative Agent  (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion),  change its legal name, state of organization, or form of organization.  (d) Make any change in accounting policies or reporting practices, except as required  by GAAP.  7.13 Junior Debt Payments.  Make: (a) any Junior Debt Payment except that: (i) a Permitted Refinancing permitted pursuant to  Section 7.02(b), Section 7.02(c) or Section 7.02(d) may be consummated; (ii) the Borrower may make any  payment on any Junior Debt to the extent that such payment is permitted pursuant to the subordination  provisions applicable thereto (including Section 11.16); and (iii) the Borrower may make Junior Debt  Payments to the extent made solely with the Qualified Capital Stock of the Borrower; or (b) any payment  in violation of any subordination and/or intercreditor terms applicable to any Junior Debt.  





 






  97  CHAR1\1823738v3  7.14 Amendment, Etc. of Junior Debt.  Directly or indirectly amend, modify or change in any manner any term or condition of any Junior  Debt, in each case in any manner that is adverse in any material respect to the interest of the Lenders.  7.15 Sanctions.  Directly or knowingly indirectly use any Credit Extension or the proceeds of any Credit Extension,  or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit  Extension to any Person, to fund any activities of or business with any Person, or in any Designated  Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will  result in a violation by any Person (including any Person participating in the transaction, whether as Lender,  Arranger, Administrative Agent, L/C Issuer, Swingline Lender, or otherwise) of Sanctions.  7.16 Anti-Corruption Laws.  Directly or knowingly indirectly use any Credit Extension or the proceeds of any Credit Extension  for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK  Bribery Act 2010 and other anti-corruption legislation in other jurisdictions.  ARTICLE VIII    EVENTS OF DEFAULT AND REMEDIES  8.01 Events of Default.  Any of the following shall constitute an “Event of Default”:  (a) The Borrower or any other Loan Party fails to pay (i) when and as required to be  paid herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as  Cash Collateral in respect of L/C Obligations, or (ii) within three (3) Business Days after the same  becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii)  within five (5) Business Days after the same becomes due, any other amount payable hereunder or  under any other Loan Document; or  (b) Any Loan Party fails to perform or observe any term, covenant or agreement  contained in any of Section 6.01, 6.02, 6.03(a), 6.05(a), 6.10, 6.11, or Article VII; or  (c) Any Loan Party fails to perform or observe any other covenant or agreement (not  specified in Section 8.01(a) or (b)) contained in any Loan Document on its part to be performed or  observed and such failure continues for thirty (30) days after the earlier to occur of (i) a Responsible  Officer of a Loan Party becoming aware of such failure, and (ii) written notice thereof being  provided to the Borrower by the Administrative Agent or any Lender; or  (d) Any representation, warranty, certification or statement of fact made or deemed  made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document,  or in any document delivered in connection herewith or therewith shall be materially incorrect or  materially misleading (or, in each case, if such representation, warranty, certification or statement  of fact is already qualified by materiality, incorrect or misleading in any respect) when made or  deemed made; or  





 






  98  CHAR1\1823738v3  (e) (i) Any Loan Party or any Subsidiary (A) fails to make any payment when due  (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise but  giving effect to any applicable grace and notice period with respect thereto) in respect of any  Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap  Contracts) having an aggregate principal amount (including undrawn committed or available  amounts and including amounts owing to all creditors under any combined or syndicated credit  arrangement) of more than the Threshold Amount, or (B) fails to observe or perform (after giving  effect to any applicable grace and notice period with respect thereto) any other agreement or  condition relating to any such Indebtedness or Guarantee or contained in any instrument or  agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which  default or other event is to cause, or to permit the holder or holders of such Indebtedness or the  beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or  holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such  Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed  (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such  Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash  collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early  Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under  such Swap Contract as to which a Loan Party or any Subsidiary is the Defaulting Party (as defined  in such Swap Contract), or (B) any Termination Event (as defined in such Swap Contract) under  such Swap Contract as to which a Loan Party or any Subsidiary is an Affected Party (as defined in  such Swap Contract) and, in either event, the Swap Termination Value owed by such Loan Party  or such Subsidiary as a result thereof is greater than the Threshold Amount; or  (f) Any Loan Party or any Subsidiary institutes or consents to the institution of any  proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or  applies for or consents to the appointment of any receiver, trustee, custodian, conservator,  liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any  receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed  without the application or consent of such Person and the appointment continues undischarged or  unstayed for sixty (60) days; or any proceeding under any Debtor Relief Law relating to any such  Person or to all or any material part of its property is instituted without the consent of such Person  and continues undismissed or unstayed for sixty (60) days, or an order for relief is entered in any  such proceeding; or    (g) (i) Any Loan Party or any Subsidiary becomes unable or admits in writing its  inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of  attachment or execution or similar process is issued or levied against all or any material part of the  property of any such Person and is not released, vacated or fully bonded within sixty (60) days after  its issue or levy; or  (h) There is entered against any Loan Party or any Subsidiary (i) one or more final  judgments or orders for the payment of money in an aggregate amount (as to all such judgments  and orders) exceeding the Threshold Amount (to the extent not covered by independent third-party  insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of  the potential claim and does not dispute coverage), or (ii) any one or more non-monetary final  judgments that have, or could reasonably be expected to have, individually or in the aggregate, a  Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any  creditor upon such judgment or order, or (B) there is a period of sixty (60) consecutive days during  which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not  in effect; or   





 






  99  CHAR1\1823738v3  (i) (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan  which has resulted or could reasonably be expected to result in liability of any Loan Party under  Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount  in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when  due, after the expiration of any applicable grace period, any installment payment with respect to its  withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate  amount in excess of the Threshold Amount; or   (j) Any material provision of any Loan Document, at any time after its execution and  delivery and for any reason other than as expressly permitted hereunder or thereunder or upon the  occurrence of the Facility Termination Date, ceases to be in full force and effect; or any Loan Party  or any other Person contests in any manner the validity or enforceability of any provision of any  Loan Document; or any Loan Party denies that it has any or further liability or obligation under any  provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any  Loan Document; or it is or becomes unlawful for a Loan Party to perform any of its material  obligations under the Loan Documents; or  (k) Any Collateral Document after delivery thereof pursuant to the terms of the Loan  Documents shall for any reason cease to create a valid and perfected first priority Lien (subject to  Permitted Liens) on any material portion of the Collateral purported to be covered thereby (other  than (i) as expressly permitted by this Agreement or such Collateral Document, (ii) as a result of  the occurrence of the Facility Termination Date, or (iii) to the extent that any such loss of perfection  or priority results from the failure of the Administrative Agent to (A) maintain possession of  certificates actually delivered to it representing Equity Interests pledged under the Collateral  Documents, or (B) file Uniform Commercial Code continuation statements), or any Loan Party  shall assert the invalidity of such Liens; or  (l) There occurs any Change of Control.  Without limiting the provisions of Article IX, if a Default shall have occurred under the Loan  Documents, then such Default will continue to exist until it either is cured (to the extent specifically  permitted) in accordance with the Loan Documents or is otherwise expressly waived by the Administrative  Agent (with the approval of requisite Lenders (in their sole discretion) as determined in accordance with  Section 11.01); and once an Event of Default occurs under the Loan Documents, then such Event of Default  will continue to exist until it is expressly waived by the requisite Lenders or by the Administrative Agent  with the approval of the requisite Lenders, as required hereunder in Section 11.01.  8.02 Remedies upon Event of Default.  If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of,  or may, with the consent of, the Required Lenders, take any or all of the following actions:  (a) declare the Commitment of each Lender to make Loans and any obligation of the  L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such Commitments and  obligation shall be terminated;   (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued  and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan  Document to be immediately due and payable, without presentment, demand, protest or other notice  of any kind, all of which are hereby expressly waived by the Borrower;   





 






  100  CHAR1\1823738v3  (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount  equal to the Minimum Collateral Amount with respect thereto); and  (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies  available to it, the Lenders and the L/C Issuer under the Loan Documents or applicable Law or  equity;  provided, that, upon the occurrence of an actual or deemed entry of an order for relief with respect to the  Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans  and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the  unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall  automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C  Obligations as aforesaid shall automatically become effective, in each case without further act of the  Administrative Agent, any Lender, or the L/C Issuer.  8.03 Application of Funds.  After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically  become immediately due and payable and the L/C Obligations have automatically been required to be Cash  Collateralized as set forth in the proviso to Section 8.02) or if at any time insufficient funds are received by  and available to the Administrative Agent to pay fully all Secured Obligations then due hereunder, any  amounts received on account of the Secured Obligations shall, subject to the provisions of Sections 2.14  and 2.15, be applied by the Administrative Agent in the following order:  First, to payment of that portion of the Secured Obligations constituting fees, indemnities,  expenses and other amounts (including fees, charges and disbursements of counsel to the  Administrative Agent and amounts payable under Article III) payable to the Administrative Agent  in its capacity as such;  Second, to payment of that portion of the Secured Obligations constituting fees,  indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to  the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the  respective Lenders and the L/C Issuer) arising under the Loan Documents and amounts payable  under Article III, ratably among them in proportion to the respective amounts described in this  clause Second payable to them;  Third, to payment of that portion of the Secured Obligations constituting accrued and  unpaid Letter of Credit Fees and interest on the Loans, L/C Disbursements and other Secured  Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in  proportion to the respective amounts described in this clause Third payable to them;  Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal  of the Loans, L/C Disbursements and Secured Obligations then owing under the Secured Hedge  Agreements and the Secured Cash Management Agreements, and to the Administrative Agent for  the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of  the aggregate undrawn amount of Letters of Credit to the extent required by, and not otherwise  Cash Collateralized by the Borrower pursuant to, Sections 2.03 and 2.14, in each case ratably  among the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks and the Cash  Management Banks in proportion to the respective amounts described in this clause Fourth held by  them; and  





 






  101  CHAR1\1823738v3  Last, the balance, if any, after all of the Secured Obligations have been indefeasibly paid  in full, to the Borrower or as otherwise required by Law.  Subject to Sections 2.03(p) and 2.14, amounts used to Cash Collateralize the aggregate undrawn  amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such  Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of  Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Secured  Obligations, if any, in the order set forth above.  Excluded Swap Obligations with respect to any Guarantor  shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall  be made with respect to payments from other Loan Parties to preserve the allocation to Secured Obligations  otherwise set forth above in this Section 8.03.  Notwithstanding the foregoing, Secured Obligations arising under Secured Cash Management  Agreements and Secured Hedge Agreements shall be excluded from the application described above if the  Administrative Agent has not received a Secured Party Designation Notice, together with such supporting  documentation as the Administrative Agent may request, from the applicable Cash Management Bank or  the applicable Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank not a party  to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,  be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to  the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.   ARTICLE IX    ADMINISTRATIVE AGENT  9.01 Appointment and Authority.  (a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints, designates  and authorizes Bank of America to act on its behalf as the Administrative Agent hereunder and  under the other Loan Documents and authorizes the Administrative Agent to take such actions on  its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms  hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The  provisions of this Article IX are solely for the benefit of the Administrative Agent, the Lenders and  the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third party  beneficiary of any of such provisions.  It is understood and agreed that the use of the term “agent”  herein or in any other Loan Documents (or any other similar term) with reference to the  Administrative Agent is not intended to connote any fiduciary or other implied (or express)  obligations arising under agency doctrine of any applicable Law. Instead such term is used as a  matter of market custom, and is intended to create or reflect only an administrative relationship  between contracting parties.  (b) The Administrative Agent shall also act as the “collateral agent” under the Loan  Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a  potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes  the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of  acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties  to secure any of the Secured Obligations, together with such powers and discretion as are  reasonably incidental thereto.  In this connection, the Administrative Agent, as “collateral agent”  and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent  pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any  portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies  





 






  102  CHAR1\1823738v3  thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all  provisions of this Article IX and Article XI (including Section 11.04(c), as though such co-agents,  sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set  forth in full herein with respect thereto.  9.02 Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers  in its capacity as a Lender as any other Lender and may exercise the same as though it were not the  Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or  unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in  its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own  securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any  kind of banking, trust, financial, advisory, underwriting or other business with any Loan Party or any  Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and  without any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with  respect thereto.  9.03 Exculpatory Provisions.  (a) Neither the Administrative Agent nor the Arranger, as applicable, shall have any  duties or obligations except those expressly set forth herein and in the other Loan Documents, and  its duties hereunder shall be administrative in nature. Without limiting the generality of the  foregoing, none of the Administrative Agent, the Arranger, or any of their respective Related  Parties:  (i) shall be subject to any fiduciary or other implied duties, regardless of  whether a Default has occurred and is continuing;  (ii) shall have any duty to take any discretionary action or exercise any  discretionary powers, except discretionary rights and powers expressly contemplated  hereby or by the other Loan Documents that the Administrative Agent is required to  exercise as directed in writing by the Required Lenders (or such other number or percentage  of the Lenders as shall be expressly provided for herein or in the other Loan Documents);  provided, that, the Administrative Agent shall not be required to take any action that, in its  opinion or the opinion of its counsel, may expose the Administrative Agent to liability or  that is contrary to any Loan Document or applicable Law, including for the avoidance of  doubt any action that may be in violation of the automatic stay under any Debtor Relief  Law or that may effect a forfeiture, modification or termination of property of a Defaulting  Lender in violation of any Debtor Relief Law; or  (iii) shall have any duty or responsibility to disclose, and shall not be liable for  the failure to disclose, to any Lender or the L/C Issuer any credit or other information  concerning the business, prospects, operations, property, financial and other condition or  creditworthiness of any of the Loan Parties or any of their Affiliates that is communicated  to, or in the possession of, the Administrative Agent, the Arranger or any of their respective  Related Parties in any capacity, except for notices, reports and other documents expressly  required to be furnished to the Lenders by the Administrative Agent herein.  (b) Neither the Administrative Agent nor any of its Related Parties shall be liable for  any action taken or not taken by the Administrative Agent under or in connection with this  





 






  103  CHAR1\1823738v3  Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i)  with the consent or at the request of the Required Lenders (or such other number or percentage of  the Lenders as shall be necessary), or as the Administrative Agent shall believe in good faith shall  be necessary, under the circumstances as provided in Sections 11.01 and 8.02), or (ii) in the absence  of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction  by final and non-appealable judgment.  The Administrative Agent shall be deemed not to have  knowledge of any Default unless and until notice describing such Default is given in writing to the  Administrative Agent by the Borrower, a Lender or the L/C Issuer.  (c) Neither the Administrative Agent nor any of its Related Parties have any duty or  obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any  statement, warranty or representation made in or in connection with this Agreement or any other  Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder  or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of  the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence  of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement,  any other Loan Document or any other agreement, instrument or document, or the creation,  perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value  or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV  or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the  Administrative Agent.  9.04 Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and  shall not incur any liability for relying upon, any notice, request, certificate, communication, consent,  statement, instrument, document or other writing (including any electronic message, Internet or intranet  website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise  authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to  it orally or by telephone and believed by it to have been made by the proper Person, and shall be fully  protected in relying and shall not incur any liability for relying thereon.  In determining compliance with  any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter  of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the  Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer  unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C  Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent  may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and  other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with  the advice of any such counsel, accountants or experts.  For purposes of determining compliance with the  conditions specified in Section 4.01, each Lender that has signed this Agreement shall be deemed to have  consented to, approved or accepted or to be satisfied with, each document or other matter required  thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the  Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date  specifying its objections.  9.05 Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers  hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the  Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its  duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory  





 






  104  CHAR1\1823738v3  provisions of this Article IX shall apply to any such sub-agent and to the Related Parties of the  Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection  with the syndication of the Revolving Facility as well as activities as Administrative Agent. The  Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except  to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that  the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub- agents.  9.06 Resignation of Administrative Agent.  (a) The Administrative Agent may at any time give notice of its resignation to the  Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of resignation, the  Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor,  which shall be a bank with an office in the United States, or an Affiliate of any such bank with an  office in the United States.  If no such successor shall have been so appointed by the Required  Lenders and shall have accepted such appointment within thirty (30) days after the retiring  Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the  Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may  (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor  Administrative Agent meeting the qualifications set forth above; provided, that, in no event shall  any successor Administrative Agent be a Defaulting Lender.  Whether or not a successor has been  appointed, such resignation shall become effective in accordance with such notice on the  Resignation Effective Date.  (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to  clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable  Law, by notice in writing to the Borrower and such Person remove such Person as Administrative  Agent and, in consultation with the Borrower, appoint a successor.  If no such successor shall have  been so appointed by the Required Lenders and shall have accepted such appointment within thirty  (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective  Date”), then such removal shall nonetheless become effective in accordance with such notice on  the Removal Effective Date.  (c) With effect from the Resignation Effective Date or the Removal Effective Date (as  applicable), (i) the retiring or removed Administrative Agent shall be discharged from its duties  and obligations hereunder and under the other Loan Documents (except that in the case of any  collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer  under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to  hold such collateral security until such time as a successor Administrative Agent is appointed), and  (ii) except for any indemnity payments or other amounts then owed to the retiring or removed  Administrative Agent, all payments, communications and determinations provided to be made by,  to or through the Administrative Agent shall instead be made by or to each Lender and the L/C  Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative  Agent as provided for above.  Upon the acceptance of a successor’s appointment as Administrative  Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers,  privileges and duties of the retiring or removed Administrative Agent (other than as provided in  Section 3.01(h) and other than any rights to indemnity payments or other amounts owed to the  retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal  Effective Date (as applicable)), and the retiring or removed Administrative Agent shall be  discharged from all of its duties and obligations hereunder or under the other Loan Documents (if  not already discharged therefrom as provided above in this Section 9.06(c)).  The fees payable by  





 






  105  CHAR1\1823738v3  the Borrower to a successor Administrative Agent shall be the same as those payable to its  predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring  or removed Administrative Agent’s resignation or removal hereunder and under the other Loan  Documents, the provisions of this Article IX and Section 11.04 shall continue in effect for the  benefit of such retiring or removed Administrative Agent, its sub-agents and their respective  Related Parties in respect of any actions taken or omitted to be taken by any of them (A) while the  retiring or removed Administrative Agent was acting as Administrative Agent, and (B) after such  resignation or removal for as long as any of them continues to act in any capacity hereunder or  under the other Loan Documents, including (1) acting as collateral agent or otherwise holding any  collateral security on behalf of any of the Secured Parties, and (2) in respect of any actions taken  in connection with transferring the agency to any successor Administrative Agent.  (d) Any resignation or removal by Bank of America as Administrative Agent pursuant  to this Section 9.06 shall also constitute its resignation as the L/C Issuer and the Swingline Lender.   If Bank of America resigns as the L/C Issuer, it shall retain all the rights, powers, privileges and  duties of the L/C Issuer hereunder with respect to all Letters of Credit issued by it and outstanding  as of the effective date of its resignation as the L/C Issuer and all L/C Obligations with respect  thereto, including the right to require the Lenders to make Revolving Loans that are Base Rate  Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(f).  If Bank  of America resigns as the Swingline Lender, it shall retain all the rights of the Swingline Lender  provided for hereunder with respect to Swingline Loans made by it and outstanding as of the  effective date of such resignation, including the right to require the Lenders to make Revolving  Loans that are Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant  to Section 2.04(c).  Upon the appointment by the Borrower of a successor L/C Issuer or Swingline  Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender),  (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and  duties of the retiring L/C Issuer or Swingline Lender, as applicable, (ii) the retiring L/C Issuer and  Swingline Lender shall be discharged from all of their respective duties and obligations hereunder  or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue Letters of Credit  in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make  other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank  of America with respect to such Letters of Credit.  9.07 Non-Reliance on Administrative Agent, Arranger and Other Lenders.  Each Lender and the L/C Issuer expressly acknowledges that neither the Administrative Agent nor  the Arranger has made any representation or warranty to it, and that no act by the Administrative Agent or  the Arranger hereafter taken, including any consent to, and acceptance of any assignment or review of the  affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or  warranty by the Administrative Agent or the Arranger to any Lender or the L/C Issuer as to any matter,  including whether the Administrative Agent or the Arranger have disclosed material information in their  (or their respective Related Parties’) possession.  Each Lender and the L/C Issuer represents to the  Administrative Agent and the Arranger that it has, independently and without reliance upon the  Administrative Agent, the Arranger, any other Lender or any of their respective Related Parties, and based  on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal  of, and investigation into, the business, prospects, operations, property, financial and other condition and  creditworthiness of the Borrower and its Subsidiaries, and all applicable bank or other regulatory Laws  relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement  and to extend credit to the Borrower hereunder.  Each Lender and the L/C Issuer also acknowledges that it  will, independently and without reliance upon the Administrative Agent, the Arranger, any other Lender or  any of their respective Related Parties, and based on such documents and information as it shall from time  





 






  106  CHAR1\1823738v3  to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or  not taking action under or based upon this Agreement, any other Loan Document or any related agreement  or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary  to inform itself as to the business, prospects, operations, property, financial and other condition and  creditworthiness of the Loan Parties.  Each Lender and the L/C Issuer represents and warrants that (a) the  Loan Documents set forth the terms of a commercial lending facility, and (b) it is engaged in making,  acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a  Lender or the L/C Issuer for the purpose of making, acquiring or holding commercial loans and providing  other facilities set forth herein as may be applicable to such Lender or the L/C Issuer, and not for the purpose  of purchasing, acquiring or holding any other type of financial instrument, and each Lender and the L/C  Issuer agrees not to assert a claim in contravention of the foregoing.  Each Lender and the L/C Issuer  represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold  commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or the  L/C Issuer, and either it, or the Person exercising discretion in making its decision to make, acquire and/or  hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or  holding such commercial loans or providing such other facilities.  9.08 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the titles listed on the cover page hereof  shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents,  except in its capacity, as applicable, as the Administrative Agent, the Arranger, a Lender or the L/C Issuer  hereunder.  9.09 Administrative Agent May File Proofs of Claim; Credit Bidding.  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial  proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of  any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise  and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall  be entitled and empowered, by intervention in such proceeding or otherwise:  (a) to file and prove a claim for the whole amount of the principal and interest owing  and unpaid in respect of the Loans, L/C Obligations and all other Secured Obligations that are  owing and unpaid and to file such other documents as may be necessary or advisable in order to  have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim  for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C  Issuer and the Administrative Agent and their respective agents and counsel and all other amounts  due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(l) and (m), 2.09,  2.10(b) and 11.04) allowed in such judicial proceeding; and  (b) to collect and receive any monies or other property payable or deliverable on any  such claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the  Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such  payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due  for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and  its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09, 2.10(b)  and 11.04.  





 






  107  CHAR1\1823738v3  Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or  consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,  arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or  the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the  L/C Issuer or in any such proceeding.  The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the  Required Lenders, to credit bid all or any portion of the Secured Obligations (including accepting some or  all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of  foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition  vehicles) all or any portion of the Collateral (i) at any sale thereof conducted under the provisions of the  Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code  of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, or (ii)  at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent  or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance  with any applicable Law.  In connection with any such credit bid and purchase, the Secured Obligations  owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Secured  Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired  assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to  the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset  or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles  that are used to consummate such purchase).  In connection with any such bid (A) the Administrative Agent  shall be authorized to form one or more acquisition vehicles to make a bid, (B) to adopt documents  providing for the governance of the acquisition vehicle or vehicles (provided, that, any actions by the  Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the  assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required  Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on  actions by the Required Lenders contained in Section 11.01), and (C) to the extent that Secured Obligations  that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of  another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition  vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Secured  Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt  instruments issued by any acquisition vehicle on account of the Secured Obligations that had been assigned  to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any  acquisition vehicle to take any further action.   9.10 Collateral and Guaranty Matters.  Each of the Lenders (including in its capacities as a potential Cash Management Bank and a  potential Hedge Bank) and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and  in its discretion:   (a) to release any Lien on any property granted to or held by the Administrative Agent  under any Loan Document (i) upon the Facility Termination Date, (ii) that is sold or otherwise  disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other  disposition permitted hereunder or under any other Loan Document, or (iii) if approved, authorized  or ratified in writing by the Required Lenders in accordance with Section 11.01;   (b) to subordinate any Lien on any property granted to or held by the Administrative  Agent under any Loan Document to the holder of any Lien on such property that is permitted by  Section 7.01(c);  





 






  108  CHAR1\1823738v3  (c) to release any Guarantor from its obligations under the Guaranty if such Person  ceases to be a Subsidiary or becomes an Immaterial Subsidiary, in each case as a result of a  transaction permitted under the Loan Documents; and  (d) to negotiate, execute, deliver and perform any intercreditor agreement and/or any  subordination agreement in respect of any Indebtedness permitted to be incurred pursuant to  Section 7.02.  Upon request by the Administrative Agent at any time, the Required Lenders will confirm in  writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items  of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section  9.10, or to take any other action described above in this Section 9.10.  In each case as specified in this  Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the  applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release  of such item of Collateral from the assignment and security interest granted under the Collateral Documents  or to subordinate its interest in such item, or to release such Guarantor from its obligations under the  Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10.   The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into  any representation or warranty regarding the existence, value or collectability of the Collateral, the  existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by  any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the  Lenders for any failure to monitor or maintain any portion of the Collateral.  9.11 Secured Cash Management Agreements and Secured Hedge Agreements.  Except as otherwise expressly set forth herein or in any Collateral Document, no Cash Management  Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03, the Guaranty or any  Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of  any action or to consent to, direct or object to any action hereunder or under any other Loan Document or  otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice  of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or  any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent  expressly provided in the Loan Documents.  Notwithstanding any other provision of this Article IX to the  contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory  arrangements have been made with respect to, Secured Obligations arising under Secured Cash  Management Agreements and Secured Hedge Agreements, except to the extent expressly provided herein  and unless the Administrative Agent has received a Secured Party Designation Notice of such Secured  Obligations, together with such supporting documentation as the Administrative Agent may request, from  the applicable Cash Management Bank or the applicable Hedge Bank, as the case may be; provided, that,  notwithstanding the foregoing, the Administrative Agent shall not be required to verify the payment of, or  that other satisfactory arrangements have been made with respect to, Secured Obligations arising under  Secured Cash Management Agreements and Secured Hedge Agreements in the case of a Facility  Termination Date.  9.12 Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto  to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative  





 






  109  CHAR1\1823738v3  Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan  Party, that at least one of the following is and will be true:   (i) such Lender is not using “plan assets” (within the meaning of Section  3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Letters  of Credit, the Commitments, or this Agreement,  (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84– 14 (a class exemption for certain transactions determined by independent qualified  professional asset managers), PTE 95–60 (a class exemption for certain transactions  involving insurance company general accounts), PTE 90–1 (a class exemption for certain  transactions involving insurance company pooled separate accounts), PTE 91–38 (a class  exemption for certain transactions involving bank collective investment funds) or PTE 96– 23 (a class exemption for certain transactions determined by in-house asset managers), is  applicable with respect to such Lender’s entrance into, participation in, administration of  and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84–14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such  Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,  the Commitments and this Agreement, (C) the entrance into, participation in,  administration of and performance of the Loans, the Letters of Credit, the Commitments  and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of  PTE 84–14, and (D) to the best knowledge of such Lender, the requirements of subsection  (a) of Part I of PTE 84–14 are satisfied with respect to such Lender’s entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in  writing between the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless either (1) clause (i) in the immediately preceding clause (a) is  true with respect to a Lender or (2) a Lender has provided another representation, warranty and  covenant in accordance with clause (iv) in the immediately preceding clause (a), such Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and (y) covenants, from the date such Person became a Lender party hereto to the date such Person  ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the  avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the  Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such  Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters  of Credit, the Commitments and this Agreement (including in connection with the reservation or  exercise of any rights by the Administrative Agent under this Agreement, any other Loan Document  or any documents related hereto or thereto).  9.13 Recovery of Erroneous Payments.  Without limitation of any other provision in this Agreement, if at any time the Administrative Agent  makes a payment hereunder in error to any Lender Party, whether or not in respect of an obligation due and  owing by the Borrower at such time, where such payment is a Rescindable Amount, then in any such event,  





 






  110  CHAR1\1823738v3  each Lender Party receiving a Rescindable Amount severally agrees to repay to the Administrative Agent  forthwith on demand the Rescindable Amount received by such Lender Party in immediately available  funds in the currency so received, with interest thereon, for each day from and including the date such  Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, at  the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with  banking industry rules on interbank compensation.  Each Lender Party irrevocably waives any and all  defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain  funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its  obligation to return any Rescindable Amount.  The Administrative Agent shall inform each Lender Party  promptly upon determining that any payment made to such Lender Party comprised, in whole or in part, a  Rescindable Amount.  ARTICLE X    CONTINUING GUARANTY  10.01 Guaranty.  Each Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary  obligor and as a guaranty of payment and performance and not merely as a guaranty of collection, prompt  payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or  otherwise, and at all times thereafter, of any and all Secured Obligations (for each Guarantor, subject to the  proviso in this sentence, its “Guaranteed Obligations”); provided, that, (a) the Guaranteed Obligations of a  Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor, and (b) the liability  of each Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal  to the largest amount that would not render its obligations hereunder subject to avoidance under Section  548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law.  Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such  indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become  unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or case  commenced by or against any Loan Party under any Debtor Relief Laws. The Administrative Agent’s books  and records showing the amount of the Obligations shall be admissible in evidence in any action or  proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the  amount of the Secured Obligations.  This Guaranty shall not be affected by the illegality, genuineness,  validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing  any Secured Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent  of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might  otherwise constitute a defense to the obligations of the Guarantors (other than payment in full), or any of  them, under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have  or hereafter acquire in any way relating to any or all of the foregoing.  10.02 Rights of Lenders.  Each Guarantor consents and agrees that the Secured Parties may, at any time and from time to  time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof:  (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or  the terms of the Secured Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release,  fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Secured  Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative  Agent, the L/C Issuer and the Lenders in their sole discretion may determine; and (d) release or substitute  one or more of any endorsers or other guarantors of any of the Secured Obligations.  Without limiting the  





 






  111  CHAR1\1823738v3  generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which  might in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but  for this provision, might operate as a discharge of such Guarantor.  10.03 Certain Waivers.  Each Guarantor waives, to the fullest extent permitted by law: (a) any defense arising by reason of  any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause  whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower or any  other Loan Party; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more  burdensome than those of the Borrower or any other Loan Party; (c) the benefit of any statute of limitations  affecting any Guarantor’s liability hereunder; (d) any right to proceed against the Borrower or any other  Loan Party, proceed against or exhaust any security for the Secured Obligations, or pursue any other remedy  in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security  now or hereafter held by any Secured Party; (f) any defense arising by reason of any change in the corporate  existence, structure or ownership of any Loan Party; and (g) any and all other defenses or benefits that may  be derived from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties.   Each Guarantor, to the fullest extent permitted by law, expressly waives all setoffs and counterclaims and  all presentments, demands for payment or performance, notices of nonpayment or nonperformance,  protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature  whatsoever with respect to the Secured Obligations, and all notices of acceptance of this Guaranty or of the  existence, creation or incurrence of new or additional Secured Obligations.    10.04 Obligations Independent.  The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety,  and are independent of the Secured Obligations and the obligations of any other guarantor, and a separate  action may be brought against each Guarantor to enforce this Guaranty whether or not the Borrower or any  other person or entity is joined as a party.   10.05 Subrogation.  No Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or  similar rights with respect to any payments it makes under this Guaranty until all of the Secured Obligations  and any amounts payable under this Guaranty have been indefeasibly paid and performed in full (other than  contingent indemnification obligations for which no claim has been asserted) and the Commitments and  the Revolving Facility are terminated.  If any amounts are paid to a Guarantor in violation of the foregoing  limitation, then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith  be paid to the Secured Parties to reduce the amount of the Secured Obligations, whether matured or  unmatured.  10.06 Termination; Reinstatement.  This Guaranty is a continuing and irrevocable guaranty of all Secured Obligations now or hereafter  existing and shall remain in full force and effect until the Facility Termination Date.  Notwithstanding the  foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any  payment by or on behalf of the Borrower or a Guarantor is made, or any of the Secured Parties exercises  its right of setoff, in respect of the Secured Obligations and such payment or the proceeds of such setoff or  any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required  (including pursuant to any settlement entered into by any of the Secured Parties in their discretion) to be  repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief  





 






  112  CHAR1\1823738v3  Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether  or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior  revocation, rescission, termination or reduction.  The obligations of each Guarantor under this Section 10.06  shall survive termination of this Guaranty.  10.07 Stay of Acceleration.  If acceleration of the time for payment of any of the Secured Obligations is stayed, in connection  with any case commenced by or against a Guarantor or the Borrower under any Debtor Relief Laws, or  otherwise, all such amounts shall nonetheless be payable by each Guarantor, jointly and severally,  immediately upon demand by the Secured Parties.  10.08 Condition of Borrower.  Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate  means of, obtaining from the Borrower and any other guarantor such information concerning the financial  condition, business and operations of the Borrower and any such other guarantor as such Guarantor requires,  and that none of the Secured Parties has any duty, and such Guarantor is not relying on the Secured Parties  at any time, to disclose to it any information relating to the business, operations or financial condition of  the Borrower or any other guarantor (each Guarantor waiving any duty on the part of the Secured Parties  to disclose such information and any defense relating to the failure to provide the same).  10.09 Appointment of Borrower.  Each of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this  Agreement, the other Loan Documents and all other documents and electronic platforms entered into in  connection herewith and agrees that (a) the Borrower may execute such documents and provide such  authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and  each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed  on its behalf, (b) any notice or communication delivered by the Administrative Agent, the L/C Issuer or a  Lender to the Borrower shall be deemed delivered to each Loan Party, and (c) the Administrative Agent,  the L/C Issuer or the Lenders may accept, and be permitted to rely on, any document, authorization,  instrument or agreement executed by the Borrower on behalf of each of the Loan Parties.  10.10 Right of Contribution.  The Guarantors agree among themselves that, in connection with payments made hereunder, each  Guarantor shall have contribution rights against the other Guarantors as permitted under applicable Law.   10.11 Keepwell.  Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of a Lien  under the Loan Documents, in each case, by any Specified Loan Party becomes effective with respect to  any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes  to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation  as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the  Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount  of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations  and undertakings under this Article X voidable under applicable law relating to fraudulent conveyance or  fraudulent transfer, and not for any greater amount).  The obligations and undertakings of each Qualified  ECP Guarantor under this Section 10.11 shall remain in full force and effect until the Secured Obligations  





 






  113  CHAR1\1823738v3  have been indefeasibly paid and performed in full (other than contingent indemnification obligations for  which no claim has been asserted).  Each Loan Party intends this Section 10.11 to constitute, and this  Section 10.11 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or  other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange  Act.  ARTICLE XI    MISCELLANEOUS  11.01 Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Loan Document, and no  consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in  writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required  Lenders) and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the  Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and  for the specific purpose for which given; provided, that, no such amendment, waiver or consent shall:  (a) extend or increase the Commitment of any Lender (or reinstate any Commitment  terminated pursuant to Section 8.02) without the written consent of such Lender (it being  understood and agreed that a waiver of any condition precedent in Section 4.02 or of any Default  is not considered an extension of or increase in the Commitment of any Lender);  (b) postpone any date fixed by this Agreement or any other Loan Document for any  payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to  any Lender hereunder or under such other Loan Document without the written consent of such  Lender entitled to such payment;  (c) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C  Disbursement, or (subject to clause (iv) of the final proviso to this Section 11.01) any fees or other  amounts payable to any Lender hereunder or under any other Loan Document without the written  consent of such Lender entitled to such amount; provided, that, only the consent of the Required  Lenders shall be necessary to amend (i) the definition of “Default Rate” or to waive any obligation  of the Borrower to pay interest or Letter of Credit Fees at the Default Rate, or (ii) any financial  covenant hereunder (or any defined term used therein), even if the effect of such amendment would  be to reduce the rate of interest on any Loan or Letter of Credit or to reduce any fee payable  hereunder;  (d) change Section 2.12(f), Section 2.13, or Section 8.03 in a manner that would have  the effect of altering the ratable reduction of Commitments, pro rata payments or pro rata sharing  of payments hereunder without the written consent of each Lender that is directly and adversely  affected thereby;  (e) change any provision of this Section 11.01, or the definition of “Required  Lenders,” or any other provision of any Loan Document specifying the number or percentage of  Lenders required to amend, waive or otherwise modify any rights hereunder or thereunder or make  any determination or grant any consent hereunder, without the written consent of each Lender;  (f) release all or substantially all of the Collateral in any transaction or series of related  transactions without the written consent of each Lender;   





 






  114  CHAR1\1823738v3  (g) release all or substantially all of the value of the Guaranty without the written  consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty is  permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative  Agent acting alone);   (h) (i) subordinate, or enter into any amendment, waiver or consent having the effect  of subordinating, the Obligations to any other Indebtedness or other obligation, (ii) subordinate, or  enter into any amendment, waiver or consent having the effect of subordinating, the Liens securing  the Secured Obligations to Liens securing any other Indebtedness or other obligation, in each case,  without the written consent of each Lender; or  (i) release the Borrower or permit the Borrower to assign or transfer any of its rights  or obligations under this Agreement or the other Loan Documents without the written consent of  each Lender;  provided, further, that, notwithstanding anything herein to the contrary: (i) no amendment, waiver or  consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above,  affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any  Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing  and signed by the Swingline Lender in addition to the Lenders required above, affect the rights or duties of  the Swingline Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing  and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties  of the Administrative Agent under this Agreement or any other Loan Document; (iv) the Fee Letter may be  amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; (v) no  Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent  hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders  or each affected Lender, may be effected with the consent of the applicable Lenders other than Defaulting  Lenders), except that (A) the Commitment of any Defaulting Lender may not be increased or extended  without the consent of such Lender, and (B) any waiver, amendment or modification requiring the consent  of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately  adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (vi) each  Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the  Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of  the United States supersedes the unanimous consent provisions set forth herein; (vii) the Required Lenders  shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy  or insolvency proceeding and such determination shall be binding on all of the Lenders; (viii) in order to  implement any increase in accordance with Section 2.02(h), this Agreement and any other Loan Document  may be amended as set forth in Section 2.02(h); (ix) this Agreement may be amended (or amended and  restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower, the  other Loan Parties and the relevant lenders providing such additional credit facilities to add one or more  additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding  hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this  Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect  thereof and to include appropriately the Lenders holding such credit facilities in any determination of the  Required Lenders; (x) if following the Closing Date, the Administrative Agent and the Borrower shall have  jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial  nature, in any provision of the Loan Documents, then the Administrative Agent and the Loan Parties shall  be permitted to amend such provision and such amendment shall become effective without any further  action or consent of any other party to any Loan Documents; (xi) this Agreement may be amended (or  amended and restated) without the consent of any Lender (but with the consent of the Borrower and the  Administrative Agent) if, upon giving effect to such amendment (or such amendment and restatement),  





 






  115  CHAR1\1823738v3  such Lender shall no longer be a party to this Agreement (as so amended (or amended and restated)), the  Commitment of such Lender shall have terminated, such Lender shall have no other commitment or other  obligations hereunder and such Lender shall have been paid in full all principal, interest and other amounts  owing to it or accrued for its account under this Agreement and the other Loan Documents; and (xii) this  Agreement or any other Loan Document may be amended as set forth in Section 3.03, including in order to  implement any Successor Rate and/or any Conforming Changes.  11.02 Notices; Effectiveness; Electronic Communications.  (a) Notices Generally.  Except in the case of notices and other communications  expressly permitted to be given by telephone (and except as provided in Section 11.02(b)), all  notices and other communications provided for herein shall be in writing and shall be delivered by  hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission  or e-mail transmission as follows, and all notices and other communications expressly permitted  hereunder to be given by telephone shall be made to the applicable telephone number, as follows:  (i) if to the Borrower or any other Loan Party, the Administrative Agent, the  L/C Issuer, or the Swingline Lender, to the address, fax number, e-mail address or  telephone number specified for such Person on Schedule 1.01(a); and   (ii) if to any other Lender, to the address, fax number, e-mail address or  telephone number specified in its Administrative Questionnaire (including, as appropriate,  notices delivered solely to the Person designated by a Lender on its Administrative  Questionnaire then in effect for the delivery of notices that may contain material non-public  information relating to the Borrower).  Notices and other communications sent by hand or overnight courier service, or mailed by  certified or registered mail, shall be deemed to have been given when received; notices and other  communications sent by fax transmission shall be deemed to have been given when sent (except  that, if not given during normal business hours for the recipient, shall be deemed to have been given  at the opening of business on the next Business Day for the recipient).  Notices and other  communications delivered through electronic communications to the extent provided in Section  11.02(b) shall be effective as provided in Section 11.02(b).  (b) Electronic Communications.  Notices and other communications to the  Administrative Agent, the Lenders, the Swingline Lender and the L/C Issuer hereunder may be  delivered or furnished by electronic communication (including e-mail, FPML messaging and  Internet or intranet websites) pursuant to an electronic communications agreement (or such other  procedures approved by the Administrative Agent in its sole discretion); provided, that, the  foregoing shall not apply to notices to any Lender, the Swingline Lender or the L/C Issuer pursuant  to Article II if such Lender, the Swingline Lender or the L/C Issuer, as applicable, has notified the  Administrative Agent that it is incapable of receiving notices under Article II by electronic  communication.  The Administrative Agent, the Swingline Lender, the L/C Issuer or the Borrower  may each, in its discretion, agree to accept notices and other communications to it hereunder by  electronic communications pursuant to procedures approved by it, provided that approval of such  procedures may be limited to particular notices or communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an  acknowledgment from the intended recipient (such as by the “return receipt requested” function, as  available, return e-mail or other written acknowledgement), and (ii) notices and other  





 






  116  CHAR1\1823738v3  communications posted to an Internet or intranet website shall be deemed received by the intended  recipient upon the sender’s receipt of an acknowledgement from the intended recipient (such as by  the “return receipt requested” function, as available, return e-mail address or other written  acknowledgement) indicating that such notice or communication is available and identifying the  website address therefor; provided, that, for both clauses (i) and (ii), if such notice or other  communication is not sent during the normal business hours of the recipient, such notice, email or  communication shall be deemed to have been sent at the opening of business on the next Business  Day for the recipient.  (c) The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS  AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE  ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF  ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT  OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,  IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER  MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its  Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender,  the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind  (whether in tort, contract or otherwise) arising out of the Borrower’s, any other Loan Party’s or the  Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any  other electronic platform or electronic messaging service, or through the Internet, except to the  extent such losses, claims, damages, liabilities or expenses are determined by a court of competent  jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or  willful misconduct of such Agent Party.  (d) Change of Address, Etc.  Each of the Borrower, the Administrative Agent, the L/C  Issuer and the Swingline Lender may change its address, fax number or telephone number or e- mail address for notices and other communications hereunder by notice to the other parties hereto.   Each Lender may change its address, fax number or telephone number or e-mail address for notices  and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C  Issuer and the Swingline Lender.  In addition, each Lender agrees to notify the Administrative  Agent from time to time to ensure that the Administrative Agent has on record (i) an effective  address, contact name, telephone number, fax number and e-mail address to which notices and  other communications may be sent, and (ii) accurate wire instructions for such Lender.   Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such  Public Lender to at all times have selected the “Private Side Information” or similar designation on  the content declaration screen of the Platform in order to enable such Public Lender or its delegate,  in accordance with such Public Lender’s compliance procedures and applicable Law, including  United States federal and state securities Laws, to make reference to Borrower Materials that are  not made available through the “Public Side Information” portion of the Platform and that may  contain material non-public information with respect to the Borrower or its securities for purposes  of United States federal or state securities laws.  (e) Reliance by Administrative Agent, L/C Issuer and Lenders.  The Administrative  Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including  telephonic or electronic notices, Loan Notices, Letter of Credit Applications, Notices of Loan  Prepayment, and Swingline Loan Notices) purportedly given by or on behalf of any Loan Party  even if (i) such notices were not made in a manner specified herein, were incomplete or were not  





 






  117  CHAR1\1823738v3  preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as  understood by the recipient, varied from any confirmation thereof.  The Loan Parties shall  indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each  of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person  on each notice purportedly given by or on behalf of a Loan Party.  All telephonic notices to and  other telephonic communications with the Administrative Agent may be recorded by the  Administrative Agent, and each of the parties hereto hereby consents to such recording.  11.03 No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by  any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan  Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,  power or privilege hereunder or under any other Loan Document preclude any other or further exercise  thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and  privileges herein provided, and provided under each other Loan Document, are cumulative and not  exclusive of any rights, remedies, powers and privileges provided by law.  Notwithstanding anything to the contrary contained herein or in any other Loan Document, the  authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan  Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection  with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in  accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided, that, the  foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and  remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the  other Loan Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights and remedies  that inure to its benefit (solely in its capacity as the L/C Issuer or the Swingline Lender, as the case may be)  hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance  with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or  appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan  Party under any Debtor Relief Law; provided, further, that, if at any time there is no Person acting as  Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall  have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02, and (ii) in addition  to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any  Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and  as authorized by the Required Lenders.  11.04 Expenses; Indemnity; Damage Waiver.  (a) Costs and Expenses.  The Loan Parties shall pay (i) all reasonable and documented  out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including, but not  limited to, (x) the reasonable and documented fees, charges and disbursements of counsel to the  Administrative Agent and its Affiliates, and (y) due diligence expenses) in connection with the  syndication of the credit facilities provided for herein, the preparation, negotiation, execution,  delivery and administration of this Agreement and the other Loan Documents or any amendments,  modifications or waivers of the provisions hereof or thereof (whether or not the transactions  contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of- pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal,  reinstatement or extension of any Letter of Credit or any demand for payment thereunder, and (iii)  all documented out-of-pocket expenses incurred by the Administrative Agent, any Lender or the  L/C Issuer (including the fees, charges and disbursements of counsel for the Administrative Agent,  





 






  118  CHAR1\1823738v3  any Lender, or the L/C Issuer), in connection with the enforcement or protection of its rights (A) in  connection with this Agreement and the other Loan Documents, including its rights under this  Section 11.04, or (B) in connection with Loans made or Letters of Credit issued hereunder,  including all such out-of-pocket expenses incurred during any workout, restructuring or  negotiations in respect of such Loans or Letters of Credit.  (b) Indemnification by the Loan Parties.  The Loan Parties shall indemnify the  Administrative Agent (and any sub-agent thereof), the Arranger, each Lender and the L/C Issuer,  and each Related Party of any of the foregoing Persons (each such Person being called an  “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,  damages, liabilities and related expenses (including the reasonable fees, charges and disbursements  of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee  by any Person (including the Borrower or any other Loan Party) arising out of, in connection with,  or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any  agreement or instrument contemplated hereby or thereby (including any Indemnitee’s reliance on  any Communication executed using an Electronic Signature, or in the form of an Electronic  Record), the performance by the parties hereto of their respective obligations hereunder or  thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case  of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the  administration of this Agreement and the other Loan Documents (including in respect of any  matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of  the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment  under a Letter of Credit if the documents presented in connection with such demand do not strictly  comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of  Hazardous Materials on or from any property owned, leased or operated by a Loan Party or any of  its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any of its  Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating  to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a  third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee  is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN  WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE  NEGLIGENCE OF THE INDEMNITEE; provided, that, such indemnity shall not, as to any  Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related  expenses are determined by a court of competent jurisdiction by final and non-appealable judgment  to have resulted from (A) the gross negligence or willful misconduct of such Indemnitee, or (B) a  breach by such Indemnitee of its material obligations under this Agreement or the other Loan  Documents.  Without limiting the provisions of Section 3.01(d), this Section 11.04(b) shall not  apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising  from any non-Tax claim.  (c) Reimbursement by Lenders.  To the extent that the Loan Parties for any reason fail  to indefeasibly pay any amount required under Section 11.04(a) or Section 11.04(b) to be paid by  it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline Lender or  any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative  Agent (or any such sub-agent), the L/C Issuer, the Swingline Lender or such Related Party, as the  case may be, such Lender’s pro rata share (determined as of the time that the applicable  unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total  Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect  of a claim asserted by such Lender), such payment to be made severally among them based on such  Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed  expense or indemnity payment is sought); provided, that, the unreimbursed expense or indemnified  





 






  119  CHAR1\1823738v3  loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted  against the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender  in its capacity as such, or against any Related Party of any of the foregoing acting for the  Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in connection  with such capacity.  The obligations of the Lenders under this Section 11.04(c) are subject to the  provisions of Section 2.12(d).  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by  applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges  that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for  special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising  out of, in connection with, or as a result of, this Agreement, any other Loan Document or any  agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby,  any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in Section  11.04(b) shall be liable for any damages arising from the use by unintended recipients of any  information or other materials distributed to such unintended recipients by such Indemnitee through  telecommunications, electronic or other information transmission systems in connection with this  Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, other  than for direct or actual damages resulting from the gross negligence or willful misconduct of such  Indemnitee as determined by a final and non-appealable judgment of a court of competent  jurisdiction.  (e) Payments.  All amounts due under this Section 11.04 shall be payable not later  than ten (10) Business Days after demand therefor.  (f) Survival.  The agreements in this Section 11.04 and the indemnity provisions of  Section 11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the  Swingline Lender, the replacement of any Lender, and the Facility Termination Date.   11.05 Payments Set Aside.    To the extent that any payment by or on behalf of the Borrower is made to the Administrative  Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises  its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently  invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any  settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be  repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief  Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended  to be satisfied shall be revived and continued in full force and effect as if such payment had not been made  or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the  Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered  from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date  such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The  obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the  payment in full of the Obligations and the termination of this Agreement.  11.06 Successors and Assigns.  (a) Successors and Assigns Generally.  The provisions of this Agreement and the other  Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto  and their respective successors and assigns permitted hereby, except neither the Borrower nor any  





 






  120  CHAR1\1823738v3  other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without  the prior written consent of the Administrative Agent and each Lender and no Lender may assign  or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in  accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with  the provisions of Section 11.06(d), or (iii) by way of pledge or assignment of a security interest  subject to the restrictions of Section 11.06(e) (and any other attempted assignment or transfer by  any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be  construed to confer upon any Person (other than the parties hereto, their respective successors and  assigns permitted hereby, Participants to the extent provided in Section 11.06(d) and, to the extent  expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C  Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this  Agreement.  (b) Assignments by Lenders.  Any Lender may at any time assign to one or more  assignees all or a portion of its rights and obligations under this Agreement and the other Loan  Documents (including all or a portion of its Commitment and the Loans (including for purposes of  this Section 11.06(b), participations in L/C Obligations and in Swingline Loans) at the time owing  to it); provided, that, any such assignment shall be subject to the following conditions:  (i) Minimum Amounts.  (A) In the case of an assignment of the entire remaining amount of the  assigning Lender’s Commitment and/or the Loans at the time owing to it or  contemporaneous assignments to related Approved Funds (determined after giving  effect to such assignments) that equal at least the amount specified in Section  11.06(b)(i)(B) in the aggregate or in the case of an assignment to a Lender, an  Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned.  (B) In any case not described in Section 11.06(b)(i)(A), the aggregate  amount of the Commitment (which for this purpose includes Loans outstanding  thereunder) or, if the Commitment is not then in effect, the principal outstanding  balance of the Loans of the assigning Lender subject to each such assignment,  determined as of the date the Assignment and Assumption with respect to such  assignment is delivered to the Administrative Agent or, if “Trade Date” is specified  in the Assignment and Assumption, as of the Trade Date, shall not be less than  $5,000,000, unless each of the Administrative Agent and, so long as no Event of  Default has occurred and is continuing, the Borrower otherwise consents (each  such consent not to be unreasonably withheld or delayed).  (ii) Proportionate Amounts.  Each partial assignment shall be made as an  assignment of a proportionate part of all the assigning Lender’s rights and obligations under  this Agreement and the other Loan Documents with respect to the Loans and/or the  Commitment assigned, except that this Section 11.06(b)(ii) shall not apply to the Swingline  Lender’s rights and obligations in respect of Swingline Loans.  (iii) Required Consents.  No consent shall be required for any assignment  except to the extent required by Section 11.06(b)(i)(B) and, in addition:  (A) the consent of the Borrower (such consent not to be unreasonably  withheld or delayed) shall be required unless (1) an Event of Default has occurred  and is continuing at the time of such assignment, or (2) such assignment is to a  





 






  121  CHAR1\1823738v3  Lender, an Affiliate of a Lender or an Approved Fund; provided, that, the Borrower  shall be deemed to have consented to any such assignment unless it shall object  thereto by written notice to the Administrative Agent within five (5) Business Days  after having received written notice thereof;  (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required if such assignment is to a  Person that is not a Lender, an Affiliate of a Lender or an Approved Fund with  respect to a Lender; and  (C) the consent of the L/C Issuer and the Swingline Lender shall be  required for any assignment.  (iv) Assignment and Assumption.  The parties to each assignment shall execute  and deliver to the Administrative Agent an Assignment and Assumption, together with a  processing and recordation fee in the amount of $3,500; provided, that, the Administrative  Agent may, in its sole discretion, elect to waive such processing and recordation fee in the  case of any assignment.  The assignee, if it is not a Lender, shall deliver to the  Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons.  No such assignment shall be made (A)  to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any Defaulting  Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,  would constitute any of the foregoing Persons described in this clause (B), or (C) to a  natural Person (or a holding company, investment vehicle or trust for, or owned and  operated by or for the primary benefit of one or more natural Persons).    (vi) Certain Additional Payments.  In connection with any assignment of rights  and obligations of any Defaulting Lender hereunder, no such assignment shall be effective  unless and until, in addition to the other conditions thereto set forth herein, the parties to  the assignment shall make such additional payments to the Administrative Agent in an  aggregate amount sufficient, upon distribution thereof as appropriate (which may be  outright payment, purchases by the assignee of participations or subparticipations, or other  compensating actions, including funding, with the consent of the Borrower and the  Administrative Agent, the applicable pro rata share of Loans previously requested but not  funded by the Defaulting Lender, to each of which the applicable assignee and assignor  hereby irrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed  by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender  hereunder (and interest accrued thereon), and (B) acquire (and fund as appropriate) its full  pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in  accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event  that any assignment of rights and obligations of any Defaulting Lender hereunder shall  become effective under applicable Law without compliance with the provisions of this  Section 11.06(b)(vi), then the assignee of such interest shall be deemed to be a Defaulting  Lender for all purposes of this Agreement until such compliance occurs.  Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section  11.06(c), from and after the effective date specified in each Assignment and Assumption, the  assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by  such Assignment and Assumption, have the rights and obligations of a Lender under this  Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such  





 






  122  CHAR1\1823738v3  Assignment and Assumption, be released from its obligations under this Agreement (and, in the  case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations  under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled  to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances  occurring prior to the effective date of such assignment); provided, that, except to the extent  otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will  constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having  been a Defaulting Lender.  Upon request, the Borrower (at its expense) shall execute and deliver a  Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under  this Agreement that does not comply with this Section 11.06(b) shall be treated for purposes of this  Agreement as a sale by such Lender of a participation in such rights and obligations in accordance  with Section 11.06(d).  (c) Register.  The Administrative Agent, acting solely for this purpose as a non- fiduciary agent of the Borrower (and such agency being solely for Tax purposes), shall maintain at  the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or  the equivalent thereof in electronic form) and a register for the recordation of the names and  addresses of the Lenders, and the Commitments of, and principal amounts (and interest amounts)  of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to  time (the “Register”).  The entries in the Register shall be conclusive, absent manifest error, and  the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is  recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this  Agreement.  The Register shall be available for inspection by the Borrower and any Lender (with  respect to such Lender’s interest only), at any reasonable time and from time to time upon  reasonable prior notice.  (d) Participations.  Any Lender may at any time, without the consent of, or notice to,  the Borrower or the Administrative Agent, sell participations to any Person (other than a natural  Person, or a holding company, investment vehicle or trust for, or owned and operated for the  primary benefit of one or more natural Persons, a Defaulting Lender or the Borrower or any of the  Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s  rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or  the Loans (including such Lender’s participations in L/C Obligations and/or Swingline Loans)  owing to it); provided, that, (i) such Lender’s obligations under this Agreement shall remain  unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the  performance of such obligations, and (iii) the Borrower, the Administrative Agent, the Lenders and  the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such  Lender’s rights and obligations under this Agreement.  For the avoidance of doubt, each Lender  shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any  participations.  Any agreement or instrument pursuant to which a Lender sells such a participation shall  provide that such Lender shall retain the sole right to enforce this Agreement and to approve any  amendment, modification or waiver of any provision of this Agreement; provided, that, such  agreement or instrument may provide that such Lender will not, without the consent of the  Participant, agree to any amendment, waiver or other modification described in the first proviso to  Section 11.01 that affects such Participant.  The Borrower agrees that each Participant shall be  entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations  therein, including the requirements under Section 3.01(f) (it being understood that the  documentation required under Section 3.01(f) shall be delivered to the Lender who sells the  participation)) to the same extent as if it were a Lender and had acquired its interest by assignment  





 






  123  CHAR1\1823738v3  pursuant to Section 11.06(b); provided, that, such Participant (A) agrees to be subject to the  provisions of Sections 3.06 and 11.13 as if it were an assignee under Section 11.06(b), and (B) shall  not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any  participation, than the Lender from whom it acquired the applicable participation would have been  entitled to receive, except to the extent such entitlement to receive a greater payment results from  a Change in Law that occurs after the Participant acquired the applicable participation.  Each Lender  that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to  cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any  Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits  of Section 11.08 as though it were a Lender; provided, that, such Participant agrees to be subject to  Section 2.13 as though it were a Lender.  Each Lender that sells a participation shall, acting solely  for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the  name and address of each Participant and the principal amounts (and interest amounts) of each  Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant  Register”); provided, that, no Lender shall have any obligation to disclose all or any portion of the  Participant Register (including the identity of any Participant or any information relating to a  Participant’s interest in any commitments, loans, letters of credit or its other obligations under any  Loan Document) to any Person except to the extent that such disclosure is necessary to establish  that such commitment, loan, letter of credit or other obligation is in registered form under Section  5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall  be conclusive absent manifest error, and such Lender shall treat each Person whose name is  recorded in the Participant Register as the owner of such participation for all purposes of this  Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the  Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for  maintaining a Participant Register.  (e) Certain Pledges.  Any Lender may at any time pledge or assign a security interest  in all or any portion of its rights under this Agreement (including under its Note or Notes, if any)  to secure obligations of such Lender, including any pledge or assignment to secure obligations to a  Federal Reserve Bank; provided, that, no such pledge or assignment shall release such Lender from  any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a  party hereto.  (f) Resignation as L/C Issuer or Swingline Lender after Assignment.  Notwithstanding  anything to the contrary contained herein, if at any time Bank of America assigns all of its  Commitment and Revolving Loans pursuant to Section 11.06(b), Bank of America may, (i) upon  thirty (30) days’ notice to the Administrative Agent, the Borrower and the Lenders, resign as the  L/C Issuer, and/or (ii) upon thirty (30) days’ notice to the Borrower, resign as the Swingline Lender.   In the event of any such resignation as the L/C Issuer or the Swingline Lender, the Borrower shall  be entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender  hereunder; provided, that, no failure by the Borrower to appoint any such successor shall affect the  resignation of Bank of America as the L/C Issuer or the Swingline Lender, as the case may be.  If  Bank of America resigns as the L/C Issuer pursuant to this Section 11.06(f), it shall retain all the  rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit  issued by it outstanding as of the effective date of its resignation as the L/C Issuer and all L/C  Obligations with respect thereto (including the right to require the Lenders to make Revolving  Loans that are Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to  Section 2.03(f)).  If Bank of America resigns as the Swingline Lender, it shall retain all the rights  of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and  outstanding as of the effective date of such resignation, including the right to require the Lenders  to make Revolving Loans that are Base Rate Loans or fund risk participations in outstanding  





 






  124  CHAR1\1823738v3  Swingline Loans pursuant to Section 2.04(c).  Upon the appointment of a successor L/C Issuer  and/or Swingline Lender, (A) such successor shall succeed to and become vested with all of the  rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may  be, and (B) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of  Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory  to the retiring L/C Issuer to effectively assume the obligations of such retiring L/C Issuer with  respect to such Letters of Credit.  11.07 Treatment of Certain Information; Confidentiality.  (a) Treatment of Certain Information.  Each of the Administrative Agent, the Lenders  and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below),  except that Information may be disclosed (i) to its Affiliates, its auditors and its Related Parties (it  being understood that the Persons to whom such disclosure is made will be informed of the  confidential nature of such Information and instructed to keep such Information confidential), (ii)  to the extent required or requested by any regulatory authority purporting to have jurisdiction over  such Person or its Related Parties (including any self-regulatory authority, such as the National  Association of Insurance Commissioners), (iii) to the extent required by applicable Laws or  regulations or by any subpoena or similar legal process, in which case the Administrative Agent,  such Lender, or the L/C Issuer, as applicable, shall notify the Borrower promptly prior to such  disclosure to the extent practicable and not prohibited by Law, (iv) to any other party hereto, (v) in  connection with the exercise of any remedies hereunder or under any other Loan Document or any  action or proceeding relating to this Agreement or any other Loan Document or the enforcement of  rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the  same as those of this Section 11.07, to (A) any assignee of or Participant in, or any prospective  assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible  Assignee invited to be a Lender pursuant to Section 2.02(h), or (B) any actual or prospective party  (or its Related Parties) to any swap, derivative or other transaction under which payments are to be  made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (vii)  on a confidential basis to (A) any rating agency in connection with rating the Borrower or its  Subsidiaries or the credit facilities provided hereunder, (B) the provider of any Platform or other  electronic delivery service used by the Administrative Agent, the L/C Issuer and/or the Swingline  Lender to deliver Borrower Materials or notices to the Lenders, or (C) the CUSIP Service Bureau  or any similar agency in connection with the application, issuance, publishing and monitoring of  CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder,  (viii) with the consent of the Borrower, (ix) to the extent such Information (A) becomes publicly  available other than as a result of a breach of this Section 11.07, or (B) becomes available to the  Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a  nonconfidential basis from a source other than the Borrower, or (x) to the extent such Information  is independently discovered or developed by a party hereto without utilizing any Information  received from the Borrower or violating the terms of this Section 11.07.  For purposes of this  Section 11.07, “Information” means all information received from the Borrower or any Subsidiary  relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such  information that is available to the Administrative Agent, any Lender or the L/C Issuer on a  nonconfidential basis prior to disclosure by the Borrower or any Subsidiary; provided, that, in the  case of information received from the Borrower or any Subsidiary after the Closing Date, such  information is clearly identified at the time of delivery as confidential.  Any Person required to  maintain the confidentiality of Information as provided in this Section 11.07 shall be considered to  have complied with its obligation to do so if such Person has exercised the same degree of care to  maintain the confidentiality of such Information as such Person would accord to its own  confidential information.  In addition, the Administrative Agent and the Lenders may disclose the  





 






  125  CHAR1\1823738v3  existence of this Agreement and information about this Agreement to market data collectors,  similar service providers to the lending industry and service providers to the Administrative Agent  and the Lenders in connection with the administration of this Agreement, the other Loan  Documents and the Commitments.  (b) Non-Public Information.  Each of the Administrative Agent, the Lenders and the  L/C Issuer acknowledges that (i) the Information may include material non-public information  concerning a Loan Party or a Subsidiary, as the case may be, (ii) it has developed compliance  procedures regarding the use of material non-public information, and (iii) it will handle such  material non-public information in accordance with applicable Law, including United States federal  and state securities Laws.  (c) Press Releases.  The Loan Parties and their Affiliates agree that they will not in the  future issue any press releases or other public disclosure using the name of the Administrative  Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the Loan  Documents without the prior written consent of the Administrative Agent, unless (and only to the  extent that) the Loan Parties or such Affiliate is required to do so under law and then, in any event  the Loan Parties or such Affiliate will consult with such Person before issuing such press release  or other public disclosure.    (d) Customary Advertising Material.  The Loan Parties consent to the publication by  the Administrative Agent or any Lender of customary advertising material relating to the  transactions contemplated hereby using the name, product photographs, logo or trademark of the  Loan Parties.  11.08 Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each  of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent  permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand,  provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at  any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of  the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan  Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the  L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, the L/C Issuer or  Affiliate shall have made any demand under this Agreement or any other Loan Document and although  such obligations of the Borrower or such Loan Party may be contingent or unmatured, secured or unsecured,  or are owed to a branch, office or Affiliate of such Lender or the L/C Issuer different from the branch, office  or Affiliate holding such deposit or obligated on such indebtedness; provided, that, in the event that any  Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over  immediately to the Administrative Agent for further application in accordance with the provisions of  Section 2.15, and pending such payment, shall be segregated by such Defaulting Lender from its other  funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuer and the Lenders,  and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing  in reasonable detail the Secured Obligations owing to such Defaulting Lender as to which it exercised such  right of setoff.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section  11.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender, the  L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to notify the  Borrower and the Administrative Agent promptly after any such setoff and application; provided, that, the  failure to give such notice shall not affect the validity of such setoff and application.   





 






  126  CHAR1\1823738v3  11.09 Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or  agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest  permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall  receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the  principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining  whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds  the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any  payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary  prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts  the total amount of interest throughout the contemplated term of the Obligations hereunder.  11.10 Integration; Effectiveness.  This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees  payable to the Administrative Agent or the L/C Issuer, constitute the entire contract among the parties  relating to the subject matter hereof and supersede any and all previous agreements and understandings,  oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement  shall become effective when it shall have been executed by the Administrative Agent and when the  Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures  of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties  hereto and their respective successors and assigns.  11.11 Survival of Representations and Warranties.   All representations and warranties made hereunder and in any other Loan Document or other  document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the  execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied  upon by the Administrative Agent and each Lender, regardless of any investigation made by the  Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent  or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and  shall continue in full force and effect as long as any Loan or any other Obligation hereunder (other than  contingent indemnification obligations for which no claim has been asserted) shall remain unpaid or  unsatisfied or any Letter of Credit shall remain outstanding.  11.12 Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or  unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement  and the other Loan Documents shall not be affected or impaired thereby, and (b) the parties shall endeavor  in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions  the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable  provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render  unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of this  Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to  Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the  Administrative Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be  deemed to be in effect only to the extent not so limited.  11.13 Replacement of Lenders.  





 






  127  CHAR1\1823738v3  If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any  Lender is a Defaulting Lender or a Non-Consenting Lender, then, in each case, the Borrower may, at its  sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to  assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and  consents required by, Section 11.06), all of its interests, rights (other than its existing rights to payments  pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents  to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a  Lender accepts such assignment); provided, that:  (a) the Borrower shall have paid to the Administrative Agent the assignment fee (if  any) specified in Section 11.06(b);  (b) such Lender shall have received payment of an amount equal to one hundred  percent (100%) of the outstanding principal of its Loans, accrued interest thereon, accrued fees and  all other amounts payable to it hereunder and under the other Loan Documents (including any  amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and  accrued interest and fees) or the Borrower (in the case of all other amounts);  (c) in the case of any such assignment resulting from a claim for compensation under  Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result  in a reduction in such compensation or payments thereafter;  (d) such assignment does not conflict with applicable Laws; and  (e) in the case of an assignment resulting from a Lender becoming a Non-Consenting  Lender, the applicable assignee shall have consented to the applicable amendment, waiver or  consent.  A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such  assignment and delegation cease to apply.   Each party hereto agrees that (a) an assignment required pursuant to this Section 11.13 may be  effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent  and the assignee, and (b) the Lender required to make such assignment need not be a party thereto in order  for such assignment to be effective and shall be deemed to have consented to an be bound by the terms  thereof; provided, that, following the effectiveness of any such assignment, the other parties to such  assignment agree to execute and deliver such documents necessary to evidence such assignment as  reasonably requested by the applicable Lender; provided, further, that, any such documents shall be without  recourse to or warranty by the parties thereto.    Notwithstanding anything in this Section 11.13 to the contrary, (a) the Lender that acts as the L/C  Issuer may not be replaced hereunder at any time it has any Letter of Credit outstanding unless arrangements  satisfactory to such Lender (including the furnishing of a backstop letter of credit in form and substance,  and issued by an issuer, reasonably satisfactory to the L/C Issuer or the depositing of Cash Collateral into  a Cash Collateral account in amounts and pursuant to arrangements reasonably satisfactory to the L/C  Issuer) have been made with respect to such outstanding Letter of Credit, and (b) the Lender that acts as the  Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.06.  11.14 Governing Law; Jurisdiction; Etc.  





 






  128  CHAR1\1823738v3  (a) GOVERNING LAW.  THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET  FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF  ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING  OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH  THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK.  (b) SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH OTHER  LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT  COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR  DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT  OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C  ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO  THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS  RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF  THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED  STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO  IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH  COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION,  LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW  YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE  LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A  FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE  CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE  JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS  AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT  THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY  OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY  OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.  (c) WAIVER OF VENUE.  THE BORROWER AND EACH OTHER LOAN PARTY  IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR  HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING  ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN  DOCUMENT IN ANY COURT REFERRED TO IN SECTION 11.14(b).  THE BORROWER  AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES,  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN  INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING  IN ANY SUCH COURT.  (d) SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY  PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY  APPLICABLE LAW.  





 






  129  CHAR1\1823738v3  11.15 Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY  LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED  HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).   EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY  OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH  OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE  FOREGOING WAIVER, AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES  HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS  IN THIS SECTION 11.15.  11.16 Subordination.  Each Loan Party (a “Subordinating Loan Party”) hereby subordinates the payment of all obligations  and indebtedness of any other Loan Party owing to it, whether now existing or hereafter arising, including  but not limited to any obligation of any such other Loan Party to the Subordinating Loan Party as subrogee  of the Secured Parties or resulting from such Subordinating Loan Party’s performance under the Guaranty,  to the indefeasible payment in full in cash of all Obligations (other than contingent indemnification  obligations for which no claim has been asserted).  If an Event of Default exists and the Secured Parties so  request, any such obligation or indebtedness of any such other Loan Party to the Subordinating Loan Party  shall be enforced and performance received by the Subordinating Loan Party as trustee for the Secured  Parties and the proceeds thereof shall be paid over to the Secured Parties on account of the Secured  Obligations, but without reducing or affecting in any manner the liability of the Subordinating Loan Party  under this Agreement.  Without limitation of the foregoing, so long as no Event of Default has occurred  and is continuing, the Loan Parties may make and receive payments with respect to Intercompany Debt;  provided, that, in the event that any Loan Party receives any payment of any Intercompany Debt at a time  when such payment is prohibited by this Section 11.16, such payment shall be held by such Loan Party, in  trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the  Administrative Agent.    11.17 No Advisory or Fiduciary Responsibility.  In connection with all aspects of each transaction contemplated hereby (including in connection  with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower  and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that:  (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the  Arranger, each Lender, and their respective Affiliates are arm’s-length commercial transactions between  the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative  Agent, the Arranger, each Lender, and their respective Affiliates, on the other hand, (ii) each of the  Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to  the extent it has deemed appropriate, and (iii) the Borrower and each other Loan Party is capable of  evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated  hereby and by the other Loan Documents; (b)(i) the Administrative Agent, the Arranger, each Lender, and  each of their respective Affiliates is and has been acting solely as a principal and, except as expressly agreed  in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary,  for Borrower, any other Loan Party or any of their respective Affiliates, or any other Person, and (ii) none  of the Administrative Agent, the Arranger, any Lender, or any of their respective Affiliates has any  





 






  130  CHAR1\1823738v3  obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the  transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan  Documents; and (c) the Administrative Agent, the Arranger, and each Lender may be engaged in a broad  range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties  and their respective Affiliates, and none of the Administrative Agent, the Arranger, any Lender, or any of  their respective Affiliates has any obligation to disclose any of such interests to the Borrower, any other  Loan Party or any of their respective Affiliates.  To the fullest extent permitted by law, each of the Borrower  and each other Loan Party hereby waives and releases any claims that it may have against the  Administrative Agent, the Arranger, any Lender, or any of their respective Affiliates with respect to any  breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions  contemplated hereby.  11.18 Electronic Execution; Electronic Records; Counterparts.  This Agreement, any other Loan Document, and any other Communication, including  Communications required to be in writing, may be in the form of an Electronic Record and may be executed  using Electronic Signatures.  Each of the Loan Parties, the Administrative Agent, and each Lender Party  agrees that any Electronic Signature on or associated with any Communication shall be valid and binding  on such Person to the same extent as a manual, original signature, and that any Communication entered into  by Electronic Signature will constitute the legal, valid and binding obligation of such Person enforceable  against such Person in accordance with the terms thereof to the same extent as if a manually executed  original signature was delivered.  Any Communication may be executed in as many counterparts as  necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one  and the same Communication.  For the avoidance of doubt, the authorization under this paragraph may  include use or acceptance of a manually signed paper Communication which has been converted into  electronic form (such as scanned into .pdf), or an electronically signed Communication converted into  another format, for transmission, delivery and/or retention.  The Administrative Agent and each Lender  Party may, at its option, create one or more copies of any Communication in the form of an imaged  Electronic Record (each, an “Electronic Copy”), which shall be deemed created in the ordinary course of  such Person’s business, and destroy the original paper document.  All Communications in the form of an  Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall  have the same legal effect, validity and enforceability as a paper record.  Notwithstanding anything  contained herein to the contrary, neither the Administrative Agent nor any Lender Party is under any  obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such  Person pursuant to procedures approved by it; provided, that, without limiting the foregoing, (a) to the  extent the Administrative Agent or such Lender Party has agreed to accept such Electronic Signature, the  Administrative Agent and each Lender Party shall be entitled to rely on any such Electronic Signature  purportedly given by or on behalf of any Loan Party and/or any other Lender Party without further  verification, and (b) upon the request of the Administrative Agent or any Lender Party, any Electronic  Signature shall be promptly followed by such manually executed counterpart.  Neither the Administrative Agent nor any Lender Party shall be responsible for or have any duty  to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan  Document or any other agreement, instrument or document (including, for the avoidance of doubt, in  connection with the Administrative Agent’s or such Lender Party’s reliance on any Electronic Signature  transmitted by telecopy, emailed .pdf or any other electronic means).  The Administrative Agent and each  Lender Party shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement  or any other Loan Document by acting upon, any Communication (which writing may be a fax, any  electronic message, Internet or intranet website posting or other distribution or signed using an Electronic  Signature) or any statement made to it orally or by telephone and believed by it to be genuine and signed  





 






  131  CHAR1\1823738v3  or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in  the Loan Documents for being the maker thereof).  Each of the Loan Parties and each Lender Party hereby waives (a) any argument, defense or right  to contest the legal effect, validity or enforceability of this Agreement or any other Loan Document based  solely on the lack of paper original copies of this Agreement or such other Loan Document, and (b) waives  any claim against the Administrative Agent and each other Lender Party for any liabilities arising solely  from the Administrative Agent’s and/or any Lender Party’s reliance on or use of Electronic Signatures,  including any liabilities arising as a result of the failure of the Loan Parties to use any available security  measures in connection with the execution, delivery or transmission of any Electronic Signature.  11.19 USA PATRIOT Act Notice.  Each Lender that is subject to the PATRIOT Act, the L/C Issuer and the Administrative Agent (for  itself and not on behalf of any Lender) hereby notifies the Borrower and the other Loan Parties that pursuant  to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,  2001)) (the “PATRIOT Act”), it is required to obtain, verify and record information that identifies the  Borrower and each other Loan Party, which information includes the name and address of each such Person  and other information that will allow such Lender, the L/C Issuer or the Administrative Agent, as applicable,  to identify each such Person in accordance with the PATRIOT Act.  The Loan Parties agree to, promptly  following a request by the Administrative Agent, the L/C Issuer or any Lender, provide all such other  documentation and information that the Administrative Agent, the L/C Issuer or such Lender requests in  order to comply with its ongoing obligations under applicable “know your customer” and anti-money  laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation.  11.20 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any liability of  any Affected Financial Institution arising under any Loan Document, to the extent such liability is  unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution  Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of  any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities  arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution;  and (b) the effects of any Bail-In Action on any such liability, including, if applicable, (i) a reduction in full  or in part or cancellation of any such liability, (ii) a conversion of all, or a portion of, such liability into  shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a  bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other  instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under  this Agreement or any other Loan Document, or (iii) the variation of the terms of such liability in connection  with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.  11.21 Acknowledgement Regarding Any Supported QFCs.  To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any  Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”,  and each such QFC, a “Supported QFC”), the parties acknowledge and agree that, with respect to the  resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act  and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the  regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported  QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan  





 






  132  CHAR1\1823738v3  Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New  York and/or of the United States or any other state of the United States), in the event a Covered Entity that  is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special  Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and  any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights  in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be  effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if  the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property)  were governed by the laws of the United States or a state of the United States.  In the event a Covered Party  or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution  Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or  any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to  no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if  the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of  the United States.  Without limitation of the foregoing, it is understood and agreed that rights and remedies  of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party  with respect to a Supported QFC or any QFC Credit Support.  11.22 Release of Liens; Release of Guarantors.  The Administrative Agent shall, upon request of, and at the expense of, the Borrower, execute and  deliver to the applicable Loan Party such documents as the Borrower may reasonably request to evidence  the release of (a) any Lien on any property granted to or held by the Administrative Agent under any Loan  Document (i) upon the Facility Termination Date, (iii) that is sold or otherwise disposed of or to be sold or  otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or  under any other Loan Document, or (iv) if approved, authorized or ratified in writing by the Required  Lenders in accordance with Section 11.01, and (b) any Guarantor from its obligations under the Guaranty  if such Person ceases to be a Subsidiary or becomes an Immaterial Subsidiary, in each case as a result of a  transaction permitted under the Loan Documents.  11.23 ENTIRE AGREEMENT.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL  AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF  PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.   THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]    





 






   ARHAUS, INC.  CREDIT AGREEMENT  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as  of the date first above written.  BORROWER: ARHAUS, INC.,  a Delaware corporation  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer  GUARANTORS: FS ARHAUS HOLDING, INC.,  a Delaware corporation  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer  HOMEWORKS HOLDINGS, INC.,  an Ohio corporation  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer  ARHAUS, LLC,  a Delaware limited liability company  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer  HINES HILL AVIATION, LLC,  an Ohio limited liability company  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer  HOMEWORKS LOGISTICS, LLC,  an Ohio limited liability company  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer    





 






   ARHAUS, INC.  CREDIT AGREEMENT  ARHAUS GIFT CARDS, LLC,  an Ohio limited liability company  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer  TB ARHAUS, LLC,  a Delaware limited liability company  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer  NORTHERN WOODS, LLC,  an Ohio limited liability company  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer  ARHAUS MANAGEMENT, INC.,  an Ohio corporation  By: /s/ Dawn Phillipson  Name: Dawn Phillipson  Title: Chief Financial Officer    





 






   ARHAUS, INC.  CREDIT AGREEMENT  ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,  as the Administrative Agent  By: /s/ Philip P. Whewell  Name: Philip P. Whewell  Title: Senior Vice President    





 






   ARHAUS, INC.  CREDIT AGREEMENT  LENDERS: BANK OF AMERICA, N.A.,  as a Lender, the L/C Issuer, and the Swingline Lender  By: /s/ Philip P. Whewell  Name: Philip P. Whewell  Title: Senior Vice President    





 






  CHAR1\1835093v3    EXHIBIT A  [FORM OF] ASSIGNMENT AND ASSUMPTION    This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective  Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and  [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein shall have the  meanings given to them in the Credit Agreement identified below (as amended, restated, amended and  restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt  of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth  in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of  this Assignment and Assumption as if set forth herein in full.   For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and  the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance  with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the  Administrative Agent as contemplated below (a) all of the Assignor’s rights and obligations as a Lender  under the Credit Agreement and any other documents or instruments delivered pursuant thereto in the  amount[s] and equal to the percentage interest[s] identified below of all the outstanding rights and  obligations of the Assignor under the respective facilities identified below (including Letters of Credit,  Swingline Loans, and Guarantees included in such facilities), and (b) to the extent permitted to be assigned  under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity  as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit  Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions  governed thereby or in any way based on or related to any of the foregoing, including, but not limited to,  contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity  related to the rights and obligations sold and assigned pursuant to clause (a) above (the rights and  obligations sold and assigned pursuant to clauses (a) and (b) above being referred to herein collectively as,  the “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except as  expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.  1. Assignor: ______________________________  [Assignor [is][is not] a Defaulting Lender.]  2. Assignee: ______________________________  [and is an [Affiliate][Approved Fund] of [identify Lender]1]  3. Borrower: Arhaus, Inc., a Delaware corporation (the “Borrower”)  4. Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit  Agreement  5. Credit Agreement: Credit Agreement, dated as of November 8, 2021, among the Borrower,  the Guarantors party thereto, the Lenders from time to time party thereto,  and Bank of America, N.A., as the Administrative Agent, the L/C Issuer,  and the Swingline Lender    1Select as applicable.  





 






CHAR1\1835093v3  6. Assigned Interest:  Facility Assigned2 Aggregate Amount of  Commitments/Loans for  all Lenders*  Amount of  Commitment/Loans  Assigned*  Percentage Assigned of  Commitments/Loans3   $ $  %  $ $  %  $ $  %    [7. Trade Date:  ______________]4  Effective Date:   _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND  WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER  THEREFOR.]  [signature pages follow]      2 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned  under this Assignment and Assumption (e.g. “Revolving Facility”)  * Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the  Trade Date and the Effective Date.  3 Set forth, to at least 9 decimals, as a percentage of the Commitments/Loans of all Lenders thereunder.  4 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined  as of the Trade Date.  





 






CHAR1\1835093v3  The terms set forth in this Assignment and Assumption are hereby agreed to:  [NAME OF ASSIGNOR],  as the Assignor  By:       Name:  Title:  [NAME OF ASSIGNEE],  as the Assignee  By:       Name:  Title:    [Consented to and]5 Accepted:  BANK OF AMERICA, N.A.,  as the Administrative Agent  By:       Name:  Title:    [Consented to:]6  [BANK OF AMERICA, N.A.,  as [the L/C Issuer][[and] the Swingline Lender]  By:       Name:  Title:]    [ARHAUS, INC.,  a Delaware corporation  By:       Name:  Title:]   5To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.  6To be added only if the consent of the Borrower and/or other parties (e.g. the L/C Issuer) is required by the terms of  the Credit Agreement.  





 






CHAR1\1835093v3  ANNEX 1  STANDARD TERMS AND CONDITIONS FOR  ASSIGNMENT AND ASSUMPTION  1. Representations and Warranties.  1.1. Assignor.  The Assignor: (a) represents and warrants that (i) it is the legal and beneficial  owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other  adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver  this Assignment and Assumption and to consummate the transactions contemplated hereby, and (iv) it is  [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties  or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii)  the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents  or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates  or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by  the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations  under any Loan Document.  1.2. Assignee.  The Assignee: (a) represents and warrants that: (i) it has full power and  authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and  to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement,  (ii) it meets the requirements to be an assignee under the terms of the Credit Agreement (subject to such  consents, if any, as may be required under the terms of the Credit Agreement), (iii) from and after the  Effective Date, it shall be bound by the provisions of the Credit Agreement and the other Loan Documents  as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender  thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the  Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the  Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit  Agreement, and has received or has been accorded the opportunity to receive copies of the most recent  financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents  and information as it deems appropriate to make its own credit analysis and decision to enter into this  Assignment and Assumption and to purchase the Assigned Interest, (vi) it has, independently and without  reliance upon the Administrative Agent or any other Lender and based on such documents and information  as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and  Assumption and to purchase the Assigned Interest, and (vii) attached hereto is any documentation required  to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the  Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent,  the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate  at the time, continue to make its own credit decisions in taking or not taking action under the Loan  Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms  of the Loan Documents are required to be performed by it as a Lender.  2. Payments.  From and after the Effective Date, the Administrative Agent shall make all  payments in respect of the Assigned Interest (including payments of principal, interest, fees and other  amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the  Assignee for amounts which have accrued from and after the Effective Date.  Notwithstanding the  foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or  payable in kind from and after the Effective Date to the Assignee.  





 






CHAR1\1835093v3  3. General Provisions.  This Assignment and Assumption shall be binding upon, and inure to  the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and  Assumption may be executed in counterparts (and by different parties hereto in different counterparts), each  of which shall constitute an original, but all of which when taken together shall constitute a single contract.   Delivery of an executed counterpart of a signature page of this Assignment and Assumption by fax  transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed  counterpart of this Assignment and Assumption.  THIS ASSIGNMENT AND ASSUMPTION AND ANY  CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR  TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS ASSIGNMENT  AND ASSUMPTION AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE  GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF  NEW YORK.    





 






CHAR1\1835093v3   Check for distribution to Public Lenders and private side  Lenders1    EXHIBIT B  [FORM OF] COMPLIANCE CERTIFICATE  Date:____________  I, ______________________, [Chief Executive Officer][Chief Financial Officer][Vice President -  Finance][Treasurer][Controller] of Arhaus, Inc., a Delaware corporation (the “Borrower”), hereby certify  that, to the best of my knowledge and belief, in my capacity as [Chief Executive Officer][Chief Financial  Officer][Treasurer][Controller] of the Borrower and not in my individual capacity, with respect to that certain  Credit Agreement, dated as of November 8, 2021 (as amended, restated, amended and restated, extended,  supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein  being used herein as therein defined), among the Borrower, the Guarantors party thereto, the Lenders from  time to time party thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the  Swingline Lender:  1. This Compliance Certificate is delivered for the [Fiscal Year][Fiscal Quarter] ended  _________________, 20___.  [Use following paragraph 2 for fiscal year-end financial statements:]  [2. The year-end audited financial statements required by Section 6.01(a) of the Credit  Agreement for the Fiscal Year ended as of the date set forth in paragraph 1, together with the report and  opinion of an independent certified public accountant required by such section, have been delivered to the  Administrative Agent.]  [Use following paragraph 2 for fiscal quarter-end financial statements:]  [2. The unaudited financial statements required by Section 6.01(b) of the Credit Agreement  for the Fiscal Quarter ended as of the date set forth in paragraph 1 have been delivered to the Administrative  Agent.  The Consolidated financial statements required by Section 6.01(b) of the Credit Agreement fairly  present, in all material respects, the financial condition, results of operations, changes in stockholder’s  equity and cash flows of the Borrower and its Subsidiaries as at such date and for such period, subject only  to normal year-end audit adjustments and the absence of footnotes.]  3. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and  has made, or has caused to be made, a review of the transactions and financial condition of the Borrower  and its Subsidiaries during the accounting period covered by the financial statements delivered herewith.  4. A review of the activities of the Borrower and its Subsidiaries during such fiscal period has  been made under the supervision of the undersigned with a view to determining whether during such fiscal  period the Borrower and its Subsidiaries performed and observed all their respective obligations under the  Loan Documents, and   [select one:]    1 If this box is not checked, this Compliance Certificate will only be posted to private side Lenders.  





 






CHAR1\1835093v3  [to the knowledge of the undersigned, during such fiscal period, no Default has occurred and is  continuing.]   [or:]  [to the knowledge of the undersigned, during such fiscal period, the following is a list of each  Default that has occurred and is continuing, the nature and status of such Default, and actions that have  been taken or are proposed to be taken to cure such Default:]  5. Attached hereto as Schedule 1 are calculations of the financial covenants set forth in  Section 7.11 of the Credit Agreement as of the last day of and for the Measurement Period ending on the  last day of the period covered by the financial statements referenced above.  Such calculations are true,  correct and complete on and as of the date of this Compliance Certificate.  6. Attached hereto as Schedule 2 is a listing of (a) all applications with the United States  Patent and Trademark Office or the United States Copyright Office by any Loan Party, if any, for any  Intellectual Property made since the date of the most recently delivered Compliance Certificate (or, in the  case of the first Compliance Certificate delivered after the Closing Date pursuant to Section 6.02(a) of the  Credit Agreement, the Closing Date), (b) all issuances of registrations or letters on existing applications  with the United States Patent and Trademark Office or the United States Copyright Office by any Loan  Party, if any, for any Intellectual Property received since the date of such prior Compliance Certificate (or,  in the case of the first Compliance Certificate delivered after the Closing Date pursuant to Section 6.02(a)  of the Credit Agreement, the Closing Date), and (c) all licenses (other than non-exclusive outbound licenses  entered into in the ordinary course of business) entered into by any Loan Party since the date of such prior  Compliance Certificate (or, in the case of the first Compliance Certificate delivered after the Closing Date  pursuant to Section 6.02(a) of the Credit Agreement, the Closing Date) relating to any Intellectual Property  owned by any Loan Party and registered with the United States Patent and Trademark Office or the United  States Copyright Office.2  [7. Attached hereto as Schedule 3 is a copy of management’s discussion and analysis with  respect to the financial statements referenced above.]3  [signature page follows]    2 If no such updates are applicable, Schedule 2 should reflect “None”.  3 Only required to be included if not contained in materials furnished pursuant to Section 6.02(c) of the Credit  Agreement within the time specified in Section 6.02(a)(ii) of the Credit Agreement.  





 






CHAR1\1835093v3  IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of the date  first written above.    ARHAUS, INC.,  a Delaware corporation  By:       Name:   Title:     





 






  CHAR1\1835093v3  Schedule 1  Calculation of Financial Covenants  In the event of conflict between the provisions and formulas set forth in this Schedule 1 and the provisions  and formulas set forth in the Credit Agreement, the provisions and formulas of the Credit Agreement shall  prevail.  [Calculations to be provided by the Borrower in form and substance reasonably acceptable to the  Administrative Agent]      





 






CHAR1\1835093v3  Schedule 2  Intellectual Property  [Schedule 3  Management’s Discussion and Analysis]      





 






CHAR1\1835093v3  EXHIBIT C  [FORM OF] JOINDER AGREEMENT    THIS JOINDER AGREEMENT (this “Agreement”), dated as of __________, 20__, is by and  between _____________________, a ______________________ (the “New Subsidiary”), and Bank of  America, N.A., in its capacity as the Administrative Agent under that certain Credit Agreement, dated as  of November 8, 2021 (as amended, restated, amended and restated, extended, supplemented or otherwise  modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein  defined), by and among the Arhaus, Inc., a Delaware corporation, the Guarantors party thereto, the Lenders  from time to time party thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer,  and the Swingline Lender.  The Loan Parties are required by Section 6.12 of the Credit Agreement to cause the New Subsidiary  to become a Guarantor.  Accordingly, the New Subsidiary hereby agrees as follows with the Administrative  Agent, for the benefit of the Secured Parties:  1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of  this Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a “Guarantor”  for all purposes of the Credit Agreement, and shall have all of the obligations of a Guarantor thereunder as  if it had executed the Credit Agreement.  The New Subsidiary hereby ratifies, as of the date hereof, and  agrees to be bound by, all of the terms, provisions and conditions applicable to the Guarantors contained in  the Credit Agreement.  Without limiting the generality of the foregoing terms of this paragraph 1, the New  Subsidiary hereby jointly and severally together with the other Guarantors, guarantees to each Secured  Party, as provided in Article X of the Credit Agreement, the prompt payment when due, whether at stated  maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of  any and all Secured Obligations strictly in accordance with the terms thereof.  2. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of  this Agreement, the New Subsidiary will be deemed to be a party to the Security Agreement, and shall have  all the obligations of an “Obligor” (as such term is defined in the Security Agreement) thereunder as if it  had executed the Security Agreement.  The New Subsidiary hereby ratifies, as of the date hereof, and agrees  to be bound by, all of the terms, provisions and conditions contained in the Security Agreement.  Without  limiting generality of the foregoing terms of this paragraph 2, the New Subsidiary hereby grants to the  Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in, and a right of  set off against, any and all right, title and interest of the New Subsidiary in and to the Collateral (as such  term is defined in the Security Agreement) of the New Subsidiary.  3. The New Subsidiary hereby represents and warrants to the Administrative Agent, for the  benefit of the Secured Parties, that:  (a) Set forth on Schedule 1 attached hereto is complete and accurate list as of the date  hereof of (i) each Subsidiary, joint venture and partnership and other equity investments of the New  Subsidiary, (ii) the number of shares of each class of Equity Interests in each such Subsidiary  outstanding, (iii) the number and percentage of outstanding shares of each class of Equity Interests  of such Subsidiary owned by the New Subsidiary and its Subsidiaries, and (iv) the class or nature  of such Equity Interests (i.e. voting, non-voting, preferred, etc.).  (b) Set forth on Schedule 2 attached hereto is a complete and accurate list as of the  date hereof of the New Subsidiary’s (i) exact legal name, (ii) any former legal names in the four (4)  months prior to the Closing Date, (iii) jurisdictions in which such Loan Party is qualified to do  





 






CHAR1\1835093v3  business, (iv) address of its chief executive office address (and address of its principal place of  business address if different than its chief executive office), (v) U.S. federal taxpayer identification  number, and (vi) organization identification number, if any.  (c) Set forth on Schedule 3 attached hereto is a list of all Intellectual Property  registered or pending registration with the United States Copyright Office or the United States  Patent and Trademark Office and owned by the New Subsidiary as of the date hereof.  As of the  date hereof, none of the Intellectual Property registered or pending registration with the United  States Copyright Office or the United States Patent and Trademark Office and owned by the New  Subsidiary is subject to any licensing agreement or similar arrangement (other than non-exclusive  outbound licenses entered into in the ordinary course of business) except as set forth on Schedule  3 attached hereto.  (d) Set forth on Schedule 4 attached hereto is a list of all Commercial Tort Claims (as  defined in the Security Agreement) initiated by or in favor of the New Subsidiary seeking damages  in excess of $2,000,000 as of the date hereof.  (e) Set forth on Schedule 5 attached hereto is a list of all Instruments, Documents or  Tangible Chattel Paper (each as defined in the Security Agreement) of the New Subsidiary required  to be pledged and delivered to the Administrative Agent pursuant to Section 4(a) of the Security  Agreement.  (f) Except as set forth on Schedule 6 attached hereto, the New Subsidiary has not (i)  been party to a merger, consolidation or other change in structure, (ii) used any tradename, or (iii)  changed its legal name, in each case, in the five (5) years prior to the date hereof.  4. The address of the New Subsidiary for purposes of all notices and other communications  is the address designated for all Loan Parties on Schedule 1.01(a) to the Credit Agreement or such other  address as the New Subsidiary may from time to time notify the Administrative Agent in writing.  5. The New Subsidiary hereby waives acceptance by the Administrative Agent and the other  Secured Parties of the guaranty by the New Subsidiary under Article X of the Credit Agreement upon the  execution of this Agreement by the New Subsidiary.  6. This Agreement may be executed in counterparts (and by different parties hereto in  different counterparts), each of which shall constitute an original, but all of which when taken together shall  constitute a single contract.  Delivery of an executed counterpart of a signature page of this Agreement by  fax transmission or e-mail transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually  executed counterpart of this Agreement.  Subject to Section 11.18 of the Credit Agreement, this Agreement  may be in the form of an Electronic Record and may be executed using Electronic Signatures, including  facsimile and .pdf, and shall be considered an original, and shall have the same legal effect, validity and  enforceability as a paper record.  7. THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE  OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING  OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED  HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW  OF THE STATE OF NEW YORK.  [signature pages follow] 





 






CHAR1\1835093v3  IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly executed by an  authorized officer, and the Administrative Agent has caused the same to be accepted by an authorized officer,  in each case, as of the day and year first written above.  [NEW SUBSIDIARY]      By:       Name:   Title:   Acknowledged and accepted:  BANK OF AMERICA, N.A.,  as the Administrative Agent  By:       Name:   Title:       





 






CHAR1\1835093v3  Schedule 1    Subsidiaries, Joint Ventures, Partnerships and Other Equity Investments      Schedule 2    New Subsidiary Information      Schedule 3    Intellectual Property      Schedule 4    Commercial Tort Claims      Schedule 5    Instruments, Documents and Tangible Chattel Paper      Schedule 6    Merger, Consolidation, Change in Structure;   Tradenames; Change in Legal Name  





 






CHAR1\1835093v3  EXHIBIT D  [FORM OF] LOAN NOTICE  Date: ___________, _____  To: Bank of America, N.A., as the Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Credit Agreement, dated as of November 8, 2021 (as amended, restated,  amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit  Agreement”; the terms defined therein being used herein as therein defined), among Arhaus, Inc., a  Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party  thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the Swingline Lender.  The Borrower hereby requests (select one):   A Revolving Borrowing   A [conversion][continuation] of Revolving Loans  1. On:     (a Business Day)  2. In the principal amount of: $   .  3. Comprised of: [Base Rate Loans][BSBY Rate Loans]  4. For BSBY Rate Loans: with an Interest Period of     With respect to such Revolving Borrowing, conversion, or continuation, the Borrower hereby represents  and warrants that [(a) such request complies with the requirements of Section 2.01 of the Credit Agreement,  and (b)] each of the conditions specified in Sections 4.02(a) and (b) of the Credit Agreement have been  satisfied on and as of the date of such Revolving Borrowing, conversion, or continuation.  [signature page follows]  





 






CHAR1\1835093v3  IN WITNESS WHEREOF, the undersigned has caused this Loan Notice to be executed by a duly  authorized officer as of the date first written above.    ARHAUS, INC.,  a Delaware corporation  By:       Name:  Title:      





 






CHAR1\1835093v3  EXHIBIT E  [FORM OF] NOTICE OF LOAN PREPAYMENT  Date: ___________, _____  To: Bank of America, N.A., as the [Administrative Agent][ Swingline Lender]  [Cc: Bank of America, N.A., as the Administrative Agent]  Ladies and Gentlemen:  Reference is made to that certain Credit Agreement, dated as of November 8, 2021 (as amended, restated,  amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit  Agreement”; the terms defined therein being used herein as therein defined), among Arhaus, Inc., a  Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party  thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the Swingline Lender.  The Borrower hereby notifies [the Administrative Agent][and the Swingline Lender] that on  _____________, pursuant to the terms of Section 2.05 of the Credit Agreement, the Borrower intends to  prepay/repay the Loans as more specifically set forth below:   Voluntary prepayment of Revolving Loans in the following amount(s):   BSBY Rate Loans: $      Applicable Interest Period:        Base Rate Loans: $         Voluntary prepayment of Swingline Loans in the following amount(s): $     [signature page follows]  





 






CHAR1\1835093v3  IN WITNESS WHEREOF, the undersigned has caused this Notice of Loan Prepayment to be executed  by a duly authorized officer as of the date first written above.  ARHAUS, INC.,  a Delaware corporation  By:       Name:  Title:    





 






  CHAR1\1835093v3  EXHIBIT F  [FORM OF] SECURED PARTY DESIGNATION NOTICE  Date:  _________, _____  To: Bank of America, N.A., as the Administrative Agent  Ladies and Gentlemen:  THIS SECURED PARTY DESIGNATION NOTICE is made by _______________________, a  ______________ (the “Designor”), to Bank of America, N.A., as the Administrative Agent under that  certain Credit Agreement referenced below.  All capitalized terms not defined herein shall have the meaning  ascribed to them in the Credit Agreement.  W I T N E S S E T H :    WHEREAS, Arhaus, Inc., a Delaware corporation (the “Borrower”), the Guarantors party thereto,  the Lenders from time to time party thereto, and Bank of America, N.A., as the Administrative Agent, the  L/C Issuer, and the Swingline Lender, have entered into that certain Credit Agreement, dated as of  November 8, 2021 (as amended, restated, amended and restated, extended, supplemented or otherwise  modified from time to time, the “Credit Agreement”) pursuant to which certain loans and financial  accommodations have been made to the Borrower;  WHEREAS, in connection with the Credit Agreement, a Lender or an Affiliate of a Lender is  permitted to designate its [Cash Management Agreement][Swap Contract] as a [“Secured Cash  Management Agreement”][“Secured Hedge Agreement”] under the Credit Agreement and the Collateral  Documents;  WHEREAS, the Credit Agreement requires that the Designor deliver this Secured Party  Designation Notice to the Administrative Agent; and  WHEREAS, the Designor has agreed to execute and deliver this Secured Party Designation Notice.  NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,  the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:  1. Designation.  The Designor hereby designates the [Cash Management Agreement][Swap  Contract] described on Schedule 1 hereto to be a [“Secured Cash Management Agreement”][“Secured  Hedge Agreement”] and hereby represents and warrants to the Administrative Agent that such [Cash  Management Agreement][Swap Contract] satisfies all the requirements under the Loan Documents to be  so designated.  By executing and delivering this Secured Party Designation Notice, the Designor, as  provided in the Credit Agreement, hereby agrees to be bound by all of the provisions of the Loan Documents  which are applicable to it as a provider of a [Secured Cash Management Agreement][Secured Hedge  Agreement] and hereby (a) confirms that it has received a copy of the Loan Documents and such other  documents and information as it has deemed appropriate to make its own decision to enter into this Secured  Party Designation Notice, (b) appoints and authorizes the Administrative Agent to take such action as agent  on its behalf and to exercise such powers and discretion under the Credit Agreement, the other Loan  Documents or any other instrument or document furnished pursuant thereto as are delegated to the  Administrative Agent by the terms thereof, together with such powers as are incidental thereto (including  the provisions of Section 9.01 of the Credit Agreement), and (c) agrees that it will be bound by the  provisions of the Loan Documents and will perform in accordance with its terms all the obligations which  





 






CHAR1\1835093v3  by the terms of the Loan Documents are required to be performed by it as a provider of a [Cash Management  Agreement][Swap Contract].  Without limiting the foregoing, the Designor agrees to indemnify the  Administrative Agent as contemplated by Section 11.04(c) of the Credit Agreement.  2. GOVERNING LAW.  THIS SECURED PARTY DESIGNATION NOTICE AND  ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN  CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING  TO THIS SECURED PARTY DESIGNATION NOTICE AND THE TRANSACTIONS  CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN  ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.  3. This Secured Party Designation Notice may be executed in counterparts (and by different  parties hereto in different counterparts), each of which shall constitute an original, but all of which when  taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of  this Secured Party Designation Notice by fax transmission or e-mail transmission (e.g., “pdf” or “tif”) shall  be effective as delivery of a manually executed counterpart of this Secured Party Designation Notice.   Subject to Section 11.18 of the Credit Agreement, this Secured Party Designation Notice may be in the  form of an Electronic Record and may be executed using Electronic Signatures, including facsimile and  .pdf, and shall be considered an original, and shall have the same legal effect, validity and enforceability as  a paper record  [signature pages follow]    





 






CHAR1\1835093v3  IN WITNESS WHEREOF, the undersigned have caused this Secured Party Designation Notice to  be duly executed and delivered by their respective officers thereunto duly authorized as of the date first  written above.  [DESIGNOR]  By:       Name:  Title:  BANK OF AMERICA, N.A.,  as the Administrative Agent  By:       Name:  Title:      





 






CHAR1\1835093v3  Schedule 1  [Cash Management Agreement][Swap Contract]  





 






CHAR1\1835093v3  EXHIBIT G  [FORM OF] SOLVENCY CERTIFICATE  ___________, 20[__]  This Solvency Certificate (this “Solvency Certificate”) is being executed and delivered pursuant to  Section 4.01(g) of that certain Credit Agreement, dated as of November 8, 2021 (the “Credit Agreement”),  by and among Arhaus, Inc., a Delaware corporation (the “Borrower”), the Guarantors party thereto, the  Lenders party thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the  Swingline Lender. Capitalized terms used herein but not otherwise defined herein shall have the meanings  provided to such terms in the Credit Agreement.  I, Dawn Phillipson, the chief financial officer of the Borrower, solely in such capacity and not in  an individual capacity, hereby certify that I am the chief financial officer of the Borrower and that I am  familiar with the businesses and assets of the Borrower and its Subsidiaries, I have made such other  investigations and inquiries as I have deemed appropriate and I am duly authorized to execute this Solvency  Certificate on behalf of the Borrower pursuant to the Credit Agreement.  I further certify, solely in my capacity as chief financial officer of the Borrower and not in my  individual capacity, as of the date hereof and after giving effect to the Transactions, that (a) the fair value  of the property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the total amount  of liabilities, including contingent liabilities, of the Borrower and its Subsidiaries, on a consolidated basis,  (b) the present fair salable value of the assets of the Borrower and its Subsidiaries, on a consolidated basis,  is not less than the amount that will be required to pay the probable liability of the Borrower and its  Subsidiaries, on a consolidated basis, on its debts as they become absolute and matured, (c) the Borrower  and its Subsidiaries, on a consolidated basis, do not intend to, and do not believe that they will, incur debts  or liabilities beyond the ability of the Borrower and its Subsidiaries, on a consolidated basis, to pay such  debts and liabilities as they mature, (d) the Borrower and its Subsidiaries, on a consolidated basis, are not  engaged in business or a transaction, and are not about to engage in business or a transaction, for which the  property of the Borrower and its Subsidiaries, on a consolidated basis, would constitute an unreasonably  small capital, and (e) the Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts  and liabilities, contingent obligations and other commitments as they mature in the ordinary course of  business.  For purposes hereof, the amount of contingent liabilities at any time shall be computed as the  amount that, in the light of all the facts and circumstances existing at such time, represents the amount that  can reasonably be expected to become an actual or matured liability.  [Remainder of page intentionally left blank]  





 






CHAR1\1835093v3  IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date first written above.  ARHAUS, INC.,  a Delaware corporation  By:       Name:  Title: Chief Financial Officer 





 






CHAR1\1835093v3  EXHIBIT H  [FORM OF] SWINGLINE LOAN NOTICE  Date: ___________, _____  To: Bank of America, N.A., as the Swingline Lender  Cc: Bank of America, N.A., as the Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Credit Agreement, dated as of November 8, 2021 (as amended, restated,  amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit  Agreement”; the terms defined therein being used herein as therein defined), among Arhaus, Inc., a  Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party  thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the Swingline Lender.  The Borrower hereby requests a Swingline Loan:   1. On:     (a Business Day)  2. In the amount of: $     With respect to such Swingline Borrowing, the Borrower hereby represents and warrants that (a) such  request complies with the requirements of Section 2.04(a) of the Credit Agreement, and (b) the conditions  set forth in Sections 4.02(a) and (b) of the Credit Agreement have been satisfied on and as of the date of  date of such Swingline Borrowing.  [signature page follows]     





 






CHAR1\1835093v3  IN WITNESS WHEREOF, the undersigned has caused this Swingline Loan Notice to be executed by  a duly authorized officer as of the date first written above.    ARHAUS, INC.,  a Delaware corporation  By:       Name:  Title:    





 






  CHAR1\1835093v3  EXHIBIT I  [FORM OF] NOTE  FOR VALUE RECEIVED, the undersigned hereby promises to pay to ____________________ or  its registered assigns (the “Lender”), in accordance with the provisions of the Credit Agreement (as defined  below), the principal amount of each Loan from time to time made by the Lender to the undersigned under  that certain Credit Agreement, dated as of November 8, 2021 (as amended, restated, amended and restated,  extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms  defined therein being used herein as therein defined), among Arhaus, Inc., a Delaware corporation, the  Guarantors party thereto, the Lenders (as such term is defined in the Credit Agreement) from time to time  party thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the Swingline  Lender.  The undersigned promises to pay interest on the unpaid principal amount of each Loan from the  date of such Loan until such principal amount is paid in full, at such interest rates and at such times as  provided in the Credit Agreement.  [Except as set forth in Section 2.04(f) of the Credit Agreement with  respect to Swingline Loans, all][All] payments of principal and interest shall be made to the Administrative  Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s  Office.  If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be  paid upon demand, from the due date thereof until the date of actual payment (and before as well as after  judgment) computed at the per annum rate set forth in the Credit Agreement.  This Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof  and may be prepaid in whole or in part subject to the terms and conditions provided therein.  Upon the  occurrence and continuation of one or more Event of Default specified in the Credit Agreement, all amounts  then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable  all as provided in the Credit Agreement.  Each Loan made by the Lender shall be evidenced by one or more  loan accounts or records maintained by the Lender in the ordinary course of business.  The Lender may also  attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments  with respect thereto.  The undersigned, for itself, its successors and assigns, hereby waives diligence, presentment,  protest and demand and notice of protest, demand, dishonor and non-payment of this Note.  THIS NOTE AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION  (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR  RELATING TO THIS NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE  GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF  NEW YORK.  [signature page follows]  





 






CHAR1\1835093v3  IN WITNESS WHEREOF, the undersigned has caused this Note to be duly executed and delivered  by its officer thereunto duly authorized.  ARHAUS, INC.,  a Delaware corporation  By:       Name:  Title:      





 






  CHAR1\1835093v3  EXHIBIT J-1  [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)  Reference is made to that certain Credit Agreement, dated as of November 8, 2021 (as amended,  restated, amended and restated, extended, supplemented or otherwise modified from time to time, the  “Credit Agreement”; the terms defined therein being used herein as therein defined), among Arhaus, Inc.,  a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party  thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the Swingline Lender.  Pursuant to the provisions of Section 3.01(f) of the Credit Agreement, the undersigned hereby certifies  that (a) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such  Loan(s)) in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section  881(c)(3)(A) of the Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section  881(c)(3)(B) of the Code, and (d) it is not a controlled foreign corporation related to the Borrower as described  in Section 881(c)(3)(C) of the Code.  The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its  non-U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, as applicable).  By executing this certificate,  the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall  promptly so inform the Borrower and the Administrative Agent, and (b) the undersigned shall have at all  times furnished the Borrower and the Administrative Agent with a properly completed and currently effective  certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of  the two calendar years preceding such payments.  [NAME OF LENDER]  By:      Name:  Title:  Date:  , 20___    





 






CHAR1\1835093v3  EXHIBIT J-2  [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)  Reference is made to that certain Credit Agreement, dated as of November 8, 2021 (as amended,  restated, amended and restated, extended, supplemented or otherwise modified from time to time, the  “Credit Agreement”; the terms defined therein being used herein as therein defined), among Arhaus, Inc.,  a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party  thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the Swingline Lender.  Pursuant to the provisions of Section 3.01(f) of the Credit Agreement, the undersigned hereby certifies  that (a) it is the sole record and beneficial owner of the participation in respect of which it is providing this  certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (c) it is not a ten percent  shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, and (d) it is not a  controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.  The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status  on IRS Form W-8BEN-E (or W-8BEN, as applicable).  By executing this certificate, the undersigned agrees  that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform such  Lender in writing, and (b) the undersigned shall have at all times furnished such Lender with a properly  completed and currently effective certificate in either the calendar year in which each payment is to be made  to the undersigned, or in either of the two calendar years preceding such payments.  [NAME OF PARTICIPANT]  By:      Name:  Title:  Date:  , 20___    





 






CHAR1\1835093v3  EXHIBIT J-3  [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)  Reference is made to that certain Credit Agreement, dated as of November 8, 2021 (as amended,  restated, amended and restated, extended, supplemented or otherwise modified from time to time, the  “Credit Agreement”; the terms defined therein being used herein as therein defined), among Arhaus, Inc.,  a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party  thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the Swingline Lender.  Pursuant to the provisions of Section 3.01(f) of the Credit Agreement, the undersigned hereby certifies  that (a) it is the sole record owner of the participation in respect of which it is providing this certificate, (b) its  direct or indirect partners/members are the sole beneficial owners of such participation, (c) with respect such  participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending  credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the  meaning of Section 881(c)(3)(A) of the Code, (d) none of its direct or indirect partners/members is a ten  percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, and (e) none of  its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described  in Section 881(c)(3)(C) of the Code.  The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one  of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a)  an IRS Form W-8BEN-E (or W-8BEN, as applicable); or (b) an IRS Form W-8IMY accompanied by an IRS  Form W-8BEN-E (or W-8BEN, as applicable) from each of such partner’s/member’s beneficial owners that  is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (i) if  the information provided on this certificate changes, the undersigned shall promptly so inform such Lender,  and (ii) the undersigned shall have at all times furnished such Lender with a properly completed and currently  effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in  either of the two calendar years preceding such payments.  [NAME OF PARTICIPANT]  By:      Name:  Title:  Date:  , 20___    





 






  CHAR1\1835093v3  EXHIBIT J-4  [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)  Reference is made to that certain Credit Agreement, dated as of November 8, 2021 (as amended,  restated, amended and restated, extended, supplemented or otherwise modified from time to time, the  “Credit Agreement”; the terms defined therein being used herein as therein defined), among Arhaus, Inc.,  a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party  thereto, and Bank of America, N.A., as the Administrative Agent, the L/C Issuer, and the Swingline Lender.  Pursuant to the provisions of Section 3.01(f) of the Credit Agreement, the undersigned hereby certifies  that (a) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect  of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial  owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (c) with respect to the extension of  credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its  direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the  ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (d) none of  its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of  Section 881(c)(3)(B) of the Code, and (e) none of its direct or indirect partners/members is a controlled foreign  corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.  The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W- 8IMY accompanied by one of the following forms from each of its partners/members that is claiming the  portfolio interest exemption: (a) an IRS Form W-8BEN-E (or W-8BEN, as applicable); or (b) an IRS Form  W-8IMY accompanied by an IRS Form W-8BEN-E (or W-8BEN, as applicable) from each of such  partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this  certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the  undersigned shall promptly so inform the Borrower and the Administrative Agent, and (ii) the undersigned  shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and  currently effective certificate in either the calendar year in which each payment is to be made to the  undersigned, or in either of the two calendar years preceding such payments.   [NAME OF LENDER]  By:      Name:  Title:  Date:  , 20___