oke2018termloanagreement






                                                                     Exhibit  10.1                                                            EXECUTION VERSION                                                    Published CUSIP Number: 682681AP6                                    $1,500,000,000                             TERM LOAN AGREEMENT                              Dated as of November 19, 2018                                       among                                   ONEOK, INC.,                                  as the Borrower,                                MIZUHO BANK, LTD.,                                as Administrative Agent                                        and                              The Other Lenders Party Hereto                              _________________________                              BANK OF AMERICA, N.A.,                          JPMORGAN CHASE BANK, N.A.,                                       and                   WELLS FARGO BANK, NATIONAL ASSOCIATION,                                as Syndication Agents                                MIZUHO BANK, LTD.,                          JPMORGAN CHASE BANK, N.A.,            MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,                                MUFG BANK, LTD.,                    SUMITOMO MITSUI BANKING CORPORATION,                THE TORONTO-DOMNION BANK, NEW YORK BRANCH,                           THE BANK OF NOVA SCOTIA,                                       and                         WELLS FARGO SECURITIES, LLC,                         as Joint Lead Arrangers and Bookrunners                                 MUFG BANK, LTD.,                    SUMITOMO MITSUI BANKING CORPORATION,                THE TORONTO-DOMNION BANK, NEW YORK BRANCH,                                       and                           THE BANK OF NOVA SCOTIA,                               as Documentation Agents    4847-1285-6953 v.7  





 






                             TABLE OF CONTENTS   ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS ........................................................1        1.01    Defined Terms .....................................................................................................1        1.02    Other Interpretive Provisions ............................................................................21        1.03    Accounting Terms. ............................................................................................22        1.04    Rounding ...........................................................................................................22        1.05    References to Agreements and Laws ................................................................22        1.06    Times of Day .....................................................................................................22  ARTICLE II. THE COMMITMENTS AND LOANS ..................................................................22        2.01    Loans. ................................................................................................................23        2.02    Borrowings, Conversions and Continuations of Loans.....................................23        2.03    [Reserved.] ........................................................................................................24        2.04    [Reserved.] ........................................................................................................24        2.05    [Reserved.] ........................................................................................................24        2.06    Prepayments ......................................................................................................24        2.07    Termination or Reduction of Commitments .....................................................24        2.08    Repayment of Loans .........................................................................................25        2.09    Interest ...............................................................................................................25        2.10    Fees ...................................................................................................................25        2.11    Computation of Interest and Fees .....................................................................26        2.12    Evidence of Debt ...............................................................................................26        2.13    Payments Generally. .........................................................................................26        2.14    Sharing of Payments .........................................................................................27        2.15    Extension of Maturity Date. ..............................................................................28        2.16    [Reserved.] ........................................................................................................29        2.17    Defaulting Lenders. ...........................................................................................29  ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY .........................................30        3.01    Taxes. ................................................................................................................30        3.02    Illegality ............................................................................................................35        3.03    Inability to Determine Rates .............................................................................35        3.04    Increased Costs; Reserves on Eurodollar Rate Loans. ......................................37        3.05    Compensation for Losses ..................................................................................38                                        i   4847-1285-6953 v.7  





 






      3.06    Mitigation Obligations; Replacement of Lenders. ............................................39        3.07    Survival .............................................................................................................39  ARTICLE IV. CONDITIONS PRECEDENT TO BORROWINGS .............................................39        4.01    Conditions to the Closing Date and Initial Borrowing......................................39        4.02    Conditions to all Borrowings ............................................................................41  ARTICLE V. REPRESENTATIONS AND WARRANTIES .......................................................42        5.01    Existence, Qualification and Power ..................................................................42        5.02    Authorization; No Contravention ......................................................................42        5.03    Governmental Authorization; Other Consents ..................................................42        5.04    Binding Effect ...................................................................................................42        5.05    Financial Statements. ........................................................................................42        5.06    Litigation ...........................................................................................................43        5.07    No Default .........................................................................................................43        5.08    Ownership of Property; Liens ...........................................................................43        5.09    Environmental Compliance ...............................................................................43        5.10    Insurance ...........................................................................................................44        5.11    Taxes .................................................................................................................44        5.12    ERISA Compliance. ..........................................................................................44        5.13    Subsidiaries .......................................................................................................44        5.14    Margin Regulations; Investment Company Act. ...............................................45        5.15    Disclosure ..........................................................................................................45        5.16    Compliance with Laws ......................................................................................45        5.17    [Reserved]. ........................................................................................................45        5.18    Intellectual Property; Licenses, Etc...................................................................45        5.19    Solvency. ...........................................................................................................46        5.20    OFAC ................................................................................................................46        5.21    Anti-Corruption Laws .......................................................................................46        5.22    EEA Financial Institution. .................................................................................46  ARTICLE VI. AFFIRMATIVE COVENANTS ...........................................................................46        6.01    Financial Statements .........................................................................................46        6.02    Certificates; Other Information .........................................................................47        6.03    Notices...............................................................................................................48                                         ii   4847-1285-6953 v.7  





 






      6.04    Payment of Obligations .....................................................................................49        6.05    Preservation of Existence, Etc...........................................................................49        6.06    Maintenance of Properties.................................................................................49        6.07    Maintenance of Insurance .................................................................................49        6.08    Compliance with Laws ......................................................................................50        6.09    Books and Records. ...........................................................................................50        6.10    Inspection Rights ...............................................................................................50        6.11    Use of Proceeds .................................................................................................50        6.12    Sanctions ...........................................................................................................50        6.13    Additional Guarantors .......................................................................................51        6.14    Anti-Corruption Laws .......................................................................................51        6.15    Maintenance of Control.....................................................................................51  ARTICLE VII. NEGATIVE COVENANTS .................................................................................51        7.01    Liens ..................................................................................................................51        7.02    Investments .......................................................................................................54        7.03    Indebtedness of Subsidiaries .............................................................................54        7.04    Fundamental Changes .......................................................................................55        7.05    Change in Nature of Business ...........................................................................56        7.06    Transactions with Affiliates ..............................................................................56        7.07    Burdensome Agreements ..................................................................................56        7.08    Use of Proceeds .................................................................................................56        7.09    Leverage Ratio ..................................................................................................56        7.10    Sanctions ...........................................................................................................56        7.11    Anti-Corruption Laws .......................................................................................57        7.12    Restricted Payments ..........................................................................................57  ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES .....................................................57        8.01    Events of Default...............................................................................................57        8.02    Remedies Upon Event of Default .....................................................................59        8.03    Application of Funds .........................................................................................59  ARTICLE IX. ADMINISTRATIVE AGENT ...............................................................................60        9.01    Appointment and Authority ..............................................................................60        9.02    Rights as a Lender .............................................................................................60                                         iii   4847-1285-6953 v.7  





 






      9.03    Exculpatory Provisions .....................................................................................60        9.04    Reliance by Administrative Agent ....................................................................61        9.05    Delegation of Duties .........................................................................................61        9.06    Resignation of Administrative Agent. ..............................................................62        9.07    Non-Reliance on Administrative Agent and Other Lenders .............................63        9.08    Administrative Agent May File Proofs of Claim ..............................................63        9.09    [Reserved.] ........................................................................................................63        9.10    Other Agents; Arrangers and Managers ............................................................63  ARTICLE X. MISCELLANEOUS ...............................................................................................64        10.01   Amendments, Etc. .............................................................................................64        10.02   Notices and Other Communications; Facsimile Copies....................................65        10.03   No Waiver; Cumulative Remedies; Enforcement. ............................................67        10.04   Expenses; Indemnity; Damage Waiver. ............................................................67        10.05   Payments Set Aside ...........................................................................................69        10.06   Successors and Assigns. ....................................................................................69        10.07   Confidentiality ..................................................................................................74        10.08   Set-off ................................................................................................................75        10.09   Interest Rate Limitation.....................................................................................75        10.10   Counterparts ......................................................................................................75        10.11   Integration .........................................................................................................75        10.12   Survival of Representations and Warranties .....................................................75        10.13   Severability .......................................................................................................76        10.14   Replacement of Lenders ....................................................................................76        10.15   Governing Law..................................................................................................77        10.16   Waiver of Right to Trial by Jury .......................................................................77        10.17   No Advisory or Fiduciary Responsibility .........................................................78        10.18   USA PATRIOT Act Notice ..............................................................................78        10.19   Electronic Execution of Assignments and Certain Other Documents ..............79        10.20   [Reserved] .........................................................................................................79        10.21   ENTIRE AGREEMENT ...................................................................................79        10.22   Acknowledgement and Consent to Bail-In of EEA Financial                Institutions .........................................................................................................79                                         iv   4847-1285-6953 v.7  





 






 SCHEDULES          1.01  Existing Sale and Leaseback Transactions         2.01  Commitments and Pro Rata Shares         5.13  Subsidiaries and Other Equity Investments         7.03  Senior Notes of ONEOK Partners         10.02 Administrative Agent’s Office, Certain Addresses for Notices              EXHIBITS    Form of    A    Loan Notice  B     Reserved   C     Reserved   D     Note   E     Compliance Certificate   F     Assignment and Assumption   G    Guaranty Agreement  H     Forms of U.S. Tax Compliance Certificates  I     Guaranty Agreement Joinder                                                 v    4847-1285-6953 v.7  





 






                                 TERM LOAN AGREEMENT          This TERM LOAN AGREEMENT (this “Agreement”) is dated as of November 19, 2018, among   ONEOK, INC., an Oklahoma corporation (the “Borrower”), each lender from time to time party hereto   (collectively, the “Lenders” and individually, a “Lender”), and MIZUHO BANK, LTD., as Administrative   Agent.          The Borrower has requested that the Lenders provide a term loan facility, and the Lenders are  willing to do so on the terms and conditions set forth herein.          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 Adjustment Period” means (a) the period of time beginning on the Closing Date and   continuing through the earlier of (i) March 31, 2019, and (ii) Borrower’s election terminate such Acquisition   Adjustment Period, and (b) any other period elected by Borrower, such election to be exercised by Borrower  by giving notice to the administrative agent of the Revolving Credit Agreement (or, if the Revolving Credit  Agreement has terminated, the Administrative Agent), beginning with the funding date of the purchase  price for any Specified Acquisition and continuing through the earlier of (i) the last day of the second fiscal  quarter next succeeding the fiscal quarter in which such funding date occurred, or (ii) Borrower’s election  to  terminate  such  Acquisition  Adjustment  Period.   Borrower’s  election  to  terminate  any  Acquisition  Adjustment Period will be exercised by Borrower giving notice to the administrative agent of the Revolving  Credit Agreement (or, if the Revolving Credit Agreement has terminated, the Administrative Agent).  When   an Acquisition Adjustment Period is in effect, the next Acquisition Adjustment Period may not commence   until the termination of such Acquisition Adjustment Period then in effect.          “Adjusted Consolidated EBITDA” means, for Borrower and its Subsidiaries for any period, the   sum of (a) Consolidated EBITDA for such period plus (b) any Material Project EBITDA Adjustments for   such period.          “Administrative Agent” means Mizuho 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 10.02, 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 supplied by the   Administrative Agent.          “Affiliate” means, with respect to any 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.   “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.     4847-1285-6953 v.7     





 






       “Aggregate Commitments” means the Commitments of all the Lenders.          “Agreement” means this Term Loan Agreement.          “Anti-Corruption  Laws”  means  the  United  States  Foreign  Corrupt  Practices  Act  of  1977, as   amended,  and  the  rules  and  regulations  thereunder, the  UK  Bribery  Act  2010 and  other  similar  anti- corruption or  bribery legislation enacted  or  promulgated  by  any  Governmental  Authority  having   jurisdiction over the Loan Parties or a Subsidiary in other jurisdictions, in each case to the extent applicable   to the Loan Parties or a Subsidiary.          “Applicable Rate” means, from time to time, the following percentages, set forth in basis points   per annum, based upon the Debt Rating as set forth below:    Pricing Debt Ratings   Level   S&P / Moody’s         Eurodollar Rate         Base Rate   1       BBB+ / Baa1 or better 100.0                   0.0    2       BBB / Baa2            112.5                   12.5    3       BBB- / Baa3 or lower  125.0                   25.0    “Debt Rating” means, as of any date of determination, the rating as determined by either S&P or Moody’s   (collectively, the “Debt Ratings”) of the Borrower’s non-credit-enhanced, senior unsecured long-term debt;   provided that if a Debt Rating is issued by each of the foregoing rating agencies, then the higher of such   Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating   for Pricing Level 3 being the lowest), unless there is a split in Debt Ratings of more than one level, in which   case the Pricing Level that is one level lower than the Pricing Level of the higher Debt Rating shall apply;   provided, however, if there are no Debt Ratings, then Pricing Level 3 shall apply.    Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate   delivered pursuant to Section 4.01(a).  Thereafter, each change in the Applicable Rate resulting from a   publicly announced change in the Debt Rating shall be effective during the period commencing on the date   of the public announcement thereof and ending on the date immediately preceding the effective date of the   next such change.          “Approved Fund” has the meaning set forth in Section 10.06(g).    “Arrangers and Bookrunners” means JPMorgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner &   Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation   to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment   banking, commercial lending services or related businesses may be transferred following the date of this   Agreement), Wells Fargo Securities, LLC, MUFG Bank, Ltd., Sumitomo Mitsui Banking Corporation,  The Toronto-Dominion Bank, New York Branch, The Bank of Nova Scotia, and Mizuho, each in its  capacity as joint lead arranger and joint bookrunner.          “Assignment and Assumption” means an Assignment and Assumption substantially in the form of   Exhibit F.          “Attorney Costs” means and includes all fees, expenses and disbursements of any law firm or other   external counsel.                                          2    4847-1285-6953 v.7  





 






       “Attributable Indebtedness” means, on any date, in respect of any Synthetic Lease Obligation, the   capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance   sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for   as a capital lease.          “Audited Financial Statements” means the most recent audited financial statements delivered by   the Borrower on or prior to the Closing Date pursuant to Section 6.01(a) of the Revolving Credit Agreement.            “Availability Period” means, for any Lender, the period from and including the Closing Date to the   earliest of (a) the date one hundred eighty (180) days after the Closing Date, (b) the date of termination of   the Aggregate Commitments pursuant to Section 2.07, (c) the date of termination of the commitment of   each Lender to make Loans pursuant to Section 8.02, and (d) the date upon which the fourth Borrowing   (or, if the initial Borrowing is not made before December 31, 2018, the third Borrowing) is funded.          “Available Draw Amount” means at any time of determination, an amount equal to the greater of   (a)  zero  and  (b)  (i)  the  Aggregate  Commitments  at  such  time minus (ii)  the aggregate amount  of all   Borrowings made prior to such date.          “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable   EEA Resolution Authority in respect of any liability of an EEA Financial Institution.          “Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55   of  Directive  2014/59/EU  of  the  European  Parliament  and  of  the  Council  of  the  European  Union,  the   implementing law for such EEA Member Country from time to time which is described in the EU Bail-In  Legislation Schedule.          “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal   Funds Rate plus 1/2 of 1%, (b) the Prime Rate, and (c) the one-month Eurodollar Rate for such day plus   1.00%; provided that, if the Base Rate shall be less than zero (0), such rate shall be deemed zero (0) for all  purposes of this Agreement.          “Base Rate Loan” means a Loan that bears interest based on the Base Rate.          “Borrower” has the meaning specified in the introductory paragraph hereto.          “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the   case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to  Section 2.01.          “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 or the state of New York, and, if such day relates to any Eurodollar Rate Loan,   means  any  such  day  on  which dealings in  Dollar  deposits are  conducted  by  and  between  banks  in  the   London interbank Eurodollar market.          “Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other   amounts under any lease (or other arrangement conveying the right to use) of real or personal property, or   a combination thereof, which obligations are required to be classified and accounted for as capital leases   on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized   amount thereof determined in accordance with GAAP.  It is understood that with respect to the accounting                                          3    4847-1285-6953 v.7  





 






 for leases as either operating leases or capital leases and the impact of such accounting on the definitions   and covenants herein, GAAP as in effect on the Closing Date shall be applied.          “Change in Law” means the occurrence, after the date of this Agreement, 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,  (x)  the  Dodd-Frank  Wall  Street  Reform  and  Consumer  Protection  Act  and  all   requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests,   rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee   on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory  authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”,   regardless of the date enacted, adopted or issued.          “Change of Control” 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 Borrower or its        Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or        administrator of any such plan) after the Closing Date 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 (such right, an “option right”), whether such right is exercisable immediately or        only after the passage of time), directly or indirectly, of 25% or more of the equity securities of        Borrower entitled to vote for members of the board of directors or equivalent governing body of        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 12 consecutive months, a majority of the members of the        board  of  directors  or  other  equivalent  governing  body  of Borrower cease  to  be  composed  of        individuals (i) who were members of that board or equivalent governing body on the first day of        such period, (ii) whose election or nomination to that board or equivalent governing body was        approved by individuals referred to in clause (i) above constituting at the time of such election or         nomination at least a majority of that board or equivalent governing body or (iii) whose election or         nomination to that board or other equivalent governing body was approved by individuals referred         to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a         majority of that board or equivalent governing body; or                (c)   Borrower shall fail to own, directly or indirectly, 100% of the equity interests in        the Guarantors.   Notwithstanding the foregoing, “option right” shall not include any securities which any person or group  has a right to acquire pursuant to a merger or acquisition agreement, until such right is exercised and such  acquisition occurs pursuant to such agreement.         “Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or   waived in accordance with Section 10.01 (or, in the case of Section 4.01(b), waived by the Person entitled   to receive the applicable payment).          “Code” means the Internal Revenue Code of 1986, as amended.                                         4    4847-1285-6953 v.7  





 






       “Commercial Operation Date” means the date on which a Material Project is substantially complete   and commercially operable.          “Commercial Paper Borrowing” means a Borrowing of Loans the entire proceeds of which are   used, within five (5) Business Days of disbursement, to repay commercial paper issued by the Borrower.          “Commitment” means, as to each Lender, its obligation to make Loans to the Borrower, in an   aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such   Lender’s name on Schedule 2.01 or in the Assignment and Assumption 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.          “Compliance Certificate” means a certificate substantially in the form of Exhibit E.          “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 EBITDA” means, for any period, an amount equal to the sum of (i) Consolidated   Net Income for such period plus without duplication (ii) to the extent deducted in determining Consolidated   Net Income for such period, the following: (A) Consolidated Interest Expense, (B) income tax expense   determined  on  a  consolidated  basis  in  accordance  with  GAAP,  (C)  depreciation  and  amortization   determined on a consolidated basis in accordance with GAAP, (D) charges, fees and expenses (including   any premium and acceleration of fees or discounts) in connection with any Investment, issuance of equity   interests or prepayment, purchase, amendment or refinancing of Indebtedness permitted hereunder (in each   case, whether or not consummated) for such period, (E) Transaction Expenses with respect to any such   period,  and  (F) all  other  non-cash  charges, minus (iii)  all  non-cash  items  increasing  Consolidated  Net   Income for such period, determined in each case on a consolidated basis in accordance with GAAP for such   period.            For purposes of Section 7.09, (a) if Borrower or any of its Subsidiaries has acquired any assets or   another Person as a Subsidiary (including through the purchase or other acquisition of additional ownership   interests in such Person resulting in such Person becoming a Subsidiary) during the relevant period for   determining the Leverage Ratio, Consolidated EBITDA shall be calculated after giving pro forma effect   thereto,  as  if  such  acquisition had  occurred  on  the  first  day  of  the  relevant  period  for  determining   Consolidated EBITDA and (b) for any four quarter period during which any of Borrower’s or any of its   Subsidiaries’ operations constitute discontinued operations, in accordance with GAAP, such discontinued   operations  shall  be  excluded  from  the  calculation  of  Consolidated  EBITDA  and  not  given  effect  in   determining Consolidated EBITDA.          “Consolidated  Interest  Expense”  means,  for Borrower and  its  Subsidiaries  for  any  period   determined on a consolidated basis in accordance with GAAP, the sum of (without duplication) (i) total   interest expense, including the interest component of any payments in respect of Capital Lease Obligations   capitalized or expensed during such period (whether or not actually paid during such period) plus (ii) the   net amount payable (or minus the net amount receivable) under any Swap Contract (relating to interest rates   only)  during  such  period  (whether  or  not  actually  paid  or  received  during  such  period),  plus (iii)   amortization of debt issuance costs, debt discount or premium, plus (iv) other financing fees and expenses   incurred  by Borrower or  any  of  its  Subsidiaries  for  such  period,  including  any  tender  or  redemption  premiums paid or payable in connection with the purchase, acquisition, repayment, redemption, discharge  or defeasance of any Indebtedness.                                          5    4847-1285-6953 v.7  





 






       “Consolidated Net Income” means, for any period, the net income (or loss) of Borrower and its   Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that   there shall be excluded therefrom (a) the income or loss of any Person accrued prior to the date it became   a Subsidiary of Borrower, or is merged or consolidated with Borrower or any of its Subsidiaries, (b) any   equity interests of Borrower or any Subsidiary in the earnings of any Person (other than a Subsidiary of   Borrower),  but  including  dividends and  similar  distributions  actually  received  by Borrower or  its   Subsidiaries from any such Person, (c) the undistributed earnings of any Subsidiary of Borrower to the   extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the   time permitted by the terms of the organizational documents or Contractual Obligations of, or requirements   of Law applicable to, such Subsidiary, (d) any extraordinary gains or losses, and (e) any gains attributable   to write-ups of assets.          “Consolidated  Net  Tangible  Assets”  means,  at  any  date  of  determination,  the  total  amount  of   consolidated assets of Borrower and its Subsidiaries after deducting therefrom: (a) all current liabilities  (excluding (i) any current liabilities that by their terms are extendable or renewable at the option of the  obligor thereon to a time more than 12 months after the time as of which the amount thereof is being  computed, (ii) current maturities of the Obligations and other long-term debt and (iii) notes payable); and   (b) the value, net of any applicable reserves and accumulated amortization, of all goodwill, trade names,   trademarks, patents and other like intangible assets, all as set forth, or on a pro forma basis would be set   forth, on the consolidated balance sheet of Borrower and its Subsidiaries, prepared in accordance with   GAAP.          “Consolidated  Net  Worth”  means,  as  of  any  date  of  determination,  consolidated  shareholders’   equity, determined in accordance with GAAP, of Borrower and its Subsidiaries as of that date, adjusted as   follows: (a) either (i) less the absolute value of net unrealized gains resulting from Swap Contracts that are   recorded by Borrower in accumulated other comprehensive income (loss) as determined in accordance with   GAAP,  or  (ii) plus the  absolute  value  of  net  unrealized  losses  resulting  from  Swap  Contracts  that  are   recorded by Borrower in accumulated other comprehensive income (loss) as determined in accordance with   GAAP; and (b) either (i) less the absolute value of defined benefit plan assets that are recorded by Borrower   in accumulated other comprehensive income (loss) as determined in accordance with GAAP, or (ii) plus   the absolute value of defined benefit plan liabilities that are recorded by Borrower in accumulated other   comprehensive income (loss) as determined in accordance with GAAP.          “Consolidated Total Debt” means, as of any date of determination, Indebtedness of Borrower and   its Subsidiaries on a consolidated basis as of such date, but excluding Indebtedness of the type described in   subsection (c) of the definition thereof.          “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” has the meaning specified in the definition of “Affiliate.”          “Debt Rating” has the meaning set forth in the definition of “Applicable Rate.”          “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.                                           6    4847-1285-6953 v.7  





 






       “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  an interest  rate equal  to (a)  the  Base  Rate plus  (b)  the  Applicable  Rate   applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a Eurodollar   Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable   Rate) otherwise applicable to such Loan plus 2% per annum.          “Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund all   or any portion of its Loans within two Business Days of the date such Loans were required to be funded   hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such   failure is the result of such Lender’s good faith 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 or any other Lender   any other amount required to be paid by it hereunder within two Business Days of the date when due, (b)   has notified the Borrower or the Administrative Agent 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 Lenders’ obligation to fund a Loan hereunder and states that such position is based   on  such  Lender’s  good  faith  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  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 clauses (a) through   (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a   Defaulting Lender (subject to Section 2.17(b)) upon delivery of written notice of such determination to the   Borrower and each Lender.          “Designated Jurisdiction” means any country, region or territory to the extent that such country,   region or territory itself is the subject of any Sanction.          “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including   any sale and leaseback transaction) of any property by any Person, 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,  but  excluding  (i)  any  sale,  assignment,  transfer  or  other  disposal  of  cash  or  cash  equivalents and (ii) any transfer of property or assets constituting an Investment.                                           7    4847-1285-6953 v.7  





 






       “Documentation Agent” means each entity named as a “Documentation Agent” on the cover page   of this Agreement.          “Dollar” and “$” mean lawful money of the United States.          “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.          “Eligible Assignee” has the meaning specified in Section 10.06(g).          “Environmental  Laws”  means  any  and  all  Federal,  state,  local,  and  foreign  statutes,  laws,   regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses,   agreements or governmental restrictions relating to pollution and the protection of the environment or the   release of any materials into the environment, including those related to hazardous substances or wastes,  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),  of  the  Borrower,  or  its   Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b)   the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c)   exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into   the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability   is assumed or imposed with respect to any of the foregoing.          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.          “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 (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) a withdrawal by   the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan   year in which it 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  or  notification  that  a   Multiemployer Plan is in “critical status” or insolvent; (d) the filing of a notice of intent to terminate, the   treatment  of  a  Plan  amendment  as  a  termination  under Sections  4041  or  4041A  of  ERISA,  or  the   commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an   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 or Multiemployer Plan; (f) the imposition of any                                         8    4847-1285-6953 v.7  





 






 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; (g) the application for a waiver of the minimum  funding standard under the Pension Funding Rules; (h) the assertion of a material claim (other than routine   claims for benefits) against any Pension Plan or the assets thereof, or against Borrower or any of its ERISA   Affiliates in connection with any Plan; or (i) the imposition of a Lien against Borrower or any of ERISA   Affiliates pursuant to Section 430(k) of the Code or pursuant to Section 303(k) of ERISA with respect to   any Pension 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.          “Eurodollar Rate” means:                (a)   for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum        equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which         rate is approved by the Administrative Agent, as published on the applicable Reuters screen page         (or such other commercially available source providing such quotations as may be designated by         the  Administrative  Agent  from  time  to  time)  at  approximately  11:00  a.m.,  London  time,  two         Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery         on the first day of such Interest Period) with a term equivalent to such Interest Period; and                (b)   for any interest calculation with respect to a Base Rate Loan on any date, the rate        per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days        prior to such date for Dollar deposits with a term of one month commencing that day;         provided, that, if the Eurodollar Rate shall be less than zero (0), such rate shall be deemed zero (0)        for all purposes of this Agreement; provided, further that to the extent a comparable or successor        rate is approved by the Administrative Agent in connection herewith, the approved rate shall be        applied in a manner consistent with market practice for LIBOR-based loans; provided, further that        to the extent such market practice is not administratively feasible for the Administrative Agent,        such  approved  rate  shall  be  applied  in  a  manner  as  otherwise  reasonably  determined  by  the        Administrative Agent.          “Eurodollar  Rate Loan”  means  a Loan that  bears  interest  at  a  rate  based  on clause  (a) of  the   definition of Eurodollar Rate.          “Event of Default” has the meaning specified in Section 8.01.           “Excluded  Taxes”  means  any  of  the  following  Taxes  imposed  on  or  with  respect  to the   Administrative  Agent  or any  Lender  or  required  to  be  withheld  or  deducted  from  a  payment  to the   Administrative  Agent or such  Lender:  (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 the   Administrative Agent or such Lender 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 10.14) or (ii) such Lender changes its Lending Office, except in each case to the   extent that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), 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                                         9    4847-1285-6953 v.7  





 






 immediately before it changed its Lending Office, (c) Taxes attributable to the Administrative Agent’s or   such Lender’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed   pursuant to FATCA.          “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any   amended or successor version that is substantively comparable and not materially more onerous to comply   with), and any current or future regulations or official interpretations thereof and any agreements entered  into pursuant to Section 1471(b)(1) of the Code.          “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the   rates on overnight Federal funds transactions with members of the Federal Reserve System, as published   by the Federal Reserve Bank on the Business Day next succeeding such day; provided that (a) if such day   is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the   next preceding Business Day as so published on the next succeeding Business Day, (b) if no such rate is so   published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average   rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Mizuho on such day on  such  transactions  most  closely  resembling  such  overnight  Federal  funds  transactions  as  reasonably  determined by the Administrative Agent, and (c) if the Federal Funds Rate shall be less than zero (0), such  rate shall be deemed zero (0) for all purposes of this Agreement.          “Financing Vehicle” has the meaning set forth in the definition of “Hybrid Securities”.          “Fitch” means Fitch Ratings, Inc. and any successor thereto.          “Foreign Lender” means any Lender that is 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.          “FRB” means the Board of Governors of the Federal Reserve System of the United States.          “Fund” has the meaning specified in Section 10.06(g).          “GAAP”  means  generally  accepted  accounting  principles  in  the  United  States  set  forth  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   such other principles as may be approved by a significant segment of the accounting profession in the   United States, that are applicable to the circumstances as of the date of determination, consistently applied.          “Governmental Authority” means any nation or government, any state or other political subdivision   thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, 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).          “Granting Lender” has the meaning specified in Section 10.06(i).          “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                                         10    4847-1285-6953 v.7  





 






 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 by such Person.  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.           “Guarantors” means, collectively, ONEOK Partners and Intermediate Partnership and each other   Person that executes a Guaranty Agreement Joinder pursuant to Section 6.13.          “Guaranty Agreement” shall mean the Guaranty Agreement, substantially in the form of Exhibit   G, made by the Guarantors in favor of the Administrative Agent for the benefit of the Lenders.          “Guaranty Agreement Joinder” means a Guaranty Agreement Joinder, substantially in the form as   Exhibit I.          “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous   or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or   asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all   other substances or wastes of any nature regulated pursuant to any Environmental Law.           “Hybrid Securities” means any trust preferred securities, or deferrable interest subordinated debt   with a maturity of at least 20 years, which provides for the optional (at the option of the issuer thereof) or   mandatory deferral of interest or distributions, issued by Borrower, or any business trusts, limited liability   companies, limited partnerships or similar entities (each, a “Financing Vehicle”) (i) substantially all of the   common equity, general partner or similar interests of which are owned (either directly or indirectly through  one or more wholly-owned Subsidiaries) at all times by Borrower, (ii) that have been formed for the purpose   of issuing trust preferred securities or deferrable interest subordinated debt, and (iii) substantially all the   assets of which consist of (A) subordinated debt of Borrower, and (B) payments made from time to time on  the subordinated debt.          “Hydrocarbon  Interests”  means  all  rights,  titles,  interests  and  estates  now owned  or  hereafter   acquired by the Borrower or any of its Subsidiaries in any and all oil, gas and other liquid or gaseous   hydrocarbon properties and interests, including without limitation, mineral fee or lease interests, production   sharing  agreements,  concession  agreements,  license  agreements,  service  agreements,  risk  service   agreements or similar Hydrocarbon interests granted by an appropriate Governmental Authority, farmout,   overriding royalty and royalty interests, net profit interests, oil payments, production payment interests and   similar interests in Hydrocarbons, including any reserved or residual interests of whatever nature.          “Hydrocarbons”  means  oil,  gas,  casing  head  gas,  condensate,  distillate,  liquid  hydrocarbons,   gaseous hydrocarbons, all products refined, separated, settled and dehydrated therefrom, including, without   limitation, kerosene, liquefied petroleum gas, refined lubricating oils, diesel fuel, drip gasoline, natural   gasoline, helium, sulfur and all other minerals.                                          11    4847-1285-6953 v.7  





 






       “Immaterial Subsidiary” on any date shall mean any Subsidiary of the Borrower that (a) does not   have, as of such date, assets with a value in excess of 5.0% of the total assets of the Borrower and its   Subsidiaries, and did not, as of the last day of the fiscal quarter of the Borrower most recently ended, have   revenues representing in excess of 5.0% of total revenues of the Borrower and its Subsidiaries, in each case,   on a consolidated basis, and (b) taken together with all Immaterial Subsidiaries does not have, as of such   date, assets with a value in excess of 5.0% of the total assets of the Borrower and its Subsidiaries, and as of   the last day of the fiscal quarter of the Borrower most recently ended, did not have revenues representing   in excess of 5.0% of total revenues of the Borrower and its Subsidiaries, in each case, on a consolidated   basis.          “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  for  borrowed  money  and  all  obligations  of  such        Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;                (b)   all direct or contingent obligations of such Person arising under letters of credit        (including  standby  and  commercial),  bankers’  acceptances,  bank  guaranties,  surety  bonds  and        similar instruments;                (c)   net obligations of such Person under any Swap Contract;                (d)   all obligations of such Person to pay the deferred purchase price of property or        services (other than trade accounts payable in the ordinary course of business);                (e)   indebtedness (excluding prepaid interest thereon) secured by a Lien on property        owned or being purchased by such Person (including indebtedness arising under conditional sales        or other title retention agreements), whether or not such indebtedness shall have been assumed by        such Person or is limited in recourse;                (f)   Capital Lease Obligations and Synthetic Lease Obligations;                 (g)   Off-Balance Sheet Liabilities;                 (h)   Guarantees of such Person in respect of any of the foregoing; and                (i)   Hybrid Securities.         For  all  purposes  hereof,  the  Indebtedness  of  any  Person  shall  include  the  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 a joint venturer, unless such Indebtedness is expressly  made non-recourse to such Person.  The amount of any net obligation under any Swap Contract on any date  shall be deemed to be the Swap Termination Value thereof as of such date.  The amount of any Synthetic  Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect  thereof as of such date.          “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to   any payment made by or on account of any obligation of any Loan Party under any Loan Document and   (b) to the extent not otherwise described in (a), Other Taxes.          “Indemnitee” has the meaning set forth in Section 10.04(b).                                         12    4847-1285-6953 v.7  





 






       “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of   each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest   Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months   after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate   Loan, the last Business Day of each March, June, September and December and the Maturity Date.          “Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the date such   Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on   the date one week or one, two, three or six months (in each case, subject to availability) thereafter, as  selected by the Borrower in its Loan Notice; provided that:                (i)   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, in the case of a Eurodollar Rate        Loan, such Business Day falls in another calendar month, in which case such Interest Period shall        end on the next preceding Business Day;                (ii) any Interest Period pertaining to a Eurodollar Rate Loan 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               (iii) no Interest Period shall extend beyond the Maturity Date.          “Intermediate Partnership” means ONEOK Partners Intermediate Limited Partnership, a Delaware   limited partnership.          “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 capital stock or other securities 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  equity  participation  or  interest  in,  another  Person,   including  any  partnership  or  joint  venture  interest  in  such  other  Person,  or  (c)  the  purchase  or  other   acquisition  (in  one  transaction  or  a  series  of  transactions)  of  assets  of  another  Person that  constitute a   business unit.  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.          “IRS” means the United States Internal Revenue Service.          “Joint Venture” means an entity, other than a Subsidiary, in which the Borrower or a Subsidiary   owns an equity interest.          “Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties,   rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,   including the interpretation or administration thereof by any Governmental Authority charged with the   enforcement,  interpretation  or  administration  thereof,  and  all  applicable  administrative  orders,  directed   duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority,   in each case whether or not having the force of law.          “Left Lead Arranger” means Mizuho.          “Lender” has the meaning specified in the introductory paragraph hereto.                                          13    4847-1285-6953 v.7  





 






       “Lending Office” means, as to any Lender, the office or offices of such Lender described as such   in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time   to time notify the Borrower and the Administrative Agent.          “Leverage Ratio” means, as of the last day of any fiscal quarter, the ratio of (i) Consolidated Total   Debt as of such date (excluding any amount of Hybrid Securities not to exceed a total of 15% of Total   Capital) to (ii) Adjusted Consolidated EBITDA for the four consecutive fiscal quarters ending on such date.          “LIBOR Successor Rate” has the meaning specified in Section 3.03(b)(iii).           “LIBOR Successor Rate Conforming Changes” has the meaning specified in Section 3.03(c).          “Lien” means any mortgage, pledge, hypothecation, assignment for security, deposit arrangement,   lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement   of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any   financing lease having substantially the same economic effect as any of the foregoing).          “Loan” has the meaning specified in Section 2.01.          “Loan Documents” means this Agreement, each Note, the Guaranty Agreement and each Guaranty   Agreement Joinder.           “Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the   other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall   be substantially in the form of Exhibit A.          “Loan Parties” means the Borrower and the Guarantors.          “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect   upon, the operations, properties or financial condition of the Borrower and its Subsidiaries taken as a whole;  provided however, (i) a downgrade by S&P, Fitch and/or Moody’s of their respective Debt Rating shall  not, in and of itself, be deemed to be a Material Adverse Effect, and (ii) the fact that the Borrower is unable  to borrow in the commercial paper market shall not, in and of itself, be deemed to be a Material Adverse  Effect; but for purposes of clarity in interpreting the foregoing clauses (i) and (ii), it is agreed that the   event(s), change(s), circumstance(s) or condition(s) that causes such downgrade (or an announcement of a   potential downgrade or a review for possible ratings change) of the Debt Rating or that causes such inability   of  the  Borrower  to  borrow  in  the  commercial  paper  market,  and  the  effect  or  change  caused  by  such   downgrade (or an announcement of a potential downgrade or a review for possible ratings change) of the  Debt Rating or by such inability to borrow, will be considered in determining whether there has been a  Material Adverse Effect; (b) a material impairment of the ability of any Loan Party to perform its payment  obligations, under any Loan Document to which it is a party; or (c) a material adverse effect upon the  legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which  it is a party.          “Material Project” means the construction or expansion of a capital project of Borrower or any of   its Subsidiaries which has a budgeted capital cost exceeding $25,000,000.          “Material Project EBITDA Adjustments” means, with respect to each Material Project,          (A)  prior to the Commercial Operation Date of the Material Project (but including the fiscal  quarter  in  which  such  Commercial  Operation  Date  occurs),  a  percentage  (based  on  the  then-current                                         14    4847-1285-6953 v.7  





 






 completion percentage of the Material Project) of an amount to be approved by the administrative agent of   the Revolving Credit  Agreement (which  shall  be  conclusive  absent  manifest  error) as  the  projected   Consolidated  EBITDA  attributable  to  such  Material Project for  the  twelve  month  period  following  the   scheduled Commercial Operation Date of such Material Project (such amount to be determined based on   customer contracts or tariff-based customers relating to such Material Project, the creditworthiness of the   other parties to such contracts or such tariff-based customers and projected revenues from such contracts,   tariffs, capital costs and expenses, scheduled Commercial Operation Date, commodity price assumptions   and other factors deemed appropriate by the Administrative Agent) which may, at Borrower’s option, be   added to actual Consolidated EBITDA for Borrower and its Subsidiaries for the fiscal quarter in which   construction of such Material Project commences and for each fiscal quarter thereafter until the Commercial   Operation Date of the Material Project (including the fiscal quarter in which such Commercial Operation   Date occurs, but without duplication of any actual Consolidated EBITDA attributable to such Material   Project following such Commercial Operation Date); provided that if the actual Commercial Operation   Date does not occur by the scheduled Commercial Operation Date, then the foregoing amount shall be   reduced, for quarters ending after the scheduled Commercial Operation Date to (but excluding) the first full   quarter after its Commercial Operation Date, by the following percentage amounts depending on the period   of delay (based on the period of actual delay or then-estimated delay, whichever is longer):  (i) longer than   90 days, but not more than 180 days, 25%, (ii) longer than 180 days but not more than 270 days, 50%, and   (iii) longer than 270 days, 100%; and          (B)   beginning with the first full fiscal quarter following the Commercial Operation Date of the  Material Project and for the two immediately succeeding fiscal quarters, an amount to be approved by the  administrative agent of the Revolving Credit Agreement (which shall be conclusive absent manifest error)  as the projected Consolidated EBITDA attributable to the Material Project for the balance of the four full  fiscal quarter period following such Commercial Operation Date, which may, at Borrower’s option, be  added to the actual Consolidated EBITDA attributable to the Material Project for such fiscal quarter or  quarters.            Notwithstanding  the  foregoing, (a) if  the Revolving Credit  Agreement  terminates  prior  to  this   Agreement, (i) the Administrative Agent shall assume the responsibilities of the administrative agent under   the Revolving Credit Agreement related to the calculation of “Material Project EBITDA Adjustments”, and   (ii) Borrower shall deliver to the Administrative Agent all information, documentation and calculations that   would have otherwise been provided to the administrative agent of the Revolving Credit Agreement related   to the calculation of “Material Project EBITDA Adjustments” at such times and on such other terms as set   forth in the Revolving Credit Agreement, and (b) the aggregate amount of all Material Project EBITDA   Adjustments during any period shall be limited to 20% of the total actual Consolidated EBITDA for such   period  (which  total  actual  Consolidated  EBITDA  shall  be  determined  without  including  any  Material   Project EBITDA Adjustments or any pro forma adjustments for acquisitions).          “Maturity Date” means, with respect to any Lender, the later of (a) the third anniversary of the   Closing Date and (b) if maturity is extended pursuant to Section 2.15 with the consent of such Lender, such   extended maturity date as determined pursuant to such Section; provided, however, that, in each case, if   such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.          “Mizuho” means Mizuho Bank, Ltd.          “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.                                           15    4847-1285-6953 v.7  





 






       “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 plan years, has made or been obligated to make contributions.          “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such   time.          “Non-Extending Lender” has the meaning set forth in Section 2.15(b).          “Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans   made by such Lender, substantially in the form of Exhibit D.          “Obligations” means 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, whether direct or   indirect  (including  those  acquired  by  assumption),  absolute  or  contingent,  due  or  to  become  due,  now   existing or hereafter arising and including interest and fees that accrue after the commencement by or   against any 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 and fees are allowed   claims in such proceeding.           “OFAC”  means  the  Office  of  Foreign  Assets  Control  of  the  United  States  Department  of  the   Treasury.          “Off-Balance Sheet Liabilities” means, with respect to the Borrower as of any date of determination   thereof, without duplication and to the extent not included as a liability on the consolidated balance sheet   of the Borrower and its Subsidiaries in accordance with GAAP: (a) with respect to any asset securitization   transaction  (including any  accounts  receivable  purchase  facility)  (i)  the  unrecovered  investment  of   purchasers or transferees of assets so transferred and (ii) any other payment, recourse, repurchase, hold   harmless, indemnity or similar obligation of the Borrower or any of its Subsidiaries in respect of assets   transferred or payments made in respect thereof, other than limited recourse provisions that are customary   for transactions of such type and that neither (x) have the effect of limiting the loss or credit risk of such   purchasers or transferees with respect to payment or performance by the obligors of the assets so transferred   nor (y) impair the characterization of the transaction as a true sale under applicable Laws (including Debtor   Relief Laws); (b) any Synthetic Lease Obligation; (c) the monetary obligations under any sale and leaseback   transaction which does not create a liability on the consolidated balance sheet of the Borrower and its   Subsidiaries, provided that Off-Balance Sheet Liabilities of the Borrower and its Subsidiaries shall not   include the existing sale and leaseback transactions described on Schedule 1.01 provided that the documents   governing such transactions are not amended after the Closing Date so as to increase the amount of the   Borrower’s or its Subsidiaries’ total payment obligations thereunder; or (d) any other monetary obligation   arising with respect to any other transaction which (i) upon the application of any Debtor Relief Law to the  Borrower  or  any  of  its  Subsidiaries,  would  be  characterized  as  indebtedness  or  (ii)  is  the  functional  equivalent of or takes the place of borrowing but which, in each such case does not constitute a liability on  the consolidated balance sheet of the Borrower and its Subsidiaries (for purposes of this clause (d), any   transaction structured to provide tax deductibility as interest expense of any dividend, coupon or other   periodic payment will be deemed to be the functional equivalent of a borrowing).          “Oil  and  Gas  Agreements”  means  operating  agreements,  processing  agreements,  farm-out  and   farm-in  agreements,  development  agreements,  area  of  mutual  interest  agreements,  contracts  for  the  terminalling, gathering  and/or  transportation  of  oil  and  natural  gas,  unitization  agreements,  pooling  arrangements, joint bidding agreements, joint venture agreements, participation agreements, surface use                                          16    4847-1285-6953 v.7  





 






 agreements, service contracts, leases and subleases of Oil and Gas Properties or other similar agreements   which are customary in the oil and gas business, howsoever designated, in each case made or entered into   in the ordinary course of the oil and gas business as conducted by the Borrower and its Subsidiaries.            “Oil and Gas Properties” means (a) Hydrocarbon Interests; (b) the Property now or hereafter pooled   or unitized with Hydrocarbon Interests; (c) all presently existing or future unitization, pooling agreements   and declarations of pooled units and the units created thereby (including, without limitation, all units created   under orders, regulations and rules of any Governmental Authority) which may affect all or any portion of   the Hydrocarbon Interests; (d) all operating agreements, contracts and other agreements which relate to any   of the Hydrocarbon Interests or the production, sale, purchase, exchange or processing of Hydrocarbons   from or attributable to such Hydrocarbon Interest; (e) all Hydrocarbons in and under and which may be   produced and saved or attributable to the Hydrocarbon Interests, the lands covered thereby and all oil in   tanks and all rents, issues, profits, proceeds, products, revenues and other income from or attributable to   the Hydrocarbon Interests; and (f) all tenements, hereditaments, appurtenances and property in any manner   appertaining, belonging, affixed or incidental to the Hydrocarbon Interests, and any and all property, now   owned  or  hereinafter  acquired  and  situated  upon,  used,  held  for  use  or  useful  in  connection  with  the   operating, working or development of any of such Hydrocarbon Interests or property (excluding drilling   rigs, automotive equipment or other personal property which may be on such premises for the purpose of   drilling a well or for other similar temporary uses) and including any and all oil wells, gas wells, injection   wells  or  other  wells,  buildings,  structures,  fuel  separators,  liquid  extraction plants,  plant  compressors,   pumps, pumping units, field gathering systems, tanks and tank batteries, fixtures, valves, fittings, machinery   and  parts,  engines,  boilers,  meters,  apparatus,  equipment,  appliances,  tools,  implements,  cables,  wires,   towers, casing, tubing and rods, surface leases, rights-of-way, easements and servitudes together with all   additions, substitutions, replacements, accessions and attachments to any and all of the foregoing.          “ONEOK Partners” means ONEOK Partners, L.P., a Delaware limited partnership.           “Organization Documents” means, (a) with respect to any corporation, the certificate or articles of   incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-  U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation   or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or   other form of business entity, the partnership, joint venture or other applicable agreement of formation or   organization and any agreement, instrument, filing or notice with respect thereto filed in connection with   its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation   or organization and, if applicable, any certificate or articles of formation or organization of such entity.          “Other Connection Taxes” means, with respect to the Administrative Agent or any Lender, Taxes   imposed as a result of a present or former connection between the Administrative Agent or such Lender  and the jurisdiction imposing such Tax (other than connections arising from the Administrative Agent or   such  Lender 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 or, from the execution, delivery, performance,  enforcement or registration of, or 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).                                           17    4847-1285-6953 v.7  





 






       “Outstanding  Amount”  means with  respect  to Loans  on  any  date,  the  aggregate  outstanding   principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans.          “Participant” has the meaning specified in Section 10.06(d).          “PBGC” means the Pension Benefit Guaranty Corporation.          “Pension Act” means the Pension Protection Act of 2006.          “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required   contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to   plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302   of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 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” (as such term is defined in Section 3(2)   of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or   maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate   contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described   in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five   plan years.          “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” (as such term is defined in Section 3(3) of ERISA)   which is established, sponsored, maintained or contributed to by, or required to be contributed to, by the  Borrower or any ERISA Affiliate.          “Platform” has the meaning set forth in Section 6.02(e).          “Prime Rate” means the rate of interest per annum from time to time published in the “Money   Rates” or successor section of The Wall Street Journal as being the “Prime Lending Rate” or, if more than   one rate is published as the “Prime Lending Rate”, then the highest of such rates (each change in the Prime   Rate to be effective as of the date of publication in The Wall Street Journal of a “Prime Lending Rate” that   is different from that published on the preceding Business Day); provided that in the event that The Wall   Street Journal shall, for any reason, fail or cease to publish the “Prime Lending Rate”, the Administrative   Agent shall choose a reasonably comparable index or source to use as the basis for the “Prime Lending   Rate”.          “Pro Rata Share” means, with respect to each Lender (a) at any time during the Availability Period,   a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the   amount of the Commitment of such Lender at such time and the denominator of which is the amount of the   Aggregate Commitments at such time, subject to adjustment as provided in Section 2.17, and (b) at any   time after the Availability Period, a fraction (expressed as a percentage carried out to the ninth decimal   place), the numerator which is the principal amount of the Loans of such Lender at such time and the   denominator of which is the principal amount of the Loans of all Lenders at such time, provided, that if the   principal amount of the Loans has been repaid in full but other Obligations (other than any contingent   indemnification Obligations) remain outstanding, then the “Pro Rata Share” with respect to each Lender   shall be a fraction (expressed as a percentage carried out to the ninth decimal place), the numerator which   is the Obligations (other than any contingent indemnification Obligations) owed to such Lender at such                                         18    4847-1285-6953 v.7  





 






 time  and  the  denominator  of  which  is  the  Obligations  (other  than  any  contingent  indemnification   Obligations) owed to all Lenders at such time.  The initial Pro Rata Share of each Lender is set forth opposite   the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such   Lender becomes a party hereto, as applicable.          “Register” has the meaning set forth in Section 10.06(c).          “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,   directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.          “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than   events for which the 30 day notice period has been waived.          “Required  Lenders” means, (a) as of any date of determination during the Availability Period,   Lenders having more than 50% of the sum of (i) the unused portion of the Aggregate Commitments and (ii)  the Total Outstandings, or (b) as of any date of determination after the Availability Period, Lenders holding  in the  aggregate  more  than  50%  of the Total  Outstandings; provided that the Commitment  of,  and  the   portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for   purposes of making a determination of Required Lenders.          “Responsible Officer” of a Loan Party means the chief executive officer, president, vice president   with responsibility for financial matters, chief financial officer, treasurer or assistant treasurer of such Loan   Party (or, if such Loan Party is a limited partnership, of the general partner of such Loan Party). 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.          “Revolving Credit Agreement” means that certain Credit Agreement, dated as of April 18, 2017,   by and among Borrower, Citibank, N.A., as administrative agent, and the lenders party thereto, as the same   may be amended, restated, or otherwise modified from time to time.          “S&P” means S&P Global Ratings, a subsidiary of S&P Global, Inc., and any successor thereto.          “Sanction(s)” means any international economic sanction administered or enforced by the United   States  Government, including,  without  limitation, OFAC, the  United  Nations  Security  Council,  the  European Union, Her Majesty’s Treasury or other relevant sanctions authority.          “SEC”  means  the  Securities  and  Exchange  Commission,  or  any  Governmental  Authority   succeeding to any of its principal functions.          “Solvent” 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 salable 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, and (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.  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.                                         19    4847-1285-6953 v.7  





 






       “SPC” has the meaning specified in Section 10.06(i).           “Specified  Acquisition”  means  one  or  more acquisitions  of  assets,  equity  interests,  entities,   operating  lines  or  divisions  in  any  fiscal  quarter  for  an  aggregate  purchase  price  of  not  less  than   $25,000,000.          “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 securities or other interests having ordinary   voting power for the election of directors or other governing body (other than securities or interests having   such power only by reason of the happening of a contingency) are at the time beneficially owned, 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.          “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 (excluding stock options granted to directors, employees,   management, and consultants), 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 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).          “Syndication Agent” means each entity named as a “Syndication Agent” on the cover page of this   Agreement.          “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   creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency   or bankruptcy of 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.          “Threshold Amount” means $100,000,000.                                         20    4847-1285-6953 v.7  





 






       “Total Capital” means, at any time, the sum of (a) Consolidated Total Debt and (b) Consolidated   Net Worth.          “Total Outstandings” means the aggregate Outstanding Amount of all Loans.          “Transaction  Expenses”  means  any  costs,  premiums,  fees  or  expenses  incurred  or  paid  by  the   Borrower or any of its Subsidiaries in connection with the Transactions.          “Transactions” means (i) the execution, delivery and performance by each of the Loan Parties of   this Agreement and the other Loan Documents to which it is a party, the initial borrowing of Loans on the   Closing Date and the use of the proceeds thereof, (ii) the payment of all Transaction Expenses and (iii) the  transactions related or ancillary thereto.          “Type” means with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.          “Unfunded Pension Liability” means the amount (if any) by which the present value of a Pension   Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, determined using actuarial assumptions for   funding purposes which are equal to the assumptions used by the Pension Plan's actuary for funding said   Pension Plan pursuant to Section 412 of the Code for the applicable plan year, exceeds the current fair   market value of such Pension Plan's assets.          “United States” and “U.S.” mean the United States of America.          “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30)   of the Code.          “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B) (3).          “Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the   write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In  Legislation  for  the  applicable  EEA  Member  Country,  which  write-down  and  conversion  powers  are  described in the EU Bail-In Legislation Schedule.          1.02  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 meanings of defined terms are equally applicable to the singular and plural forms of  the defined terms.          (b)   (i)   The  words  “herein,”  “hereto,”  “hereof”  and  “hereunder”  and  words  of  similar   import when used in any Loan Document shall refer to such Loan Document as a whole and not to any   particular provision thereof.                (ii) Article, Section, Exhibit and Schedule references are to the Loan Document in        which such reference appears.                (iii) The words “include,” “includes” and “including” are by way of example and not         limitation.                                           21    4847-1285-6953 v.7  





 






             (iv)  The term “documents” includes any and all instruments, documents, agreements,         certificates, notices, reports, financial statements and other writings, however evidenced, whether         in physical or electronic form.                (v)   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.          (c)   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.”          (d)   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.          1.03  Accounting Terms.          (a)   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 as  in  effect  from  time  to  time.    Notwithstanding  the  foregoing,  for  purposes  of  determining  compliance  with  any  covenant  (including  the   computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be   deemed to be carried at 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.          (b)   If at any time any change in GAAP would affect the computation of any financial ratio or   requirement set forth in any Loan Document, such ratio or requirement shall continue to be computed in   accordance with GAAP prior to such change therein until such time, if any, as such financial ratio or   requirement are adjusted or reset to reflect such changes in GAAP and such adjustments or resets are   agreed to in writing by the Borrower, the Administrative Agent and the Required Lenders.          1.04  Rounding.  Any financial ratios required to be maintained by the Borrower 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   References to Agreements and Laws.  Unless otherwise expressly provided herein, (a)  references to Organization Documents, agreements (including the Loan Documents) and other contractual  instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements  and other modifications thereto, but only to the extent that such amendments, restatements, extensions,  supplements and other modifications are not prohibited by any Loan Document; and (b) references to any  Law  shall  include  all  statutory  and  regulatory  provisions  consolidating,  amending,  replacing,  supplementing or interpreting such Law.         1.06   Times of Day.  Unless otherwise specified, all references herein to times of day shall be  references to Central time (daylight or standard, as applicable).                                     ARTICLE II.                          THE COMMITMENTS AND LOANS                                           22    4847-1285-6953 v.7  





 






      2.01  Loans.           (a)   Subject to the terms and conditions set forth herein, each Lender severally agrees to make  term loans (each a “Loan” and collectively, the “Loans”) to the Borrower on any Business Day during the  Availability Period, each in an amount not to exceed such Lender’s Pro Rata Share of the Available Draw  Amount on such date, provided that (A) the Borrower may not request more than four Borrowings pursuant  to this Section 2.01(a); provided that if the initial Borrowing is not made before December 31, 2018, the  Borrower may not request more than three Borrowings pursuant to this Section 2.01(a) and (B) the sum of  the  aggregate  principal  amount  of  all  Loans by  the  Lenders  made  on  such  date shall  not  exceed  the  Aggregate Commitments (before giving effect to mandatory reductions in the Aggregate Commitments  under Section 2.07(b)).           (b)   Amounts borrowed under Section 2.01(a) and repaid or prepaid may not be reborrowed.   The Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.         2.02  Borrowings, Conversions and Continuations of Loans.         (a)   Each Borrowing,  each  conversion  of Loans  from  one  Type  to  the  other,  and  each  continuation  of  Eurodollar  Rate Loans  shall  be  made  upon  the  Borrower’s  irrevocable  notice  to  the  Administrative  Agent,  which  may  be  given  by  telephone.   Each  such  notice  must  be  received  by  the  Administrative Agent (i) not  later than  10:00 a.m.  (New  York  time) three Business Days prior to the  requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any  conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) no later than 1:00 p.m. (New York time)  on the requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower  pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a  written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Each  Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of  $5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Each 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.           (b)   Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower  is  requesting  a Borrowing,  a  conversion  of Loans  from  one  Type  to  the  other,  or  a  continuation  of  Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case  may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or  continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v)  if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a  Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or  continuation, then the applicable 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 Eurodollar Rate Loans.  If the Borrower requests a Borrowing of,  conversion to, or continuation of Eurodollar 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 month.         (c)   Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each  Lender of the amount of its Pro Rata Share of the applicable 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 the preceding subsection.  In the case  of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in  immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. New York time  (in the case of Eurodollar Rate Loans) or 3:00 p.m. New York time (in the case of Base Rate Loans) on                                         23   4847-1285-6953 v.7  





 






 the Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicable conditions   set forth in Section 4.02 (and, if such Borrowing is the initial Borrowing, 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 Mizuho 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.          (d)   Except  as  otherwise  provided  herein,  a  Eurodollar  Rate Loan may  be  continued  or   converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence   of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without   the consent of the Required Lenders.          (e)   The  Administrative  Agent  shall  promptly  notify  the  Borrower  and  the  Lenders  of  the   interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest   rate.  The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the   absence of manifest error.            (f)   After giving effect to all Borrowings, all conversions of Loans from one Type to the other,   and all continuations of Loans as the same Type, there shall not be more than six Interest Periods in effect   with respect to Loans.         2.03  [Reserved.]         2.04  [Reserved.]          2.05  [Reserved.]          2.06  Prepayments.  The Borrower may, upon notice to the Administrative Agent, at any time  or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided   that (a) such notice must be received by the Administrative Agent not later than 11:00 a.m. (New York   time) (i) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (ii) on the date   of prepayment of Base Rate Loans; (b) any prepayment of Eurodollar Rate Loans shall be in a principal   amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; 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, in each case, 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 Loans to be prepaid.  The Administrative Agent  will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Pro  Rata Share 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, unless such notice is made conditional on a transaction or financing, in which case the obligation  of the Borrower to make such prepayment (and to pay such payment amount) shall be subject to such  conditions.   Any  prepayment  of  a  Eurodollar  Rate  Loan  shall  be  accompanied  by  all  accrued  interest  thereon, together with any additional amounts required pursuant to Section 3.05.  Subject to Section 2.17,   each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Pro  Rata Shares.          2.07  Termination or Reduction of Commitments.          (a)   Voluntary.  The Borrower may, upon notice to the Administrative Agent (which notice   may  be  conditioned  on  the  consummation  of  a  transaction  or  financing), terminate  the  Aggregate   Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i)                                         24    4847-1285-6953 v.7  





 






 any such notice shall be received by the Administrative Agent not later than 11:00 a.m. (New York time)   three 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 the Aggregate Commitments if, after giving effect thereto and to   any  concurrent  prepayments  hereunder,  the  Total  Outstandings  would  exceed  the  Aggregate   Commitments.   The  Administrative  Agent  will  promptly  notify  the  Lenders  of  any  such  notice  of   termination or reduction of the Aggregate Commitments.  Any reduction of the Aggregate Commitments   shall be applied to the Commitment of each Lender according to its Pro Rata Share.            (b)   Mandatory.   The  Aggregate  Commitments  shall  be  automatically  and  permanently   reduced to zero (0) upon the expiration of the Availability Period.  If, at the expiration of the Availability   Period, no Loans have been made hereunder, this Agreement and the other Loan Documents shall be   terminated and shall be of no further force and effect, except for those provisions hereof and thereof which   by their express terms survive such termination.            2.08  Repayment of Loans.  The Borrower shall repay to each Lender on its Maturity Date the  aggregate principal amount of Loans outstanding on such date.         2.09   Interest.          (a)   Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear   interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to   the Eurodollar Rate for such Interest Period plus the Applicable Rate; and (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.          (b)   If any amount payable by the Borrower under any Loan Document is not paid when due   (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise,   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.  Accrued and unpaid interest on past due   amounts (including interest on past due interest) shall be due and payable upon demand.          (c)   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.          2.10  Fees.            (a)   Fees  Generally.   The  Borrower  shall  pay  to  the  Arrangers  and  Bookrunners,  the   Administrative Agent and the Lenders for their own respective accounts 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.          (b)   Ticking Fee.  The Borrower agrees to pay to the Administrative Agent for the account of   each Lender a non-refundable ticking fee (the “Ticking Fee”) from and including February 17, 2019 to,   but excluding,  the  date  upon  which  all  of  the  Commitments  have  expired  or  been  terminated or  the   Available Draw Amount is zero (0), computed at 0.125% per annum on the average daily amount of the   Available Draw Amount of such Lender during the period for which payment is made.  Such Ticking Fees   shall be payable on the date upon which all of the Commitments have expired or been terminated or the   Available Draw Amount is zero (0).                                         25    4847-1285-6953 v.7  





 






       2.11  Computation of Interest and Fees.  All computations of interest for Base Rate Loans   determined by reference to the Prime 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 2.13(a), bear interest for one day.          2.12  Evidence of Debt.  The Borrowings made by each Lender shall be evidenced by one or  more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary  course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall  be conclusive absent manifest error of the amount of the Borrowings 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 accounts and records of the Administrative Agent in respect of such matters, the accounts and  records of the Administrative Agent 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 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.          2.13  Payments Generally.          (a)   All payments to be made by the Borrower shall be made 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. (New York time) on the date specified herein.  The   Administrative Agent will promptly distribute to each Lender its Pro Rata Share (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. (New York time) shall be   deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to   accrue.           (b)   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.          (c)   (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 Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00   p.m. (New York time) on the date of such Borrowing of Base Rate Loans) 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                                          26    4847-1285-6953 v.7  





 






 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  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, the amount due.  In such event, if the Borrower has not in         fact made such payment, then each of the Lenders severally agrees to repay to the Administrative         Agent forthwith on demand the amount so distributed to such Lender, 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 subsection (c) shall be conclusive, absent manifest error.          (d)   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 Borrowing   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.          (e)   The obligations of the Lenders hereunder to make Loans and to make payments pursuant   to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Loan or to fund any   such participation or to make any payment under Section 10.04(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 or purchase its participation or to make   its payment under Section 10.04(c).          (f)   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.         2.14  Sharing  of  Payments.  If  any  Lender  shall,  by  exercising  any  right  of  setoff  or  counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans                                          27    4847-1285-6953 v.7  





 






 made by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such   Loans or participations and accrued interest thereon greater than  its pro rata share thereof as provided   herein, then 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 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  principal  of  and  accrued interest  on their   respective Loans and other amounts owing them, provided that:                (i)   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               (ii)  the provisions of this Section 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),        or  (y)  any  payment  obtained  by  a  Lender  as  consideration  for  the  assignment  of  or  sale  of  a        participation in any of its Loans to any assignee or participant, other than to the Borrower or any        Affiliate thereof (as to which the provisions of this Section shall apply).   The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable  law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against  the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender  were a direct creditor of the Borrower in the amount of such participation.         2.15  Extension of Maturity Date.          (a)   Requests for Extension. The Borrower may, by notice to the Administrative Agent (who   shall promptly notify the Lenders) not earlier than 90 days and not later than 35 days prior to an anniversary   of  the Closing  Date  (each,  an  “Applicable  Anniversary  Date”),  request that  each  Lender  extend such   Lender’s  Maturity  Date  for  an  additional  year from  the  Maturity  Date  then  in effect  for such  Lender   hereunder (such Lender’s “Existing Maturity Date”).  The Borrower may request such an extension no   more than two times.          (b)   Lender Elections to Extend.  Each Lender, acting in its sole and individual discretion,   shall, by notice to the Administrative Agent not later than the date (the “Notice Date”) that is 20 days prior   to such Applicable Anniversary Date, advise the Administrative Agent whether or not such Lender agrees   to such extension (and each Lender that determines not to so extend its Maturity Date (a “Non-Extending   Lender”) shall notify the Administrative Agent of such fact promptly after such determination (but in any   event no later than the Notice Date)) and any Lender that does not so advise the Administrative Agent on   or before the Notice Date shall be deemed to be a Non-Extending Lender.  The election of any Lender to   agree to such extension (each such Lender is herein called an “Extending Lender”) shall not obligate any   other Lender to so agree.          (c)   Notification  by  Administrative  Agent.   The  Administrative  Agent  shall  notify  the   Borrower of each Lender’s determination under this Section no later than the date that is 15 days prior to   the Applicable Anniversary Date (or, if such date is not a Business Day, on the next preceding Business   Day).          (d)   Additional Lenders.  The Borrower shall have the right, on or before the Maturity Date   applicable  to any Non-Extending  Lender,  to  replace  such  Non-Extending  Lender  with,  and  add  as   “Lenders” under this Agreement in place thereof, one or more Eligible Assignees (each, an “Additional                                         28    4847-1285-6953 v.7  





 






Lender”)  as  provided  in Section 10.14,  each  of  which  Additional  Lenders  shall  have  entered  into  an  Assignment and Assumption pursuant to which each such Additional Lender shall, effective as of such  Existing Maturity Date, acquire the Outstanding Amounts of the Non-Extending Lender (and, if any such  Additional Lender is already a Lender, the Non-Extending Lender’s Outstanding Amounts shall be in  addition to such Lender’s Outstanding Amounts hereunder on such date).         (e)   Minimum Extension Requirement.  If (and only if) the aggregate (x) Total Outstandings  of the Lenders that have agreed to extend their Maturity Date and (y) Total Outstandings of Additional  Lenders shall be more than 50% of the Total Outstandings in effect immediately prior to an Applicable  Anniversary Date, then, effective as of the Existing Maturity Date of each such Extending Lender, the  Maturity Date of each such Extending Lender and of each such Additional Lender shall be extended to the  date falling one year after the Existing Maturity Date of each such Extending Lender (except that, if such  date is not a Business Day, such Maturity Date as so extended shall be the next preceding Business Day)  and each Additional Lender shall thereupon become a “Lender” for all purposes of this Agreement.         (f)   Additional Agreements Regarding Extensions.               (i)   As a condition precedent to the extension of the Maturity Date pursuant to this       Section, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower signed       by a Responsible Officer certifying that (A) no Default exists on the date of such certificate, either        before or after giving effect to such extension; (B) the representations and warranties of the Loan       Parties contained in  this  Agreement and  the  other  Loan  Documents are  true and  correct  in all       material respects on and as of the date of such extension and after giving effect thereto (or, if any        such representation or warranty is expressly stated to have been made as of a specific date, as of        such specific date and except that such materiality qualifier shall not apply to the extent that any        such representation or warranty is qualified by materiality); and (C) there has been no event or        circumstance since the Closing Date that has had or could be reasonably expected to have, either        individually or in the aggregate, a Material Adverse Effect; and               (ii)  on the Maturity Date applicable to each Non-Extending Lender, the Borrower shall       prepay, on a non pro rata basis with respect to Extending Lenders, any Loans outstanding on such       date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to        satisfy in full the Obligations due to such Non-Extending Lender under the Loan Documents as of        such date.         (g)   Conflicting Provisions.  This Section shall supersede any provisions in Section 2.14 or  Section 10.01 to the contrary.         2.16  [Reserved.]        2.17   Defaulting Lenders.         (a)   Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in  this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no  longer a Defaulting Lender, to the extent permitted by applicable law:               (i)   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 in Section 10.01.                                          29   4847-1285-6953 v.7  





 






            (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 10.08 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,        as the Borrower may request (so long as no Default or Event of Default exists), to the funding of        any  Loan  in  respect  of  which  such  Defaulting  Lender  has  failed  to  fund  its  portion  thereof  as        required by this Agreement, as determined by the Administrative Agent; third, if so determined by        the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata        in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to        Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders, as a        result of any judgment of a court of competent jurisdiction obtained by any Lender, against such        Defaulting  Lender  as  a  result  of  such  Defaulting  Lender’s  breach  of  its  obligations  under  this        Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts        owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by        the Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its        obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by        a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal        amount  of  any  Loans  in  respect  of  which  such  Defaulting  Lender  has  not  fully  funded  its        appropriate share, and (y) such Loans were made 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 all Non-       Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such       Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with       the Commitments.  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 pursuant to this       Section 2.17(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each        Lender irrevocably consents hereto.         (b)   Defaulting Lender Cure.  If the Borrower and the Administrative Agent, 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,  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 to be held pro rata by the Lenders in accordance with the Commitments, whereupon such Lender  will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect  to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting  Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties,  no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of  any party hereunder arising from that Lender’s having been a Defaulting Lender.                                    ARTICLE III.                   TAXES, YIELD PROTECTION AND ILLEGALITY         3.01  Taxes.         (a)   Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.               (i)   Any  and  all  payments  by  or  on  account  of  any  obligation  of any  Loan  Party        hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be                                         30   4847-1285-6953 v.7  





 






      made without deduction or withholding for any Taxes.  If, however, applicable Laws require any       Loan Party or the Administrative Agent to withhold or deduct any Tax as determined by a Loan       Party or the Administrative Agent, as the case may be, then the Administrative Agent or such Loan       Party shall be entitled to make such deduction or withholding, upon the basis of the information       and documentation to be delivered pursuant to subsection (e) below.               (ii) If any Loan Party or the Administrative Agent shall be required by the Code to       withhold  or deduct  any  Taxes,  including  both  United  States  Federal  backup  withholding  and       withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make       such  deductions  as  are  determined  by  the  Administrative  Agent  to  be  required based  upon the       information  and  documentation  it  has  received  pursuant  to subsection (e) below,  (B)  the        Administrative  Agent  shall  timely  pay  the  full  amount  withheld  or  deducted  to  the  relevant        Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or        deduction is made on account of Indemnified Taxes, 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) the       Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would       have received had no such withholding or deduction been made.               (iii) If any Loan Party or the Administrative Agent shall be required by any applicable       Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) such Loan       Party or  the  Administrative  Agent,  as  required  by  such  Laws,  shall  withhold  or  make  such       deductions as are determined by it to be required based upon the information and documentation it       has received pursuant to subsection (e) below, (B) such Loan Party or the Administrative Agent, to        the extent required by such Laws, shall timely pay the full amount withheld or deducted to the        relevant  Governmental  Authority  in accordance  with  such  Laws,  and (C) to the extent that the       withholding  or  deduction  is  made  on  account  of  Indemnified  Taxes,  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 Administrative Agent or Lender receives an amount equal        to the sum it would have received had no such withholding or deduction been made.         (b)   Payment of Other Taxes by the Borrower.  Without limiting the provisions of subsection  (a) above, 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.         (c)   Tax Indemnifications.               (i)   Without limiting the provisions of subsection (a) or (b) above, each of the Loan        Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent and each        Lender, and shall make payment in respect thereof within 10 days after demand therefor, for the        full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or        attributable to amounts payable under this Section) withheld or deducted by any Loan Party or the        Administrative Agent or paid by the Administrative Agent or such Lender, as the case may be, 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.                                            31   4847-1285-6953 v.7  





 






            (ii) Each Lender shall, and does hereby, severally indemnify, and shall make payment       in respect thereof within 10 days after demand therefor, (x) 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), (y) 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 10.06(d) relating to the maintenance of a Participant Register and (z) the Administrative        Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender,        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 this Agreement or any other Loan Document against any amount due to the Administrative        Agent under this clause (ii).  The agreements in this clause (ii) shall survive the resignation and/or        replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a        Lender, the  termination  of  the  Aggregate  Commitments  and  the  repayment,  satisfaction  or        discharge of all other Obligations.  Each of the Loan Parties shall, and does hereby, jointly and        severally indemnify the Administrative Agent, and shall make payment in respect thereof within        10 days after demand therefor, for any amount which a Lender fails to pay to the Administrative        Agent as required by this clause (ii).         (d)   Evidence of Payments.  Upon request by any Loan Party or the Administrative Agent, as  the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a  Governmental  Authority  as  provided  in  this Section 3.01, such  Loan  Party shall  deliver  to  the  Administrative Agent or the Administrative Agent shall deliver to such Loan Party, as the case may be,  the  original  or  a  certified  copy  of  a  receipt  issued  by  such  Governmental  Authority  evidencing  such  payment, a copy of any return required by Laws to report such payment or other evidence of such payment  reasonably satisfactory to such Loan Party or the Administrative Agent, as the case may be.         (e)   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 to the       Administrative  Agent,  at the  time  or  times  prescribed  by  applicable  Laws  or when reasonably       requested by the Borrower or the Administrative Agent, such properly completed and executed       documentation reasonably requested 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(e)(ii)(A), 3.01(e)(ii)(B)        and 3.01(e)(ii)(D) below)  shall  not  be  required  if  in  the  Lender’s  reasonable  judgment  such        completion, execution or submission would subject such Lender to any material unreimbursed cost        or expense or would materially prejudice the legal or commercial position of such Lender.                                          32   4847-1285-6953 v.7  





 






           (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 originals 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 originals 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                  of,  U.S.  federal  withholding  Tax  pursuant  to  the  “business  profits”  or  “other                  income” article of such tax treaty;                   (2)   executed originals 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 H-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 originals 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                   originals 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 H-2 or Exhibit H-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 H-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                                        33  4847-1285-6953 v.7  





 






             becomes  a  Lender  under  this  Agreement  (and  from  time  to  time  thereafter  upon  the               reasonable request of the Borrower or the Administrative Agent), executed originals of               any other 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.  Solely               for  purposes  of  this clause (D),  “FATCA”  shall  include  any  amendments  made  to               FATCA after the date of this Agreement.               (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.         (f)   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 the Administrative Agent or any Lender 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, it shall pay to the Loan Party an amount equal to such refund (but only to the extent of indemnity  payments made, or additional amounts paid, by a Loan Party under this Section with respect to the Taxes  giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender,  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  the Loan  Party,  upon  the  request  of  the  Administrative Agent or such Lender, agrees to repay the amount paid over to the Loan Party (plus any  penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative  Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such  refund to such Governmental Authority.  Notwithstanding anything to the contrary in this subsection, in  no event will the Administrative Agent or any Lender be required to pay any amount to the Loan Party  pursuant to this subsection to the extent such payment would place the Administrative Agent or any Lender  in a less favorable net after-Tax position than the Administrative Agent or any Lender 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 subsection shall not be construed to require the Administrative Agent or any Lender                                         34   4847-1285-6953 v.7  





 






 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.          (g)   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 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 applicable Lending Office to   make,  maintain or fund Loans whose interest is determined by reference to the  Eurodollar  Rate,  or  to  determine or charge interest rates based upon the Eurodollar 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, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or  to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) 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 Eurodollar 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 reference to the Eurodollar 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, (x) the Borrower shall, upon demand from such Lender (with a  copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar 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 Eurodollar  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 Eurodollar Rate Loans to such day, or immediately, if such Lender may  not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of  such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative  Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without  reference to the Eurodollar 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  Eurodollar Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest  on the amount so prepaid or converted.         3.03   Inability to Determine Rates.            (a)   If  in  connection  with  any  request  for  a  Eurodollar  Rate  Loan  or  a  conversion  to  or   continuation thereof, the Administrative Agent determines that (i) Dollar deposits are not being offered to   banks in the London interbank eurodollar market for the applicable amount and Interest Period of such   Eurodollar Rate Loan, or (ii) adequate and reasonable means do not exist for determining the Eurodollar   Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection   with  an  existing  or  proposed  Base  Rate  Loan,  including,  without  limitation,  because LIBOR is  not   available or published on a current basis and such circumstances are unlikely to be temporary, or (iii) the   Administrative Agent or the Required Lenders determine for any reason that the Eurodollar Rate for any   requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly   reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify   the  Borrower  and  each  Lender.   Thereafter,  (x)  the  obligation  of  the  Lenders  to  make  or  maintain   Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest   Periods), and (y) in the event of a determination described in the preceding sentence with respect to the   Eurodollar  Rate  component  of  the  Base  Rate,  the  utilization  of  the Eurodollar  Rate  component  in                                          35    4847-1285-6953 v.7  





 






 determining  the  Base  Rate  shall  be  suspended in  each  case  until  the  Administrative  Agent  (upon  the   instruction of the Required Lenders) revokes such notice.    Notwithstanding  the  foregoing,  if  the  Administrative  Agent  has  made  the  determination  described  in   clause (a)(i) or clause (a)(ii) above, the Administrative Agent, in consultation with the Borrower and the   affected Lenders, may establish an alternative interest rate for the impacted Loans, in which case, such   alternative rate of interest shall apply with respect to the impacted Loans (unless the Borrower elects to   maintain the impacted Loans as Base Rate Loans) until (1) the Administrative Agent revokes the notice   delivered  with  respect  to  the  impacted  Loans  under clause (a)(i)  or clause  (a)(ii)  above,  (2) the   Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower that such  alternative  interest  rate  does  not  adequately  and  fairly  reflect  the  cost  to  such  Lenders  of  funding  the  impacted Loans, or (3) as to any Lender, such Lender determines that any Law has made it unlawful, or  that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending  Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate  of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has  imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the  Administrative Agent and the Borrower written notice thereof.          (b)   If  in  connection  with  any  request  for  a  Eurodollar  Rate  Loan  or  a  conversion  to  or   continuation thereof, Administrative Agent determines (which determination will be conclusive absent   manifest error), or the Borrower or the Required Lenders notify Administrative Agent (with, in the case   of the Required Lenders, a copy to Borrower) that the Borrower or Required Lenders (as applicable) have   determined, that:                (i)   adequate and reasonable means do not exist for determining the Eurodollar Rate         for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection         with an existing or proposed Base Rate Loan including, without limitation, because LIBOR is not         available or published on a current basis and such circumstances are unlikely to be temporary; or                (ii) the administrator of LIBOR or a Governmental Authority having jurisdiction over        Administrative Agent has made a public statement identifying a specific date after which LIBOR        will no longer be made available, or used for determining the interest rate of loans (such specific        date, the “Scheduled Unavailability Date”); then                (iii) reasonably promptly after such determination by Administrative Agent or receipt        by Administrative Agent of such notice, as applicable, Administrative Agent and Borrower may        amend this Agreement to replace the Eurodollar Rate with an alternate benchmark rate (including        any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due        consideration  to  any  evolving  or  then-existing  convention  for  similar  U.S.  Dollar-denominated        syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBOR         Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes (as         defined below) and any such amendment will become effective at 5:00 p.m. (New York time) on         the fifth (5th) Business Day after Administrative Agent has posted such proposed amendment to         all Lenders and Borrower unless, prior to such time, Lenders comprising the Required Lenders         have delivered to Administrative Agent written notice that such Required Lenders do not accept         such amendment; and                (iv)  if no LIBOR Successor Rate has been determined and the circumstances under        clause  (b)(i) above  exist, the  Scheduled  Unavailability  Date  has  occurred  (as  applicable),  then         Administrative Agent will promptly so notify the Borrower and each Lender; and                                          36    4847-1285-6953 v.7  





 






             (v)   thereafter, (A) the obligation of the Lenders to make or maintain Eurodollar Rate         Loans will be suspended, (to the extent of the impacted Eurodollar Rate Loans or Interest Periods),         and (B) the Eurodollar Rate component will no longer be utilized in determining the Base Rate.          (c)   “LIBOR  Successor  Rate  Conforming  Changes” means,  with  respect  to  any  proposed   LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing   and frequency of determining rates and making payments of interest and other administrative matters as   may  be  appropriate, in the discretion of Administrative Agent, to reflect the adoption of such LIBOR   Successor Rate and to permit the administration thereof by Administrative Agent in a manner substantially   consistent with market practice (or, if Administrative Agent determines that adoption of any portion of   such market practice is not administratively feasible or that no market practice for the administration of   such  LIBOR  Successor  Rate  exists,  in  such  other  manner  of  administration  as  Administrative  Agent   determines in consultation with Borrower).          (d)   Upon receipt of any such notice under clause (a) or clause (b)(v) above, the Borrower may   revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans   (to the extent of the impacted Eurodollar 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  (except  that  the   Eurodollar Rate component will no longer be utilized in determining the Base Rate for any such Loans) in   the amount specified therein.          (e)   Notwithstanding  anything  else  herein,  any  definition  of  LIBOR  Successor  Rate  will   provide that in no event may such LIBOR Successor Rate be less than zero for purposes of this Agreement.          3.04  Increased Costs; Reserves on Eurodollar Rate Loans.          (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 contemplated by        Section 3.04(e));                 (ii) subject any Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes        described in clause (a) of the definition of Excluded Taxes to the extent resulting from changes in        tax rates, and Taxes described in clauses (b) through (d) of the definition of Excluded Taxes or         (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 London interbank market any other condition, cost or        expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;    and the result of any of the foregoing shall be to increase the cost to such Lender of making, continuing,   converting to or maintaining any Loan the interest on which is determined by reference to the Eurodollar  Rate (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received  or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon  request of such Lender, the Borrower will pay to such Lender, such additional amount or amounts as will  compensate such Lender, for such additional costs incurred or reduction suffered.          (b)   Capital Requirements.  If any Lender determines that any Change in Law affecting such   Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital                                         37    4847-1285-6953 v.7  





 






 or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s   capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement,   the Commitments of such Lender or the Loans made by such Lender, to a level below that which such   Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into   consideration such Lender’s policies and the policies of such Lender’s holding company with respect to   capital adequacy), then from time to time the Borrower will pay to such Lender, such additional amount   or amounts as will compensate such Lender or such Lender’s holding company for any such reduction   suffered.          (c)   Certificates for Reimbursement.  The Borrower shall pay such Lender the amount shown   as due on a certificate from such Lender setting forth the amounts necessary to compensate such Lender   or its holding company to the extent required by subsection (a) or (b) of this Section within 10 days after   receipt thereof.  Each Lender agrees that it will not claim, and that it shall not be entitled to claim, from   the  Borrower  the  payment  of  any  of  the  amounts referred to in Section 3.04(a), (b) or (e) if  it  is  not   generally claiming similar compensation from its other similar customers in similar circumstances.          (d)   Delay in Requests.  Failure or delay on the part of any Lender to demand compensation   pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to   demand such compensation, provided that the Borrower shall not be required to compensate a Lender   pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered   more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law   giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation   therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive,   then the nine-month period referred to above shall be extended to include the period of retroactive effect   thereof).          (e)   Reserves on Eurodollar Rate Loans.  The Borrower shall pay to each Lender, as long as   such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or   including  Eurocurrency  funds  or  deposits  (currently  known  as  “Eurocurrency  liabilities”),  additional   interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such   reserves  allocated  to such Loan  by  such  Lender (as determined  by  such Lender  in  good  faith,  which   determination shall be conclusive), which shall be due and payable on each date on which interest is   payable on such Loan, provided the Borrower shall have received at least 15 days’ prior notice (with a   copy to the Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give   notice 15 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable   15 days from receipt of such notice.          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 Loan other than a Base Rate   Loan on a day other than the last day of the Interest Period for such 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 Loan other than a Base Rate Loan on the date or in the   amount notified by the Borrower; or                                           38    4847-1285-6953 v.7  





 






       (c)   any assignment of a Eurodollar 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 10.14;    including  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,   but  excluding  loss  of Applicable  Rate  or  loss  of profit.   The  Borrower  shall  also pay  any  customary   administrative fees charged by such Lender in connection with the foregoing.          For purposes of calculating amounts payable by the Borrower to the Lenders under this Section   3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar   Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market   for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in   fact so funded.          3.06  Mitigation Obligations; Replacement of Lenders.          (a)   Designation of a Different Lending Office.  If any Lender requests compensation under   Section 3.04, or the Borrower is required to pay any additional amount to any Lender, or any Governmental   Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant   to Section 3.02, then such Lender shall use reasonable efforts to designate a different Lending Office for   funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its   offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would   eliminate or reduce amounts payable pursuant to Section 3.01 or 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 to any unreimbursed cost or expense and would not otherwise be disadvantageous to   such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender   in connection with any such designation or assignment.          (b)   Replacement of Lenders.  If any Lender requests compensation under Section 3.04, or if   the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for   the account of any Lender pursuant to Section 3.01, the Borrower may replace such Lender in accordance   with Section 10.14.          3.07  Survival.  All of the Borrower’s obligations under this Article III shall survive termination   of the Aggregate Commitments and repayment of all other Obligations hereunder.                                     ARTICLE IV.                     CONDITIONS PRECEDENT TO BORROWINGS         4.01  Conditions to  the  Closing  Date  and  Initial Borrowing.  The effectiveness  of  this  Agreement,  and  the obligation  of  each  Lender  to  make  its initial Borrowing hereunder  is  subject  to  satisfaction of the following conditions precedent:          (a)   The Administrative Agent’s receipt of the following, each of which shall be originals,   facsimiles or “pdf” electronic copies (followed promptly by originals) unless otherwise specified, each   properly executed by a Responsible Officer of the Borrower or the Guarantors, as applicable, each dated   the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing   Date) and each in form and substance reasonably satisfactory to the Administrative Agent:               (i)   this Agreement;                                          39    4847-1285-6953 v.7  





 






           (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;             (iii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies      of all consents, licenses and approvals required in connection with the execution, delivery and      performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents      and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no      such consents, licenses or approvals are so required;             (iv)  a certificate of a secretary or assistant secretary of each Loan Party or its general      partner  (attaching  resolutions  and  incumbency  certificates  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;             (v)    a  certificate  as  to  the  good  standing  (or  such  other  customary  functionally      equivalent certificate) of each Loan Party and the general partner of each Loan Party from the      Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization;              (vi)  a favorable opinion of GableGotwals (or other counsel reasonably acceptable to      the Administrative Agent), counsel to the Loan Parties, addressed to the Administrative Agent and      each Lender as of the Closing Date, reasonably satisfactory to the Administrative Agent and the      Arrangers and Bookrunners;              (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that      no Default exists, (B) that the representations and warranties of the Borrower contained in Article      V are true and correct in all material respects, 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, except that such materiality qualifier shall not apply to the      extent that any such representation or warranty is qualified by materiality, (C) that there has been      no event or circumstance since the date of the Audited Financial Statements that has had or could      be  reasonably  expected  to  have,  either  individually  or  in  the  aggregate,  (1) a  material  adverse      change in, or a material adverse effect upon, the operations, assets or financial condition of the      Borrower and its Subsidiaries taken as a whole; provided however (x) a downgrade by S&P, Fitch      and/or Moody’s of their respective Debt Ratings shall not, in and of itself, be deemed “materially      adverse”, and (y) the fact that the Borrower is unable to borrow in the commercial paper market      shall not, in and of itself, be deemed to be “materially adverse”, (2) a material impairment of the      ability of the Borrower to perform its payment obligations under any Loan Document to which it      is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability      against the Borrower of any Loan Document to which it is a party and (D) as to the Debt Ratings      of the Borrower;              (viii) a certificate signed by a Responsible Officer of the Guarantors certifying that there      has been no event or circumstance since the date of the Audited Financial Statements that has had      or could be reasonably expected to have, either individually or in the aggregate, (A) a material      adverse change in, or a material adverse effect upon, the operations, assets or financial condition      of the Guarantors and their Subsidiaries, taken as a whole; provided however (x) a downgrade by      S&P  and/or  Moody’s  of  their  respective  Debt  Ratings  shall  not,  in  and  of  itself,  be  deemed      “materially adverse”, and (y) the fact that the Borrower is unable to borrow in the commercial paper      market shall not, in and of itself, be deemed to be “materially adverse”, (B) a material impairment      of the ability of each Guarantor to perform its payment obligations under any Loan Document to                                        40  4847-1285-6953 v.7  





 






       which it is a party, or (C) a material adverse effect upon the legality, validity, binding effect or         enforceability against a Guarantor of any Loan Document to which it is a party; and               (ix)  a Guaranty Agreement executed by the Guarantors.          (b)   Any fees and expenses required to be paid by the Borrower on or before the Closing Date   shall have been paid, including upfront fees payable to Lenders and fees and expenses payable  to  the   Arrangers and Bookrunners and the Administrative Agent.          (c)   Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney   Costs (related to Haynes and Boone, LLP) of the Administrative Agent and the Left Lead Arranger to the   extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall   constitute its reasonable estimate of Attorney Costs (related to Haynes and Boone, LLP) incurred or to be   incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a   final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger).          (d)   Upon the reasonable request of any Lender made at least 10 days prior to the Closing   Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with,   the  documentation  and  other  information  so  requested  in  connection  with  applicable  “know  your   customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT   Act, in each case at least 5 days prior to the Closing Date.   Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance   with the conditions specified in this 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 under this Section 4.01 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.    The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date.  Such notice shall   be binding and conclusive.          4.02  Conditions to all Borrowings.  The obligation of each Lender to honor any Loan Notice   (other than a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of   Eurodollar Rate Loans) is subject to the following conditions precedent:          (a)   The representations and warranties of the Loan Parties contained in Article V (other than,   in the case of a Commercial Paper Borrowing, Section 5.06), or any other Loan Document, or which are   contained in any document furnished at any time under or in connection herewith or therewith, shall be   true and correct in all material respects on and as of the date of such Borrowing, except to the extent that   such representations and warranties refer to an earlier date or another specific date, in which case they   shall be true and correct in all material respects as of such earlier date or other specific date, except that   such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified   by materiality.          (b)   No Default shall exist, or would result from such proposed Borrowing.          (c)   The  Administrative  Agent  shall  have  received  a  Loan  Notice  in  accordance  with  the   requirements hereof.                                          41    4847-1285-6953 v.7  





 






       Each Loan Notice (other than a Loan Notice requesting only a conversion of Loans to the other  Type, or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a  representation and warranty that the conditions specified in Sections 4.02(a), (b) and (c) have been satisfied   on and as of the date of the applicable Borrowing.                                     ARTICLE V.                        REPRESENTATIONS AND WARRANTIES          The Borrower represents and warrants to the Administrative Agent and the Lenders that:          5.01  Existence, Qualification and Power.  Each Loan Party and each Subsidiary thereof (a) is   a corporation, partnership or limited liability company duly organized or formed, validly existing and 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 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 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.  The execution, delivery and performance by each  Loan Party of each Loan Document to which it is a party has been duly authorized by all necessary corporate  or  other  organizational  action,  and  do  not  and  will  not  (a)  contravene  the  terms  of  such  Loan  Party’s  Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual  Obligation to which such Loan Party or any Subsidiary thereof is a party or (ii) any order, injunction, writ  or decree of any Governmental Authority or any arbitral award to which such Loan Party or any Subsidiary  thereof or the property of any of the aforementioned parties is subject; (c) violate any Law or (d) result in  the creation of any Lien prohibited by this Agreement; except in the case of clauses (b) and (c), to the extent   such  contravention,  conflict,  breach  or  violation  could  not  reasonably  be  expected  to  have  a  Material   Adverse Effect.          5.03  Governmental  Authorization;  Other  Consents.  No material 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 the execution, delivery or performance by, or   enforcement against, any Loan Party of this Agreement or any other Loan Document to which it is a party.          5.04  Binding  Effect.  This  Agreement  has  been,  and  each  other  Loan  Document,  when   delivered hereunder, will have been, duly executed and delivered by each Loan Party party thereto.  This   Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and   binding obligation of each Loan Party party thereto, enforceable against such Loan Parties in accordance   with its terms, subject to Debtor Relief Laws and subject to general principles of equity, regardless of   whether considered in a proceeding in equity or at law.          5.05  Financial Statements.           (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;   (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and   their results of operations for the period covered thereby in accordance with GAAP consistently applied   throughout the period covered thereby, except as otherwise expressly noted therein.                                          42    4847-1285-6953 v.7  





 






       (b)   The unaudited consolidated financial statements of the Borrower and its Subsidiaries most   recently  delivered  pursuant  to Section 6.01(b) and  the  related  consolidated  statements  of  income or   operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared   in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise   expressly noted therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries   as of the date thereof and their results of operations 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.          5.06  Litigation.  Except as disclosed in the Borrower’s annual report on Form 10-K for the year  ended December 31, 2017 and in any other Form 10-Q or Form 8-K delivered prior to the date of this  Agreement, there are no actions, suits, proceedings, investigations, claims or disputes pending or, to the  knowledge  of  the  Borrower,  threatened in  writing,  at  law,  in  equity,  in  arbitration  or  before  any   Governmental  Authority,  by  or  against  the  Borrower  or  any  of  its  Subsidiaries  or  against  any  of  their   properties or revenues that (a) challenge the legality, validity or enforceability of this Agreement or any   other Loan Document and are non-frivolous in the reasonable judgment of the Administrative Agent and  the  Arrangers  and  Bookrunners,  or  (b)  as  to which  there  is  a  reasonable  probability  of  an  adverse  determination and that, if determined adversely, either individually or in the aggregate could reasonably be  expected  to  have  a  Material  Adverse  Effect;  provided  that  this  representation,  when  made,  shall  not  constitute  an  admission  that  any  action,  suit,  proceeding,  investigation,  claim  or  dispute  set  forth  or  disclosed in any annual report on Form 10-K or on any Form 10-Q or Form 8-K referred to above could  reasonably be expected to result in a Material Adverse Effect due to an adverse determination, if any.          5.07  No Default.  Neither Loan Party nor any Subsidiary thereof is in default under or with  respect 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 contemplated by this Agreement or any other Loan Document.          5.08  Ownership of Property; Liens.  Each of the Borrower and each  Subsidiary  has  good  record and marketable title in fee simple to, or valid leasehold interests in (or other right to occupy), 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.  The  property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by Section   7.01.          5.09  Environmental Compliance.  The Borrower and its Subsidiaries conduct in the ordinary  course  of  business  a  review  of  claims  alleging  potential  liability  or  responsibility  for  violation  of  any  Environmental Law on their respective businesses, operations and properties, and as a result thereof, the  Borrower has reasonably concluded that, except as disclosed in the Borrower’s annual report on Form 10- K for the year ended December 31, 2017, such claims could not, individually or in the aggregate, reasonably  be expected to have a Material Adverse Effect.  The Borrower and its Subsidiaries are in compliance with  applicable  Environmental  Laws  except  to  the  extent  non-compliance  could  not,  individually  or in  the  aggregate,  reasonably  be  expected  to  have  a  Material  Adverse  Effect.   The  Borrower  and  each  of  its  Subsidiaries have obtained or have applied for all material licenses, permits, authorizations and registrations  required under any Environmental Law (“Environmental Permits”) necessary for its operations, and all such   Environmental Permits are in good standing, and the Borrower and each of its Subsidiaries is in compliance   with all terms and conditions of such Environmental Permits, except to the extent that the failure to possess,   or be in compliance with, any of the foregoing would not reasonably be expected to have a Material Adverse   Effect.                                           43    4847-1285-6953 v.7  





 






       5.10  Insurance.  The properties of the Borrower and its Subsidiaries are either covered by self- insurance meeting the criteria set forth in Section 6.07 or are insured with financially sound and reputable   insurance companies (determined at the time the applicable insurance was obtained), in such amounts, with   such  deductibles  and  covering  such  risks  as  are  customarily  carried  by  companies  engaged  in  similar   businesses and owning similar properties in localities where the Borrower or the applicable Subsidiary   operates.          5.11  Taxes.  The Borrower and its Subsidiaries have filed all Federal and other material tax  returns and reports required to be filed, and have paid all material Federal, state and other material taxes,  assessments, fees and other governmental charges levied or imposed upon them or their properties, income  or assets otherwise due and payable, except (i) 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 or (ii) where the failure to make such filing or payment would not reasonably be expected to have a  Material Adverse Effect.  There is no proposed tax assessment against any Loan Party or any Subsidiary  thereof that would, if made, have a Material Adverse Effect.          5.12  ERISA Compliance.          (a)   Each  Plan  is  in  compliance  in  all  material  respects  with  the  applicable  provisions  of   ERISA, the Code and other applicable Laws.  Each Plan that is intended to qualify under Section 401(a)   of the Code has received a favorable determination letter from the IRS or an application for such a letter   is currently being processed by the IRS with respect thereto and, to the best knowledge of the Borrower,   nothing has occurred which would prevent, or cause the loss of, such qualification.  The Borrower and   each ERISA Affiliate have made all required contributions to each Plan subject to the Pension Funding   Rules, and no application for a funding waiver under the Pension Funding Rules or an extension of any   amortization period pursuant to the Pension Funding Rules has been made with respect to any Plan.          (b)   There are no pending or, to the best knowledge of the Borrower, 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.  No Plan which provides health or welfare benefits for any retired or   former employee of the Borrower or any of its ERISA Affiliates has resulted in or could reasonably be   expected to have a Material Adverse Effect.          (c)   (i) No ERISA Event, which together with any other ERISA Event, that has resulted in or   could reasonably be expected to result in a Material Adverse Effect has occurred or is reasonably expected   to  occur;  (ii) no  Pension  Plan  has  any  Unfunded  Pension  Liability  which,  when  aggregated  with  the   Unfunded Pension Liability of all other Pension Plans, could reasonably be expected to have a Material   Adverse Effect; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to   incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due   and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA Affiliate has   incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of   notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA   with respect to a Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged   in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.          5.13  Subsidiaries.  As of the Closing Date, the Borrower has no Subsidiaries other than those  specifically disclosed in Part (a) of Schedule 5.13 and has no equity investments in any other Joint Venture   other than those specifically disclosed in Part (b) of Schedule 5.13.                                          44    4847-1285-6953 v.7  





 






       5.14  Margin Regulations; Investment Company Act.           (a)   The Borrower is not engaged and will not engage, principally or as one of its important   activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U   issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.  Following   the application of the proceeds of each Borrowing, not more than 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  subject  to  any  restriction  contained  in  any  agreement  or  instrument  between  the   Borrower 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 (i) is or is   required to be registered as an “investment company” under the Investment Company Act of 1940, or (ii)   is subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities   code or any other Federal or state statute or regulation limiting its ability to incur Indebtedness hereunder.          5.15  Disclosure.  The Borrower has disclosed to the Administrative Agent and the Lenders all  agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,  and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to  result in a Material Adverse Effect.  For purposes of this Section 5.15, information that is disclosed in a   Form 10-K, 10-Q, 8-K, or definitive proxy materials filed by the Borrower with the SEC shall be deemed  to have been disclosed to the Administrative Agent and the Lenders.  No written report, financial statement,   certificate or other information (excluding projections, industry or general economic data or information   and other forward looking information) furnished (in writing) by or on behalf of any Loan Party to the   Administrative  Agent  or  any  Lender  in  connection  with  the  transactions  contemplated  hereby  and  the   negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information   so furnished) 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; provided that, with respect to projected financial information, the Borrower represents only   that such information was prepared in good faith based upon assumptions believed to be reasonable at the   time such projected financial information was prepared.          5.16  Compliance with Laws.  Each Loan Party and each Subsidiary thereof is in compliance  in all material respects 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.         5.17   [Reserved].         5.18   Intellectual Property; Licenses, Etc.  The Borrower and its Subsidiaries own, or possess  the  right  to  use,  all  of  the  trademarks,  service  marks,  trade  names,  copyrights,  patents,  patent  rights,  franchises, intellectual property licenses and other intellectual property rights that are reasonably necessary  for the operation of their respective businesses, and, to the knowledge of the Borrower, such ownership or  right to use is without conflict with the rights of any other Person (except to the extent such conflict would  not reasonably be expected to have a Material Adverse Effect).  To the knowledge of the Borrower, no  slogan  or  other  advertising  device,  product,  process,  method,  substance,  part  or  other  material  now  employed, or now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any  rights held by any other Person (except to the extent such infringement would not reasonably be expected                                          45    4847-1285-6953 v.7  





 






 to have a Material Adverse Effect).  No claim or litigation regarding any of the foregoing is pending or, to   the  best  knowledge  of  the  Borrower,  threatened,  which,  either  individually  or  in  the  aggregate,  could   reasonably be expected to have a Material Adverse Effect.          5.19  Solvency.  As of the Closing Date, after giving effect to the transactions (including each   Loan) to be consummated on such date, each Loan Party, individually and together with its Subsidiaries, is   Solvent.          5.20  OFAC.  Neither the Loan Parties, nor any of their Subsidiaries, 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 any individual or entity that currently  the subject of any Sanctions, nor is any of the Loan Parties or any Subsidiary located, operating, organized  or resident in a Designated Jurisdiction.         5.21  Anti-Corruption  Laws.  Each  Loan  Party  and  their  Subsidiaries  are  in  material  compliance  with  Anti-Corruption  Laws,  and  have  instituted  and  maintained  policies  and  procedures   designed  to  promote  and  achieve  compliance  with Anti-Corruption  Laws.   To  the  knowledge  of  the   Borrower, (a) the Loan Parties’ and their Subsidiaries’ respective directors, officers and employees have   materially complied with Anti-Corruption Laws in the course of performing their duties for the Loan Parties   or their Subsidiaries (as applicable), and (b) the Loan Parties’ and their Subsidiaries’ respective agents have   materially complied with Anti-Corruption Laws while acting in such capacity and at the direction of the   Loan Parties or their Subsidiaries (as applicable).            5.22  EEA Financial Institution.  No Loan Party is an EEA Financial Institution.                                     ARTICLE VI.                             AFFIRMATIVE COVENANTS          So  long  as  any  Lender  shall  have  any  Commitment  hereunder,  any  Loan  or  other  Obligation   hereunder  shall  remain  unpaid  or  unsatisfied,  the  Borrower  shall,  and shall  (except  in  the  case  of  the   covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each Subsidiary to:          6.01  Financial Statements.  Deliver to the Administrative Agent:          (a)   as soon as available, but in any event within 90 days after the end of each fiscal year of   Borrower, a consolidated balance sheet of Borrower and its Subsidiaries as at the end of such fiscal year,   and the related consolidated statements of income or operations, shareholders’ 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, 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 45 days after the end of each of the first three   fiscal  quarters  of  each  fiscal  year  of Borrower,  a  consolidated  balance  sheet  of Borrower and  its   Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or   operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of Borrower’s   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 certified by a Responsible Officer of Borrower as fairly presenting the financial                                         46    4847-1285-6953 v.7  





 






 condition, results of operations, shareholders’ equity and cash flows of Borrower and its Subsidiaries in   accordance with GAAP, 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), Borrower shall not be   separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be   in lieu of the obligation of the Borrower to furnish the information and materials described in subsections   (a) and (b) above at the times specified therein.          6.02  Certificates; Other Information.  Deliver to the Administrative Agent:          (a)   concurrently with the delivery of the financial statements referred to in Sections 6.01(a)   and (b), (or if such financial statements are delivered electronically, within two (2) Business Days of such   electronic delivery) a duly completed Compliance Certificate signed by a Responsible Officer of Borrower   (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by   electronic  communication  including  fax  or  email  and  shall  be  deemed  to  be  an  original  authentic   counterpart thereof for all purposes);           (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 Borrower by independent accountants in connection with the   accounts or books of the Borrower or any Subsidiary, or any audit of any of them;          (c)   promptly after the same are available, copies of each annual report, proxy or financial   statement or other report or communication sent to the public holders of equity interests in Borrower, and   copies of all annual, regular, periodic and special reports, and all registration statements which any Loan   Party may file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not   otherwise required to be delivered to the Administrative Agent pursuant hereto;           (d)   promptly,  such  additional  information  regarding  the  business,  financial  or  corporate   affairs of the Borrower 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; and          (e)   to the extent the Revolving Credit Agreement terminates prior to this Agreement, the   information set forth in clause  (a) in the  last  sentence of the definition of “Material Project EBITDA   Adjustments” at such times as the same would have been delivered to the administrative agent of the   Revolving Credit Agreement.    provided that disclosure of confidential information pursuant to subsections (b) and (d)  of this Section shall   be subject to (x) such attorney-client privilege exceptions that the Borrower reasonably determines are  necessary  in  order  to  avoid  loss  of  its  attorney-client  privilege  and  (y)  compliance  with  reasonable  conditions to disclosure under non-disclosure agreements between the Borrower and Person(s) other than  Affiliates thereof, and to the extent that the Administrative Agent or a Lender is required to produce any  such information to a regulatory authority, the Borrower shall cooperate with the Administrative Agent or  such Lender in efforts to obtain any required consents to disclosure.         Documents required to be delivered pursuant to Section 6.01(a) or (b) 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 (i) (A) after 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 10.02; or (B) after which such documents are posted on the Borrower’s   behalf on DebtDomain or another relevant website, if any, to which each Lender and the Administrative                                         47    4847-1285-6953 v.7  





 






 Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative   Agent), and (ii) the Borrower notifies (which may be by facsimile or electronic mail) the Administrative   Agent and each Lender of the posting of any such documents; provided that the Borrower shall deliver   paper copies or soft copies (by electronic mail) of such documents to the Administrative Agent or any   Lender that requests the Borrower to deliver such paper copies or soft copies until a written request to cease   delivering  paper  copies  or  soft copies  is  given  by  the  Administrative  Agent  or  such  Lender.   The   Administrative Agent shall have no obligation to request the delivery or to maintain 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 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 (1) the Administrative Agent and/or the Arrangers and  Bookrunners will make available to the Lenders materials and/or information provided by or on behalf of  the  Borrower  hereunder  (collectively,  “Borrower  Materials”)  by  posting  the  Borrower  Materials  on   DebtDomain or another similar electronic system (the “Platform”) and (2) certain of the Lenders may be   “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect   to  the  Borrower  or  its  securities) (each,  a  “Public  Lender”).   The  Borrower  hereby  agrees  that (w) all   Borrower Materials that are to be made available to Public Lenders 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; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to   have authorized the Administrative Agent, the Arrangers and Bookrunners and the Lenders to treat such   Borrower Materials as either publicly available information or not material 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; (y) all Borrower Materials marked “PUBLIC” are permitted to be made   available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent   and the Arrangers and Bookrunners shall be entitled to treat any Borrower Materials that are not marked  “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor,”  provided, however, that notwithstanding the foregoing, the Borrower shall not have any obligation to mark   any Borrower Materials as “PUBLIC.”          6.03  Notices.  Notify the Administrative Agent and each Lender:          (a)   promptly, of the occurrence of any Default and the action which the Borrower is taking   or proposes to take with respect thereto;          (b)   promptly, and in any event within five (5) days:                (i)   of  any  matter  that  has  resulted  or  could  reasonably  be  expected  to  result  in  a         Material  Adverse  Effect, including  (to  the  extent  resulting  or  such  matter  could  reasonably  be         expected to result in a Material Adverse Effect) (A) breach or non-performance of, or any default         under, a Contractual Obligation of the Borrower or any Subsidiary; (B) any dispute, litigation,         investigation,  proceeding  or  suspension  between  the  Borrower  or  any  Subsidiary  and  any         Governmental  Authority;  or  (C)  the  commencement  of,  or  any  material  development  in,  any         litigation  or  proceeding  affecting  the  Borrower or  any  Subsidiary,  including  pursuant  to  any         applicable Environmental Laws;                (ii)  of  the  commencement  of,  or  any  material  development  in,  any  litigation  or         proceeding affecting the Borrower or any Subsidiary (A) in which the amount of damages claimed         is  $100,000,000  (or  its  equivalent  in  another  currency  or  currencies)  or  more,  (B)  in  which         injunctive or similar relief is sought and which could reasonably be expected to result in a Material                                          48    4847-1285-6953 v.7  





 






       Adverse Effect, or (C) in which the relief sought is an injunction or other stay of the performance         of this Agreement or any Loan Document;                (iii) of any material change in accounting policies or financial reporting practices by         the Borrower or any Subsidiary; and                (iv)  of any announcement by Moody’s or S&P of a downgrade in a Debt Rating;          (c)   promptly, and in any event within 30 days:                (i)   of the occurrence of any ERISA Event; or                (ii)  upon determining that any Pension Plan or Multiemployer Plan, as applicable 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 (in such case, notice shall         include  a  certification  of  funding  status  from  the  enrolled  actuary  for  the  Pension  Plan or         Multiemployer Plan).          Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer   of  the  Borrower  setting  forth  details  of  the  occurrence  referred  to  therein  and  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 Obligations.  Pay and discharge as the same shall become due and payable,   its Indebtedness and tax liabilities but excluding Indebtedness (other than the Obligations) that is not in   excess  of  the  Threshold  Amount,  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 or failure to do so would not reasonably be expected to result in a Material   Adverse Effect.          6.05  Preservation of Existence, Etc.  (a) 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,  (b)  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; and (c)   preserve  or  renew  all  of  its  registered  patents,  trademarks,  trade  names  and  service  marks,  the  non-  preservation of which could reasonably be expected to have a Material Adverse Effect.          6.06  Maintenance  of  Properties.  (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, force majeure and casualty events excepted; and (b) make all necessary repairs  thereto and renewals and replacements thereof except where, in each case, the failure to do so could not  reasonably be expected to have a Material Adverse Effect.          6.07  Maintenance  of  Insurance.  Maintain  with  financially  sound  and  reputable  insurance  companies (determined at the time the applicable insurance is maintained or renewed), or through self-  insurance,  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.  Such insurance may   include self-insurance or be subject to co-insurance, deductibility or similar clauses which, in effect, result                                         49    4847-1285-6953 v.7  





 






 in self-insurance of certain losses, provided that such self-insurance is in accord with the approved practices   of  business  enterprises  of established  reputation  similarly  situated  and adequate  insurance reserves are   maintained in connection with such self-insurance, and, notwithstanding the foregoing provisions of this  Section 6.07, the Borrower may effect workers’ compensation or similar insurance in respect of operations   in any state or other jurisdiction any through an insurance fund operated by such state or other jurisdiction   or by causing to be maintained a system or systems of self-insurance in accord with applicable laws.          6.08  Compliance with Laws.  Comply in all material respects with the requirements of all Laws  and all orders, writs, injunctions and decrees applicable to it or to its business or property, 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 could not  reasonably be expected to have a Material Adverse Effect.           6.09  Books and Records.  (a)  Maintain proper books of record and account, in which full, true  and correct entries in conformity in all material respects with GAAP consistently applied shall be made of  all financial transactions and matters involving the assets and business of the Borrower 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 the Borrower  or such Subsidiary, as the case may be.          6.10  Inspection  Rights.  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 officers and independent public accountants (provided Borrower has the  opportunity to participate in such meetings), all at the expense of the Borrower and at such reasonable times  during normal business hours and as often as may be reasonably desired, upon reasonable advance notice  to the Borrower; provided, however, that (x) 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 during normal business hours and without advance   notice and (y) disclosure of confidential information pursuant to this Section shall be subject to (x) such   attorney-client privilege exceptions that the Borrower reasonably determines are necessary in order to avoid   loss of its attorney-client privilege and (y) compliance with reasonable conditions to disclosure under non- disclosure agreements between the Borrower and Person(s) other than Affiliates thereof, and to the extent  that the Administrative Agent or a Lender is required to produce any such information to a regulatory  authority, the Borrower shall cooperate with the Administrative Agent or such Lender in efforts to obtain  any required consents to disclosure.          6.11  Use  of  Proceeds.  Use  the  proceeds  of  the Borrowings  for  working  capital,  capital   expenditures,  acquisitions,  mergers,  and  for  other  general corporate purposes  (including  repayment  of  Indebtedness and payments of dividends), not in contravention of any Law or of any Loan Document;   provided however, no portion of the proceeds of any Borrowing will be used in any manner prohibited by   Sections 7.08, 7.10 and 7.11.          6.12  Sanctions.  Not permit the use of the proceeds of any Borrowing, whether direct or indirect,   or  the  direct  or  indirect  lending,  contributing  or  otherwise  making  available  of  such  proceeds  to  any   Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any   individual, entity or vessel, 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 individual or entity (including any   individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, or   otherwise) of Sanctions.                                          50    4847-1285-6953 v.7  





 






       6.13  Additional Guarantors.            (a)   In the event any Subsidiary of Borrower that is not a Guarantor as of the Closing Date   guarantees any other senior, unsecured, long-term Indebtedness of Borrower, the Borrower will, within 30   days thereof, (i) cause such Subsidiary to Guarantee the Obligations by executing and delivering to the   Administrative Agent a Guaranty Agreement Joinder substantially in the form of Exhibit I, and (ii) deliver   certificates and other documentation substantially similar to those required to be delivered on the Closing   Date with respect to the Intermediate Partnership and ONEOK Partners pursuant to Sections 4.01(a)(iv),   and 4.01(a)(vi) in form and substance reasonably satisfactory to the Administrative Agent.          (b)   Upon  delivery  of a  Guaranty  Agreement  Joinder  and  other required  documents  to  the   Administrative  Agent  by  a  Subsidiary,  notice  of  which  is  hereby  waived  by  each  Loan  Party,  such   Subsidiary shall be a Guarantor and shall be a party to the Guaranty Agreement as if an original signatory   thereto.  Each Loan Party expressly agrees that its obligations arising thereunder shall not be affected or   diminished by the addition or release of any other Loan Party thereunder.         6.14  Anti-Corruption  Laws.  Each  Loan  Party  will  conduct  its  businesses  in  material  compliance with Anti-Corruption Laws, and will maintain in effect policies and procedures designed to  promote  compliance  by  the  Loan  Parties,  their  Subsidiaries,  and  their  respective  directors,  officers,  employees, and agents (which acting in such capacity and at the direction of the Loan Parties or their  Subsidiaries) with such Anti-Corruption Laws.          6.15  Maintenance of Control.  (a) Maintain Control of each Guarantor, and (b) own, free and  clear of all Liens, one hundred percent (100%) of the equity interests entitled to vote for the board of  directors or equivalent governing body of each Guarantor or the general partner of each Guarantor (if such  Guarantor is a partnership).  As used in this Section, “Liens” shall mean Liens securing Indebtedness.                                    ARTICLE VII.                               NEGATIVE COVENANTS          So  long  as  any  Lender  shall  have  any  Commitment  hereunder,  any  Loan  or  other  Obligation  hereunder shall remain unpaid or unsatisfied:          7.01  Liens.  The  Borrower  shall  not, and shall not permit  any  Subsidiary  to,  create, incur,  assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or  hereafter acquired, other than the following:           (a)   Liens pursuant to any Loan Document;          (b)   Liens for taxes not yet due or which are being contested in good faith and by appropriate   proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of   the applicable Person in accordance with GAAP;          (c)   carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens   arising in the ordinary course of business which are not overdue for a period of more than 30 days or which   are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves   with respect thereto are maintained on the books of the applicable Person;          (d)   pledges  or  deposits  in  the  ordinary  course  of  business  in  connection  with  workers’   compensation, unemployment insurance and other social security legislation, other than any Lien imposed   by ERISA;                                         51    4847-1285-6953 v.7  





 






      (e)   deposits  to  secure  the  performance  of  bids,  trade  contracts  and  leases  (other  than  Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation),  performance bonds and other obligations of a like nature incurred in the ordinary course of business;         (f)   any right which any municipal or governmental body or agency may have by virtue of  any franchise, license, contract or status to purchase or designate a purchaser of, or order the sale of, any  property  of  the  Borrower  or  a  Subsidiary  upon  payment  of  reasonable  compensation  therefor  or  to  terminate any franchise, license or other rights or to regulate the property and business of the Borrower or  a Subsidiary;         (g)   any Liens, neither assumed by the Borrower or a Subsidiary nor on which it customarily  pays interest, existing upon real estate or rights in or relating to real estate acquired by the Borrower or a  Subsidiary  for  sub-station,  measuring  station,  regulating  station,  gas  purification  station,  compressor  station, transmission line, distribution line or right-of-way purposes;         (h)   easements or reservations in any property of the Borrower or a Subsidiary for the purpose  of roads, pipe lines, gas transmission and distribution lines, electric light and power transmission and  distribution lines, water mains and other like purposes, and zoning ordinances, regulations and restrictions  which  do  not  impair  the use  of  such  property  in  the  operation  of  the  business  of  the  Borrower  or  a  Subsidiary;          (i)   easements,  rights-of-way,  restrictions  and  other  similar  encumbrances  affecting  real  property which, in the aggregate, are not substantial in amount, and which do not in any case materially  interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries taken as a whole;         (j)   Liens securing judgments for the payment of money not constituting an Event of Default  under Section 8.01(h) or securing appeal or other surety bonds related to such judgments;         (k)   (i) Liens securing Indebtedness in respect of Capital Lease Obligations, Synthetic Lease  Obligations and purchase money obligations for fixed or capital assets, provided that (A) such Liens do  not at any time encumber any property other than the property financed by such Indebtedness, (B) the  Indebtedness  secured  thereby  does  not  exceed  the  cost  of  the  property  being  acquired  on  the  date  of  acquisition,  and  (C)  such Liens attach  to  such  property  concurrently  with  or  within  90  days  after  the  acquisition thereof, and (ii) Liens securing any refinancing (including successive refinancings) of such  Indebtedness,  provided that  such  Liens  do  not  extend  to  additional  property  and  the  amount  of  the  Indebtedness is not increased (except by an amount not to exceed fees, premiums and interest relating to  such refinancing); provided further that the unpaid principal balance of Indebtedness secured by Liens  permitted by this clause (k) shall not in the aggregate at any time exceed 2.5% of Total Capital;         (l)   Liens on property of a Person existing at the time such Person is merged with or into or  consolidated with or acquired by the Borrower or any Subsidiary of the Borrower; provided that such Liens  were  not  granted  in  contemplation  of,  and  were  in  existence  prior  to,  such  merger,  consolidation  or  acquisition and do not extend to any assets other than those of the Person merged into or consolidated with  the Borrower or the Subsidiary that were encumbered prior to such merger, consolidation or acquisition;         (m)   Liens on property existing at the time of acquisition of the property by the Borrower or  any Subsidiary of the Borrower; provided that such Liens were not granted in contemplation of, and were  in existence prior to, the contemplation of such acquisition and no such Lien may encumber any other  property of the Borrower or any Subsidiary;                                         52   4847-1285-6953 v.7  





 






      (n)   Liens incurred to refinance any Indebtedness of the Borrower or its Subsidiaries which  has been secured by Liens otherwise permitted hereunder under clauses (l) and (m); provided that such  Liens do not extend to any property other than the property securing the Indebtedness refinanced and the  amount of the Indebtedness secured thereby is not increased (except by an amount not to exceed fees,  premiums and interest relating to such refinancing);         (o)   Liens on cash and cash equivalents granted pursuant to master netting agreements entered  into in the ordinary course of business in connection with Swap Contracts; provided that (i) the transactions  secured by such Liens are governed by standard International Swaps and Derivatives Association, Inc.  documentation, and (ii) such Swap Contracts consist of derivative transactions contemplated to be settled  in cash and not by physical delivery and are designed to minimize the risk of fluctuations in oil and gas  prices with respect to the Borrower’s and its Subsidiaries’ operations in the ordinary course of its business;         (p)   Liens  pursuant  to  master  netting  agreements  entered  into  in  the  ordinary  course  of  business in connection with Swap Contracts, in each case pursuant to which the Borrower or a Subsidiary  of the Borrower, as a party to such master netting agreement and as pledgor, pledges or otherwise transfers  to the other party to such master netting agreement, as pledgee, in order to secure the Borrower’s or such  Subsidiary’s obligations under such master netting agreement, a Lien upon and/or right of set off against,  all right, title, and interest of the pledgor in any obligations of the pledgee owed to the pledgor, together  with all accounts and general intangibles and payment intangibles in respect of such obligations and all  dividends, interest, and other proceeds from time to time received, receivable, or otherwise distributed in  respect of, or in exchange for, any or all of the foregoing;         (q)   Liens arising in the ordinary course of business under Oil and Gas Agreements to secure  compliance with such agreements, provided that any such Lien referred to in this clause are for claims  which are not delinquent or which are being contested in good faith by appropriate action and for which  adequate reserves have been maintained in accordance with GAAP, and provided further that any such  Lien referred to in this clause does not materially impair the use of the property covered by such Lien for  the purposes for which such property is held by the Borrower or any Subsidiary or materially impair the  value of such property subject thereto, and provided further that such Liens are limited to property that is  the subject of the relevant Oil and Gas Agreement;          (r)   bankers' Liens, rights of setoff and other similar Liens existing with respect to cash and  cash equivalents on deposit in one or more accounts maintained by the Borrower or any Subsidiary, in  each case arising in the ordinary course of business in favor of the bank or banks with which such accounts  are maintained;          (s)   Liens on equity interests of any Joint Venture owned by a Subsidiary to the extent such  Liens secure Indebtedness that is otherwise non-recourse to such Subsidiary, all other Subsidiaries and the  Borrower; and         (t)   Liens on cash collateral required to be granted to the administrative agent or letter of credit  issuer under the Revolving Credit Agreement to cover exposure arising in respect of Defaulting Lenders’  (as therein defined) obligations in connection with letters of credit issued under the Revolving Credit  Agreement; and         (u)   Liens not otherwise permitted by this Section 7.01 securing Indebtedness of the Borrower  or its Subsidiaries, provided that the aggregate outstanding principal amount of all such Indebtedness does  not at any time exceed 15% of Consolidated Net Tangible Assets.                                         53   4847-1285-6953 v.7  





 






      7.02  Investments.  The Borrower shall not, and shall not permit any Subsidiary to, make any  Investments, except:         (a)   Investments in the form of cash and cash equivalents;         (b)   advances to officers, directors and employees of the Borrower and Subsidiaries in the  ordinary course of business in accordance with applicable law for travel, entertainment, relocation and  analogous ordinary business purposes;         (c)   Investments of the Borrower in any wholly-owned Subsidiary and Investments of any  wholly-owned Subsidiary in the Borrower and any wholly-owned Subsidiary;         (d)   Investments 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,  and  Investments  received in satisfaction  or partial satisfaction thereof from  financially  troubled  account  debtors  to  the  extent reasonably necessary in order to prevent or limit loss;          (e)   Investments  in  Subsidiaries,  Joint  Ventures  or  other  Persons,  in  each  case  which  are  engaged principally in the business of the purchasing, gathering, compression, transportation, distribution,  marketing, terminalling or storage of crude oil, natural gas, compressed natural gas, natural gas liquids  and refined products, the exploration or production of crude oil, natural gas or oil or the processing or  fractionation  of  natural  gas  or  natural  gas  liquids,  the  underground  piping  of  natural  gas  distribution  systems, the generation or marketing of electricity or other businesses related to or incidental to any of the  foregoing; provided that such Investments are not opposed by the board of directors or management of  such Person;         (f)   Investments  of  a  Person  acquired  after  the  Closing  Date  or  of  a  Person  merged  or  consolidated with or into Borrower or a Subsidiary; provided that such Investments were not made in  contemplation of, and were in existence prior to, such acquisition, merger or consolidation;         (g)   the Guarantee by the Guarantors under the Guaranty Agreement or a Guaranty Agreement  (as defined in the Revolving Credit Agreement) under the Revolving Credit Agreement; and         (h)   other  Investments,  if  at  the  time  of,  and  after  giving  effect  to,  such  Investments,  the  aggregate book value of all such Investments does not exceed $100,000,000 in the aggregate.        7.03   Indebtedness of Subsidiaries.  The Borrower shall not permit any Subsidiary to create,  incur, assume or suffer to exist any Indebtedness, except:         (a)   Indebtedness owed to the Borrower or to another Subsidiary; provided, however, that any  Indebtedness of the Guarantors owed to another Subsidiary shall be subordinated on terms and conditions  satisfactory to Administrative Agent and the Required Lenders in right of payment to its obligations under  the Guaranty Agreement;         (b)   obligations under Swap Contracts;         (c)   Indebtedness existing at the time of acquisition of any new Subsidiary by the Borrower or  by  a  then-existing  Subsidiary  of  the  Borrower;  provided  that  such  Indebtedness  was not  incurred  in  contemplation of, and was in existence prior to, such acquisition and that neither the Borrower nor any  other Subsidiary of the Borrower has any liability under such Indebtedness (other than a Subsidiary of any  Person so acquired);                                        54   4847-1285-6953 v.7  





 






       (d)   guaranty by the Guarantors of the Borrower’s Indebtedness;          (e)   Indebtedness  of  Guardian  Pipeline,  L.L.C.  (“Guardian”)  pursuant  to  the  Master  Shelf   Agreement, dated as of November 8, 2001, among Guardian, Prudential Insurance Company of America   and the other parties thereto, as amended from time to time, together with any renewals, extensions or   refinancings thereof, provided that any renewal, extension or refinancing thereof is not greater than the   principal amount of the Indebtedness being renewed, extended or refinanced, and does not shorten the   weighted average life to maturity of such Indebtedness;           (f)   Each series of outstanding senior notes issued by ONEOK Partners and guaranteed by   Intermediate Partnership set forth on Schedule 7.03; and          (g)   Indebtedness  of  Subsidiaries  (excluding  Indebtedness  otherwise  permitted  in  this   Section 7.03) which does not exceed at any time an aggregate principal amount outstanding equal to fifteen   percent (15%) of Consolidated Net Tangible Assets.          7.04  Fundamental Changes.  The Borrower shall not and shall not permit any Subsidiary to,  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 the assets of the Borrower  and its Subsidiaries taken as a whole (whether now owned or hereafter acquired) to or in favor of any  Person, except that, so long as no Default exists or would result therefrom:          (a)   any  Subsidiary  may  merge  with  (i)  the  Borrower or  a  wholly-owned  Subsidiary  of   Borrower, provided that the Borrower or the wholly-owned Subsidiary of Borrower shall be the continuing   or surviving Person, or (ii) any one or more other Subsidiaries, provided further that when a Guarantor is   merging with another Subsidiary, such Guarantor shall be the continuing or surviving Person and when   any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be   the continuing or surviving Person; and          (b)   any Subsidiary other than a Guarantor may Dispose of all or substantially all of its assets   (upon voluntary liquidation, dissolution or otherwise) to the Borrower or to another Subsidiary; provided   that if the transferor in such a transaction is a wholly-owned Subsidiary, then the transferee must be the   Borrower or a wholly-owned Subsidiary; and          (c)   the Borrower or any Subsidiary may consolidate or merge with another corporation or   entity, and a Person may consolidate with or merge into the Borrower or any Subsidiary, provided that (x)   if the merger involves a Subsidiary but does not involve the Borrower, a Guarantor or a wholly-owned   Subsidiary of Borrower, a Subsidiary shall be the surviving entity, and (y) if the merger involves the   Borrower, the Borrower shall be the ultimate surviving entity, and if the merger involves a Guarantor, such   Guarantor shall be the surviving entity (unless such Guarantor is merging with or into Borrower or a   wholly-owned  Subsidiary  of Borrower that executes  a  Guaranty  Agreement  and  satisfies  the  other   conditions set forth in Section 6.13), and (z) in each such case (i) the surviving entity shall be after the   merger a solvent entity and existing under the laws of the United States of America, any State thereof or   the  District  of  Columbia,  (ii)  immediately  after  giving  effect  to  such  transaction  and  treating  any   Indebtedness which becomes an obligation of the Borrower or a Subsidiary as a result of such transaction   as having been incurred by the Borrower or such Subsidiary at the time of such transaction, no Default   shall have happened and be continuing, and (iii) if the merger or consolidation involves the Borrower or a   Guarantor, the Borrower has delivered to the Administrative Agent a certificate signed by a Responsible   Officer of the Borrower and an opinion of counsel, each stating that such consolidation or merger complies   with this Section 7.04; and                                          55    4847-1285-6953 v.7  





 






       (d)   any Subsidiary (other than a Guarantor) may dissolve in connection with any Disposition   otherwise permitted by this Section 7.04.    provided, however, that nothing contained in this Section 7.04 shall be or be deemed to permit any merger,   dissolution, liquidation, consolidation or Disposition which would result in a Change of Control.          7.05  Change in Nature of Business.  The Borrower and its Subsidiaries shall not engage in any   material line of business substantially different from those lines of business described in Section 7.02(e) or   any business substantially related or incidental to such lines of business.          7.06  Transactions with Affiliates.  The Borrower shall not, and shall not permit any Subsidiary   to, enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary   course of business, other than (a) on fair and reasonable terms substantially as favorable to the Borrower or   such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time in a comparable   arm’s length transaction with a Person other than an Affiliate and (b) transactions between or among the   Borrower and one or more wholly-owned Subsidiaries of the Borrower, not involving any Affiliates other   than the Borrower and wholly-owned Subsidiaries of the Borrower, and (c) transactions between or among   the Borrower or any Subsidiary and any Joint Venture, provided that such transactions described in this   clause (c) shall be consistent with prior practices and could not reasonably be expected to have a Material   Adverse Effect.          7.07  Burdensome Agreements.  The Borrower shall not, and shall not permit any Subsidiary   to, enter into or permit any Contractual Obligation that limits the ability of any Subsidiary to pay dividends   or make other payments or distributions to the Borrower or to any other Subsidiary or to otherwise transfer   property to the Borrower or to any other Subsidiary; unless (a) none of such limitations, either individually   or in the aggregate, would (i) materially restrict the ability of the Subsidiaries taken as a whole to pay   dividends, make other payments or distributions or transfer property to the Borrower, or (ii) materially   restrict the ability of the Subsidiaries of a Guarantor taken as a whole to pay dividends, make other payments  or distributions or transfer property to such Guarantor, and (b) each such limitation, individually and in the  aggregate with all other such limitations, could not reasonably be expected to impair the ability of the  Borrower to perform its monetary obligations hereunder.          7.08  Use of Proceeds.  The Borrower shall not:          (a)   Use  the  proceeds  of  any Borrowing,  whether  directly  or  indirectly,  and  whether   immediately,  incidentally  or  ultimately,  to  purchase  or  carry  margin  stock  (within  the  meaning  of   Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin   stock or to refund indebtedness originally incurred for such purpose; provided that the foregoing shall not   restrict the repurchase of equity interests of the Borrower by the Borrower or any of its Subsidiaries; or          (b)   use the proceeds of any Borrowing in connection with the acquisition of a voting interest   of  five  percent  or  more  in  any  Person  if  such  acquisition  is  opposed  by  the  board  of  directors  or   management of such Person.          7.09  Leverage Ratio.  The Borrower shall not permit the Leverage Ratio as of the end of each  fiscal  quarter  to  exceed  5.00:1.00 (the  “Required  Threshold”); provided,  however,  that  during  an   Acquisition Adjustment Period, the Required Threshold shall be increased to 5.50:1.00.          7.10  Sanctions.  The  Loan  Parties  will  not,  and  not  permit  any  of  their  Subsidiaries  to  use   directly or, to the Loan Parties’ knowledge, indirectly the proceeds of any Borrowing, or lend, contribute   or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or                                         56    4847-1285-6953 v.7  





 






 entity, to fund any activities of or business with any individual or entity, 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  material violation by the Loan Parties or their Subsidiaries or any Lender, Arranger and Bookrunner, or the  Administrative Agent, of Sanctions.          7.11  Anti-Corruption  Laws.  The Loan  Parties  will  not,  and  not  permit  any  of  their  Subsidiaries to use directly or, to the Loan Parties’ knowledge, indirectly the proceeds of any Borrowing in  a manner that would breach any Anti-Corruption Law.         7.12  Restricted Payments.  The Borrower shall not declare or make, or agree to pay or make,  directly or indirectly, any dividend or distribution on any class of its capital stock or other equity interests,  or  make  any  payment  on  account  of,  or  set  apart  assets  for  a sinking  or  other  analogous  fund  for, the  purchase, redemption, retirement, cancellation, termination, defeasance or acquisition of, any shares of  capital stock or other equity interests or any options, warrants, or other rights to purchase such capital stock  or other equity interests, whether now or hereafter outstanding (each, a “Restricted Payment”), except for   (i) redemptions, dividends or other Restricted Payments on the equity interests of Borrower, so long as both   before  and  after  the  making  of  such  Restricted  Payments,  no  Event  of  Default  has  occurred  and  is   continuing, (ii) dividends, distributions or other Restricted Payments payable by Subsidiaries or by the   Borrower solely in shares of any class of its capital stock or other equity interests, and (iii) Restricted   Payments made by any Subsidiary to the Borrower or to another Subsidiary, on at least a pro rata basis with   any other holders of its capital stock or other equity interests if such Subsidiary is not wholly owned by the   Borrower and other wholly owned Subsidiaries.                                    ARTICLE VIII.                        EVENTS OF DEFAULT AND REMEDIES          8.01  Events of Default.  An “Event of Default” shall exist if any one or more of the following   events (herein collectively called “Events of Default”) shall occur and be continuing:          (a)   Non-Payment.  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 (ii) within five days after the same becomes   due, any interest on any Loan or other fee due hereunder, or (iii) within five Business Days after the same   becomes due, any other amount payable hereunder or under any other Loan Document; or          (b)   Specific Covenants.  The Borrower fails to perform  or observe any term, covenant or   agreement contained in any of Section 6.03(a), 6.05(a), 6.11, 7.01, 7.03 or 7.09 or clause (y) of Section   7.04(c); or          (c)   Other Defaults.  A Loan Party fails to perform or observe any other covenant or agreement   (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed   or observed and such failure continues for 30 days; or          (d)   Representations and Warranties.  Any representation, warranty, certification or statement   of fact made or deemed made by or on behalf of the Borrower or the Guarantors herein or in any other   Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or   misleading in any material respect when made or deemed made (except that such materiality qualifier shall   not apply to the extent that any such representation or warranty is qualified by materiality); or          (e)   Payment Cross-Default and Cross-Acceleration.  (i) A Loan Party or any Subsidiary of a   Loan Party (A) fails to make any payment when due (whether by scheduled maturity, required prepayment,   acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee of Indebtedness (other                                         57    4847-1285-6953 v.7  





 






than  Indebtedness  hereunder  and  Indebtedness  under  Swap  Contracts)  having  an  aggregate  principal  amount (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 any other agreement or condition  relating  to  any  such  Indebtedness  or  Guarantee of  Indebtedness 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 the acceleration of the final stated maturity of such Indebtedness or require such  Indebtedness to be prepaid prior to the stated maturity thereof; 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 of a Loan Party is the Defaulting  Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap  Contract as to which a Loan Party or any Subsidiary of a Loan Party is an Affected Party (as so defined)  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)   Insolvency Proceedings, Etc.  A Loan Party, any Subsidiary (other than any Immaterial  Subsidiary) of a Loan Party 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 60 calendar 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 60 calendar days, or an order for relief  is entered in any such proceeding; or a Loan Party, any Subsidiary (other than any Immaterial Subsidiary)  of a Loan Party shall take any corporate action in furtherance of any of the foregoing; or          (g)   Inability to Pay Debts; Attachment.  (i) A Loan Party or any Subsidiary (other than any  Immaterial Subsidiary) of a Loan Party 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 30 days after its issue or levy; or         (h)   Judgments.   There  is  entered  against  a  Loan  Party,  any  Subsidiary (other  than  any  Immaterial Subsidiary) of a Loan Party (i) one or more final judgments or orders for the payment of money  in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent  not covered by independent third-party insurance), 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 ten (10) consecutive days during which a stay of enforcement  of such judgment, by reason of a pending appeal or otherwise, is not in effect; or          (i)   ERISA.  (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 a Loan Party or any ERISA  Affiliate of a Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC,  together  with  any  liability  related  to  other  ERISA  Events, in  an  aggregate  amount  in  excess  of  the  Threshold Amount, (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,  (iii) any Plan(s) (other than a Pension Plan or Multiemployer Plan), or the Borrower or any ERISA Affiliate                                         58   4847-1285-6953 v.7  





 






 in respect of any such Plan(s), incurs any unfunded liabilities in an aggregate amount in excess of the   Threshold Amount; or          (j)   Invalidity of Loan Documents.  Any Loan Document, at any time after its execution and   delivery and for any reason other than as permitted hereunder or satisfaction in full of all the Obligations,   ceases to be in full force and effect; or a Loan Party or any of its Affiliates contests in any manner the   validity or enforceability of any Loan Document; or a Loan Party denies that it has any or further liability   or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document   other than pursuant to the terms thereof; or          (k)   Change of Control.  There occurs any Change of Control; or          (l)   Guaranty.  Any material provision of the Guaranty Agreement shall for any reason cease   to be valid and binding on, or enforceable against any Guarantor, or a Guarantor shall so state in writing,   or a Guarantor shall seek to terminate the Guaranty Agreement.          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 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; and          (c)   exercise on behalf of itself and the Lenders all rights and remedies available to it and the   Lenders under the Loan Documents or applicable law;    provided, however, 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 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, in each case without further   act of the Administrative Agent or any Lender.          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), any amounts received on account   of the Obligations shall, subject to the provisions of Section 2.17, be applied by the Administrative Agent   in the following order:          First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and   other  amounts  (including  Attorney  Costs  and  amounts  payable  under Article  III)  payable  to  the   Administrative Agent in its capacity as such;          Second,  to  payment  of  that  portion  of  the  Obligations  constituting  fees,  indemnities  and  other   amounts (other than principal and interest) payable to the Lenders (including Attorney Costs and amounts   payable under Article III), ratably among them in proportion to the amounts described in this clause Second   payable to them;                                          59    4847-1285-6953 v.7  





 






       Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the   Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described   in this clause Third payable to them;          Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans,   ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by   them; and          Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the   Borrower or as otherwise required by Law.                                     ARTICLE IX.                              ADMINISTRATIVE AGENT         9.01  Appointment and Authority.  Each of the Lenders hereby irrevocably appoints Mizuho  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  are  solely  for  the  benefit  of  the  Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary  of any of such provisions (except with respect to Section 9.06).  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.          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, act as the financial advisor or in any other advisory capacity for and generally   engage in any kind of business with the Borrower 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.          9.03  Exculpatory  Provisions.  The  Administrative  Agent  shall  not  have  any  duties  or   obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the   generality of the foregoing, the Administrative Agent:          (a)   shall  not  be  subject  to  any  fiduciary  or  other  implied  duties,  regardless  of  whether  a   Default has occurred and is continuing;          (b)   shall  not  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                                          60    4847-1285-6953 v.7  





 






 that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture,   modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and          (c)   shall not, except as expressly set forth herein and in the other Loan Documents, have any   duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower   or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative   Agent or any of its Affiliates in any capacity.          The Administrative Agent shall not be liable for any action taken or not taken by it (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 10.01 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 nonappealable 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 or a Lender.          The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into  (i) any statement, warranty or representation made in or in connection with this Agreement or any other  Loan  Document,  (ii)  the  contents  of  any  certificate,  report  or  other  document  delivered  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 (v) 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 not incur any liability for relying upon, any notice, request, certificate, consent, statement,  instrument,  document  or  other  writing  (including  any  electronic  message,  Internet  or  intranet  website  posting  or  other  distribution)  believed  by  it  to  be  genuine  and  to  have  been  signed,  sent  or  otherwise  authenticated by the proper Person.  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 not incur any  liability for relying thereon.  In determining compliance with any condition hereunder to the making of a  Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may  presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have  received notice to the contrary from such Lender prior to the making of such Loan.  The Administrative  Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants  and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance  with the advice of any such counsel, accountants or experts.         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 provisions of this Article shall apply to any such sub-agent and to the Related  Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in  connection  with  the  syndication  of  the  credit  facilities  provided  for  herein  as  well  as  activities  as  Administrative Agent.  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                                          61    4847-1285-6953 v.7  





 






nonappealable 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  and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the  right, with the prior written consent of the Borrower (provided such consent shall not be unreasonably  withheld or delayed and no such consent shall be required if an Event of Default has occurred and is  continuing), 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  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 on behalf of the  Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided  that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has  accepted such appointment, then such resignation shall nonetheless become effective in accordance with  such notice.         (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, with the  prior  written  consent  of  the  Borrower (provided  such  consent shall not  be  unreasonably  withheld  or  delayed and no such consent shall be required if an Event of Default has occurred and is continuing),  appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall  have accepted such appointment within 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.  As used in this Section 9.06, the terms  “retiring” and “retired” shall include “removed”.         (c)   With  effect  from  the  Resignation  Effective  Date  or  the  Removal  Effective  Date  (as  applicable)  (1) the  retiring  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  under  any  of  the  Loan  Documents,  the  retiring  Administrative  Agent  shall  continue  to  hold  such  collateral  security  until  such  time  as  a  successor  Administrative Agent is appointed) and (2) 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 directly,  until such time as the Required Lenders appoint a successor Administrative Agent as provided for above  in this Section.  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 retired) Administrative Agent, and the retiring 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).  The fees payable by the Borrower to a successor  Administrative  Agent  shall  be  the  same  as  those  payable  to  its  predecessor  unless  otherwise  agreed  between  the  Borrower  and  such  successor.   After  the  retiring  Administrative  Agent’s  resignation  or  removal, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such  retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions  taken  or  omitted  to  be  taken  by  any  of  them  while  the  retiring  Administrative  Agent  was  acting  as  Administrative Agent.                                         62   4847-1285-6953 v.7  





 






       9.07  Non-Reliance  on  Administrative  Agent  and  Other  Lenders.  Each Lender   acknowledges that it has, independently and without reliance upon the Administrative Agent or any other   Lender or any of their Related Parties and based on such documents and information as it has deemed   appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also   acknowledges that it will, independently and without reliance upon the Administrative Agent or any other   Lender or any of their Related Parties and based on such documents and information as it shall from time   to time deem appropriate, continue to make its own decisions in taking or not taking action under or based   upon  this  Agreement,  any  other  Loan  Document  or  any  related  agreement  or  any  document  furnished   hereunder or thereunder.          9.08  Administrative  Agent  May  File  Proofs  of  Claim.   In  case  of  the  pendency  of  any   receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or   other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the   principal of any Loan 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 or any other   Loan Party) 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 and all other Obligations that are owing and unpaid and to file such other   documents  as  may  be  necessary  or  advisable  in  order  to  have  the  claims  of  the  Lenders  and  the   Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and   advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other   amounts due the Lenders and the Administrative Agent under Sections 2.10, and 10.04) 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 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,  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 2.10 and 10.04.          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  any  plan  of  reorganization,  arrangement,  adjustment or  composition  affecting  the  Obligations  or  the  rights  of  any  Lender  to  authorize  the  Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.          9.09  [Reserved.]          9.10  Other  Agents;  Arrangers  and  Managers.  None  of  the  Lenders  or  other  Persons  identified on the facing page or signature pages of this Agreement as a “syndication agent,” “documentation  agent,” “joint lead arranger and joint bookrunner,” or “joint lead arranger” shall have any right, power,  obligation, liability, responsibility or duty under this Agreement except in its capacity, as applicable, as the  Administrative Agent or a Lender hereunder.  Without limiting the foregoing, none of the Lenders or other  Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender.  Each  Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so  identified in deciding to enter into this Agreement or in taking or not taking action hereunder.                                          63    4847-1285-6953 v.7  





 






                                  ARTICLE X.                                 MISCELLANEOUS          10.01 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 and the Borrower or the applicable  Loan Party, as the case may be, and a copy thereof is provided to the Administrative Agent, or signed by  the Borrower and the applicable Loan Party and the Administrative Agent with the consent of the Required  Lenders, and each such waiver or consent shall be effective only in the specific instance and for the specific  purpose for which given; provided, however, that no such amendment, waiver or consent shall:          (a)   waive any condition set forth in Section 4.01 without the written consent of each Lender;          (b)   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;          (c)   postpone any date fixed by this Agreement or any other Loan Document for any payment   or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them)   or any mandatory reduction of the Aggregate Commitments hereunder or under any other Loan Document   without the written consent of each Lender directly affected thereby;          (d)   reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject to   clause (v) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or   under any other Loan Document without the written consent of each Lender directly affected thereby;   provided,  however,  that  only  the  consent  of  the  Required  Lenders  shall  be  necessary  to  amend  the   definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate;          (e)   change Section 2.14, Section 8.03 or the definition of “Pro Rata Share” in a manner that   would alter the pro rata sharing of payments required thereby without the written consent of each Lender;          (f)   change any provision of this Section or the percentages contained in the definition of   “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required   to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent   hereunder, without the written consent of each Lender; or          (g)   release a Guarantor from liability under the applicable Guaranty Agreement without the   written consent of each Lender;    and, provided further, that (i) 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; and (ii) Section 10.06(i) may not   be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of   whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification.    Notwithstanding anything to the contrary herein, 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 (x) the Commitment of a Defaulting   Lender may not be increased or extended, nor the principal amount of any Loan or any interest thereon, or   any other amounts payable hereunder, owed to such Defaulting Lender reduced or the date for payment   thereof  extended, without  the  consent  of  such  Defaulting Lender,  (y)  any  waiver,  amendment  or  modification requiring the consent of all Lenders or each affected Lender that by its terms affects any                                         64    4847-1285-6953 v.7  





 






 Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting   Lender, and (z) any waiver, amendment or modification changing the voting rights of a Defaulting Lender   shall require the consent of each Lender that is a Defaulting Lender at the time that such waiver, amendment   or modification becomes effective.    If, in connection with any proposed change, waiver, consent, discharge or termination of or to any of the   provisions of this Agreement as contemplated by this Section 10.01, the consent of the Required Lenders   is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained,   then the Borrower shall have the right, to replace each such non-consenting Lender or Lenders with one or   more (so long as all non-consenting Lenders are so replaced) persons pursuant to Section 10.14 so long as   at the time of such replacement, each such new Lender consents to the proposed change, waiver, consent,   discharge  or  termination.   Each  Lender  agrees  that,  if  the  Borrower  elects  to  replace  such  Lender  in   accordance  with  this  Section,  it  shall  promptly  execute  and  deliver  to  the  Administrative  Agent  an   Assignment and Assumption to evidence such sale and purchase and shall deliver to the Administrative   Agent any Note (if Notes have been issued in respect of such Lender’s Loans) subject to such Assignment   and Assumption; provided that the failure of any such non-consenting Lender to execute an Assignment   and Assumption shall not render such sale and purchase (and the corresponding assignment) invalid and   such assignment shall be recorded in the Register.          10.02 Notices and Other Communications; Facsimile Copies.          (a)   General.   Unless  otherwise  expressly  provided  herein,  all  notices  and  other   communications provided for hereunder shall be in writing (including by facsimile transmission).  All such   written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or (subject   to subsection (c) below)  electronic  mail  address, and  all  notices and  other  communications  expressly   permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:                (i)   if to the Borrower or the Administrative Agent, to the address, facsimile number,         electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such         other address, facsimile number, electronic mail address or telephone number as shall be designated        by such party in a notice to the other parties; and                 (ii) if to any other Lender, to the address, facsimile number, electronic mail address or        telephone number specified in its Administrative Questionnaire or to such other address, facsimile        number, electronic mail address or telephone number as shall be designated by such party in a        notice to the Borrower and the Administrative Agent.   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 facsimile 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 subsection (b) below, shall be effective as provided in such subsection (b).          (b)   Electronic Communications.  Notices and other communications to the Lenders hereunder   may be delivered or furnished by electronic communication (including e-mail and  Internet or intranet   websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall   not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative   Agent  that  it  is  incapable  of  receiving  notices  under  such  Article  by  electronic  communication.   The   Administrative  Agent  or  the  Borrower  may,  in  its  discretion, agree  to  accept  notices  and  other                                          65    4847-1285-6953 v.7  





 






 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 acknowledgement from the  intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other  written  acknowledgement), provided that  if  such  notice  or  other  communication  is  not  sent  during  the   normal business hours of the recipient, such notice or communication shall be deemed to have been sent at   the opening of business on the next business day for the recipient, and (ii) notices or communications posted   to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient   at its e-mail address as described in the foregoing clause of notification that such notice or communication   is available and identifying the website address therefor.          (c)   Change of Address, Etc.  Each of the Borrower and the Administrative Agent may change   its address, telecopier or telephone number for notices and other communications hereunder by notice to   the other parties hereto.  Each other Lender may change its address, telecopier or telephone number for   notices and other communications hereunder by notice to the Borrower and the Administrative Agent.  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, telecopier   number  and  electronic  mail  address  to  which  notices  and  other  communications  may  be  sent  and (ii)   accurate wire instructions for such Lender.  Furthermore, each Public Lender (as defined in Section 6.02)   agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected   the “Private Investor” 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 Investor” 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.          (d)   Reliance  by  Administrative  Agent  and  Lenders.  The  Administrative  Agent  and  the   Lenders shall be entitled to rely and act upon any notices (including telephonic Loan Notices) purportedly   given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein,   were incomplete or were not 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 Borrower shall   indemnify the Administrative Agent, 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  the  Borrower  except  to  the  extent  such  losses,  costs,  expenses  and  liabilities  are   determined  by  a  court  of  competent jurisdiction to have  resulted from  the  gross  negligence  or  willful   misconduct of such Person.  All telephonic notices to and other communications with the Administrative   Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to   such recording.          (e)   THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT   PARTIES  AND  THE  ARRANGER  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  OR  ANY                                          66    4847-1285-6953 v.7  





 






ARRANGER  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”) or any Arranger and Bookrunner or any of their respective Related Parties (collectively,  the “Arranger Parties”) have any liability to the Borrower, any Lender or any other Person for losses,  claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of  the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet,  except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of  competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence  or willful misconduct of such Agent Party or Arranger Party; provided, however, that in no event shall any  Agent Party or Arranger Party have any liability to the Borrower or any other Person for indirect, special,  incidental, consequential or punitive damages (as opposed to direct or actual damages).         10.03 No Waiver; Cumulative Remedies; Enforcement.         (a)   No failure by any Lender or the Administrative Agent to exercise, and no delay by any  such  Person  in  exercising,  any  right,  remedy,  power  or  privilege  hereunder  shall  operate  as  a  waiver  thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude  any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The  rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights,  remedies, powers and privileges provided by law.         (b)   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 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; provided, however, 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) any Lender from exercising setoff rights in accordance with Section 10.08  (subject to the terms of Section 2.14), or (c) 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; and 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) and (c) of the preceding proviso and subject to Section 2.14, 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.         10.04 Expenses; Indemnity; Damage Waiver.         (a)   Costs and Expenses.  The Borrower shall pay (i) all reasonable out of pocket expenses  incurred  by  the  Administrative  Agent and  its Affiliates  (including  the  reasonable  fees,  charges  and  disbursements of outside counsel for the Administrative Agent), 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) and (ii) all out of pocket expenses incurred by the Administrative Agent and any Lender  (including the fees, charges and disbursements of one  primary outside  counsel for the  Administrative  Agent  and the Lenders and in the case of actual or potential conflict of interest, separate counsel for  Indemnitees to the extent needed to avoid such conflict, and one firm of local counsel, as applicable, in                                         67   4847-1285-6953 v.7  





 






any relevant jurisdiction, and in the case of actual or potential conflict of interest, separate local counsel  for  Indemnitees to  the  extent  needed  to  avoid  such  conflict),  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, or (B) in connection with the Loans made hereunder, including all such out  of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.         (b)   Indemnification  by  the  Borrower.   The  Borrower  shall  indemnify  the  Administrative  Agent (and any sub-agent thereof), each Lender, and each Related Party of any of the foregoing Persons  (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any  and  all  losses,  claims,  damages,  liabilities  and  related  expenses  (including  the  fees,  charges  and  disbursements of one primary outside counsel for the Indemnitees and, in the case of actual or potential  conflict of interest, separate counsel for Indemnitees to the extent needed to avoid such conflict), incurred  by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other  Loan  Party  arising  out  of,  in  connection  with,  or  as  a  result  of  (i)  the  execution  or  delivery  of  this  Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby,  the  performance  by  the  parties  hereto  of  their  respective  obligations  hereunder  or  thereunder  or  the  consummation of the transactions contemplated hereby or thereby, (ii) any Loan or the use or proposed  use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or  from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental  Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective  claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,  tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and  regardless of whether any Indemnitee is a party thereto, 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 nonappealable judgment to have resulted from the gross negligence, willful misconduct, bad faith or  material breach by of such Indemnitee of its obligations under this Agreement; and provided further that  no Indemnitee (other than the Administrative Agent, each Arranger and Bookrunner, each Documentation  Agent, and each Syndication Agent, in each case in its capacity as such) will have a right to indemnification  for such losses, claims, damages, liabilities or expenses to the extent they result from disputes among the  Lenders other than as a result of any act or omission by the Borrower or any of its Affiliates.  Without  limiting the provisions of Section 3.01(c), this Section 10.04(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  Borrower  for  any  reason  fails  to  indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the  Administrative Agent (or any sub-agent thereof), or any Related Party of any of the foregoing (and without  limiting the obligation of the Borrower to do so), each Lender severally agrees to pay to the Administrative  Agent (or any such sub-agent), 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) of  such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability  or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or  any such sub-agent) in its capacity as, or against any Related Party of any of the foregoing acting for the  Administrative Agent (or any such sub-agent) in connection with such capacity.  The obligations of the  Lenders under this subsection (c) are subject to the provisions of Section 2.13(d).         (d)   Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law,  the parties to this Agreement shall not assert, and hereby waive, any claim against any other party or  Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed                                         68   4847-1285-6953 v.7  





 






 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 the use of the proceeds thereof, provided that, nothing in this Section   10.04(d) shall relieve the Borrower of any obligation it may have to indemnify an Indemnitee against   special, indirect, consequential or punitive damages actually paid by such Indemnitee to a third party.  No   Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by   unintended recipients of any information or other materials distributed by it 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  except  to  the  extent  caused  by  such   Person’s  gross  negligence  or  willful  misconduct  of  such  Indemnitee  as  determined  by  a  final  and   nonappealable judgment of a court of competent jurisdiction.          (e)   Payments.  All amounts due under this Section 10.04 shall be payable not later than ten   Business Days after demand therefor.          (f)   Survival.   The  agreements  in  this  Section  shall  survive  the  resignation  of  the   Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and   the repayment, satisfaction or discharge of all the other Obligations.          10.05 Payments Set Aside.  To the extent that any payment by or on behalf of the Borrower is  made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its  right  of  set-off,  and  such  payment  or  the  proceeds  of  such  set-off  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 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 set-off had  not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its  applicable share of any amount so recovered from or repaid by the Administrative Agent, plus interest  thereon from the date of such demand to the date such payment is made at a rate per annum equal to the  Federal Funds Rate from time to time in effect.  The obligations of the Lenders under clause (b) of the   preceding  sentence  shall  survive  the  payment  in  full of  the  Obligations  and  the  termination  of  this   Agreement.          10.06 Successors and Assigns.          (a)   Successors and Assigns Generally.  The provisions of this Agreement shall be binding   upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted   hereby, except that the Borrower may not 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 Eligible Assignee   in  accordance  with  the  provisions  of subsection (b) of  this  Section,  (ii)  by  way  of  participation  in   accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a   security interest subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC in accordance   with the provisions of subsection (i) of this Section (and any other attempted assignment or transfer by   any  party  hereto  shall  be  null  and  void).   Nothing  in  this  Agreement,  expressed  or  implied,  shall  be   construed to confer upon any Person (other than the parties hereto, their respective successors and assigns   permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent   expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by   reason of this Agreement.                                          69    4847-1285-6953 v.7  





 






      (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  (including  all  or  a  portion  of  its  Commitment and the 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 the Loans at the time owing to it or in the case of               an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum               amount need be assigned; and                      (B)   in  any  case  not  described  in subsection  (b)(i)(A) of  this  Section,  the               aggregate  amount  of  the  Commitment  (which  for  this  purpose  includes  Loans               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); provided, however, that concurrent assignments               to  members  of  an  Assignee  Group  and  concurrent  assignments  from  members  of  an               Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members               of its Assignee Group) will be treated as a single assignment for purposes of determining               whether such minimum amount has been met.               (ii) Proportionate Amounts.  Each partial assignment shall be made as an assignment        of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement        with respect to the Loans or the Commitment assigned;                (iii) Required Consents.  No consent shall be required for any assignment except to the        extent required by subsection (b)(i)(B) of this Section and, in addition:                      (A)   the  consent  of  the  Borrower  (such  consent  not  to  be  unreasonably               withheld or delayed) shall be required unless (1) an Event of Default has occurred and is               continuing  at  the  time  of  such  assignment  or  (2)  such  assignment is to a 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 ten (10) Business Days after having received notice               thereof;                      (B)   the  consent  of  the  Administrative  Agent  (such  consent  not  to  be               unreasonably withheld or delayed) shall be required if such assignment is to a Person               that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to               such Lender.               (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, however, that the Administrative Agent        may, in its sole discretion, elect to waive such processing and recordation fee in the case of any                                        70   4847-1285-6953 v.7  





 






      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 Subsidiaries or Affiliates, or (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.                 (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  (x)  pay  and  satisfy  in  full  all  payment        liabilities  then  owed  by  such  Defaulting  Lender  to  the  Administrative  Agent  or  any  Lender        hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata        share of all Loans in accordance with its Pro Rata Share.  Notwithstanding the foregoing, in the        event  that  any  assignment  of  rights  and  obligations  of  any  Defaulting  Lender  hereunder  shall        become effective under applicable Law without compliance with the provisions of this paragraph,        then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this        Agreement until such compliance occurs.    Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this  Section,  from  and  after  the  effective  date  specified  in  each  Assignment  and  Assumption,  the  Eligible  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  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 10.04 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 subsection shall be treated for purposes  of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance  with subsection (d) of this Section.          (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 and a register for the recordation  of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans  owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the  Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the  Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a  Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  In addition,                                         71   4847-1285-6953 v.7  





 






 the  Administrative  Agent  shall maintain  on  the  Register  information  regarding  the  designation,  and   revocation of designation, of any Lender as a Defaulting Lender.  The Register shall be available for   inspection by the Borrower and any Lender 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, 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 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   and the  Lenders  shall  continue  to  deal  solely  and  directly  with  such  Lender  in  connection  with  such   Lender's rights and obligations under this Agreement.           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 10.01 that  directly  affects  such   Participant.  Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be   entitled to the benefits of, and subject to the obligations of, Sections 3.01, 3.04 and 3.05 to the same extent   as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section   to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph  (b) of this Section; provided that such Participant agrees to be subject to the provisions of Sections 3.06 and   10.13 as if it were an assignee under paragraph (b) of this Section.  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 10.08 as though it were a Lender; provided   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 stated   interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the   “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of   the  Participant  Register  (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)   Limitations upon Participant Rights.  A Participant shall not be entitled to receive any   greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive   with  respect  to  the  participation  sold  to  such  Participant,  unless  the  sale  of  the  participation  to  such   Participant is made with the Borrower's prior written consent.  A Participant that would be a Foreign   Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower is                                          72    4847-1285-6953 v.7  





 






notified of the participation sold to such Participant and such Participant agrees, for the benefit of the  Borrower, to comply with Section 3.01(e) as though it were a Lender.         (f)   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, if any) to secure obligations of  such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any  other central bank having jurisdiction over such Lender; 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.         (g)   Certain Definitions.  As used herein, the following terms have the following meanings:               “Assignee Group” means two or more Eligible Assignees that are Affiliates of one another        or two or more Approved Funds managed by the same investment advisor               “Eligible Assignee” means any Person that meets the requirements to be an assignee under        Section 10.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section        10.06(b)(iii)).               “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.               “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.         (h)   Electronic Execution of Assignments.  An Assignment and Assumption may be signed  electronically as provided in Section 10.19.         (i)   Special Purpose Funding Vehicles.  Notwithstanding anything to the contrary contained  herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such  in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an  “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be  obligated  to  make  pursuant  to  this  Agreement; provided that  (i)  nothing  herein  shall  constitute  a  commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise  fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan  pursuant to the terms hereof or, if it fails to do so, to make such payment to the Administrative Agent as  is required under Section 2.13(c)(ii).  Each party hereto hereby agrees that (i) neither the grant to any SPC  nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or  change the obligations of the Borrower under this Agreement (including its obligations under Section  3.04), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement  for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the  approval of any amendment, waiver or other modification of any provision of any Loan Document, remain  the lender of record hereunder.  The making of a Loan by an SPC hereunder shall utilize the Commitment  of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.  In  furtherance  of  the  foregoing,  each  party  hereto  hereby  agrees  (which  agreement  shall  survive  the  termination of this Agreement) that, prior to the date that is one year and one day after the payment in full  of all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or join  any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency,  or  liquidation  proceeding  under  the  laws  of  the  United  States  or  any  State  thereof.   Notwithstanding                                        73   4847-1285-6953 v.7  





 






 anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the   Borrower and the Administrative Agent and with the payment of a processing fee in the amount of $3,500   (which processing fee may be waived by the Administrative Agent in its sole discretion), assign all or any   portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose   on a confidential basis any non-public information relating to its funding of Loans to any rating agency,   commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such   SPC.          10.07 Confidentiality.  Each of the Administrative Agent and the Lenders agrees to maintain the  confidentiality of the Information (as defined below), except that (a) Information may be disclosed (i) to its  and its Affiliates' 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 requested by any regulatory authority or self-regulatory authority; (iii) to the  extent required by applicable laws or regulations or by any subpoena or similar legal process; (iv) to any  other party to this Agreement; (v) in connection with the exercise of any remedies hereunder or any suit,  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, to any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or  Participant in, any of its rights or obligations under this Agreement; (vii) with the consent of the Borrower;  (viii) to the extent such Information (A) becomes publicly available other than as a result of a breach of this  Section or (B) becomes available to the Administrative Agent or any Lender on a nonconfidential basis   from a source other than the Borrower; (ix) to the National Association of Insurance Commissioners or any   other similar organization exercising regulatory authority over a Lender; (x) on a confidential basis to the   CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP   numbers or other market identifiers with respect to the credit facility provided hereunder; or (xi) any ratings   agency;  and  (b)  subject  to  an  agreement  containing  provisions  substantially  the  same  as  those  of  this   Section, Information other than the Projections (as hereinafter defined) may be disclosed to any direct or  indirect  contractual  counterparty  or  prospective  counterparty  (or  such  contractual  counterparty’s  or  prospective counterparty’s professional advisor) to any swap or credit derivative transaction relating to  obligations  of  the  Borrower.   In  addition,  the  Administrative  Agent  and the  Lenders  may  disclose the  existence of this Agreement and general 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 and management of this Agreement, the other Loan Documents, the  Commitments, and the Borrowings.  For the purposes of this Section, “Information” means all information   received from the Borrower or any Subsidiary of Borrower, or any officer, director, employee, counsel, or   agent of Borrower or any of its Subsidiaries 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 or any   Lender on a nonconfidential basis prior to disclosure by the Borrower.  As used herein, “Projections” means   all financial projections prepared by the Borrower and furnished to the Lenders in connection with this   Agreement.  Any Person required to maintain the confidentiality of Information as provided in this Section  shall be considered to have complied with its obligation to do so if such Person has exercised the same  degree of care to maintain the confidentiality of such Information as such Person would accord to its own  confidential information.          Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may  include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b)  it has developed compliance procedures regarding the use of material non-public information and (c) it will  handle such material non-public information in accordance with applicable Law, including Federal and  state securities Laws.                                          74    4847-1285-6953 v.7  





 






       10.08 Set-off.  In addition to any rights and remedies of the Lenders provided by law, upon the  occurrence and during the continuance of any Event of Default, each Lender and its Affiliates are authorized  at any time and from time to time, without prior notice to the Borrower, any such notice being waived by  the Borrower to the fullest extent permitted by law, to set off and apply any and all deposits (general or  special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing  by, such Lender or any such Affiliate to or for the credit or the account of the Borrower against any and all  Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing,  irrespective of whether or not the Administrative Agent or such Lender shall have made demand under this  Agreement or any other Loan Document and although such Obligations may be contingent or unmatured  or denominated in a currency different from that of the applicable deposit or indebtedness; provided, that   in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off   shall be paid over immediately to the Administrative Agent for further application in accordance with the   provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from   its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and   (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in   reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of   setoff.  The rights of each Lender and its respective Affiliates under this Section are in addition to other  rights and remedies (including other rights of setoff) that such Lender or its respective Affiliates may have.   Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set-off   and application made by such Lender or any of its Affiliates; provided, however, that the failure to give   such notice shall not affect the validity of such set-off and application.          10.09 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.          10.10 Counterparts.  This Agreement may be executed in one or more counterparts, each of   which shall be deemed an original, but all of which together shall constitute one and the same instrument.          10.11 Integration.  This Agreement, together with the other Loan Documents, comprises the   complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes   all prior agreements, written or oral, on such subject matter.  In the event of any conflict between the   provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall   control; provided that the inclusion of supplemental rights or remedies in favor of the Administrative Agent   or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement.  Each Loan   Document was drafted with the joint participation of the respective parties thereto and shall be construed   neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.          10.12 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                                          75    4847-1285-6953 v.7  





 






 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 Borrowing, and shall continue in full force and effect as long as any Loan or   any other Obligation hereunder shall remain unpaid or unsatisfied.            10.13 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 10.13, 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, then such provisions shall be deemed to be in effect only to the extent not so limited.          10.14 Replacement of Lenders.  If any Lender requests compensation under Section 3.04, or if   the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for   the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender, or if the   Borrower exercises its right to replace non-consenting Lenders pursuant to Section 10.01,  or if any other   circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then   the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,   require  such  Lender  to  assign  and  delegate,  without  recourse  (in  accordance  with  and  subject  to  the   restrictions contained in, and consents required by, Section 10.06), all of its interests, rights and obligations   under this Agreement and the related Loan Documents to an 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 specified in   Section 10.06(b);          (b)   such Lender shall have received payment of an amount equal to 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;           (e)   in the case of any assignment resulting from a Lender becoming a non-consenting Lender   pursuant  to Section 10.01, the applicable assignee shall have consented to the applicable amendment,   assignment or consent; and          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.                                           76    4847-1285-6953 v.7  





 






       10.15 Governing Law.          (a)   THIS  AGREEMENT  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  IN   ACCORDANCE WITH, THE INTERNAL LAWS 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 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 THE BOROUGH  OF MANHATTAN    IN   NEW  YORK  CITY  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 OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING   RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  AGAINST  THE   BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY   JURISDICTION.          (c)   WAIVER    OF   VENUE.      THE   BORROWER     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   PARAGRAPH  (b)  OF  THIS  SECTION.   EACH  OF  THE  PARTIES  HERETO  HEREBY   IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE   DEFENSE  OF  AN  INCONVENIENT  FORUM  TO  THE  MAINTENANCE  OF  SUCH  ACTION  OR   PROCEEDING IN ANY SUCH COURT.          (d)   SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO   SERVICE  OF  PROCESS  IN  THE  MANNER  PROVIDED  FOR  NOTICES  IN SECTION 10.02.    NOTHING  IN  THIS  AGREEMENT  WILL  AFFECT  THE  RIGHT  OF  ANY  PARTY  HERETO  TO   SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.          10.16 Waiver of Right to Trial by Jury.  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                                          77    4847-1285-6953 v.7  





 






 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.          10.17 No  Advisory  or  Fiduciary  Responsibility.  In  connection  with  all  aspects  of  each   transaction contemplated hereby, the Borrower acknowledges and agrees, and acknowledges its Affiliates’   understanding, that: (i) the credit facility provided for hereunder and any related arranging or other services   in connection therewith (including in connection with any amendment, waiver or other modification hereof   or of any other Loan Document) are an arm’s-length commercial transaction between the Borrower, on the   one hand, and the Administrative Agent, the Lenders and the Arrangers and Bookrunners, on the other   hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms,   risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including   any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading   to such transaction, the Administrative Agent, each Lender and each Arranger and Bookrunner is and has   been acting solely as a principal with respect to the financing contemplated hereby and is not the financial   advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders, creditors or employees   or any other Person; (iii) none of the Administrative Agent, any Lender or any Arranger and Bookrunner   has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with   respect to any aspect of the financing contemplated hereby or the process leading thereto, including with   respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective   of whether the Administrative Agent or any Lender or Arranger and Bookrunner has advised or is currently   advising the Borrower or any of its Affiliates on other matters) and none of the Administrative Agent, any   Lender or any Arranger and Bookrunner has any obligation to the Borrower or any of its Affiliates with   respect to the financing contemplated hereby except those obligations expressly set forth herein and in the   other Loan Documents; (iv) the Administrative Agent, the Lenders and the Arrangers and Bookrunners and   their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ   from those of the Borrower and its Affiliates, and none of the Administrative Agent, any Lender or any   Arranger and Bookrunner has any obligation to disclose any of such interests by virtue of any advisory,   agency or fiduciary relationship; and (v) the Administrative Agent, the Lenders and the Arrangers and   Bookrunners have not provided and will not provide any legal, accounting, regulatory or tax advice with   respect  to  any  of  the  transactions  contemplated  hereby  (including  any  amendment,  waiver  or  other   modification  hereof  or  of  any  other  Loan  Document)  and  the  Borrower  has  consulted  its  own  legal,   accounting, regulatory and tax advisors to the extent it has deemed appropriate.  The Borrower hereby   waives  and  releases,  to  the  fullest  extent  permitted  by  law,  any  claims  that  it  may  have  against  the   Administrative Agent, the Lenders and the Arrangers and Bookrunners with respect to any breach or alleged   breach of agency or fiduciary duty.          10.18 USA PATRIOT Act Notice.  Each Lender that is subject to the Act (as hereinafter defined)  and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that  pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October  26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Borrower,   which information includes the name and address of the Borrower and other information that will allow  such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the  Act.  The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide  all documentation and other information that the Administrative Agent 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 Act.                                          78    4847-1285-6953 v.7  





 






       10.19 Electronic  Execution  of  Assignments  and  Certain  Other  Documents.   The  words  “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any  amendment  or  other  modification  hereof  (including  waivers  and  consents)  shall  be deemed  to  include  electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal  effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping  system, as the case may be, to the extent and as provided for in any applicable law, including the Federal  Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures  and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.          10.20 [Reserved].            10.21 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.          10.22 Acknowledgement  and  Consent  to  Bail-In  of  EEA  Financial  Institutions.    Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement   or understanding among any such parties, each party hereto acknowledges that any liability of any Lender   that  is  an  EEA  Financial  Institution  arising  under  any  Loan  Document,  to  the  extent  such  liability  is   unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and   agrees and consents to, and acknowledges and agrees to be bound by:          (a)   the  application  of  any  Write-Down and  Conversion  Powers  by  an  EEA  Resolution   Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an   EEA Financial Institution; and          (b)   the effects of any Bail-In Action on any such liability, including, if applicable:                (i)   a reduction in full or in part or cancellation of any such liability;                (ii) a conversion of all, or a portion of, such liability into shares or other instruments        of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that        may  be  issued  to  it  or  otherwise  conferred  on  it,  and  that  such  shares  or  other  instruments  of        ownership will be accepted by it in lieu of any rights with respect to any such liability under this        Agreement or any other Loan Document; or               (iii) the variation of the terms of such liability in connection with the exercise of the        Write-Down and Conversion Powers of any EEA Resolution Authority.                        [The remainder of this page is intentionally blank]                                              79    4847-1285-6953 v.7  





 






      IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as  of the date first above written.                                                              ONEOK, Inc.,                              as Borrower                                                                  By:   /s/ Walter S. Hulse III                                    Walter S. Hulse III, Chief Financial Officer                                    and Executive Vice President, Strategic                                    Planning and Corporate Affairs                            [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           MIZUHO BANK, LTD.,         as Administrative Agent                           By: /s/ Donna DeMagistris            Name: Donna DeMagistris            Title: Authorized Signatory                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           MIZUHO BANK, LTD.,         as a Lender                            By: /s/ Donna DeMagistris             Name: Donna DeMagistris             Title: Authorized Signatory                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           BANK OF AMERICA, N.A.,         as a Lender                           By: /s/ Kimberly Miller            Name: Kimberly Miller             Title: Vice President                [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           WELLS FARGO BANK, NATIONAL         ASSOCIATION,         as a Lender                           By: /s/ Nathan Starr            Name: Nathan Starr            Title: Vice President                                                 [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           JPMORGAN CHASE BANK, N.A.,         as a Lender                           By: /s/ Orlando Castaneda            Name: Orlando Castaneda            Title: Authorized Officer                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           THE BANK OF NOVA SCOTIA, HOUSTON         BRANCH,         as a Lender                           By: /s/ Joe Lattanzi            Name: Joe Lattanzi             Title: Managing Director                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           THE TORONTO-DOMINION BANK, NEW YORK         BRANCH,         as a Lender                           By: /s/ Annie Dorval            Name: ANNIE DORVAL            Title: AUTHORIZED SIGNATORY                                           [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                  MUFG BANK, LTD.,         as a Lender                           By: /s/ Christopher Facenda            Name: Christopher Facenda            Title: Director                                           [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           SUMITOMO MITSUI BANKING CORPORATION,         as a Lender                           By: /s/ James D. Weinstein            Name: James D. Weinstein             Title: Managing Director                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           ROYAL BANK OF CANADA,         as a Lender                           By: /s/ James R. Allred            Name: James R. Allred             Title: Authorized Signatory                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           REGIONS BANK,         as a Lender                           By: /s/ Brian Walsh            Name: Brian Walsh            Title: Director                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           U.S. BANK NATIONAL ASSOCIATION,         as a Lender                           By: /s/ Mark Salierno            Name: Mark Salierno             Title: Vice President                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           BRANCH BANKING AND TRUST COMPANY,         as a Lender                           By: /s/ Lincoln LaCour            Name: Lincoln LaCour             Title: Vice President             [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                  CREDIT SUISSE AG, CAYMAN ISLANDS         BRANCH,         as a Lender                           By: /s/ Nupur Kumar            Name: Nupur Kumar            Title: Authorized Signatory                           By: /s/ Christopher Zybrick            Name: Christopher Zybrick            Title: Authorized Signatory                                     [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           PNC BANK, NATIONAL ASSOCIATION,         as a Lender                           By: /s/ Stephen Monto            Name: Stephen Monto            Title: SVP                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           BOKF, NA DBA BANK OF OKLAHOMA         as a Lender                           By: /s/ J. Nick Cooper            Name: J. Nick Cooper            Title: Senior Vice President                   [Signature Page to ONEOK, Inc. Term Loan Agreement]  





 






                                           ARVEST BANK,         as a Lender                           By: /s/ Rick Gaut            Name: Rick Gaut            Title: Senior Vice President                  Commercial Loan Manager                            [Signature Page to ONEOK, Inc. Term Loan Agreement]