dycom2021-firstamendment






Execution Version  1  CHAR1\1787937v4 FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND FIRST  AMENDMENT TO PLEDGE AGREEMENT   THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND  FIRST AMENDMENT TO PLEDGE AGREEMENT (this “Agreement”), dated as of April 1, 2021 (the  “First Amendment Effective Date”), is entered into among Dycom Industries, Inc., a Florida corporation  (the “Borrower”), the Guarantors, the Lenders party hereto and Bank of America, N.A., as Administrative  Agent.  All capitalized terms used herein and not otherwise defined herein shall have the meanings given  to such terms in the Existing Credit Agreement or the Amended Credit Agreement (each as defined  below), as the context may require.  RECITALS  WHEREAS, the Borrower, the Guarantors, the Lenders party thereto and Bank of America, N.A.,  as Administrative Agent, Swingline Lender and L/C Issuer, have entered into that certain Amended and  Restated Credit Agreement, dated as of October 19, 2018 (as amended, amended and restated,  supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”);  WHEREAS, the Borrower and the Guarantors are party to that certain Amended and Restated  Pledge Agreement, dated as of October 19, 2018 (as amended, amended and restated, supplemented or  otherwise modified prior to the date hereof, the “Pledge Agreement”) in favor of the Administrative  Agent, on behalf of the Secured Parties; and  WHEREAS, the Credit Parties have requested that the Lenders amend the Existing Credit  Agreement and the Pledge Agreement as set forth below; and  WHEREAS, the Administrative Agent and the Lenders agree to provide such requested  amendments subject to the terms and conditions herein;  NOW, THEREFORE, in consideration of the premises and the mutual covenants contained  herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby  acknowledged, the parties hereto agree as follows:  1. Incorporation of Recitals.  The recitals to this Agreement are incorporated fully and made  a part of this Agreement.  2. Amendments to Existing Credit Agreement.  Effective as of the First Amendment  Effective Date, (a) the Existing Credit Agreement is hereby amended by this Agreement and for ease of  reference restated (after giving effect to this Agreement) in the form of Annex A hereto (the Existing  Credit Agreement, as so amended by this Agreement, being referred to as the “Amended Credit  Agreement”), (b) Schedule 2.01 (Commitments and Applicable Percentages), Schedule 6.11  (Subsidiaries), Schedule 8.01 (Indebtedness Existing on the Closing Date), Schedule 8.02 (Liens Existing  on the Closing Date) and Schedule 8.05 (Investments Existing on the Closing Date) are each hereby  amended to read as provided on Schedules 2.01, 6.11, 8.01, 8.02 and 8.05 attached hereto and (c) Exhibit  2.02 (Form of Loan Notice) is hereby amended and restated to read as provided on Exhibit 2.02 attached  hereto.  Except as expressly set forth above and therein, all Schedules and Exhibits to the Existing Credit  Agreement will continue in their present forms as Schedules and Exhibits to the Amended Credit  Agreement.  3. Amendment to Pledge Agreement.  A new Section 27 is hereby added to the Pledge  Agreement to read as follows:  Exhibit 10.1 





 






2  CHAR1\1787937v4 27. Acknowledgement Regarding Any Supported QFCs. The provisions and  acknowledgements contained in Section 11.20 of the Credit Agreement are hereby incorporated  into this Pledge Agreement, mutatis mutandis.  4. Conditions Precedent.  This Agreement shall be effective upon satisfaction (or waiver in  accordance with Section 11.01 of the Amended Credit Agreement) of the following conditions precedent:  (a) Execution of Agreement.  Receipt of counterparts of this Agreement executed by a duly  authorized officer of each of the Borrower, the Guarantors, the Administrative Agent and each Lender.  (b) Organization Documents, Resolutions, Etc.  Receipt of the following (or their equivalent)  for each Credit Party, each (other than with respect to clause (iv)) certified by the secretary or assistant  secretary of such Credit Party as of the First Amendment Effective Date to be true and correct and in  force and effect:  (i) Articles of Incorporation.  Copies of the articles of incorporation or charter  documents certified to be true and complete as of a recent date by the appropriate Governmental  Authority of the state of its organization, or, if applicable, a certificate of the secretary or assistant  secretary of such Credit Party as of the First Amendment Effective Date certifying that no  changes have been made to the articles of incorporation or charter documents of such Credit Party  since the date on which such documents were previously delivered to the Administrative Agent.  (ii) Resolutions.  Copies of resolutions of the board of directors or comparable  managing body approving and adopting this Agreement and the transactions contemplated herein  and authorizing execution and delivery hereof.  (iii) Bylaws.  Copies of the bylaws, operating agreement or partnership agreement or,  if applicable, a certificate of the secretary or assistant secretary of such Credit Party as of the First  Amendment Effective Date certifying that no change has been made to the bylaws, operating  agreement or partnership agreement of such Credit Party since the date on which such documents  were previously delivered to the Administrative Agent.  (iv) Good Standing.  Copies, where applicable, of certificates of good standing,  existence or its equivalent certified as of a recent date by the appropriate Governmental  Authorities of the State of organization.  (c) Legal Opinion.  Receipt of a New York counsel legal opinion and, to the extent requested  by the Administrative Agent, applicable local counsel opinions, covering the Borrower and the Material  Domestic Subsidiaries and relating to this Agreement, the other Credit Documents and the transactions  contemplated herein and therein, in form and substance reasonably acceptable to the Administrative  Agent.  (d) Financial Statements.  Receipt of (i) the consolidated audited financial statements of the  Borrower and its consolidated Subsidiaries for the Fiscal Years ended 2019, 2020 and 2021, including  balance sheets, income statements and cash flow statements audited by independent public accountants of  recognized national standing and prepared in conformity with GAAP and (ii) the unaudited consolidated  balance sheet and the related consolidated statements of comprehensive income or operations and cash  flows for the fiscal quarter ended October 31, 2020 of the Borrower and its consolidated Subsidiaries,  including the notes thereto.  





 






3  CHAR1\1787937v4 (e) Personal Property Collateral.  The Administrative Agent shall have received, in form and  substance reasonably satisfactory to the Administrative Agent:  (i) searches of UCC filings in the jurisdiction of incorporation or formation, as  applicable, of the Credit Parties, copies of the financing statements on file in such jurisdictions  evidencing that no Liens exist other than Permitted Liens and (B) tax lien, judgment and pending  litigation searches;  (ii) completed UCC financing statements for each appropriate jurisdiction as is  necessary to perfect the Administrative Agent’s security interest in the Collateral;  (iii) stock or membership certificates, if any, evidencing the Equity Interests pledged  to the Administrative Agent pursuant to the Pledge Agreement and duly executed in blank  undated stock or transfer powers; and  (iv) duly executed consents as are necessary to perfect the Lenders’ security interest  in the Collateral.  (f) No Material Adverse Effect.  There shall not have occurred since January 30, 2021 any  event or condition that has had or would be reasonably expected, either individually or in the aggregate,  to have a Material Adverse Effect.  (g) No Litigation.  The absence of any action, suit, investigation or proceeding pending or, to  the knowledge of the Credit Parties, threatened by or against any Credit Party or any of its Subsidiaries in  any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a  Material Adverse Effect.  (h) Existing Credit Agreement.  The Credit Parties shall have (i) paid all accrued and unpaid  interest on the Loans outstanding under the Existing Credit Agreement to the First Amendment Effective  Date, (ii) prepaid the Term Loan A outstanding under the Existing Credit Agreement to the extent  necessary to keep the outstanding Term Loan A ratable with the revised Term Loan A Commitments as of  the First Amendment Effective Date, (iii) prepaid any Revolving Loans outstanding under the Existing  Credit Agreement to the extent necessary to keep the outstanding Revolving Loans ratable with the  revised Revolving Commitments as of the First Amendment Effective Date, and (iv) paid all accrued fees  owing to the Lenders under the Existing Credit Agreement to the First Amendment Effective Date.  (i) Consents.  All boards of directors, governmental, shareholder and material third party  consents and approvals necessary in connection with the execution, delivery and performance of the  Credit Documents have been obtained.  (j) Due Diligence.  (i) Upon the reasonable request of any Lender made in writing at least  ten (10) days prior to the First Amendment Effective 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 five (5) days prior to the  First Amendment Effective Date and (ii) at least three (3) days prior to the First Amendment Effective  Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation,  the Borrower shall deliver, to each Lender that shall have made such request in writing at least ten (10)  days prior to the First Amendment Effective Date, a Beneficial Ownership Certification in relation to the  Borrower.  





 






4  CHAR1\1787937v4 (k) New Notes.  The Borrower shall have issued new senior unsecured notes in the aggregate  principal amount not to exceed $500,000,000 (or such other amount as shall be agreed with the  Administrative Agent) substantially simultaneously with, or prior to, the closing of this Agreement.  (l) Fees and Expenses.  Receipt by the Administrative Agent, the Joint Lead Arrangers and  the Lenders of all fees then owing on the First Amendment Effective Date and receipt by legal counsel to  the Administrative Agent of all reasonable and documented fees, expenses and disbursements required to  be paid on or before the First Amendment Effective Date to the extent invoiced at least three (3) business  days prior to the First Amendment Effective Date.  5. Miscellaneous.  (a) Effective as of the First Amendment Effective Date and pursuant to Section 2.06 of the  Existing Credit Agreement, the Borrower permanently reduces the Aggregate Revolving Commitments to  $650,000,000.  Each Lender party hereto hereby agrees that, upon giving effect to this Agreement, its  Term Loan A Commitment, Applicable Percentage of the Term Loan A, Revolving Commitment and  Applicable Percentage of the Revolving Commitment are as set forth opposite its name on Schedule 2.01  attached hereto.  On the date hereof, upon giving effect to this Agreement, the Borrower and each Lender  shall effect such assignments, prepayments, borrowings and reallocations as are necessary  (notwithstanding the minimum and multiple requirements set forth in Section 2.05(a) of the Existing  Credit Agreement)  to effectuate the modifications to Schedule 2.01 contemplated in this Agreement, in  each case such that, after giving effect thereto, each Lender will hold its respective Applicable Percentage  of the outstanding amount of the Term Loan A and Applicable Percentage of the Revolving Loans and  Revolving Commitments in accordance with Schedule 2.01 attached hereto (it being understood that (i)  some or all of the Term Loans A and Revolving Loans outstanding under the Existing Credit Agreement  may remain outstanding under the Amended Credit Agreement in accordance with the foregoing, and  upon such effectiveness shall be deemed Term Loans A or Revolving Loans, as applicable, and  outstanding under the Amended Credit Agreement and (ii) one or more Lenders that were party to the  Existing Credit Agreement may be prepaid some or all of its outstanding amount of Term Loans A or  Revolving Loans to effectuate the modification to Schedule 2.01 contemplated by this Agreement (and  such prepayments may not comply with the minimum and multiple requirements set forth in Section  2.05(a) of the Existing Credit Agreement)).  (b) Each Credit Party (i) agrees to all of the terms and conditions of this Agreement, (ii) agrees  that, except as expressly set forth in this Agreement, this Agreement and all documents executed and  delivered in connection herewith do not operate to reduce or discharge its obligations under the Existing  Credit Agreement or the other Credit Documents or any certificates, documents, agreements and  instruments executed in connection therewith, (iii) affirms all of its obligations under the Credit Documents,  (iv) agrees that this Agreement shall in no manner impair or otherwise adversely affect any of the Liens  granted in or pursuant to the Credit Documents and (v) affirms that each of the Liens granted in or  pursuant to the Credit Documents are valid and subsisting.  (c) Effective as of the First Amendment Effective Date, all references to the Credit  Agreement in each of the Credit Documents shall mean the Amended Credit Agreement.  This Agreement  is a Credit Document.  (d) Each of the Credit Parties hereby represents and warrants to the Administrative Agent as  follows:  (i) such Credit Party has taken all necessary action to authorize the execution,  delivery and performance of this Agreement;  





 






5  CHAR1\1787937v4 (ii) this Agreement has been duly executed and delivered by such Credit Party and  constitutes such Credit Party’s legal, valid and binding obligations, enforceable in accordance  with its terms, except as such enforceability may be subject to (A) bankruptcy, insolvency,  reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’  rights generally and (B) general principles of equity (regardless of whether such enforceability is  considered in a proceeding at law or in equity); and  (iii) no consent, approval, authorization or order of, or filing, registration or  qualification with, any court or governmental authority or third party is required in connection  with the execution, delivery or performance by such Credit Party of this Agreement.  (e) Each Credit Party represents and warrants to the Lenders that after giving effect to this  Agreement (i) the representations and warranties of such Credit Party set forth in Article VI of the  Amended Credit Agreement and the other Credit Documents are (x) with respect to representations and  warranties that contain a materiality qualification or are qualified by “Material Adverse Effect”, true and  correct (after giving effect to such materiality qualification or “Material Adverse Effect” qualification set  forth therein) and (y) with respect to representations and warranties that do not contain a materiality  qualification or are not qualified by “Material Adverse Effect”, true and correct in all material respects, as  of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such  representations and warranties expressly relate solely to an earlier date in which case such representations  and warranties were (A) with respect to representations and warranties that contain a materiality  qualification or are qualified by “Material Adverse Effect”, true and correct (after giving effect to such  materiality qualification or “Material Adverse Effect” qualification set forth therein) and (B) with respect  to representations and warranties that do not contain a materiality qualification or are not qualified by  “Material Adverse Effect”, true and correct in all material respects, in each case, as of such earlier date  and (ii) no Default exits.  (f) This Agreement may be executed in any number of counterparts, each of which when so  executed and delivered shall be an original, but all of which shall constitute one and the same agreement.   Delivery of an executed counterpart of this Agreement by telecopy, pdf or other similar electronic  transmission shall be effective as an original and shall constitute a representation that an executed original  shall be delivered.  (g) This Agreement shall be governed by, and construed in accordance with, the laws of the  State of New York.  (h) Banco de Sabadell, S.A., Miami Branch, in its capacity as a Lender under the Existing  Credit Agreement (the “Exiting Lender”), is signing this Agreement for the sole purposes of terminating  its Commitments under the Existing Credit Agreement.  As of the date hereof, (a) the Commitments of  the Exiting Lender shall be reduced to zero and the Exiting Lender shall cease to have any rights or duties  as a Lender under the Amended Credit Agreement and the other Credit Documents except for rights or  duties in respect of expense reimbursement and indemnification provisions in the Amended Credit  Agreement in favor of the Exiting Lender which by their express terms would survive termination of the  Existing Credit Agreement, (b) the Borrower shall pay (or cause to be paid) to the Exiting Lender all  outstanding Obligations owing to it substantially contemporaneously with the effectiveness of this  Agreement and thereafter shall have no obligations or liabilities to the Exiting Lender in its capacity as a  Lender other than obligations in respect of indemnity and reimbursement which by their express terms  would survive termination of the Existing Credit Agreement and (c) each Lender (other than the Exiting  Lender) agrees that, after giving effect to this Agreement, that it shall have the Commitments as reflected  on the amended and restated Schedule 2.01 attached hereto. 





 






6  CHAR1\1787937v4 [Signature pages follow]  





 






IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed  by a duly authorized officer as of the date first above written.  BORROWER: DYCOM INDUSTRIES, INC.,  a Florida corporation  By:  Name: H. Andrew DeFerrari  Title: Senior Vice President and Chief Financial Officer  GUARANTORS: ANSCO & ASSOCIATES, LLC  a Delaware limited liability company  APEX DIGITAL, LLC  a Delaware limited liability company  ATLANTIC COMMUNICATIONS SERVICES, LLC,  a Delaware limited liability company  BLAIR PARK SERVICES, LLC  a Delaware limited liability company  BROADBAND EXPRESS, LLC  a Delaware limited liability company  BROADBAND INSTALLATION SERVICES, LLC  a Delaware limited liability company  C-2 UTILITY CONTRACTORS, LLC  a Delaware limited liability company  CABLECOM, LLC  a Delaware limited liability company  CAVO BROADBAND COMMUNICATIONS, LLC  a Delaware limited liability company  CCLC, INC.  a Delaware corporation  By:  Name: H. Andrew DeFerrari  Title: Treasurer  [Signatures continue on next page]  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






COMMUNICATIONS CONSTRUCTION GROUP, LLC  a Delaware limited liability company  DYCOM CAPITAL MANAGEMENT, INC.  a Delaware corporation  DYCOM CORPORA IE IDENTITY, INC.  a Delaware corporation  DYCOM IDENTITY, LLC  a Delaware limited liability company  DYCOM INVESTMENTS, INC.  a Delaware corporation  ENGINEERING ASSOCIATES, LLC  a Georgia limited liability company  ERVIN CABLE CONSTRUCTION, LLC  a Delaware limited liability company  FIBER TECHNOLOGIES SOLUTIONS, LLC,  a Delaware limited liability company  GLOBE COMMUNICATIONS, LLC  a North Carolina limited liability company  GOLDEN STATE UTILITY CO.  a Delaware corporation  IVY H. SMITH COMPANY, LLC  a Delaware limited liability company  KANAAN COMMUNICATIONS, LLC,  a Delaware limited liability company  LAMBERT'S CABLE SPLICING COMPANY, LLC  a Delaware limited liability company  LOCATING, INC.  a Washington corporation  NEOCOM SOLUTIONS, LLC  a Georgia limited liability company  By:  CAA)  Name: H. Andrew DeFerrari  Title: Treasurer  [Signatures continue on next page]  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






NICHOLS CONSTRUCTION, LLC  a Delaware limited liability company  NIELS FUGAL SONS COMPANY, LLC  a Delaware limited liability company  NORTH SKY COMMUNICATIONS, LLC  a Delaware limited liability company  PARKSIDE SITE & UTILITY COMPANY CORPORATION  a Delaware corporation  PARKSIDE UTILITY CONSTRUCTION, LLC  a Delaware limited liability company  PAULEY CONSTRUCTION, LLC  an Arizona limited liability company  POINT TO POINT COMMUNICATIONS, INC.  a Louisiana corporation  PRECISION VALLEY COMMUNICATIONS OF VERMONT,  LLC  a Delaware limited liability company  PRINCE TELECOM, LLC  a Delaware limited liability company  PROFESSIONAL TELECONCEPTS, LLC  an Illinois limited liability company  PROFESSIONAL I ELECONCEPTS, LLC  a New York limited liability company  RJE TELECOM, LLC  a Delaware limited liability company  By:  Name: H. Andrew DeFerrari  Title: Treasurer  [Signatures continue on next page]  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






SAGE TELECOMMUNICATIONS CORP. OF COLORADO,  LLC  a Colorado limited liability company  SPECTRUM WIRELESS SOLUTIONS, LLC  a Delaware limited liability company  STAR CONSTRUCTION, LLC  a Delaware limited liability company  STEVENS COMMUNICATIONS, LLC  a Delaware limited liability company  TCS COMMUNICATIONS, LLC  a Delaware limited liability company  TELCOM CONSTRUCTION, LLC  a Minnesota limited liability company  TES1NC, LLC  a Delaware limited liability company  TEXSTAR ENTERPRISES, LLC  a Texas limited liability company  TJADER & HIGHSTROM UTILITY SERVICES, LLC  a Delaware limited liability company  TRAWICK CONSTRUCTION COMPANY, LLC  a Florida limited liability company  TRIPLE-D COMMUNICATIONS, LLC  a Delaware limited liability company  UNDERGROUND SPECIALTIES, LLC  a Delaware limited liability company  UTILIQUEST, LLC  a Georgia limited liability company  VCI CONSTRUCTION, LLC  a Delaware limited liability company  By:  Name: H. Andrew DeFerrari  Title: Treasurer  [Signatures continue on next page]  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






VCI UTILITY SERVICES HOLDINGS, LLC  a Delaware limited liability company,  WHITE MOUNTAIN CABLE CONSTRUCTION, LLC  a Delaware limited liability company  By:  Name: H. Andrew DeFerrari  Title: Treasurer  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






MIDTOWN EXPRESS, LLC  a Delaware limited liability company  By:  ots_41is  Name: William P. Healy  Title: President  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






OSP SERVICES, LLC  a Delaware limited liability company  By:  Name: Bo Anthony Pugh  Title: President  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






VCI UTILITY SERVICES, LLC  a Delaware limited liability company  By:  .0 .****4" . N : Frank G. Madera  Ale: President  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






DYCOM INDUSTRIES, INC.   FIRST AMENDMENT   ADMINISTRATIVE  AGENT: BANK OF AMERICA, N.A.,  as Administrative Agent  By:   Name: Aamir Saleem  Title: Vice President  





 






LENDERS: BANK OF AMERICA, N.A.,  as a Lender, L/C Issuer and Swingline Lender  By:  Name: Thor O'Connell  Title: Vice President  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






DYCOM INDUSTRIES, INC.   FIRST AMENDMENT  WELLS FARGO BANK, NATIONAL ASSOCIATION,  as a Lender and an L/C Issuer  By:   Name: Greg Strauss  Title: Managing Director    





 






"I'RUIST BANK, as a Lender and an L/C Issuer  By:  Name: William P. Rutkowski  Title: Director  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






  DYCOM INDUSTRIES, INC.   FIRST AMENDMENT   CITIZENS BANK, N.A., as a Lender   By:   Name: Tyler Stephens  Title: Vice President     





 






DYCOM INDUSTRIES, INC.   FIRST AMENDMENT  MUFG UNION BANK, N.A., as a Lender   By:   Name: Maria F. Maia  Title:  Director    





 






PNC BANK, NATIONAL ASSOCIATION, as a Lender  By: -  Name: am ullen  Title: Senior Vice President  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






  DYCOM INDUSTRIES, INC.   FIRST AMENDMENT  BMO HARRIS BANK, N.A., as a Lender   By:   Name: John Armstrong  Title: Managing Director      





 






  DYCOM INDUSTRIES, INC.   FIRST AMENDMENT  CAPITAL ONE, NATIONAL ASSOCIATION, as a  Lender   By:   Name: Neha H. Shah  Title: Duly Authorized Signatory  





 






FIFTH THIRD BANK, as a Lender  By:  Name: Trey Fogg  Title: Vice President  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






DYCOM INDUSTRIES, INC.   FIRST AMENDMENT  Internal  TD BANK, N.A., as a Lender   By:   Name: Steve Levi  Title: Senior Vice President  





 






DYCOM INDUSTRIES, INC.   FIRST AMENDMENT  BANK OF THE WEST, as a Lender   By:   Name: Scott Marshall  Title: Director    





 






DYCOM INDUSTRIES, INC.   FIRST AMENDMENT  GOLDMAN SACHS BANK USA, as a Lender   By:   Name: Ryan Durkin  Title:   Authorized Signatory    





 






SYNO K, a Lender  By:  Name: MICHAEL SAWICKI  Title: DIRECTOR  DYCOM INDUSTRIES, INC.  FIRST AMENDMENT  





 






DYCOM INDUSTRIES, INC.   FIRST AMENDMENT  BANCO DE SABADELL, S.A., MIAMI BRANCH, as  an Exiting Lender  By:  Name:  Title:  Ignacio Alcaraz Head of Structured Finance Americas 





 






CHAR1\1787937v4 Annex A  AMENDED CREDIT AGREEMENT  [See attached]  





 






ANNEX A  CHAR1\1785822v8 Deal Cusip: 26747FAK5  Revolver Cusip: 26747FAL3  Term Loan A Cusip: 26747FAM1  AMENDED AND RESTATED CREDIT AGREEMENT  Dated as of October 19, 2018  among  DYCOM INDUSTRIES, INC.,  as the Borrower,  THE SUBSIDIARIES OF THE BORROWER PARTY HERETO FROM TIME TO TIME,  as the Guarantors,  BANK OF AMERICA, N.A.,  as Administrative Agent, Swingline Lender and L/C Issuer,  and  THE OTHER LENDERS PARTY HERETO FROM TIME TO TIME  WELLS FARGO BANK, NATIONAL ASSOCIATION  and  TRUIST BANK,  as Co-Syndication Agents,  and  CITIZENS BANK, N.A.,  PNC BANK, NATIONAL ASSOCIATION,  MUFG UNION BANK, N.A.,  FIFTH THIRD BANK,  BMO HARRIS BANK N.A.,  CAPITAL ONE, NATIONAL ASSOCIATION   and  TD BANK, N.A.,  as Co-Documentation Agents  BOFA SECURITIES, INC.,   WELLS FARGO SECURITIES, LLC  and  TRUIST SECURITIES, INC.,  as Joint Lead Arrangers and Joint Bookrunners 





 






i  CHAR1\1785822v8 TABLE OF CONTENTS  ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS ..................................................................... 1 1.01 Definitions .......................................................................................................................... 1 1.02 Other Interpretive Provisions ............................................................................................ 39 1.03 Accounting Terms ............................................................................................................. 40 1.04 Rounding ........................................................................................................................... 42 1.05 Times of Day .................................................................................................................... 42 1.06 Letter of Credit Amounts .................................................................................................. 42 1.07 Rates ................................................................................................................................. 43 1.08 Certain Determinations ..................................................................................................... 43 ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS ..................................................... 43 2.01 Commitments .................................................................................................................... 43 2.02 Borrowings, Conversions and Continuations of Loans .................................................... 46 2.03 Letters of Credit ................................................................................................................ 47 2.04 Swingline Loans ............................................................................................................... 58 2.05 Prepayments ...................................................................................................................... 61 2.06 Termination or Reduction of Aggregate Revolving Commitments .................................. 63 2.07 Repayment of Loans ......................................................................................................... 64 2.08 Interest .............................................................................................................................. 64 2.09 Fees ................................................................................................................................... 65 2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate............. 66 2.11 Evidence of Debt .............................................................................................................. 66 2.12 Payments Generally; Administrative Agent’s Clawback .................................................. 67 2.13 Sharing of Payments by Lenders ...................................................................................... 69 2.14 Cash Collateral .................................................................................................................. 69 2.15 Defaulting Lenders ........................................................................................................... 70 2.16 Reverse Dutch Auction Prepayments ............................................................................... 73 2.17 Refinancing Facilities ....................................................................................................... 74 2.18 Amend and Extend Transactions ...................................................................................... 76 ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY ...................................................... 77 3.01 Taxes ................................................................................................................................. 77 3.02 Illegality ............................................................................................................................ 82 3.03 Inability to Determine Rates ............................................................................................. 82 3.04 Increased Costs ................................................................................................................. 83 3.05 Compensation for Losses .................................................................................................. 84 3.06 Mitigation Obligations; Replacement of Lenders ............................................................. 85 3.07 Successor LIBOR ............................................................................................................. 85 3.08 Survival ............................................................................................................................. 88 ARTICLE IV. GUARANTY ...................................................................................................................... 88 4.01 The Guaranty .................................................................................................................... 88 4.02 Obligations Unconditional ................................................................................................ 88 4.03 Reinstatement .................................................................................................................... 90 4.04 Certain Additional Waivers .............................................................................................. 90 4.05 Remedies ........................................................................................................................... 90 4.06 Rights of Contribution ...................................................................................................... 90 4.07 Guarantee of Payment; Continuing Guarantee ................................................................. 91 





 






ii  CHAR1\1785822v8 4.08 Keepwell ........................................................................................................................... 91 4.09 Appointment of Borrower ................................................................................................. 91 ARTICLE V. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS .............................................. 92 5.01 Conditions of Effectiveness .............................................................................................. 92 5.02 Conditions to all Credit Extensions .................................................................................. 94 ARTICLE VI. REPRESENTATIONS AND WARRANTIES ................................................................... 95 6.01 Financial Condition ........................................................................................................... 95 6.02 No Material Adverse Change............................................................................................ 96 6.03 Organization; Existence .................................................................................................... 96 6.04 Power; Authorization; Enforceable Obligations ............................................................... 96 6.05 Conflict ............................................................................................................................. 96 6.06 No Material Litigation ...................................................................................................... 96 6.07 No Default......................................................................................................................... 97 6.08 Taxes ................................................................................................................................. 97 6.09 ERISA ............................................................................................................................... 97 6.10 Governmental Regulations, Etc ........................................................................................ 97 6.11 Subsidiaries ....................................................................................................................... 98 6.12 Use of Proceeds ................................................................................................................ 98 6.13 Compliance with Laws ..................................................................................................... 98 6.14 Accuracy and Completeness of Information ..................................................................... 98 6.15 Environmental Matters ..................................................................................................... 99 6.16 Solvency............................................................................................................................ 99 6.17 Insurance ......................................................................................................................... 100 6.18 Anti-Corruption Laws ..................................................................................................... 100 6.19 Sanctions ......................................................................................................................... 100 6.20 Security Documents ........................................................................................................ 100 6.21 No Affected Financial Institution ................................................................................... 100 ARTICLE VII. AFFIRMATIVE COVENANTS ..................................................................................... 101 7.01 Financial Statements ....................................................................................................... 101 7.02 Certificates; Other Information ....................................................................................... 102 7.03 Notices ............................................................................................................................ 105 7.04 Maintenance of Existence; Compliance with Laws ........................................................ 105 7.05 Maintenance of Property; Insurance ............................................................................... 105 7.06 Inspection of Property; Books and Records; Discussions .............................................. 106 7.07 Financial Covenants ........................................................................................................ 106 7.08 Use of Proceeds .............................................................................................................. 107 7.09 Additional Guarantors ..................................................................................................... 107 7.10 Payment of Taxes ............................................................................................................ 108 7.11 Environmental Laws ....................................................................................................... 108 7.12 Pledged Equity Interests ................................................................................................. 108 7.13 Further Assurances ......................................................................................................... 109 7.14 Anti-Corruption Laws ..................................................................................................... 110 7.15 Sanctions ......................................................................................................................... 110 ARTICLE VIII. NEGATIVE COVENANTS .......................................................................................... 110 8.01 Indebtedness.................................................................................................................... 110 8.02 Liens ............................................................................................................................... 112 8.03 Nature of Business .......................................................................................................... 112 





 






iii  CHAR1\1785822v8 8.04 Consolidation, Merger, Sale or Purchase of Assets, Etc ................................................. 112 8.05 Advances; Investments and Loans .................................................................................. 114 8.06 Transactions with Affiliates ............................................................................................ 114 8.07 Fiscal Year; Organizational Documents ......................................................................... 115 8.08 Limitation on Restricted Actions .................................................................................... 115 8.09 Restricted Payments ........................................................................................................ 115 8.10 Sale and Leaseback Transactions .................................................................................... 117 8.11 No Further Negative Pledges .......................................................................................... 117 8.12 Capital Expenditures ....................................................................................................... 117 ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES ................................................................... 117 9.01 Events of Default ............................................................................................................ 118 9.02 Remedies upon Event of Default .................................................................................... 120 9.03 Application of Funds ...................................................................................................... 120 ARTICLE X. ADMINISTRATIVE AGENT ........................................................................................... 121 10.01 Appointment and Authority ............................................................................................ 122 10.02 Rights as a Lender ........................................................................................................... 122 10.03 Exculpatory Provisions ................................................................................................... 122 10.04 Reliance by Administrative Agent .................................................................................. 123 10.05 Delegation of Duties ....................................................................................................... 124 10.06 Resignation of Administrative Agent ............................................................................. 124 10.07 Non-Reliance on Administrative Agent and Other Lenders ........................................... 125 10.08 No Other Duties; Etc ....................................................................................................... 126 10.09 Administrative Agent May File Proofs of Claim; Credit Bids ....................................... 126 10.10 Collateral and Guaranty Matters ..................................................................................... 127 10.11 Secured Treasury Management Agreements and Secured Swap Contracts .................... 128 10.12 ERISA Matters ................................................................................................................ 128 ARTICLE XI. MISCELLANEOUS ......................................................................................................... 130 11.01 Amendments, Etc ............................................................................................................ 130 11.02 Notices; Effectiveness; Electronic Communications ...................................................... 132 11.03 No Waiver; Cumulative Remedies; Enforcement ........................................................... 134 11.04 Expenses; Indemnity; and Damage Waiver .................................................................... 134 11.05 Payments Set Aside ........................................................................................................ 136 11.06 Successors and Assigns .................................................................................................. 137 11.07 Treatment of Certain Information; Confidentiality ......................................................... 141 11.08 Set-off ............................................................................................................................. 142 11.09 Interest Rate Limitation .................................................................................................. 143 11.10 Counterparts; Integration; Effectiveness; Amendment and Restatement ....................... 143 11.11 Survival of Representations and Warranties ................................................................... 144 11.12 Severability ..................................................................................................................... 144 11.13 Replacement of Lenders ................................................................................................. 144 11.14 Governing Law; Jurisdiction; Etc ................................................................................... 145 11.15 Waiver of Right to Trial by Jury ..................................................................................... 146 11.16 No Advisory or Fiduciary Responsibility ....................................................................... 146 11.17 Electronic Execution ....................................................................................................... 147 11.18 Patriot Act Notice ........................................................................................................... 147 11.19 Acknowledgement and Consent to Bail-In of Affected Financial Institutions ............... 148 11.20 Acknowledgement Regarding Any Supported QFCs ..................................................... 148 





 






iv  CHAR1\1785822v8 SCHEDULES  1.01 Existing Letters of Credit  2.01 Commitments and Applicable Percentages  2.03 L/C Commitment  2.04 Swingline Commitment  6.11 Subsidiaries  8.01 Indebtedness Existing on the First Amendment Effective Date  8.02 Liens Existing on the First Amendment Effective Date  8.05 Investments Existing on the First Amendment Effective Date  11.02 Certain Addresses for Notices  EXHIBITS  2.01(c) Form of Lender Joinder Agreement  2.02 Form of Loan Notice  2.03 Form of Letter of Credit Report  2.04 Form of Swingline Loan Notice  2.05 Form of Notice of Loan Prepayment  2.11(a)-1 Form of Revolving Note  2.11(a)-2 Form of Swingline Note  2.11(a)-3 Form of Term Note  2.16 Form of Auction Procedures  3.01(e)-1-4 Form of U.S. Tax Compliance Certificates  5.01(d) Form of Secretary’s Certificate  5.01(j) Form of Solvency Certificate  7.02(b) Form of Compliance Certificate  7.09 Form of Guarantor Joinder Agreement  11.06(b) Form of Assignment and Assumption  





 






AMENDED AND RESTATED CREDIT AGREEMENT  This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of October 19,  2018 among DYCOM INDUSTRIES, INC., a Florida corporation (the “Borrower”), the Guarantors  (defined herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent,  Swingline Lender and L/C Issuer (each, as defined herein).  The Borrower is party to that certain Credit Agreement, dated as of December 3, 2012 (as  amended, supplemented or otherwise modified from time to time until (but not including) the Closing  Date, the “Existing Credit Agreement”) with the Borrower’s Subsidiaries party thereto, the lenders party  thereto and Bank of America, N.A., as administrative agent, swingline lender and L/C issuer.  The parties to this Credit Agreement desire to amend the Existing Credit Agreement as set forth  herein and to restate the Existing Credit Agreement in its entirety to read as follows.  This Credit  Agreement is not a novation of the Existing Credit Agreement.  The Borrower has requested that the Lenders provide the credit facilities specified herein for the  purposes set forth herein, 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 Definitions.  As used in this Credit Agreement, the following terms shall have the meanings set forth below:  “2021 Convertible Notes” means the Borrower’s convertible senior notes due September 15,  2021.  “Acceptable Intercreditor Agreement” means an intercreditor agreement on customary terms  reasonably acceptable to the Administrative Agent and the Required Lenders.  “Acquisition”, by any Person, means the acquisition by such Person, in a single transaction or in a  series of related transactions, of either (a) all or any substantial portion of the property of, or a line of  business or division of, another Person or (b) at least a majority of the Voting Stock of another Person, in  each case whether or not involving a merger or consolidation with such other Person.  “Additional Term Loan” has the meaning specified in Section 2.01(c).  “Administrative Agent” means Bank of America in its capacity as administrative agent under any  of the Credit 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 11.02 or such other address or account as the Administrative Agent may  from time to time notify to the Borrower and the Lenders in writing.  





 






2  “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the  Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “Affiliate” means, with respect to any Person, another Person that directly, or indirectly through  one (1) or more intermediaries, Controls or is Controlled by or is under common Control with the Person  specified.  “Agent Parties” has the meaning specified in Section 11.02(c).  “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.   The initial amount of the Aggregate Revolving Commitments in effect on the First Amendment Effective  Date is $650,000,000.  “Applicable Percentage” means, with respect to any Lender at any time, (a) with respect to such  Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of  the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such  time; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the  L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the  Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be  determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to  any subsequent assignments, and (b) with respect to each Lender providing a portion of any Term Loan,  the percentage (carried out to the ninth decimal place) the numerator of which is, prior to funding of the  applicable Term Loan, such Lender’s Term Loan Commitment, and after funding of the applicable Term  Loan, the principal amount of such Lender’s portion of the Term Loan, and the denominator of which is,  prior to funding of the applicable Term Loan, the aggregate principal amount of the applicable Term Loan  Commitments, and after funding of the applicable Term Loan, the Outstanding Amount of the applicable  Term Loan.  The Applicable Percentage of each Lender on the First Amendment Effective Date 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.  The Applicable Percentages shall be subject  to adjustment as provided in Section 2.15.  “Applicable Rate” means, with respect to the Commitment Fee, the Letter of Credit Fee and the  Loans, the following percentages per annum, based upon the Consolidated Net Leverage Ratio as set forth  in the most recent Compliance Certificate received by the Administrative Agent pursuant to  Section 7.02(b):  





 






3  Pricing  Tier Consolidated Net  Leverage Ratio Commitment  Fee Letter of Credit  Fee for Standby  Letters of  Credit Letter of Credit  Fee for  Commercial  Letters of  Credit Eurodollar  Rate Loans Base Rate  Loans 1 Greater than or  equal to 2.75:1.0 0.40% 2.00% 1.000% 2.00% 1.00%  2 Less than  2.75:1.0 but  greater than or  equal to 2.25:1.0 0.35% 1.75% 0.875% 1.75% 0.75%  3 Less than  2.25:1.0 but  greater than or  equal to 1.75:1.0 0.30% 1.625% 0.8125% 1.625% 0.625%  4 Less than  1.75:1.0 but  greater than or  equal to 1.25:1.0 0.25% 1.50% 0.750% 1.50% 0.50%  5 Less than  1.25:1.0 0.20% 1.25% 0.625% 1.25% 0.25%  Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Net Leverage  Ratio shall become effective as of the first Business Day immediately following the date a Compliance  Certificate is required to be delivered pursuant to Section 7.02(b); provided, however, that if a  Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request  of the Required Lenders, Pricing Tier 1 shall apply as of the first Business Day after the date on which  such Compliance Certificate was required to have been delivered (and if the Required Lenders do not  make such request the then applicable Pricing Tier in effect shall be maintained) and shall remain in  effect until the date on which such Compliance Certificate is delivered in accordance with Section  7.02(b), whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated  Net Leverage Ratio contained in such Compliance Certificate.  The Applicable Rate in effect from the  First Amendment Effective Date through the first Business Day immediately following the date a  Compliance Certificate is required to be delivered pursuant to Section 7.02(b) for the fiscal quarter ending  May 1, 2021 shall be determined based upon Pricing Tier 3.  The Applicable Rate with respect to any Additional Term Loan established after the First  Amendment Effective Date in accordance with the terms of Section 2.01(c) shall be percentages per  annum specified in the loan documentation whereby such Additional Term Loan is established.  “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.  “Assignment and Assumption” means an assignment and assumption entered into by a Lender  and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)),  and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06(b) or any other form  (including electronic documentation generated by MarkitClear or other electronic platform) approved by  the Administrative Agent.  “Attributable Indebtedness” means, with respect to any Person on any date, (a) in respect of any  Capital Lease, the capitalized amount thereof that would appear on a balance sheet of such Person  





 






4  prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, 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, (c) in respect of any Securitization Transaction, the outstanding principal amount of such  financing, after taking into account reserve amounts and making appropriate adjustments, determined by  the Administrative Agent in its reasonable judgment and (d) in respect of any Sale and Leaseback  Transaction, the present value (discounted in accordance with GAAP at the debt rate implied in the  applicable lease) of the obligations of the lessee for rental payments during the term of such lease.  “Attributable Receivables Amount” means the amount of obligations of the Borrower and/or its  Subsidiaries outstanding under trade or accounts receivable financing or sale transactions (including  supplier-financing programs or arrangements) or factoring transactions on any date of determination that  would be treated as principal in a secured lending transaction.  “Auction” has the meaning specified in Section 2.16(a).  “Auction Effective Date” has the meaning specified in Section 2.16(b).  “Auction Manager” has the meaning specified in Section 2.16(a).  “Auction Procedures” means the procedures set forth in Exhibit 2.16.  “Audited Financial Statements” means the audited consolidated balance sheet of the Borrower  and its consolidated Subsidiaries for the fiscal year ended January 30, 2021, and the related consolidated  statements of income or operations, shareholders’ equity and cash flows of the Borrower and its  consolidated Subsidiaries for such fiscal year, including the notes thereto.  “Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).  “Availability Period” means, with respect to the Revolving Commitments, the period from and  including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the  Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the date of termination of the  commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit  Extensions pursuant to Section 9.02.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law, rule, regulation or requirement for such EEA Member Country from time to time  which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law,  regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks,  investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).  “Bank of America” means Bank of America, N.A. and its successors.  “Bank of America Fee Letter” has the meaning specified in the definition of “Fee Letters”.  





 






5  “Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as  amended, modified, succeeded or replaced from time to time.  “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal  Funds Rate plus one half of one percent (0.50%), (b) the rate of interest in effect for such day as publicly  announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate plus one  percent (1.00%); and if Base Rate shall be less than zero, such rate shall be deemed zero for purposes of  this Credit Agreement.  The “prime rate” is a rate set by Bank of America based upon various factors  including Bank of America’s costs and desired return, general economic conditions and other factors, and  is used as a reference point for pricing some loans, which may be priced at, above, or below such  announced rate.  Any change in such “prime rate” announced by Bank of America shall take effect at the  opening of business on the day specified in the public announcement of such change.  “Base Rate Loan” means a Loan that bears interest based on the Base Rate.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership  required by the Beneficial Ownership Regulation, which certification shall be substantially similar in  form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers  published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities  Industry and Financial Markets Association.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Internal Revenue Code  or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of  Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit  plan” or “plan.”  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “Borrower” has the meaning specified in the introductory paragraph hereto.  “Borrower Materials” has the meaning specified in Section 7.02.  “Borrowing” means each of the following: (a) a borrowing of Swingline Loans pursuant to  Section 2.04 and (b) 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” has the meaning specified in Section 6.15(c).  “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks are authorized to close under the Laws of, or are in fact closed in, the state where the  Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan or any Base  Rate Loan bearing interest at a rate based on the Eurodollar Rate, means any such day that is also a  London Banking Day.  “Canadian Dollar” means the lawful money of Canada.  





 






6  “Capital Lease” means, as applied to any Person, any lease of any property (whether real,  personal or mixed) by that Person as lessee which, in accordance with GAAP, is or should be accounted  for as a capital lease on the balance sheet of that Person.  “Capital Lease Obligations” means with respect to any Person, the obligations of such Person to  pay rent or other amounts under any Capital Lease.  “Capped Call Transactions” means one or more call options (or substantively equivalent  derivative transaction) referencing the Borrower’s Equity Interests purchased by the Borrower (or a  Restricted Subsidiary) in connection with the issuance of Convertible Bond Indebtedness with a strike or  exercise price (howsoever defined) initially equal to the conversion price or exchange price (howsoever  defined) of the related Convertible Bond Indebtedness (subject to rounding) (whether settled in shares,  cash or a combination thereof) and limiting the amount deliverable to the Borrower (or a Restricted  Subsidiary) upon exercise thereof based on a cap or upper strike price (howsoever defined).  “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for  the benefit of the Administrative Agent, the L/C Issuer or the Swingline Lender (as applicable) and the  Lenders, as collateral for L/C Obligations, Obligations in respect of Swingline Loans, or obligations of  Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit  account balances or, if the L/C Issuer or the Swingline Lender benefitting from such collateral shall agree  in its sole discretion, other credit support, in each case pursuant to documentation in form and substance  satisfactory to (a) the Administrative Agent and (b) the L/C Issuer or the Swingline Lender (as  applicable).  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the  proceeds of such cash collateral and other credit support.  “Cash Equivalents” means: (a) (i) Dollars, (ii) Canadian Dollars and (iii) Euro; (b) securities  issued or directly and fully guaranteed or insured by (i) the United States government or any agency or  instrumentality of the United States government (provided that the full faith and credit of the United  States is pledged in support of those securities) or (ii) the government of any Participating Member State  or any agency or instrumentality of such Participating Member State (provided that the full faith and  credit of such Participating Member State is pledged in support of those securities) having maturities,  unless such securities are deposited to defease any indebtedness, of not more than one (1) year from the  date of acquisition or other securities issued by government agencies, including government sponsored  enterprises, having maturities of not more than one (1) year from the date of acquisition; (c) time deposits  maturing no more than thirty (30) days from the date of creation, certificates of deposit and eurodollar  time deposits with maturities of one (1) year or less from the date of acquisition, bankers’ acceptances  with maturities not exceeding one (1) year and overnight bank deposits, in each case, with any Lender  party to this Credit Agreement or with any domestic commercial bank having capital and surplus in  excess of $250,000,000; (d) repurchase obligations with a term of not more than thirty (30) days for  underlying securities of the types described in clauses (b) and (c) above entered into with any financial  institution meeting the qualifications specified in clause (c) above; (e) any money market deposit account  issued or offered by any Lender party to this Credit Agreement or with any U.S. commercial bank having  capital and surplus in excess of $250,000,000; (f) commercial paper having one of the three highest  ratings obtainable from Moody’s or S&P and in each case maturing within one (1) year after the date of  acquisition; (g) securities issued and fully guaranteed by any state, commonwealth or territory of the  United States of America, any Participating Member State or by any political subdivision or taxing  authority thereof, rated at least “BBB” (or any comparable rating) by Moody’s or S&P and having  maturities of not more than one (1) year from the date of acquisition; (h) money market funds that invest  primarily in Cash Equivalents of the kinds described in clauses (a) through (g) of this definition; and (i) in  the case of Subsidiaries of the Borrower that are not Domestic Subsidiaries, substantially similar  instruments to those set forth in clauses (a) through (h) above in the relevant jurisdiction. 





 






7  “Change in Law” means the occurrence, after the First Amendment Effective Date, of any of the  following: (a) the adoption or taking effect of any law, rule, regulation or treaty (b) any change in any  law, rule, regulation or treaty or in the administration, interpretation, implementation or application  thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or  directive (whether or not having the force of law) by any Governmental Authority; provided that  notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer  Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection  therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International  Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the  United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be  deemed to be a “Change in Law”, regardless of the date enacted, adopted, implemented or issued.  “Change of Control” means (a) any Person or two (2) or more Persons acting in concert shall  have acquired “beneficial ownership,” directly or indirectly, of, or shall have acquired by contract or  otherwise, or control over, Voting Stock of the Borrower (or other securities convertible into such Voting  Stock) representing thirty-five percent (35%) or more of the combined voting power of all Voting Stock  of the Borrower, or (b) Continuing Directors shall cease for any reason to constitute a majority of the  members of the board of directors of the Borrower then in office.  As used herein, “beneficial ownership”  shall have the meaning provided in Rule 13d-3 of the SEC under the Securities Act of 1934.  “Closing Date” means October 19, 2018.  “Collateral” means a collective reference to the Equity Interests with respect to which Liens in  favor of the Administrative Agent, for the benefit of itself and the Secured Parties, are purported to be  granted pursuant to and in accordance with the terms of the Security Documents.  “Collateral Release Date” means the date upon which the Borrower’s corporate family rating  from Moody’s and the corporate rating from S&P are at least Baa3 and BBB-, respectively (in each case  with a stable or better outlook) and the Borrower shall have delivered to the Administrative Agent  evidence of such ratings.  “Commitment” means, as to each Lender, the Revolving Commitment of such Lender and/or  each Term Loan Commitment of such Lender.  “Commitment Fee” has the meaning specified in Section 2.09(a).   “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as  amended from time to time, and any successor statute.  “Communication” has the meaning specified in Section 11.17.  “Compliance Certificate” means a certificate substantially in the form of Exhibit 7.02(b).  “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 Capital Expenditures” means, for any period, for the Borrower and its Restricted  Subsidiaries on a consolidated basis in accordance with GAAP, all capital expenditures but excluding  expenditures to the extent made (a) with the proceeds of any Recovery Event used to purchase property that  is useful in the business of the Borrower and its Subsidiaries, (b) in connection with any Permitted  Acquisition and (c) in connection with any Capital Leases.  





 






8  “Consolidated Capital Proceeds” means, for the applicable period, the proceeds from the sale of  property, plant or equipment and other fixed assets of the Borrower and its Restricted Subsidiaries on a  consolidated basis as determined in accordance with GAAP.  “Consolidated EBITDA” means, for the applicable period, the sum of (a) Consolidated Net  Income for such period, plus (b) an amount which, in the determination of Consolidated Net Income for  such period, has been deducted (or included) for (i) the Consolidated Interest Expense for such period  deducted in determining Consolidated Net Income, (ii) the income tax expense for such period deducted  in determining Consolidated Net Income, (iii) the aggregate amount of the depreciation expense and  amortization expense for such period to the extent deducted in determining Consolidated Net Income, (iv)  to the extent included in Consolidated Net Income, (A) non-cash purchase accounting adjustments in  accordance with GAAP and (B) cash purchase accounting adjustments for such period which have been  approved in writing by the Administrative Agent, (v) any extraordinary, non-recurring or unusual gains,  losses or charges for such period recorded in determining Consolidated Net Income, (vi) any non-cash  impairment charges for such period recorded in determining Consolidated Net Income, (vii) any non-cash  losses, expenses or charges (or minus any non-cash gains) for such period recorded in determining  Consolidated Net Income, (viii) any stock based compensation expense for such period recorded in  determining Consolidated Net Income, (ix) any Acquisition costs related to Permitted Acquisitions for  such period deducted in determining Consolidated Net Income for such period, (x) any restructuring  charges, integration costs or other business optimization expenses for such period deducted in  determining Consolidated Net Income for such period, (xi) charges incurred related to the extinguishment  of debt, including, but not limited to, the write-off of deferred financings fees, to the extent deducted in  determining Consolidated Net Income, (xii) any non-cash losses or charges (or minus any non-cash gains)  under any Swap Contract for such period recorded in determining Consolidated Net Income, and (xiii)  expected cost savings, operating expense reductions, restructuring charges and expenses and cost-saving  synergies projected by the Borrower in good faith to result from actions with which substantial steps have  been, will be, or are expected to be, taken within eighteen (18) months of such period; provided, that,  such items in this clause (xiii) are certified in a certificate of a Responsible Officer of the Borrower in  form and substance reasonably satisfactory to the Administrative Agent, in each case determined for the  Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP and subject to  Section 1.03; provided, that the aggregate amount added back pursuant to clauses (b)(iv)(B), (b)(ix),  (b)(x) and (b)(xiii) for any period shall not exceed the greater of (A) $65,000,000 and (B) 20% of  Consolidated EBITDA (calculated without giving effect to the add backs permitted pursuant to clauses  (b)(iv)(B), (b)(ix), (b)(x) and (b)(xiii)) for such period.  Unless expressly indicated otherwise, the  applicable period shall be for the four (4) consecutive fiscal quarters ending as of the date of computation.  “Consolidated Funded Debt” means Funded Debt of the Borrower and its Restricted Subsidiaries  on a consolidated basis.  “Consolidated Interest Expense” means, for the applicable period, all interest expense in  accordance with GAAP (including amortization of debt discount, premium and the interest component  under Capital Leases) of the Borrower and its Restricted Subsidiaries for such period.  Unless expressly  indicated otherwise, the applicable period shall be for the four (4) consecutive fiscal quarters ending most  recently prior to the date of computation.  “Consolidated Interest Coverage Ratio” means, for the applicable period, the ratio of  (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense paid or payable in cash  (excluding amortization of debt discount and premium, debt issuance costs paid in a previous period and  interest expense incurred on tax liabilities) during such period.  Unless expressly indicated otherwise, the  applicable period shall be for the four (4) consecutive quarters ending on the date of computation.  





 






9  “Consolidated Net Income” means, for the applicable period, net income of the Borrower and its  Restricted Subsidiaries on a consolidated basis.  Unless expressly indicated otherwise, the applicable  period shall be for the four (4) consecutive fiscal quarters ending most recently prior to the date of  computation.   “Consolidated Net Leverage Ratio” means the ratio of (a) Consolidated Funded Debt on the date  of computation minus unrestricted cash and Cash Equivalents of the Credit Parties in excess of  $25,000,000 as of the date of computation to (b) Consolidated EBITDA for the applicable period ending  on the date of computation.  Unless expressly indicated otherwise, the applicable period shall be for the  four (4) consecutive fiscal quarters ending most recently prior to the date of computation.  “Consolidated Net Tangible Assets” means, on the date of computation, (a) the amount of the  Borrower’s consolidated total assets minus (b) (i) all current liabilities and (ii) the amount of the  Borrower’s consolidated intangible assets, including, without limitation, goodwill, deferred financing  charges and intellectual property, in each case determined for the Borrower and its Subsidiaries on a  consolidated basis in accordance with GAAP.  “Consolidated Senior Secured Net Leverage Ratio” means the ratio of (a) Consolidated Funded  Debt on the date of computation less unrestricted cash and Cash Equivalents of the Credit Parties in  excess of $25,000,000 as of the date of computation, less Subordinated Indebtedness and less unsecured  Indebtedness, in each case, included in the calculation of Consolidated Funded Debt to (b) Consolidated  EBITDA for the applicable period ending on the date of computation.  Unless expressly indicated  otherwise, the applicable period shall be for the four (4) consecutive fiscal quarters ending most recently  prior to the date of computation.  “Consolidated Total Assets” means, on the date of computation, (a) the amount of the Borrower’s  consolidated total assets minus (b) the amount of the Borrower’s consolidated intangible assets, including,  without limitation, goodwill, deferred financing charges and intellectual property, in each case determined  for the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.  “Continuing Directors” means, during any period of up to twenty-four (24) consecutive months  commencing after the First Amendment Effective Date, individuals who at the beginning of such twenty- four (24) month period were directors of the Borrower (together with any new director whose election by  the Borrower’s board of directors or whose nomination for election by the Borrower’s shareholders was  approved by a vote of at least a majority of the directors then still in office who either were directors at  the beginning of such period or whose election or nomination for election was previously so approved).  “Contribution Share” has the meaning specified in Section 4.06.   “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.  “Convertible Bond Hedge Transactions” means one or more call options (or substantively  equivalent derivative transaction) referencing the Borrower’s Equity Interests purchased by the Borrower  (or a Restricted Subsidiary) requiring the counterparty thereto to deliver to the Borrower or such  Restricted Subsidiary shares of common stock of the Borrower, the cash value of such shares or a  combination thereof from time to time upon exercise of such option in connection with the issuance of  Convertible Bond Indebtedness with a strike or exercise price (howsoever defined) initially equal to the  conversion or exchange price (howsoever defined) of the related Convertible Bond Indebtedness (subject  to rounding).  





 






10  “Convertible Bond Indebtedness” means Indebtedness having a feature which entitles the holder  thereof to convert or exchange all or a portion of such Indebtedness into or by reference to Equity  Interests of the Borrower and, for the avoidance of doubt, including the 2021 Convertible Notes.  “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in,  and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in,  and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in,  and interpreted in accordance with, 12 C.F.R. § 382.2(b).  “Covered Party” has the meaning specified in Section 11.20.   “Credit Agreement” means this Amended and Restated Credit Agreement.  “Credit Documents” means this Credit Agreement, each Note, each Issuer Document, each  Guarantor Joinder Agreement, each Lender Joinder Agreement, the Security Documents, the First  Amendment Fee Letter and the Fee Letters. “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit  Extension.  “Credit Parties” means, collectively, the Borrower and each Guarantor.  “Debt Issuance” means the issuance by any Credit Party or any Restricted Subsidiary of any  Indebtedness other than Indebtedness permitted under Section 8.01.  “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,  bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,  reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from  time to time in effect and affecting the rights of creditors generally.  “Default” means any event or condition that constitutes an Event of Default or that, with the  giving of any notice, the passage of time, or both, would be an Event of Default.  “Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees,  an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate  Loans plus (iii) two percent (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 two percent (2%) per annum, in each case to the fullest extent  permitted by applicable Laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the  Applicable Rate plus two percent (2%) per annum.   “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund  all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be  funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that  such 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 and has not been waived in accordance with Section  11.01, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender or any other Lender  





 






11  any other amount required to be paid by it hereunder (including in respect of its participation in Letters of  Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the  Borrower, the Administrative Agent, the L/C Issuer or the Swingline Lender in writing that it does not  intend to comply with its funding obligations hereunder, or has made a public statement to that effect  (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and  states that such position is based on such Lender’s 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 and has not been waived in accordance with  Section 11.01), (c) has failed, within three (3) Business Days after written request by the Administrative  Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will  comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a  Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the  Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has,  (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver,  custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person  charged with reorganization or liquidation of its business or assets, including the Federal Deposit  Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii)  become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by  virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent  company thereof by a Governmental Authority so long as such ownership interest does not result in or  provide such Lender with immunity from the jurisdiction of courts within the United States or from the  enforcement of judgments or writs of attachment on its assets or permit such Lender (or such  Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made  with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender  under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be  conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender  (subject to Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written  notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the  L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.  “Designated Jurisdiction” means any country or territory to the extent that such country or  territory itself is the subject of any Sanctions.  “Discharged” means, with respect to any Indebtedness that has been fully defeased (pursuant to a  contractual or legal defeasance) or discharged in full pursuant to the irrevocable prepayment or deposit of  amounts sufficient to satisfy such Indebtedness as it becomes due or irrevocably called for redemption  (and regardless of whether such Indebtedness constitutes a liability on the balance sheet of the obligors  thereof).  “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including  any Sale and Leaseback Transaction) of any property by any Credit Party or any Restricted Subsidiary,  including any Sale and Leaseback Transaction and 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 any Recovery Event.  “Disqualified Stock” means any Equity Interest that, by its terms (or by the terms of any security  into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the  Equity Interest), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a  sinking fund obligation or otherwise, or redeemable at the option of the holder of the Equity Interest, in  whole or in part, on or prior to the date that is ninety-one (91) days after the Maturity Date.  Notwithstanding the preceding sentence, any Equity Interest that would constitute Disqualified Stock  





 






12  solely because the holders of the Equity Interest have the right to require the Borrower to repurchase such  Equity Interest upon the occurrence of a change of control or an asset sale will not constitute Equity  Interest if the terms of such Equity Interest provide that the Borrower may not repurchase or redeem any  such Equity Interest pursuant to such provisions unless such repurchase or redemption complies with the  provisions of Section 8.09. The amount of Disqualified Stock deemed to be outstanding at any time for  purposes of this Credit Agreement will be the maximum amount that the Borrower and its Restricted  Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption  provisions of, such Disqualified Stock, exclusive of accrued dividends.  “Dollar” and “$” mean lawful money of the United States.  “Domestic Subsidiary” means any Subsidiary that is organized and existing under the laws of the  United States or any state or commonwealth thereof or under the laws of the District of Columbia and that  is not a controlled foreign corporation under Section 957 of the Internal Revenue Code.  “Earn Out Obligations” means, with respect to an Acquisition, payments by the Borrower or any  Restricted Subsidiary required to be made as a result of reaching performance targets or milestones.  For  purposes of determining the aggregate consideration paid for an Acquisition at the time of such  Acquisition, the amount of any Earn Out Obligations shall be deemed to be the fair value in accordance  with GAAP of the earn out payments in respect thereof.  “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 clause (a) or (b) of this definition and is subject to consolidated supervision  with its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.  “Electronic Copy” has the meaning specified in Section 11.17.  “Electronic Record” has the meaning specified in Section 11.17.  “Electronic Signature” has the meaning specified in Section 11.17.  “Eligible Assignee” means any Person that meets the requirements to be an assignee under  Sections 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section  11.06(b)(iii)).  “Environmental Laws” means any and all applicable foreign, Federal, state, local or municipal  laws, rules, orders, regulations, statutes, ordinances, codes, decrees, legally enforceable requirements of  any Governmental Authority or other Requirement of Law (including common law) regulating, relating to  or imposing liability or standards of conduct concerning protection of human health or the environment,  as now or may at any time be in effect during the term of this Credit Agreement.  





 






13  “Environmental Liability” means any liability, contingent or otherwise (including any liability for  damages, costs of environmental remediation, fines, penalties or indemnities), of any Credit Party or any  Subsidiary 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 Materials of  Environmental Concern, (c) exposure to any Materials of Environmental Concern, (d) the release or  threatened release of any Materials of Environmental Concern 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.  “Equity Interests” means (a) in the case of a corporation, capital stock, (b) in the case of an  association or business entity, any and all shares, interests, participations, rights or other equivalents  (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether  general, preferred or limited), (d) in the case of a limited liability company, membership interests and  (e) any other interest or participation that confers or could confer on a Person the right to receive a share  of the profits and losses of, or distributions of assets of, the issuing Person, including, without limitation,  options, warrants and any other “equity security” as defined in Rule 3a11-1 of the Securities Exchange  Act of 1934, as amended; provided, however, that Equity Interests shall not include Convertible Bond  Indebtedness, Capped Call Transactions, Convertible Bond Hedge Transactions and Warrant  Transactions.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the  rules and regulations promulgated thereunder.  “ERISA Affiliate” means any trade or business (whether or not incorporated) under common  control with a Credit Party within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and  Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412  of the Internal Revenue Code).  “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal  of a Credit Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a  plan year in which such entity was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA)  or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a  complete or partial withdrawal by a Credit Party or any ERISA Affiliate from a Multiemployer Plan or  notification that a Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA; (d) the  filing of a notice of intent to terminate a Pension Plan; (e) the institution by the PBGC of proceedings to  terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of  ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; or (g) the  determination that any Pension Plan is considered an at-risk plan or a Multiemployer Plan is in  endangered or critical status within the meaning of Sections 430 and 432 of the Internal Revenue Code or  Sections 303 and 305 of ERISA.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.  “Euro” and “€” mean the single currency of the Participating Member States.  “Eurodollar Base 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 as administered by ICE Benchmark Administration  (or any other person that takes over the administration of such rate for Dollars for a  period equal  





 






14  in length to such Interest Period) (“LIBOR”), as published on the applicable Bloomberg screen  page (or such other commercially available source providing such quotations as may be  designated by the Administrative Agent in consultation with the Borrower from time to time) at  or at about 11:00 a.m., London time, two (2) 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 (2) Business  Days prior to such date for Dollar deposits with a term of one (1) month commencing that day.  If LIBOR shall be less than zero, such rate shall be deemed zero for purposes of this Credit  Agreement.  “Eurodollar Rate” means (a) for any Interest Period with respect to any Eurodollar Rate Loan, a  rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i)  the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest Period by (ii) one (1) minus the  Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest Period and (b) for any day  with respect to any Base Rate Loan the interest rate on which is determined by reference to the Eurodollar  Rate, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by  dividing (i) the Eurodollar Base Rate for such Base Rate Loan for such day by (ii) one (1) minus the  Eurodollar Reserve Percentage for such Base Rate Loan for such day.  “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the  definition of “Eurodollar Rate.”  “Eurodollar Reserve Percentage” means, for any day, the reserve percentage (expressed as a  decimal, carried out to five (5) decimal places) in effect on such day, whether or not applicable to any  Lender, under regulations issued from time to time by the FRB for determining the maximum reserve  requirement (including any emergency, supplemental or other marginal reserve requirement) with respect  to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).  The Eurodollar Rate for  each outstanding Eurodollar Rate Loan and for each outstanding Base Rate Loan the interest rate on  which is determined by reference to the Eurodollar Rate shall be adjusted automatically as of the effective  date of any change in the Eurodollar Reserve Percentage.  “Event of Default” has the meaning specified in Section 9.01.  “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and  to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of  a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under  the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading  Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s  failure for any reason to constitute an “eligible contract participant” as defined in the Commodity  Exchange Act (determined after giving effect to Section 4.08 and any other “keepwell, support or other  agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap  Obligations by other Credit Parties) at the time the Guaranty of such Guarantor, or a grant by such  Guarantor of a security interest, becomes effective with respect to such Swap Obligation.  If a Swap  Obligation arises under a master agreement governing more than one swap, such exclusion shall apply  only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or  security interest is or becomes excluded in accordance with the first sentence of this definition.  





 






15  “Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient  or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured  by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i)  imposed as a result of such Recipient being organized under the laws of, or having its principal office or,  in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any  political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S.  federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect  to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i)  such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment  request by the Borrower under Section 11.13) or (ii) such Lender changes its Lending Office, except in  each case to the extent that, pursuant to 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 immediately before it changed its Lending Office, (c) Taxes attributable to such  Recipient’s failure to comply with Section 3.01(e) and (d) any Taxes imposed pursuant to FATCA.  “Excess Payment” has the meaning specified in Section 4.06.  “Existing Credit Agreement” has the meaning specified in the recitals hereto.  “Existing Letters of Credit” means those standby letters of credit outstanding on the Closing Date  and identified on Schedule 1.01.  “Extended Revolving Commitment” means any Revolving Commitments the maturity of which  shall have been extended pursuant to Section 2.18.  “Extended Revolving Loans” means any Revolving Loans made pursuant to the Extended  Revolving Commitments.  “Extended Term Loans” means any Term Loans the maturity of which shall have been extended  pursuant to Section 2.18.  “Extension” has the meaning specified in Section 2.18(a).  “Extension Amendment” means an amendment to this Credit Agreement, in form and substance  reasonably satisfactory to the Borrower, the Administrative Agent and the Lenders effecting the  Extension in accordance with Section 2.18.  “Extension Offer” has the meaning specified in Section 2.18(a).   “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board.  “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Closing  Date (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with), any current or future regulations or official interpretations thereof, any  agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or  regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or  convention among Governmental Authorities and implementing such sections of the Internal Revenue  Code.   





 






16  “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the  rates on overnight federal funds transactions with members of the Federal Reserve System, as published  by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that  (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such  transactions on the next preceding Business Day as so published on the next succeeding Business Day, (b)  if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such  day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged  to Bank of America on such day on such transactions as determined by the Administrative Agent and (c)  if the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes of this  Credit Agreement.  “Fee Letters” means (a) the letter agreement dated as of the Closing Date, among the Borrower,  Wells Fargo and Wells Fargo Securities, (b) the letter agreement dated as of the Closing Date, among the  Borrower, Truist Bank (successor by merger to SunTrust Bank) and Truist Securities, Inc. (successor by  merger to SunTrust Robinson Humphrey, Inc.) and (c) the letter agreement dated as of the Closing Date,  among the Borrower, BofA Securities, Inc. (formerly known as Merrill Lynch, Pierce, Fenner & Smith  Incorporated) and Bank of America (the “Bank of America Fee Letter”).  “First Amendment Effective Date” means April 1, 2021.   “First Amendment Fee Letter” means the engagement letter agreement, dated as of March 9,  2021, between the Borrower and BofA Securities, Inc.   “Fixed Amounts” has the meaning specified in Section 1.08(b).  “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person,  and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a  jurisdiction other than that in which the Borrower is resident for tax purposes.  For purposes of this  definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute  a single jurisdiction. “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.  “FRB” means the Board of Governors of the Federal Reserve System of the United States.  “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C  Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than  L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the  Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than  Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders or Cash Collateralized in accordance with the terms hereof.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.  “Funded Debt” means, with respect to any Person, without duplication, (a) all obligations of such  Person for borrowed money, (b) all obligations of such Person evidenced by bonds (excluding  performance, payment and other surety bonds incurred in the ordinary course of business), debentures,  notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of  





 






17  such Person under conditional sale or other title retention agreements relating to property purchased by  such Person (other than customary reservations or retentions of title under agreements with suppliers  entered into in the ordinary course of business), (d) all obligations of such Person incurred, issued or  assumed as the deferred purchase price of property or services purchased by such Person (other than trade  debt incurred in the ordinary course of business and due within twelve (12) months of the incurrence  thereof) which would appear as liabilities on a balance sheet of such Person, including without limitation  Earn Out Obligations recognized as a liability on the balance sheet of the Borrower and its Restricted  Subsidiaries in accordance with GAAP, (e) the principal portion of all obligations of such Person under  Capital Leases, (f) all drafts drawn under letters of credit issued or bankers’ acceptances facilities created  for the account of such Person (to the extent unreimbursed), (g) all preferred Equity Interests issued by  such Person and which by the terms thereof could be (at the request of the holders thereof or otherwise)  subject to mandatory sinking fund payments prior to the date six (6) months after the Maturity Date,  redemption prior to the date six (6) months after the Maturity Date or other acceleration, (h) the  Attributable Indebtedness of any Sale and Leaseback Transaction, Securitization Transaction and  Synthetic Lease and, without duplication, the principal balance outstanding under any tax retention  operating lease, off-balance sheet loan or similar off-balance sheet financing product, (i) all Indebtedness  of others of the type described in clauses (a) through (h) hereof secured by (or for which the holder of  such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or  payable out of the proceeds of production from, property owned or acquired by such Person, whether or  not the obligations secured thereby have been assumed, provided that so long as such Indebtedness is  non-recourse to such Person, only the portion of such obligations which is secured shall constitute  Indebtedness hereunder, (j) all Guaranty Obligations of such Person with respect to Indebtedness of  another Person of the type described in clauses (a) through (h) hereof, and (k) all Indebtedness of the type  described in clauses (a) through (h) hereof of any partnership or unincorporated joint venture in which  such Person is a general partner or a joint venturer; provided, however, that Funded Debt shall not include  (i) Indebtedness among the Credit Parties and the Restricted Subsidiaries to the extent such Indebtedness  would be eliminated on a consolidated basis, (ii) any Indebtedness that has been Discharged, (iii) any  amount in respect of any Permitted Receivables Transaction, (iv) any Attributable Receivables Amount,  (v) the stated amount of all letters of credit (including, without limitation, the Letters of Credit) and (vi)  all Swap Obligations.  Notwithstanding the foregoing, the term “Funded Debt” shall be deemed not to  include any operating lease or operating lease liability.   “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  and as in effect from time to time and subject to the terms of Section 1.03.  “Governmental Authority” means the government of the United States of America, or any other  nation, or of any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,  judicial, taxing, regulatory or administrative powers or functions of or pertaining to government  (including any supra-national bodies such as the European Union or the European Central Bank).  “Guarantor Joinder Agreement” means a Guarantor Joinder Agreement in substantially the form  of Exhibit 7.09, executed and delivered by each Person that becomes a Guarantor in accordance with the  provisions of Section 7.09.  “Guarantors” means (a) any of the Domestic Subsidiaries identified as a “Guarantor” on the  signature pages hereto, (b) any Person which executes and delivers a Guarantor Joinder Agreement in  





 






18  accordance with the terms of this Credit Agreement and (c) with respect to Obligations owing by any  Credit Party or any Subsidiary of a Credit Party (other than the Borrower) under any Swap Contract or  any Treasury Management Agreement, the Borrower, together with their successors and permitted  assigns, in each case until the Guaranty of such Person is released in accordance with the terms of this  Credit Agreement.  “Guaranty” means the guaranty of the Guarantors set forth in Article IV.  “Guaranty Obligations” means, with respect to any Person, without duplication, any obligations  of such Person (other than endorsements in the ordinary course of business of negotiable instruments for  deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any  manner, whether direct or indirect, and including without limitation any obligation, whether or not  contingent, (a) to purchase any such Indebtedness or any property constituting security therefor, (b) to  advance or provide funds or other support for the payment or purchase of any such Indebtedness or to  maintain working capital, solvency or other balance sheet condition of such other Person (including  without limitation keep well agreements, maintenance agreements, comfort letters or similar agreements  or arrangements) for the benefit of any holder of Indebtedness of such other Person, (c) to lease or  purchase property, securities or services primarily for the purpose of assuring the holder of such  Indebtedness, or (d) to otherwise assure or hold harmless the holder of such Indebtedness against loss in  respect thereof.  The amount of any Guaranty Obligation hereunder shall (subject to any limitations set  forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum  principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.  “HMT” has the meaning specified in the definition of “Sanctions”.  “Honor Date” has the meaning specified in Section 2.03(c)(i).  “IFRS” means international accounting standards within the meaning of IAS Regulation  1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to  herein.  “Immaterial Domestic Subsidiary” means any Domestic Subsidiary of the Borrower that is not a  Material Domestic Subsidiary.  “Immaterial Foreign Subsidiary” means any Foreign Subsidiary of the Borrower that is not a  Material Foreign Subsidiary.  “Immaterial Guarantor” means a Guarantor designated as an “Immaterial Guarantor” on Schedule  6.11, as such schedule may be amended from time to time, and that is not required to be a Guarantor  pursuant to Section 7.09(b).  “Incremental Credit Facilities” has the meaning specified in Section 2.01(c).  “Incurrence Based Amounts” has the meaning specified in Section 1.08(b).  “Indebtedness” means, with respect to any Person, without duplication, (a) all obligations of such  Person for borrowed money, (b) all obligations of such Person evidenced by bonds (excluding  performance, payment and other surety bonds incurred in the ordinary course of business), debentures,  notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of  such Person under conditional sale or other title retention agreements relating to property purchased by  such Person (other than customary reservations or retentions of title under agreements with suppliers  





 






19  entered into in the ordinary course of business), (d) all obligations of such Person issued or assumed as  the deferred purchase price of property or services purchased by such Person (other than trade debt  incurred in the ordinary course of business and due within twelve (12) months of the incurrence thereof)  which would appear as liabilities on a balance sheet of such Person, (e) all obligations of such Person  under take-or-pay or similar arrangements or under commodities agreements, (f) all Indebtedness of  others secured by (or for which the holder of such Indebtedness has an existing right, contingent or  otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property  owned or acquired by such Person, whether or not the obligations secured thereby have been assumed,  provided that so long as such Indebtedness is non-recourse to such Person, only the portion of such  obligations which is secured shall constitute Indebtedness hereunder, (g) all Guaranty Obligations of such  Person with respect to Indebtedness of another Person, (h) the principal portion of all obligations of such  Person under Capital Leases, (i) all net obligations of such Person under Swap Contracts, (j) the  maximum amount of all letters of credit issued or bankers’ acceptances facilities created for the account  of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (k) all  preferred Equity Interests issued by such Person and which by the terms thereof could be (at the request  of the holders thereof or otherwise) subject to mandatory sinking fund payments prior to the date six (6)  months after the Maturity Date, redemption prior to the date six (6) months after the Maturity Date or  other acceleration, (l) the principal balance outstanding under any Synthetic Lease, tax retention operating  lease, off-balance sheet loan or similar off-balance sheet financing product, and (m) the Indebtedness of  any partnership or unincorporated joint venture in which such Person is a general partner or a joint  venturer.  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 Capital Lease or Synthetic Lease  obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof  as of such date and the amount in respect of any Permitted Receivables Transaction shall not constitute  indebtedness.  Notwithstanding the foregoing, the term “Indebtedness” shall be deemed not to include any  operating lease or operating lease liability. “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 Credit Party under any Credit Document and  (b) to the extent not otherwise described in (a), Other Taxes.  “Indemnitee” has the meaning specified in Section 11.04(b).  “Information” has the meaning specified in Section 11.07.  “Insolvency” means, with respect to any Multiemployer Plan, the condition that such plan is  insolvent within the meaning of such term as used in Section 4245 of ERISA.  “Interest Payment Date” means, (a) as to any Base Rate Loan (including Swingline Loans), the  last Business Day of each March, June, September and December, the Maturity Date and the date of the  final principal amortization payment on any Term Loan and, in the case of any Swingline Loan, any other  dates as may be mutually agreed upon by the Borrower and the Swingline Lender, and (b) as to any  Eurodollar Rate Loan, the last Business Day of each Interest Period for such Loan, the date of repayment  of principal of such Loan, the Maturity Date and the date of the final principal amortization payment on  any Term Loan, and in addition, where the applicable Interest Period exceeds three (3) months, the date  every three (3) months after the beginning of such Interest Period.  If an Interest Payment Date falls on a  date that is not a Business Day, such Interest Payment Date shall be deemed to be the immediately  succeeding Business Day.  “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  





 






20  ending on the date one (1), two (2), three (3) or six (6) months thereafter (in each case, subject to  availability), or such other period that is twelve (12) months or less requested by the Borrower and  consented to by all the Lenders, as selected by the Borrower in its Loan Notice; provided that:  (a) any Interest Period that would otherwise end on a day that is not a Business Day  shall be extended to the next succeeding Business Day unless such Business Day falls in another  calendar month, in which case such Interest Period shall end on the next preceding Business Day;  (b) any Interest Period that begins on the last Business Day of a calendar month (or  on a day for which there is no numerically corresponding day in the calendar month at the end of  such Interest Period) shall end on the last Business Day of the calendar month at the end of such  Interest Period;  (c) no Interest Period shall extend beyond the Maturity Date; and  (d) no Interest Period with respect to any Term Loan shall extend beyond any  principal amortization payment date, except to the extent that the portion of such Loan comprised  of Eurodollar Rate Loans that is expiring prior to the applicable principal amortization payment  date plus the portion comprised of Base Rate Loans equals or exceeds the principal amortization  payment then due.  “Interim Financial Statements” means the unaudited consolidated balance sheet and the related  consolidated statements of comprehensive income or operations for the fiscal quarter ended July 28, 2018,  and cash flows for the six (6) months ended July 28, 2018, of the Borrower and its consolidated  Subsidiaries for such fiscal quarter and period, including the notes thereto.  “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.  “Investment” means all investments, in cash or by delivery of property made, directly or  indirectly in, to or from any Person, whether by acquisition of shares of Equity Interests, property, assets,  indebtedness or other obligations or securities or by loan advance, capital contribution or otherwise.  “IRS” means the United States Internal Revenue Service.  “ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and  Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or  any successor definitional booklet for interest rate derivatives published from time to time by the  International Swaps and Derivatives Association, Inc. or such successor thereto.  “ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”  published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as  may be in effect at the time of issuance).  “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,  and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or  any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.  “Joint Lead Arrangers” means BofA Securities, Inc., Wells Fargo Securities and Truist Securities,  Inc., in their capacities as joint lead arrangers and joint bookrunners.  





 






21   “L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in  any L/C Borrowing in accordance with its Applicable Percentage.  “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of  Credit which has not been reimbursed on the date when due or refinanced as a Borrowing of Revolving  Loans.  “L/C Commitment” means, as to each L/C Issuer, its obligation to issue Letters of Credit pursuant  to Section 2.03 in an aggregate principal amount at any one time outstanding not to exceed the amount set  forth opposite its name on Schedule 2.03, as such amount may be adjusted from time to time in  accordance with this Credit Agreement.  “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or  extension of the expiry date thereof, or the increase of the amount thereof.  “L/C Issuer” means (a) with respect to the Existing Letters of Credit, the issuer of those letters of  credit as identified on Schedule 1.01, (b) Bank of America in its capacity as issuer of Letters of Credit  hereunder, (c) Wells Fargo in its capacity as issuer of Letters of Credit hereunder, (d) Truist Bank in its  capacity as issuer of Letters of Credit hereunder and/or (e) any Lender appointed by the Borrower (with  the consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed) as  an additional L/C Issuer pursuant to Section 2.03(l) or a replacement for any L/C Issuer who is at the time  of such appointment a Defaulting Lender, in each case in its capacity as an issuer of Letters of Credit  pursuant to Section 2.03 and together with its successors and assigns.  Any reference in this Credit  Agreement or any other Credit Document to the L/C Issuer shall be deemed to be a reference to all L/C  Issuers or to any one of them, as the context may require. “L/C Obligations” means, as at any date of determination, the aggregate amount available to be  drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including  all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of  Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  For all  purposes of this Credit Agreement, if on any date of determination a Letter of Credit has expired by its  terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,  such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be  drawn.  “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, binding requests, licenses, authorizations and permits of, and agreements with, any Governmental  Authority, in each case whether or not having the force of law. Specifically, for purposes of Section 3.01,  the term “Laws” includes FATCA.  “LCT Test Date” has the meaning specified in Section 1.03(d).  “Lead Lenders” means Bank of America, Wells Fargo and Truist Bank.  “Lender Joinder Agreement” means a joinder agreement, substantially in the form of Exhibit  2.01(c), executed and delivered in accordance with the provisions of Section 2.01(c).  





 






22  “Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, each  other Person that becomes a “Lender” in accordance with this Credit Agreement and their successors and  assigns and, as the context requires, includes the Swingline Lender.  “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.  “Letter of Credit” means any letter of credit issued hereunder and shall include the Existing  Letters of Credit.  A Letter of Credit may be a commercial letter of credit or a standby letter of credit.  “Letter of Credit Application” means an application and agreement for the issuance or  amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.  “Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date  then in effect (or, if such day is not a Business Day, the next preceding Business Day).  “Letter of Credit Fee” has the meaning specified in Section 2.03(h).  “Letter of Credit Report” means a report substantially in the form of Exhibit 2.03 or such other  form as may be approved by the Administrative Agent (including any form on an electronic platform or  electronic transmission system as shall be approved by the Administrative Agent).  “Letter of Credit Sublimit” means an amount equal to the lesser of (a) $200,000,000 and (b) the  Aggregate Revolving Commitments.  The Letter of Credit Sublimit is part of, and not in addition to, the  Aggregate Revolving Commitments.  “LIBOR” has the meaning specified in the definition of “Eurodollar Base Rate”.   “LIBOR Replacement Date” has the meaning specified in Section 3.07(a).  “LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative  Agent designates to determine LIBOR (or such other commercially available source providing such  quotations as may be designated by the Administrative Agent from time to time).  “LIBOR Successor Rate” has the meaning specified in Section 3.07(a).  “LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR  Successor Rate, any conforming changes to the definition of Base Rate, Eurodollar Base Rate, Interest  Period, timing and frequency of determining rates and making payments of interest and other technical,  administrative or operational matters (including, for the avoidance of doubt, the definition of Business  Day, timing of borrowing requests or prepayment, conversion or continuation notices and length of  lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the  adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by  the Administrative Agent in a manner substantially consistent with market practice (or, if the  Administrative Agent determines that adoption of any portion of such market practice is not  administratively feasible or that no market practice for the administration of such LIBOR Successor Rate  exists, in such other manner of administration as the Administrative Agent determines is reasonably  necessary in connection with the administration of this Credit Agreement and any other Credit  Document).  





 






23  “Limited Condition Transaction” means (a) a Permitted Acquisition or other Investment  permitted pursuant to Section 8.05 that is not conditioned on the availability of, or on obtaining, third  party financing, or (b) any repayment, redemption, repurchase or other discharge of any Indebtedness  requiring irrevocable notice in advance thereof.   “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security  interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind (including  any conditional sale or other title retention agreement, any financing or similar statement or notice filed  under the Uniform Commercial Code as adopted and in effect in the relevant jurisdiction or other similar  recording or notice statute, and any lease in the nature thereof).  “Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a  Revolving Loan, Swingline Loan or Term Loan.  “Loan Notice” means a notice of (a) a Borrowing of Revolving Loans or Term Loans, (b) a  conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, in each  case pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit 2.02 or  such other form as may be approved by the Administrative Agent  (including any form on an electronic  platform or electronic transmission system as shall be approved by the Administrative Agent),  appropriately completed and signed by a Responsible Officer of the Borrower.  “Loan Party” has the meaning specified in Section 10.13.   “London Banking Day” means any day on which dealings in Dollar deposits are conducted by  and between banks in the London interbank eurodollar market.  “Material Adverse Effect” means a material adverse effect on (a) the business, assets, financial  condition or liabilities of the Credit Parties and the Restricted Subsidiaries, taken as a whole, (b) the  ability of the Credit Parties, taken as a whole, to perform their obligations, when such obligations are  required to be performed, under this Credit Agreement, any of the Notes or any other Credit Document or  (c) the validity or enforceability of this Credit Agreement, any of the Notes or any of the other Credit  Documents or the material rights or remedies of the Administrative Agent or the Lenders hereunder or  thereunder.  “Material Domestic Subsidiary” means any Domestic Subsidiary of the Borrower that is a  Restricted Subsidiary that either:  (a) owns assets included in Consolidated Total Assets having a book  value equal to or greater than seven and one-half percent (7.5%) of Consolidated Total Assets as of the  most recent fiscal quarter ended or (b) that accounted for Consolidated EBITDA for the most recently  ended period of four (4) consecutive fiscal quarters equal to or greater than seven and one-half percent  (7.5%) of Consolidated EBITDA for the same four (4) fiscal quarter period.  “Material Foreign Subsidiary” means any Foreign Subsidiary of the Borrower that is a Restricted  Subsidiary that either:  (a) owns assets included in Consolidated Total Assets having a book value equal  to or greater than seven and one-half percent (7.5%) of Consolidated Total Assets as of the most recent  fiscal quarter ended or (b) that accounted for Consolidated EBITDA for the most recently ended period of  four (4) consecutive fiscal quarters equal to or greater than seven and one-half percent (7.5%) of  Consolidated EBITDA for the same four (4) fiscal quarter period.  “Materials of Environmental Concern” 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  





 






24  medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental  Law.  “Maturity Date” means as to the Revolving Loans, the Term Loan A, the Swingline Loans and  the Letters of Credit (and the related L/C Obligations), April 1, 2026; provided, however, that, in each  case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.  “Maximum Rate” has the meaning specified in Section 11.09.  “Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting  of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the  existence of a Defaulting Lender, an amount equal to one hundred percent (100%) of the Fronting  Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (ii) with  respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the  provisions of Section 2.14(a)(i), (a)(ii) or (a)(iii), an amount equal to one hundred percent (100%) of the  Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the  Administrative Agent and the L/C Issuer in their sole discretion.  “MNPI” means material non-public information of the Borrower.  “Moody’s” means Moody’s Investors Service, Inc., or any successor or assignee of the business  of such company in the business of rating securities.  “Multiemployer Plan” means any employee benefit plan of the type described in  Section 4001(a)(3) of ERISA, to which any Credit Party or any ERISA Affiliate makes or is obligated to  make contributions, or during the preceding five (5) plan years, has made or been obligated to make  contributions.  “Multiple Employer Plan” means a Plan which has two (2) or more contributing sponsors  (including any Credit Party or any ERISA Affiliate) at least two (2) of whom are not under common  control, as such a plan is described in Section 4064 of ERISA.  “Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds actually received  by any Credit Party or any Restricted Subsidiary in respect of any Disposition, Debt Issuance or Recovery  Event, net of (a) direct costs incurred in connection therewith (including, without limitation, legal,  accounting and investment banking fees, and sales commissions), (b) taxes paid or payable as a result  thereof and (c) in the case of any Disposition or any Recovery Event, the amount necessary to retire any  Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the  related property; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash  or Cash Equivalents actually received upon the sale or other disposition of any non-cash consideration  received by any Credit Party or any Restricted Subsidiary in any Disposition, Debt Issuance or Recovery  Event.  Net Cash Proceeds shall not include any cash payments held in escrow until such time as such  amounts are released from escrow.  “Non-Consenting Lender” has the meaning specified in Section 11.13.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.  “Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).  





 






25  “Notes” means the Revolving Notes, the Swingline Note and the Term Notes, individually or  collectively, as appropriate.  “Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall  be substantially in the form of Exhibit 2.05 or such other form as may be approved by the Administrative  Agent (including any form on an electronic platform or electronic transmission system as shall be  approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.  “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of,  any Credit Party arising under any Credit Document or otherwise with respect to any Loan or Letter of  Credit, 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 Credit 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.  The foregoing shall also include (a) all  obligations under any Swap Contract between any Credit Party or any Subsidiary and any Swap Contract  Provider that is permitted to be incurred pursuant to Section 8.01(e) and (b) all obligations under any  Treasury Management Agreement between any Credit Party and any Treasury Management Bank;  provided that the Obligations shall exclude any Excluded Swap Obligations.  “OFAC” means the Office of Foreign Assets Control of the United States Department of the  Treasury.   “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in  any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any  Loan or Credit Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible, recording,  filing or similar Taxes that arise from any payment made under, from the execution, delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest under, or  otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).  “Outstanding Amount” means (a) with respect to any Loans on any date, the aggregate  outstanding principal amount thereof after giving effect to any borrowings and prepayments or  repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date,  the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension  occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such  date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.  “Participant” has the meaning specified in Section 11.06(d).  “Participant Register” has the meaning specified in Section 11.06(d).  “Participating Member State” means any member state of the European Union that has the Euro  as its lawful currency in accordance with legislation of the European Union relating to Economic and  Monetary Union.  





 






26  “Patriot Act” has the meaning specified in Section 11.18.  “PBGC” means the Pension Benefit Guaranty Corporation.  “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan,  but excluding a Multiemployer Plan) that is maintained or is contributed to by any Credit Party and any  ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding  standards under Section 412 of the Internal Revenue Code.  “Permitted Acquisition” means any Acquisition or any series of related Acquisitions by a Credit  Party of the assets or a majority of the Voting Stock of a Person or any division, line of business or other  business unit of a Person (such Person or such division, line of business or other business unit of such  Person referred to herein as the “Target”), in each case that is a type of business (or assets used in a type  of business) permitted to be engaged in by the Credit Parties and their Subsidiaries pursuant to Section  8.03 hereof, so long as (a) no Default or Event of Default shall then exist or would exist after giving effect  thereto (subject, in the case of a Limited Condition Transaction, to Section 1.03(d)), (b) the Credit Parties  shall demonstrate to the reasonable satisfaction of the Administrative Agent that the Credit Parties will be  in compliance on a Pro Forma Basis with all of the terms and provisions of the financial covenants set  forth in Section 7.07 as of the end of the most recently ended fiscal quarter (after giving effect to any  increase of the Consolidated Net Leverage Ratio enacted pursuant to Section 7.07(a)) (subject, in the case  of a Limited Condition Transaction, to Section 1.03(d)), (c) if public, such Acquisition is not a “hostile”  Acquisition and has been approved by the board of directors, shareholders and/or comparable governing  body of the applicable Credit Party and the Target, (d) the Credit Parties shall have complied to the  reasonable satisfaction of the Administrative Agent with the documentation requirements in Section  7.02(d) and (e) Total Consideration paid for all Acquisitions of Persons incorporated, formed or organized  in any jurisdiction other than any state of the United States or the District of Columbia shall not exceed  $200,000,000 during the period from the First Amendment Effective Date through the Maturity Date.  “Permitted Dispositions” means Dispositions permitted under Section 8.04(a)(i), (ii), (iii), (iv),  (v), (vii)(A), (vii)(B)(1), (ix) and (x).  “Permitted Investments” means:  (a) cash and Cash Equivalents and other Investments existing as of the First  Amendment Effective Date and set forth on Schedule 8.05;  (b) receivables owing to the Borrower or any of its Restricted Subsidiaries or any  receivables and advances to suppliers, in each case if created, acquired or made in the ordinary  course of business and payable or dischargeable in accordance with customary trade terms;  (c) Investments by any Credit Party to any other Credit Party;  (d) loans and advances to officers, directors and employees in the ordinary course of  business in an aggregate amount not to exceed $5,000,000 at any time outstanding; provided that  such loans and advances shall comply with all applicable Requirements of Law;  (e) Investments (including debt obligations) received in connection with the  bankruptcy or reorganization of suppliers and customers and in settlement of delinquent  obligations of, and other disputes with, customers and suppliers arising in the ordinary course of  business;  





 






27  (f) any assignment of intellectual property from the Borrower or any Restricted  Subsidiary to (i) any Restricted Subsidiary or (ii) any Unrestricted Subsidiary if, at the time of  such assignment, such intellectual property has not been registered with the U.S. Patent and  Trademark Office, the U.S. Copyright Office or any other governmental authority in the United  States or any other jurisdiction.  (g) Investments, acquisitions or transactions permitted under Sections 8.04(b)(ii)(B),  (C) and (D);  (h) Permitted Acquisitions;  (i) Investments in Swap Contracts to the extent permitted by Section 8.01(e);  (j) Investments (i) in wholly owned Unrestricted Subsidiaries in an aggregate  amount outstanding at any time not to exceed the greater of (A) $150,000,000 and (B) fifteen  percent (15%) of Consolidated Net Tangible Assets, (ii) in non-wholly owned Unrestricted  Subsidiaries in an aggregate amount outstanding at any time not to exceed the greater of (A)  $30,000,000 and (B) five percent (5%) of Consolidated Net Tangible Assets, and (iii) in non- wholly owned Restricted Subsidiaries, in an aggregate amount outstanding at any time not to  exceed the greater of (A) $30,000,000 and (B) five percent (5%) of Consolidated Net Tangible  Assets;  (k) (i) Investments in wholly owned Restricted Subsidiaries that are Domestic  Subsidiaries and (ii) Investments in wholly owned Restricted Subsidiaries that are Foreign  Subsidiaries in an aggregate amount outstanding at any time not to exceed the greater of (A)  $60,000,000 and (B) ten percent (10%) of Consolidated Net Tangible Assets;   (l) to the extent constituting Investments, Investments in Convertible Bond Hedge  Transactions, Capped Call Transactions and Warrant Transactions; and  (m) additional Investments of a nature not contemplated by the foregoing clauses  hereof; provided that such Investments made pursuant to this clause and outstanding at any time  shall not exceed the greater of (i) $100,000,000 and (ii) ten percent (10%) of Consolidated Net  Tangible Assets.  “Permitted Liens” means  (a) Liens in favor of a Swap Contract Provider in connection with a Swap Contract  that is (i) between a Credit Party or its Subsidiary and a Swap Contract Provider and (ii)  permitted under Section 8.01(e);  (b) Liens securing purchase money Indebtedness and Capital Lease Obligations to  the extent permitted under Section 8.01(c); provided, that (i) any such Lien attaches to such  property concurrently with or within ninety (90) days after the acquisition thereof and (ii) such  Lien attaches solely to the property so acquired in such transaction;  (c) Liens for taxes, assessments, charges or other governmental levies not yet due or  as to which the period of grace, if any, related thereto has not expired or which are being  contested in good faith by appropriate proceedings, provided that adequate reserves with respect  thereto are maintained on the books of the Borrower or its Restricted Subsidiaries, as the case  may be, in conformity with GAAP;  





 






28  (d) 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  sixty (60) days or which are being contested in good faith by appropriate proceedings;  (e) pledges or deposits in connection with workers’ compensation, unemployment  insurance and other social security legislation and deposits securing liability to insurance carriers  under insurance or self-insurance arrangements incurred in the ordinary course of business;  (f) deposits or other Liens to secure the performance of bids, trade contracts (other  than for borrowed money), leases, statutory obligations, appeal bonds, performance, payment or  other surety bonds, and any other obligations of a like nature incurred in the ordinary course of  business;  (g) Liens existing on the First Amendment Effective Date and set forth on Schedule  8.02; provided that no such Lien shall at any time be extended to cover property or assets other  than the property or assets subject thereto on the First Amendment Effective Date;  (h) easements, rights-of-way, restrictions (including zoning restrictions), minor  defects or irregularities in title and other similar charges or encumbrances not, in any material  respect, impairing the use of the encumbered Property for its intended purpose;  (i) any extension, renewal or replacement (or successive extensions, renewals or  replacements), in whole or in part, of any Lien referred to in the foregoing clauses and in clauses  (j), (k) and (m); provided that such extension, renewal or replacement Lien shall be limited to all  or a part of the property which secured the Lien so extended, renewed or replaced;  (j) Liens securing Indebtedness incurred pursuant to Section 8.01(i), provided that  such Liens do not secure obligations in excess of $75,000,000 in the aggregate at any time  outstanding;  (k) bankers’ Liens, rights of setoff and other similar Liens existing solely with  respect to cash and Cash Equivalents on deposit in one (1) or more accounts maintained by any  Credit Party or a Restricted Subsidiary arising in the ordinary course of business from netting  services, overdraft protection, cash management obligations and otherwise in connection with the  maintenance of deposit, securities and commodities accounts;  (l) Liens on property of a Person existing at the time such Person is merged into or  consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the  Borrower; provided that (i) such Liens were not created in contemplation of such merger,  consolidation or investment and do not extend to any assets other than those of the Person merged  into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such  Subsidiary and (ii) such Liens do not secure obligations in excess of $75,000,000 in the aggregate  at any time outstanding;   (m) Liens on deposits with respect to Indebtedness that has been Discharged;   (n) Liens (i) solely on Receivables sold in a Permitted Receivables Transaction, the  agreements governing the Receivables included in such Permitted Receivables Transaction, the  rights under any such agreements, the proceeds thereof and the accounts into which such  proceeds are paid, and (ii) securing Attributable Receivables Amounts solely on Receivables  which are the subject of related trade or accounts receivable financings or sale transactions  





 






29  (including supplier-financing programs or arrangements) or related factoring transactions, the  agreements governing the Receivables included in such financings or transactions, the rights  under any such agreements, the proceeds thereof and the accounts into which such proceeds are  paid;  (o) Liens arising from precautionary UCC financing statements or similar or  analogous financing statements in any jurisdiction and the filing of UCC financing statements or  similar or analogous financing statements in any jurisdiction by bailees and consignees in the  ordinary course of business; and  (p) other Liens not described above, provided that such Liens do not secure  obligations in excess of $75,000,000 in the aggregate at any time outstanding.  “Permitted Receivables Transaction” means a trade or accounts receivable financing or sale  transaction (including supplier-financing programs or arrangements) or factoring transactions (excluding  for the avoidance of doubt any securitization transaction) whereby the Borrower and/or one or more of its  Subsidiaries sells, assigns, conveys or otherwise transfers Receivables to or for the benefit of one or more  third parties; provided that (a) such transaction is made non-recourse to the Borrower and its Subsidiaries  (subject to customary indemnification and repurchase obligations, including, but not limited to, those  based on a breach of obligations under the relevant receivables purchase agreement or the agreement  underlying any Receivables, incorrect or misleading representations and warranties, Receivables failing to  meet any eligibility criteria, any failure by an insurer of Receivables to honor claims, title defects,  illegality, false misleading or incomplete information, exclusion of cover under any insurance in respect  of any Receivables, dilution, third party claims, or Receivables becoming subject to any asserted defense,  dispute, off-set or counterclaim) and otherwise on terms customary for comparable “non-recourse” or  “limited recourse” receivables purchase transactions in the good faith judgment of the Borrower, (b) such  transaction does not provide for the sale, transfer, disposition or pledge of, or otherwise create any interest  in, any asset other than the Receivables, and (c) the aggregate amount of Receivables sold, assigned,  conveyed or otherwise transferred in any fiscal quarter shall not exceed (i) with respect to Receivables  owing from AT&T Services Inc. and/or one or more of its Subsidiaries or affiliates, the greatest of (A)  $400,000,000, (B) the highest quarterly revenue resulting from AT&T Services Inc. and its Subsidiaries  and affiliates in any fiscal quarter occurring during the period of four consecutive fiscal quarters ending  immediately prior to such fiscal quarter (adjusted on a pro forma basis for acquired businesses, it being  understood that, for purposes of this calculation (x) any Person that becomes a Subsidiary or affiliate of  AT&T Services Inc. during the fiscal quarter in which such calculation is made or during the period of  four consecutive fiscal quarters ending immediately prior to such fiscal quarter shall be considered to  have been a Subsidiary or affiliate of AT&T Services Inc. during the entire immediately preceding four  fiscal quarter period, and (y) any Person that becomes a Subsidiary or affiliate of the Borrower or any  Restricted Subsidiary or any asset acquisition by the Borrower or any Restricted Subsidiary during the  fiscal quarter in which such calculation is made or during the period of four consecutive fiscal quarters  ending immediately prior to such fiscal quarter shall be considered to have been a Subsidiary or affiliate  of the Borrower or any Restricted Subsidiary, as applicable, or shall be considered to have been  consummated, as the case may be, during the entire immediately preceding four fiscal quarter period) and  (C) the quarterly revenue expected to result from AT&T Services Inc. and its Subsidiaries and affiliates  during the then-current fiscal quarter as determined by the Borrower in good faith (adjusted on a pro  forma basis for acquired businesses, it being understood that, for purposes of this determination (x) any  Person that becomes or is reasonably expected to become a Subsidiary of affiliate of AT&T Services Inc.  during the then-current fiscal quarter shall be considered to have been a Subsidiary or affiliate of AT&T  Services Inc. since the commencement of such fiscal quarter, and (y) any Person that becomes or is  reasonably expected to become a Subsidiary of affiliate of the Borrower or any Restricted Subsidiary or  any asset acquisition by the Borrower or any Restricted Subsidiary during the then-current fiscal quarter  





 






30  shall be considered to have been a Subsidiary or affiliate of the Borrower or any Restricted Subsidiary, as  applicable, or shall be considered to have been consummated, as the case may be, since the  commencement of such fiscal quarter) and (ii) with respect to all other Receivables, $150,000,000.  “Permitted Refinancing” means any extension, renewal, refinancing, refunding, exchange,  amendment or replacement of any existing Indebtedness so long as any such extended, renewed,  refinanced, refunded, exchanged or amended or replaced Indebtedness (a) does not include an obligor that  was not an obligor with respect to the Indebtedness being extended, renewed, refinanced, refunded,  exchanged, amended or replaced (unless any such new obligor is added as Guarantor hereunder) and (b)  does not exceed the principal amount of the Indebtedness being extended, renewed, refinanced, refunded,  exchanged, amended or replaced plus any premium and any  reasonable fees, expenses and other  financing costs payable in connection therewith, including in connection with the exercise or early  unwind of a Convertible Bond Hedge Transaction, a Capped Call Transaction or a Warrant Transaction (it  being understood that any premium paid as part of a refinancing of any Convertible Bond Indebtedness,  including in connection with the repurchase, redemption, retirement or defeasance of any Convertible  Bond Indebtedness or to exercise or early unwind or settle the Convertible Bond Hedge Transaction, a  Capped Call Transaction or a Warrant Transaction shall be deemed to be reasonable).  “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or other entity.  “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA,  maintained for employees of any Credit Party or any ERISA Affiliate or any such Plan to which any  Credit Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.  “Platform” has the meaning specified in Section 7.02.  “Pledge Agreement” means the Pledge Agreement, dated as of the Closing Date, executed and  delivered in favor of the Administrative Agent for the benefit of the Secured Parties by each of the Credit  Parties.  “Pledgor” has the meaning specified in the Pledge Agreement.  “Pre-Adjustment Successor Rate” has the meaning specified in Section 3.07(a).  “Pro Forma Basis” means, with respect to any transaction or series of transactions (other than  Acquisitions), that for purposes of calculating the financial covenants set forth in Section 7.07, such  transaction or series of transactions shall be deemed to have occurred as of the first day of the most recent  four (4) fiscal quarter period preceding the date of such transaction or series of transactions for which  financial statements were required to be delivered pursuant to Section 7.01(a) or (b) or, with respect to  any Acquisition, such Acquisition shall be deemed to have occurred as of the first day of the most recent  four (4) fiscal quarter period preceding the date of such transaction for which financial statements are  available for the Target.  In connection with the foregoing, (a) with respect to any Disposition (other than  Permitted Dispositions) or Recovery Event, (i) income statement items (whether positive or negative)  attributable to the property disposed of shall be excluded to the extent relating to any period occurring  prior to the date of such transaction or series of transactions and (ii) Indebtedness which is retired shall be  excluded and deemed to have been retired as of the first day of the applicable period and (b) with respect  to any Acquisition, (i) income statement items of an ongoing nature that are attributable to the Person or  property acquired shall be included to the extent relating to any period applicable in such calculations to  the extent (A) such items are not otherwise included in such income statement items for the Borrower and  its Restricted Subsidiaries in accordance with GAAP or in accordance with any definitions set forth in  





 






31  Section 1.01 and (B) such items are supported by financial statements or other information reasonably  satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by any Credit  Party or any Restricted Subsidiary (including the Person or property acquired) in connection with such  transaction or series of transactions and any Indebtedness of the Person or property acquired which is not  retired in connection with such transaction or series of transactions (A) shall be deemed to have been  incurred as of the first day of the applicable period and (B) if such Indebtedness has a floating or formula  rate, shall have an implied rate of interest for the applicable period for purposes of this definition  determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the  relevant date of determination.  “Projections” has the meaning specified in Section 6.14.  “Properties” has the meaning specified in Section 6.15(a).  “Public Lender” has the meaning specified in Section 7.02.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  “QFC Credit Support” has the meaning specified in Section 11.20.   “Qualified ECP Guarantor” means, at any time, each Credit Party with total assets exceeding  $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity  Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time  under §1a(18)(A)(v)(II) of the Commodity Exchange Act.  “Qualified Permitted Acquisition” has the meaning specified in Section 7.07(a).  “Qualified Permitted Acquisition Pro Forma Calculation” means, to the extent required in  connection with determining the permissibility of any Permitted Acquisition that constitutes a Qualified  Permitted Acquisition, the calculations required by clause (b) in the definition of “Permitted Acquisition”.  “Ratable Share” has the meaning specified in Section 4.06.  “Receivables” means trade or accounts receivable of the Borrower or any of its Subsidiaries  arising in the ordinary course of business, any proceeds thereof and any general intangibles, documents,  instruments, records or other assets related thereto.  “Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of  any payment to be made by or on account of any obligation of any Credit Party hereunder.  “Recovery Event” means the receipt by the Borrower or any of its Subsidiaries of any cash  insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or  damage, taking or similar event with respect to any of their respective property or assets but excluding  cash receipts in the ordinary course of business.  “Refinancing Amendment” means an amendment to this Credit Agreement, in form and  substance reasonably satisfactory to the Borrower, the Administrative Agent, the Lenders providing  Specified Refinancing Facilities and, in the case of any Specified Refinancing Revolving Loans or  Specified Refinancing Revolving Commitments, the L/C Issuers, effecting the incurrence of such  Specified Refinancing Facilities in accordance with Section 2.17.  





 






32  “Register” has the meaning specified in Section 11.06(c).  “Regulation T, U or X” means Regulation T, U or X, respectively, of the Board of Governors of  the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.  “Related Adjustment” means, in determining any LIBOR Successor Rate, the first relevant  available alternative set forth in the order below that can be determined by the Administrative Agent  applicable to such LIBOR Successor Rate:   (A) the spread adjustment, or method for calculating or determining such spread  adjustment, that has been selected or recommended by the Relevant Governmental Body for the  relevant Pre-Adjustment Successor Rate (taking into account the interest period, interest payment  date or payment period for interest calculated and/or tenor thereto) and which adjustment or  method (x) is published on an information service as selected by the Administrative Agent from  time to time in its reasonable discretion or (y) solely with respect to Term SOFR, if not currently  published, which was previously so recommended for Term SOFR and published on an  information service acceptable to the Administrative Agent; or  (B) the spread adjustment that would apply (or has previously been applied) to the  fallback rate for a derivative transaction referencing the ISDA Definitions (taking into account  the interest period, interest payment date or payment period for interest calculated and/or tenor  thereto).  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors, consultants, service  providers and representatives of such Person and of such Person’s Affiliates.  “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve  Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or  the Federal Reserve Bank of New York.  “Removal Effective Date” has the meaning specified in Section 10.06(b).  “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty (30)-day notice period has been waived.  “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or  continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit  Application, and (c) with respect to a Swingline Loan, a Swingline Loan Notice.  “Required Lenders” means, at any time, Lenders holding in the aggregate more than fifty percent  (50%) of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations and participations  therein or (b) if the Commitments have been terminated, the outstanding Loans, L/C Obligations and  participations therein.  The unfunded Commitments of, and the outstanding Loans, L/C Obligations and  participations therein held or deemed held by, any Defaulting Lender shall be excluded for purposes of  making a determination of Required Lenders.  “Requirement of Law” means, as to any Person, the certificate of incorporation and by-laws or  other organizational or governing documents of such Person, and any Law, treaty, rule or regulation or  determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or  binding upon such Person or to which any of its material property is subject.  





 






33  “Rescindable Amount” has the meaning specified in Section 2.12(b)(ii).  “Resignation Effective Date” has the meaning specified in Section 10.06(a).  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means (i) the chief executive officer, president, chief financial officer,  treasurer, assistant treasurer or controller of a Credit Party, (ii) solely for purposes of the delivery of  incumbency certificates pursuant to Section 5.01, the secretary or any assistant secretary of a Credit Party  and (iii) solely for purposes of notices given pursuant to Article II, any other officer or employee of the  applicable Credit Party so designated by any of the foregoing officers in a notice to the Administrative  Agent or any other officer or employee of the applicable Credit Party designated in or pursuant to an  agreement between the applicable Credit Party and the Administrative Agent.  Any document delivered  hereunder that is signed by a Responsible Officer of a Credit Party shall be conclusively presumed to  have been authorized by all necessary corporate, partnership and/or other action on the part of such Credit  Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Credit  Party.  To the extent requested by the Administrative Agent when an incumbency for a Responsible  Officer is not on file with the Administrative Agent, such Responsible Officer will provide an  incumbency certificate and to the extent requested by the Administrative Agent in connection therewith,  appropriate authorization documentation, in form and substance satisfactory to the Administrative Agent.  “Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account  of any shares of any class of Equity Interest of any Credit Party or any Restricted Subsidiary, now or  hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other  acquisition for value, direct or indirect, of any shares of any class of Equity Interest of any Credit Party or  any Restricted Subsidiary, now or hereafter outstanding (including without limitation any payment to any  employee of the Borrower in respect of equity awards to such employee but excluding payments in cash  in lieu of fractional shares), (c) any payment made to retire, or to obtain the surrender of, any outstanding  warrants, options or other rights to acquire shares of any class of Equity Interest of any Credit Party or  any Restricted Subsidiary, now or hereafter outstanding (other than payments in cash in lieu of fractional  shares or payments in connection with the exercise or early unwind or settlement of a Convertible Bond  Hedge Transaction, a Capped Call Transaction or a Warrant Transaction), (d) any payment or prepayment  of principal of, premium, if any, or interest on, redemption, purchase, retirement, defeasance, sinking fund  or similar payment with respect to, any Subordinated Indebtedness other than any Permitted Refinancing  thereof with Subordinated Indebtedness and (e) any payment made in cash to holders of Convertible Bond  Indebtedness (excluding (i) any required payment of interest with respect to such Convertible Bond  Indebtedness, (ii) any payment of cash in lieu of a fractional share due upon conversion thereof and (iii)  any Permitted Refinancing of such Convertible Bond Indebtedness and any payment in connection  therewith) in excess of the sum of (x) the principal amount thereof, unless and to the extent that such cash  payment arises from the conversion of such Convertible Bond Indebtedness by the holder thereof and  such conversion triggers or corresponds to an exercise or early unwind or settlement of a corresponding  portion of a Convertible Bond Hedge Transaction and/or Capped Call Transaction relating to such  Convertible Bond Indebtedness substantially concurrently with (or a commercially reasonable period of  time prior to or after) the payment to such holders of Convertible Bond Indebtedness and (y) interest,  fees, premiums and other costs payable in connection with such Convertible Bond Indebtedness,  including any payments made in connection with any redemption, purchase, repurchase, retirement or  defeasance of Convertible Bond Indebtedness or the exercise or early unwind or settlement of a  Convertible Bond Hedge Transaction, a Capped Call Transaction or a Warrant Transaction.  





 






34  “Restricted Subsidiary” means any Subsidiary of the Borrower that is not an Unrestricted  Subsidiary.  “Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans  to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase  participations in Swingline Loans, in an aggregate principal amount at any one time outstanding not to  exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and  Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed and  delivered by such Lender pursuant to Section 2.01(c), as applicable as such amount may be adjusted from  time to time in accordance with this Credit Agreement.  “Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal  amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C  Obligations and Swingline Loans at such time.  “Revolving Loan” has the meaning specified in Section 2.01(a).  “Revolving Note” has the meaning specified in Section 2.11(a).  “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and  any successor thereto.  “Sale and Leaseback Transaction” means, with respect to any Credit Party or any Restricted  Subsidiary, any arrangement, directly or indirectly, with any Person whereby such Credit Party or such  Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or  hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for  substantially the same purpose or purposes as the property being sold or transferred.  “Sanctions” means any published sanctions administered or enforced by the United States  Government (including without limitation, OFAC), the United Nations Security Council, the European  Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority applicable to the Borrower  and its Subsidiaries.  “Scheduled Unavailability Date” has the meaning specified in Section 3.07(a)(iii).  “SEC” means the Securities and Exchange Commission, or any Governmental Authority or any  successor or analogous United States Governmental Authority.  “Secured Parties” means the Administrative Agent, the Lenders, the Swap Contract Providers and  the Treasury Management Banks.  “Securitization Transaction” means, with respect to any Person, any financing transaction or  series of financing transactions (including factoring arrangements) pursuant to which such Person or any  Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts,  payments, receivables, rights to future lease payments or residuals or similar rights to payment to a  special purpose subsidiary or affiliate of such Person.  “Security Documents” means a collective reference to the Pledge Agreement and other security  documents as may be executed and delivered by the Credit Parties pursuant to the terms of Section 7.12  or any of the Credit Documents.  





 






35  “SOFR” with respect to any Business Day means the secured overnight financing rate published  for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a  successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source) at  approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day and, in each  case, that has been selected or recommended by the Relevant Governmental Body.  “Specified Loan Party” means any Credit Party that is not an “eligible contract participant” under  the Commodity Exchange Act (determined prior to giving effect to Section 4.08).  “Specified Refinancing Facilities” has the meaning specified in Section 2.17(a).  “Specified Refinancing Revolving Commitments” has the meaning specified in Section 2.17(a).  “Specified Refinancing Revolving Loans” has the meaning specified in Section 2.17(a).  “Specified Refinancing Term Loans” has the meaning specified in Section 2.17(a).  “Subordinated Indebtedness” means any Indebtedness incurred by any Credit Party that by its  terms is specifically subordinated in right of payment to the prior payment of the Revolving Loans, the  L/C Obligations, the Swingline Loans and Term Loans on terms reasonably satisfactory to the  Administrative Agent.  “Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or  other entity of which shares of stock or other ownership interests having ordinary voting power to elect a  majority of the directors or other managers of such corporation, partnership, limited liability company or  other entity (irrespective of whether or not at the time, any class or classes of such corporation shall have  or might have voting power by reason of the happening of any contingency) are at the time owned by  such Person directly or indirectly through Subsidiaries.  Unless otherwise identified, “Subsidiary” or  “Subsidiaries” shall mean Subsidiaries of the Borrower.  “Supported QFC” has the meaning specified in Section 11.20.   “Swap Contract” means, with respect to any Person, any agreement entered into to protect such  Person against fluctuations in interest rates, or currency or raw materials values, including, without  limitation, any interest rate swap, cap or collar agreement or similar arrangement between such Person  and one (1) or more counterparties, any foreign currency exchange agreement, currency protection  agreements, commodity purchase or option agreements or other interest or exchange rate or commodity  price hedging agreements.  Notwithstanding the foregoing, for the avoidance of doubt, Capped Call  Transactions, Convertible Bond Hedge Transactions and Warrant Transactions, and any arrangements or  agreements related thereto, and any accelerated share repurchase contract, forward share purchase  contract or similar contract with respect to the purchase by the Borrower of the Equity Interests of  Borrower shall not constitute Swap Contracts.  “Swap Contract Provider” means any Person that (a) at the time it enters into a Swap Contract, is  a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, (b) in the  case of any Swap Contract in effect on or prior to the Closing Date, is, as of the Closing Date or within  thirty (30) days thereafter, a Lender or the Administrative Agent or an Affiliate of a Lender or the  Administrative Agent and a party to a Swap Contract or (c) within thirty (30) days after the time it enters  into the applicable Swap Contract, becomes a Lender, the Administrative Agent or an Affiliate of a  Lender or the Administrative Agent, in each case, in its capacity as a party to such Swap Contract;  provided, in the case of a Swap Contract with a Person who is no longer a Lender (or Affiliate of a  





 






36  Lender), such Person shall be considered a Swap Contract Provider only through the stated termination  date (without extension or renewal) of such Swap Contract.  “Swap Obligations” means, with respect to any Guarantor, any obligation to pay or perform under  any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of  the Commodity Exchange Act.  “Swap Termination Value” means, in respect of any one (1) 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 (1) 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).  “SWIFT” has the meaning specified in Section 2.03(f).  “Swingline Commitment” means, as to the Swingline Lender, its obligation to make Swingline  Loans pursuant to Section 2.04 in an aggregate principal amount at any one time outstanding not to  exceed the amount set forth opposite the Swingline Lender’s name on Schedule 2.04, as such amount may  be adjusted from time to time in accordance with this Credit Agreement.  “Swingline Lender” means Bank of America in its capacity as provider of Swingline Loans, or  any successor swing line lender hereunder.  “Swingline Loan” has the meaning specified in Section 2.04(a).  “Swingline Loan Notice” means a notice of a Borrowing of Swingline Loans pursuant to Section  2.04(b), which, if in writing, shall be substantially in the form of Exhibit 2.04 or such other form as  approved by the Administrative Agent (including any form on an electronic platform or electronic  transmission system as shall be approved by the Administrative Agent), appropriately completed and  signed by a Responsible Officer of the Borrower.  “Swingline Note” has the meaning specified in Section 2.11(a).  “Swingline Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the  Aggregate Revolving Commitments.  The Swingline Lender’s portion of the Swingline Sublimit is set  forth opposite the Swingline Lender’s name on Schedule 2.01.  The Swingline Sublimit is part of, and not  in addition to, the Aggregate Revolving Commitments.  “Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan  or similar off-balance sheet financing arrangement whereby the arrangement is considered borrowed  money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear  on a balance sheet under GAAP.  “Target” has the meaning specified in the definition of “Permitted Acquisition.”  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges in the nature of a tax imposed by any  Governmental Authority, including any interest, additions to tax or penalties applicable thereto.  





 






37  “Term Loan A” has the meaning specified in Section 2.01(b).  “Term Loan A Commitment” means, as to each Lender, its obligation to make a Term Loan A 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 or in any documentation executed by such Lender pursuant to Section  2.01(c), as applicable as such amount may be adjusted from time to time in accordance with this Credit  Agreement.  The aggregate principal amount of the Term Loan A Commitments of all of the Lenders as  in effect on the First Amendment Effective Date is $350,000,000.  “Term Loan Commitment” means, as to each Lender, its obligation to make a Term Loan 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 or in any documentation executed by such Lender pursuant to Section 2.01(c), as  applicable as such amount may be adjusted from time to time in accordance with this Credit Agreement.    “Term Loans” has the meaning specified in Section 2.01(c).  “Term Note” has the meaning specified in Section 2.11(a).  “Term SOFR” means the forward-looking term rate for any period that is approximately (as  determined by the Administrative Agent) as long as any of the Interest Period options set forth in the  definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by  the Relevant Governmental Body, in each case as published on an information service as selected by the  Administrative Agent from time to time in its reasonable discretion.  “Threshold Amount” means $50,000,000.   “Total Consideration” has the meaning specified in Section 7.02(d).  “Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving  Loans, all Swingline Loans and all L/C Obligations.  “Treasury Management Agreement” means any agreement that is not prohibited by the terms  hereof to provide treasury or cash management services, including deposit accounts, overnight draft,  credit cards, debit cards, p cards (including, purchasing cards and commercial cards), funds transfer,  automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement,  lockbox, account reconciliation and reporting and trade finance services and other cash management  services.  “Treasury Management Bank” means any Person that (a) at the time it enters into a Treasury  Management Agreement, is a Lender or the Administrative Agent or an Affiliate of a Lender or the  Administrative Agent, (b) in the case of any Treasury Management Agreement in effect on or prior to the  Closing Date, is, as of the Closing Date or within thirty (30) days thereafter, a Lender or the  Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Treasury  Management Agreement or (c) within thirty (30) days after the time it enters into the applicable Treasury  Management Agreement, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the  Administrative Agent, in each case, in its capacity as a party to such Treasury Management Agreement.  “Type” means, with respect to any Loan, its character as a Base Rate Loan or a Eurodollar Rate  Loan.  





 






38  “UCC” or “Uniform Commercial Code” means the Uniform Commercial Code, as in effect in  any applicable jurisdiction.  “UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for  Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later  version thereof as may be in effect at the time of issuance).  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time  to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit  institutions and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  “United States” and “U.S.” mean the United States of America.  “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).  “Unrestricted Subsidiaries” means (a) Subsidiaries designated on the First Amendment Effective  Date by the Borrower as “Unrestricted Subsidiaries” on Schedule 6.11 and other Subsidiaries designated  from time to time by the Borrower in writing to the Administrative Agent that are in the same businesses  or businesses reasonably related to, or reasonably ancillary or reasonably complementary to, the  businesses of the Borrower and its Subsidiaries and (b) Subsidiaries (i) established for business purposes  approved by the Administrative Agent (such approval not to be unreasonably withheld) and (ii)  designated from time to time by the Borrower as “Unrestricted Subsidiaries” on Schedule 6.11 (as such  schedule may be updated from time to time as permitted by this Credit Agreement); provided that (x)  Investments by the Borrower and its Restricted Subsidiaries in Unrestricted Subsidiaries shall not exceed  the limitations set forth in clauses (a), (f) and (j) of the definition of Permitted Investments and (y)  Investments in Unrestricted Subsidiaries pursuant to clause (j) of the definition of Permitted Investments  shall be deemed to include an amount (not less than zero) equal to the difference of (I) the book value of  assets of any Guarantor or Restricted Subsidiary designated after the First Amendment Effective Date as  an Unrestricted Subsidiary that are included in Consolidated Total Assets as of the most recent fiscal  quarter ended minus (II) such Guarantor’s or Restricted Subsidiary’s liabilities as of the most recent fiscal  quarter ended.  “U.S. Foreign Holdco” means any Domestic Subsidiary substantially all of the assets of which are  Equity Interests of one or more Foreign Subsidiaries.  “U.S. Person” means any Person that is a “United States Person” as defined in Section  7701(a)(30) of the Internal Revenue Code.  “U.S. Special Regulation Regimes” has the meaning specified in Section 11.20.   “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(3).  “Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the  holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of  directors (or persons performing similar functions) of such Person, even though the right so to vote has  been suspended by the happening of such a contingency.  





 






39  “Warrant Transactions” means one or more call options, warrants or rights to purchase (or  substantively equivalent derivative transaction) referencing the Borrower’s common stock, which for the  avoidance of doubt may be settled by a delivery of shares of the Borrower’s common stock or cash,  written by the Borrower or a Restricted Subsidiary substantially contemporaneously with the purchase by  the Borrower or such Restricted Subsidiary of Convertible Bond Hedge Transactions and having an initial  strike or exercise price (howsoever defined) greater than the strike or exercise price (howsoever defined)  of such Convertible Bond Hedge Transactions.   “Wells Fargo” means Wells Fargo Bank, National Association and its successors.  “Wells Fargo Securities” means Wells Fargo Securities, LLC and its successors.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the  Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers  are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any  powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or  change the form of a liability of any UK Financial Institution or any contract or instrument under which  that liability arises, to convert all or part of that liability into shares, securities or obligations of that  person or any other person, to provide that any such contract or instrument is to have effect as if a right  had been exercised under it or to suspend any obligation in respect of that liability or any of the powers  under that Bail-In Legislation that are related to or ancillary to any of those powers.  1.02 Other Interpretive Provisions.  With reference to this Credit Agreement and each other Credit Document, unless otherwise  specified herein or in such other Credit Document:  (a) The definitions of terms herein shall apply equally to the singular and plural  forms of the terms defined.  Whenever the context may require, any pronoun shall include the  corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and  “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will”  shall be construed to have the same meaning and effect as the word “shall.”  Unless the context  requires otherwise, (i) any definition of or reference to any agreement, instrument or other  document shall be construed as referring to such agreement, instrument or other document as  from time to time amended, supplemented or otherwise modified (subject to any restrictions on  such amendments, supplements or modifications set forth herein or in any other Credit  Document), (ii) any reference herein to any Person shall be construed to include such Person’s  successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of  similar import when used in any Credit Document, shall be construed to refer to such Credit  Document in its entirety and not to any particular provision thereof, (iv) all references in a Credit  Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and  Sections of, and Exhibits and Schedules to, the Credit Document in which such references appear,  (v) any reference to any Law shall include all statutory and regulatory provisions consolidating,  amending, replacing or interpreting such Law and any reference to any Law or regulation shall,  unless otherwise specified, refer to such Law or regulation as amended, modified or  supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to  have the same meaning and effect and to refer to any and all tangible and intangible assets and  properties, including cash, securities, accounts and contract rights.  





 






40  (b) In the computation of periods of time from a specified date to a later specified  date, the word “from” means “from and including;” the words “to” and “until” each mean “to but  excluding;” and the word “through” means “to and including.”  (c) Section headings herein and in the other Credit Documents are included for  convenience of reference only and shall not affect the interpretation of this Credit Agreement or  any other Credit Document.  (d) For all purposes under the Credit Documents, in connection with any division or  plan of division under Delaware law (or any comparable event under a different jurisdiction’s  laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right,  obligation or liability of a different Person, then it shall be deemed to have been transferred from  the original Person to the subsequent Person, and (b) if any new Person comes into existence,  such new Person shall be deemed to have been organized on the first date of its existence by the  holders of its Equity Interests at such time.  1.03 Accounting Terms.  (a) Generally.  Except as otherwise specifically prescribed herein, 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 Credit Agreement shall be prepared in conformity with, GAAP, as in effect from  time to time, applied in a manner consistent with that used in preparing the Audited Financial  Statements.  Notwithstanding the foregoing or anything else in this Credit Agreement, for the  purposes of interpreting any provision contained herein or determining compliance with any  covenant or any other provision contained herein, including for calculating compliance with the  financial covenants in this Credit Agreement, (i) Indebtedness of the Credit Parties and their  Subsidiaries shall be deemed to be carried at one hundred percent (100%) of the outstanding  principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial  liabilities and FASB ASC 350 and 360 on goodwill, intangibles and impairments shall be  disregarded, and (ii) the effects of FASB ASC 842 (or any other Accounting Standards  Codification or Financial Accounting Standard having a similar result or effect) on leases and  debt obligations shall, in each case, be disregarded.  (b) Changes in GAAP.  If at any time any change in GAAP (including the adoption  of IFRS) would affect the computation of any financial ratio or requirement set forth in any  Credit Document, and either the Borrower or the Required Lenders shall so request, the  Administrative Agent, the Required Lenders and the Borrower shall negotiate in good faith to  amend such ratio or requirement to preserve the original intent thereof in light of such change in  GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i)  such ratio or requirement shall continue to be computed in accordance with GAAP prior to such  change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders  financial statements and other documents required under this Credit Agreement or as reasonably  requested hereunder setting forth a reconciliation between calculations of such ratio or  requirement made before and after giving effect to such change in GAAP.    (c) Calculations.  Notwithstanding the above, the parties hereto acknowledge and  agree that:  (i) all calculations of the financial covenants in Section 7.07 (including for  purposes of determining the Applicable Rate) shall be made on a Pro Forma Basis with  





 






41  respect to any Disposition (other than Permitted Dispositions), Recovery Event or  Acquisition occurring during the applicable period; and   (ii) for purposes of all calculations hereunder, the principal amount of  Convertible Bond Indebtedness shall be the outstanding principal, valued at par.  (d) Limited Condition Transactions.  Notwithstanding anything to the contrary  herein, to the extent that the terms of this Credit Agreement require (i) compliance with any  financial ratio or test (including any Consolidated Net Leverage Ratio test, any Consolidated  Interest Coverage Ratio test or any Consolidated Senior Secured Net Leverage Ratio test), (ii)  availability under baskets set forth in this Credit Agreement or any other Credit Document  (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total  Assets), (iii) the absence of a Default or an Event of Default, or (iv) a determination as to whether  the representations and warranties contained in this Credit Agreement or any other Credit  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 (and in all respects if any  such representation or warranty is already qualified by materiality or reference to Material  Adverse Effect), in each case, in connection with the consummation of a Limited Condition  Transaction or the incurrence of Indebtedness in connection therewith, the determination of  whether the relevant condition is satisfied or if there is availability under a basket, as applicable,  may be made, at the election of the Borrower, (A) in the case of a Permitted Acquisition or other  Investment, in each case that is a Limited Condition Transaction, at the time of (or on the basis of  the financial statements for the most recent four (4) fiscal quarter period for which financial  statements were required to be delivered pursuant to Section 7.01(a) or (b) at the time of) either  (1) the execution and delivery of the definitive agreement with respect to such Permitted  Acquisition or other Investment, or (2) the consummation of such Permitted Acquisition or other  Investment and related incurrence of Indebtedness and (B) in the case of any repayment,  redemption, repurchase or other discharge of any Indebtedness, in each case that is a Limited  Condition Transaction, at the time of (or on the basis of the financial statements for the most  recent four (4) fiscal quarter period for which financial statements were required to be delivered  pursuant to Section 7.01(a) or (b) at the time of) either (1) delivery of notice with respect to such  payment, redemption, repurchase or other discharge, or (2) the making of such payment,  redemption, repurchase or discharge (the dates referred to in clauses (A)(1) and (B)(1) above,  each a “LCT Test Date”), after giving effect to the relevant Limited Condition Transaction and  related incurrence of Indebtedness, on a Pro Forma Basis; provided, that, notwithstanding the  foregoing, in connection with any Limited Condition Transaction: (w) the condition set forth in  clause (a) of the definition of “Permitted Acquisition” shall be satisfied if (I) no Event of Default  shall have occurred and be continuing as of the applicable LCT Test Date, and (II) no Event of  Default under Section 9.01(a) or 9.01(e) shall have occurred and be continuing at the time of  consummation of such Limited Condition Transaction; (x) if the proceeds of an Additional Term  Loan pursuant to Section 2.01(c) are being used to finance such Limited Condition Transaction,  then (I) the conditions set forth in Section 2.01(c)(vi) and Section 5.02(a) shall be required to be  satisfied at the time of closing of the Limited Condition Transaction and funding of such  Additional Term Loan but may be subject to customary “SunGard” or “certain funds”  conditionality and the representations and warranties required may be limited to customary  “specified representations” and such other representations and warranties as may be required by  the applicable lenders providing such Additional Term Loans, and (II) the conditions set forth in  Section 2.01(c)(v) and Section 5.02(b) shall, if and to the extent the lenders providing such  Additional Term Loan so agree, be satisfied if (1) no Default or Event of Default shall have  occurred and be continuing as of the applicable LCT Test Date; and (2) no Event of Default under  Section 9.01(a) or 9.01(e) shall have occurred and be continuing at the time of the funding of  





 






42  such Additional Term Loan in connection with the consummation of such Limited Condition  Transaction; and (y) such Limited Condition Transaction and the related Indebtedness to be  incurred (and any associated Lien) and the use of proceeds thereof (and the consummation of any  Permitted Acquisition or Investment) shall be deemed incurred and/or applied at the LCT Test  Date (until such time as the Indebtedness is actually incurred or the applicable definitive  agreement is terminated or expired without actually consummating the applicable Limited  Condition Transaction) and outstanding thereafter for purposes of giving effect to such  transaction on a Pro Forma Basis (other than for purposes of determining compliance on a Pro  Forma Basis in connection with the making of any Restricted Payment) with any applicable  calculation of the financial covenants set forth in Section 7.07, or the amount or availability of  any basket, including baskets measured as a percentage of Consolidated EBITDA or  Consolidated Total Assets (it being understood and agreed that with respect to any such ratio test  or basket to be used to effect a Restricted Payment, the Borrower shall demonstrate compliance  with the applicable test both after giving effect to the applicable Limited Condition Transaction  and assuming that such transaction had not occurred).  For the avoidance of doubt, if any of such  ratios or amounts for which compliance was determined or tested as of the LCT Test Date are  thereafter exceeded as a result of fluctuations in such ratio or amount (including due to  fluctuations in Consolidated EBITDA), at or prior to the consummation of the relevant Limited  Condition Transaction, such ratios or amounts will not be deemed to have been exceeded as a  result of such fluctuations solely for purposes of determining whether the relevant Limited  Condition Transaction is permitted to be consummated or taken.  It is understood and agreed that  this Section 1.03(d) shall not limit the conditions set forth in Section 5.02 with respect to any  proposed Credit Extension, in connection with a Limited Condition Transaction or otherwise  except as set forth in clause (x) above in connection with the use of the proceeds of an Additional  Term Loan to finance a Limited Condition Transaction (and, in the case of such clause (x), only if  and to the extent the lenders providing such Additional Term Loan so agree as provided in such  clause (x)).   1.04 Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Credit Agreement  shall be calculated by dividing the appropriate component by the other component, carrying the result to  one (1) place more than the number of places by which such ratio is expressed herein and rounding the  result up or down to the nearest number (with a rounding-up if there is no nearest number).  1.05 Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern  time (daylight or standard, as applicable).  1.06 Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to  be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect  to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for  one (1) or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall  be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such  increases, whether or not such maximum stated amount is in effect at such time.  





 






43  1.07 Rates.  The Administrative Agent does not warrant, nor accept responsibility, nor shall the  Administrative Agent have any liability with respect to the administration, submission or any other matter  related to the rates in the definition of “Eurodollar Rate” or with respect to any rate that is an alternative  or replacement for or successor to any of such rates (including, without limitation, any LIBOR Successor  Rate) or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.  1.08 Certain Determinations.  (a) For purposes of determining compliance with any of the provisions set forth in  this Credit Agreement at any time (whether at the time of incurrence or thereafter) and/or whether  any Lien (including any Lien with respect to any Incremental Credit Facility), Investment,  Indebtedness (including any Indebtedness under any Incremental Credit Facility), Disposition or  Restricted Payment meets the criteria of one, or more than one, of the categories permitted  pursuant to the applicable provision, the Borrower (x) shall in its sole discretion determine under  which category or categories such Lien, Investment, Indebtedness, Disposition or Restricted  Payment (or, in each case, any portion there) is permitted and (y) shall be permitted to make any  such determination or redetermination or classification or reclassification (including by dividing  any amounts across more than once exception) at such time and from time to time as it may  determine and without notice to the Administrative Agent or any Lender.  (b) Notwithstanding anything to the contrary herein, with respect to any amounts  incurred or transactions entered into (or consummated) in reliance on a provision herein that does  not require compliance with a financial ratio or test (including, without limitation, the  Consolidated Net Leverage Ratio, Consolidated Interest Coverage Ratio and Consolidated Senior  Secured Net Leverage Ratio) (any such amounts, the “Fixed Amounts”) which the Borrower  intends to utilize with or substantially concurrently with any amounts incurred or transactions  entered into (or consummated) in reliance on a provision of this Credit Agreement or any other  Credit Document that requires compliance with any such financial ratio or test (any such  amounts, the “Incurrence Based Amounts”), it is understood and agreed that the Fixed Amounts  (and any cash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test  applicable to the Incurrence Based Amounts in connection with such substantially concurrent  incurrence.  In calculating any Fixed Amounts and Incurrence Based Amounts to be utilized at  the same time, only the portion of such amounts incurred or transactions entered into (or  consummated) under such Incurrence Based Amounts shall be included in the calculation of the  applicable financial ratio or test (and the applicable Fixed Amounts shall be deemed to not have  been incurred in such calculations).  ARTICLE II.  THE COMMITMENTS AND CREDIT EXTENSIONS  2.01 Commitments.  (a) Revolving Loans.  Subject to the terms and conditions set forth herein, each  Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower in  Dollars from time to time on any Business Day during the Availability Period in an aggregate  amount not to exceed at any time outstanding the amount of such Lender’s Revolving  Commitment; provided, however, that after giving effect to any Borrowing of Revolving Loans,  





 






44  (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments,  and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving  Commitment.  Within the limits of each Lender’s Revolving Commitment, and subject to the  other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay  under Section 2.05, and reborrow under this Section 2.01.  Revolving Loans may be Base Rate  Loans or Eurodollar Rate Loans, as further provided herein.  (b) Term Loan A.  Subject to the terms and conditions set forth herein, each Lender  severally agrees to make its portion of a term loan (the “Term Loan A”) to the Borrower in  Dollars on the Closing Date in an amount not to exceed such Lender’s Term Loan A  Commitment.  The Lenders shall make the Term Loan A to the Borrower by (i) advancing  additional borrowings on the Closing Date and (ii) continuing portions of the Term Loan A  outstanding immediately prior to the Closing Date.  Amounts repaid on the Term Loan A may not  be reborrowed.  The Term Loan A may consist of Base Rate Loans or Eurodollar Rate Loans, or a  combination thereof, as further provided herein.  (c) Incremental Credit Facilities.  At any time after the First Amendment Effective  Date, the Borrower may, at any time, upon written notice to the Administrative Agent, establish  additional credit facilities (collectively, the “Incremental Credit Facilities”) by increasing the  Aggregate Revolving Commitments and/or establishing one (1) or more additional term loans  (each such term loan, an “Additional Term Loan” and, together with the Term Loan A and any  other Additional Term Loans, collectively, the “Term Loans”) at any time prior to the date that is  six (6) months prior to the Maturity Date; provided that, in any such case:  (i) the aggregate amount of loans and commitments for all Incremental  Credit Facilities established after the First Amendment Effective Date as an Incremental  Credit Facility shall not exceed (determined on the date such Incremental Credit Facilities  are established) the sum of (A) THREE HUNDRED FIFTY MILLION DOLLARS  ($350,000,000) and (B) an aggregate amount such that, after giving effect to such  Incremental Credit Facility on a Pro Forma Basis (assuming for purposes hereof, that the  amount of the incremental commitments is fully drawn and funded), the Consolidated  Senior Secured Net Leverage Ratio does not exceed 2.25:1.00, it being understood and  agreed that any Incremental Credit Facilities so incurred or implemented shall be deemed  to have been incurred or implemented under clause (B) prior to clause (A) above;  (ii) any increase in the Aggregate Revolving Commitments or the principal  amount of any Additional Term Loan established under this Section 2.01 shall be in a  principal amount of at least $10,000,000 and integral multiples of $1,000,000 in excess  thereof;  (iii) any increase in the Aggregate Revolving Commitments under this  Section 2.01 shall have terms identical to those for the Revolving Loans under Section  2.01(a), except for fees payable to the Lenders providing commitments for such  Incremental Credit Facility;  (iv) any Additional Term Loan established under this Section 2.01 (A) will  be made in Dollars and may consist of Base Rate Loans or Eurodollar Rate Loans as  further provided herein, (B) will have a final maturity date that is coterminous with or  later than the Maturity Date, with no more than fifty percent (50%) of the principal  amount of such Additional Term Loan being amortized prior to the Maturity Date, (C)  will be subject to the mandatory prepayment provisions (including provisions regarding  





 






45  the application of mandatory prepayments) that are contained in Section 2.05(b), (D) may  have pricing that is higher than pricing currently applicable to the Revolving Loans;  provided, that with respect to any such Additional Term Loan with a weighted life to  maturity that is within one (1) year of the Maturity Date, if the all-in-yield, after giving  effect to any offering of such Additional Term Loan at a discount from par or any fees  paid to the Lenders in connection therewith, exceeds the all-in-yield (as reasonably  determined by the Administrative Agent) with respect to the Revolving Loans or any  other Term Loan then in existence by more than fifty basis points (0.50%), then the  Applicable Percentage shall be increased to the extent necessary to cause the all-in-yield  with respect the Revolving Loans and/or such other Term Loans to be no more than fifty  basis points (0.50%) less than the all-in-yield with respect to such Additional Term Loan  (with the amount and manner of such increase to be determined by the Administrative  Agent, in accordance with the foregoing, as of the date of effectiveness of the applicable  Incremental Credit Facility) and (E) will have covenants that are the same as or no more  restrictive than the covenants contained in this Credit Agreement as of the date that such  Additional Term Loan is established (other than any restrictive covenant that would apply  after the Maturity Date (as such Maturity Date may be extended from time to time));  (v) no Default or Event of Default shall have occurred and be continuing, or  would result after giving effect to any such Incremental Credit Facility;   (vi) the establishment of the Incremental Credit Facilities and the extension  of credit thereunder are subject to satisfaction (or waiver in accordance with Section  11.01) of the conditions to all Credit Extensions in Section 5.02;  (vii) the Borrower will provide (A) a compliance certificate from a  Responsible Officer demonstrating compliance with the financial covenants hereunder  after giving effect to the Incremental Credit Facility on a Pro Forma Basis (assuming for  purposes hereof, that the amount of the incremental commitments is fully drawn and  funded), and (B) supporting resolutions, legal opinions, promissory notes and other items  as may be reasonably required by the Administrative Agent and the Lenders providing  the loans and commitments for the Incremental Credit Facility;  (viii) any new Lender providing loans and commitments for the Incremental  Credit Facilities must be acceptable to the Borrower and the Administrative Agent, and  any Lender (including any new Lender) providing commitments for any increase in the  Aggregate Revolving Commitments must also be reasonably acceptable to the L/C Issuer  and the Swingline Lender;  (ix) Lenders providing loans and commitments for the Incremental Credit  Facility will provide a duly executed Lender Joinder Agreement;  (x) upfront fees and arrangement fees, if any, in respect of the new  commitments so established, shall have been paid;  (xi) if any Revolving Loans are outstanding at the time of any increase in the  Aggregate Revolving Commitments pursuant to this Section 2.01, the Borrower will  make such payments and adjustments on the Revolving Loans (including payment of any  break-funding amounts owing under Section 3.05) as may be necessary to give effect to  the revised commitment amounts and percentages, it being agreed that the Administrative  Agent shall, in consultation with the Borrower, manage the allocation of the revised  





 






46  commitments percentages to the existing Eurodollar Rate Loans in such a manner as to  minimize the break-funding amounts so payable by the Borrower; and  (xii) the Administrative Agent shall have received all documents (including  resolutions of the board of directors of the Borrower and the Guarantors) it may  reasonably request relating to the corporate or other necessary authority for such increase  or establishment of any Additional Term Loan and the validity of such increase in the  Aggregate Revolving Commitments or establishment of an Additional Term Loan, and  any other customary matters relevant thereto, all in form and substance reasonably  satisfactory to the Administrative Agent; provided, however that consent of the existing  Lenders shall not be required to consummate the transactions contemplated pursuant to  this Section 2.01(c); provided, further, that necessary modifications of this Credit  Agreement will be consummated as set forth in Section 11.01(g).  In connection with establishment of any Incremental Credit Facility, (A) none of the Lenders or their  Affiliates shall have any obligation to provide commitments or loans for any Incremental Credit Facility  without their prior written approval, (B) none of the Administrative Agent, the Joint Lead Arrangers or  the Lead Lenders shall have any responsibility for arranging any such additional commitments without  their prior written consent and subject to such conditions, including fee arrangements, as they may  provide in connection therewith and (C) Schedule 2.01 will be deemed to be revised to reflect the  Lenders, Loans, Commitments and pro rata shares after giving effect to establishment of any Incremental  Credit Facility.  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 (A) a Loan Notice or (B) telephone.  Each such  notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three (3)  Business Days (or, solely with respect to any Borrowing of Term Loans A on the Closing Date,  two (2) 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) on the requested date of any Borrowing of Base Rate Loans; provided,  however, that if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period  other than one (1), two (2), three (3) or six (6) months in duration as provided in the definition of  “Interest Period,” the applicable notice must be received by the Administrative Agent not later  than 11:00 a.m. four (4) Business Days prior to the requested date of such Borrowing, conversion  or continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of  such request and determine whether the requested Interest Period is acceptable to all of them.   Not later than 11:00 a.m., three (3) Business Days before the requested date of such Borrowing,  conversion or continuation, the Administrative Agent shall notify the Borrower (which notice  may be by telephone) whether or not the requested Interest Period has been consented to by all  the Lenders.  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 Loan Notice.  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.  Except as provided in Sections  2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal  amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.  Each Loan Notice and  each telephonic notice 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  





 






47  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 a 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 Loan Notice, but fails to specify an Interest Period, it will be deemed to have  specified an Interest Period of one (1) month.  Notwithstanding anything to the contrary herein, a  Swingline Loan may not be converted to a Eurodollar Rate Loan.  (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly  notify each Lender of the amount of its Applicable Percentage 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 as  described in the preceding clause (a).  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. on the Business Day specified in the  applicable Loan Notice.  Upon satisfaction (or waiver in accordance with Section 11.01) of the  applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial Credit  Extension, Section 5.01), the Administrative Agent shall make all funds so received available to  the Borrower in like funds as actually received by the Administrative Agent no later than 4:00  p.m. on the day of receipt by the Administrative Agent either by (i) crediting the account of the  Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of  such funds, in each case in accordance with written instructions provided to (and reasonably  acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date  of a Borrowing of Revolving Loans, there are L/C Borrowings outstanding, then the proceeds of  such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings and  second, shall be made available to the Borrower as provided above.  (c) Subject to Section 3.05, a Eurodollar Rate Loan may be continued or converted  only on the last day of the 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.  (d) 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.  At any time that Base Rate Loans are outstanding, the Administrative Agent  shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in  determining the Base Rate promptly following the public announcement of such change.  (e) 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 seven (7)  Interest Periods in effect with respect to Revolving Loans and five (5) Interest Periods in effect  with respect to any Term Loan. 2.03 Letters of Credit.  (a) The Letter of Credit Commitment.  





 






48  (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer  agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1)  from time to time on any Business Day during the period from the Closing Date until the  Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of  the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit  previously issued by it, in accordance with clause (b) below, and (2) to honor drawings  under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters  of Credit issued for the account of the Borrower or its Subsidiaries and any drawings  thereunder; provided that after giving effect to any L/C Credit Extension with respect to  any Letter of Credit, (u) the Total Revolving Outstandings shall not exceed the Aggregate  Revolving Commitments, (v) the Revolving Credit Exposure of any Lender shall not  exceed such Lender’s Revolving Commitment, (w) the Outstanding Amount of the L/C  Obligations shall not exceed the Letter of Credit Sublimit, (x) the Outstanding Amount of  L/C Obligations of Bank of America, in its capacity as an L/C Issuer, shall not exceed the  L/C Commitment of Bank of America without the approval of Bank of America, (y) the  Outstanding Amount of L/C Obligations of Wells Fargo, in its capacity as an L/C Issuer,  shall not exceed the L/C Commitment of Wells Fargo without the approval of Wells  Fargo and (z) the Outstanding Amount of L/C Obligations of Truist Bank, in its capacity  as an L/C Issuer, shall not exceed the L/C Commitment of Truist Bank without the  approval of Truist Bank; provided, further, that Truist Bank shall not be obligated to issue  commercial Letters of Credit.  Each request by the Borrower for the issuance or  amendment of a Letter of Credit shall be deemed to be a representation by the Borrower  that the L/C Credit Extension so requested complies with the conditions set forth in the  proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms  and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully  revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters  of Credit to replace Letters of Credit that have expired or that have been drawn upon and  reimbursed.  All Existing Letters of Credit shall be deemed to have been issued pursuant  hereto, and from and after the Closing Date shall be subject to and governed by the terms  and conditions hereof.  (ii) The L/C Issuer shall not issue any Letter of Credit if:  (A) subject to Section 2.03(b)(iii), the expiry date of such requested  Letter of Credit would occur more than twelve (12) months after the date of  issuance or last extension, unless the Lenders (other than Defaulting Lenders)  holding a majority of the Revolving Commitments have approved such expiry  date; or  (B) the expiry date of such requested Letter of Credit would occur  after the Letter of Credit Expiration Date, unless either such Letter of Credit is  Cash Collateralized on or prior to the date of issuance of such Letter of Credit  (or a later date as to which the Administrative Agent and the applicable L/C  Issuer may agree in their sole discretion) or all the Lenders that have Revolving  Commitments have approved such expiry date. (iii) The L/C Issuer shall not be under any obligation to issue any Letter of  Credit if:  (A) any order, judgment or decree of any Governmental Authority or  arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from  





 






49  issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any  request or directive (whether or not having the force of Law) from any  Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or  request that the L/C Issuer refrain from, the issuance of letters of credit  generally or such Letter of Credit in particular or shall impose upon the L/C  Issuer with respect to such Letter of Credit any restriction, reserve or capital  requirement (for which the L/C Issuer is not otherwise compensated hereunder)  not in effect on the Closing Date, or shall impose upon the L/C Issuer any  unreimbursed loss, cost or expense which was not applicable on the Closing  Date and which the L/C Issuer in good faith deems material to it;  (B) the issuance of such Letter of Credit would violate one (1) or  more policies of the L/C Issuer applicable to letters of credit generally;  (C) except as otherwise agreed by the Administrative Agent and the  L/C Issuer, such Letter of Credit is in an initial stated amount less than  $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case  of a standby Letter of Credit;  (D) such Letter of Credit is to be denominated in a currency other  than Dollars;  (E) such Letter of Credit contains any provisions for automatic  reinstatement of the stated amount after any drawing thereunder; or  (F) any Lender is at that time a Defaulting Lender, unless the L/C  Issuer has entered into arrangements, including the delivery of Cash Collateral,  satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such  Defaulting Lender to eliminate the L/C Issuer’s actual or potential Fronting  Exposure (after giving effect to Section 2.15(b)) with respect to the Defaulting  Lender arising from either the Letter of Credit then proposed to be issued or  that Letter of Credit and all other L/C Obligations as to which the L/C Issuer  has actual or potential Fronting Exposure, as it may elect in its sole discretion.  (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer  would not be permitted at such time to issue the Letter of Credit in its amended form  under the terms hereof.  (v) The L/C Issuer shall be under no obligation to amend any Letter of  Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of  Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of  Credit does not accept the proposed amendment to the Letter of Credit.  (vi) The L/C Issuer shall act on behalf of the Lenders with respect to any  Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer  shall have all of the benefits and immunities (A) provided to the Administrative Agent in  Article X with respect to any acts taken or omissions suffered by the L/C Issuer in  connection with Letters of Credit issued by it or proposed to be issued by it and Issuer  Documents pertaining to such Letters of Credit as fully as if the term “Administrative  Agent” as used in Article X included the L/C Issuer with respect to such acts or  omissions, and (B) as additionally provided herein with respect to the L/C Issuer.  





 






50  (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension  Letters of Credit.  (i) Each Letter of Credit shall be issued or amended, as the case may be,  upon the request of the Borrower delivered to the L/C Issuer (with a copy to the  Administrative Agent) in the form of a Letter of Credit Application, appropriately  completed and signed by a Responsible Officer of the Borrower.  Such Letter of Credit  Application may be sent by facsimile, by United States mail, by overnight courier, by  electronic transmission using the system provided by the L/C Issuer, by personal delivery  or by any other means acceptable to the L/C Issuer.  Such Letter of Credit Application  must be received by the L/C Issuer and the Administrative Agent not later than 11:00  a.m. at least five (5) Business Days (or such later date and time as the Administrative  Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior  to the proposed issuance date or date of amendment, as the case may be.  In the case of a  request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall  specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed  issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the  amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary  thereof; (E) the documents to be presented by such beneficiary in case of any drawing  thereunder; (F) the full text of any certificate to be presented by such beneficiary in case  of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit;  and (H) such other matters as the L/C Issuer may reasonably require.  In the case of a  request for an amendment of any outstanding Letter of Credit, such Letter of Credit  Application shall specify in form and detail reasonably satisfactory to the L/C Issuer (A)  the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which  shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other  matters as the L/C Issuer may reasonably require.  Additionally, the Borrower shall  furnish to the L/C Issuer and the Administrative Agent such other documents and  information pertaining to such requested Letter of Credit issuance or amendment,  including any Issuer Documents, as the L/C Issuer or the Administrative Agent may  reasonably require.  (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer  will confirm with the Administrative Agent (by telephone or in writing) that the  Administrative Agent has received a copy of such Letter of Credit Application from the  Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy  thereof.  Unless the L/C Issuer has received written notice from any Lender, the  Administrative Agent or any Credit Party, at least one (1) Business Day prior to the  requested date of issuance or amendment of the applicable Letter of Credit, that one (1)  or more applicable conditions contained in Article V shall not be satisfied (or waived in  accordance with Section 11.01), then, subject to the terms and conditions hereof, the L/C  Issuer shall, on the requested date, issue a Letter of Credit for the account of the  Borrower or the applicable Subsidiary or enter into the applicable amendment, as the case  may be, in each case in accordance with the L/C Issuer’s usual and customary business  practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be  deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C  Issuer a risk participation in such Letter of Credit in an amount equal to the product of  such Lender’s Applicable Percentage times the amount of such Letter of Credit.  (iii) If the Borrower so requests in any applicable Letter of Credit  Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit  





 






51  that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);  provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to  prevent any such extension at least once in each twelve (12)-month period (commencing  with the date of issuance of such Letter of Credit) by giving prior notice to the  beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such  twelve (12)-month period to be agreed upon at the time such Letter of Credit is issued.   Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a  specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter  of Credit has been issued, the Lenders shall be deemed to have authorized (but may not  require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an  expiry date not later than the Letter of Credit Expiration Date; provided, however, that  the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined  that it would not be permitted, or would have no obligation, at such time to issue such  Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the  provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received  notice (which may be by telephone or in writing) on or before the day that is seven (7)  Business Days before the Non-Extension Notice Date (1) from the Administrative Agent  that the Required Lenders have elected not to permit such extension or (2) from the  Administrative Agent, any Lender or the Borrower that one (1) or more of the applicable  conditions specified in Section 5.02 is not then satisfied (or waived in accordance with  Section 11.01), and in each case directing the L/C Issuer not to permit such extension.  (iv) Promptly after its delivery of any Letter of Credit or any amendment to a  Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the  L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and  complete copy of such Letter of Credit or amendment.  (c) Drawings and Reimbursements; Funding of Participations.  (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of  drawing under such Letter of Credit, the L/C Issuer shall promptly notify the Borrower  and the Administrative Agent thereof.  If the L/C Issuer notifies the Borrower before 1:00  p.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such  date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer through the  Administrative Agent in an amount equal to the amount of such drawing on such day.  If  the L/C Issuer notifies the Borrower after 1:00 p.m. on the applicable Honor Date, the  Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount  equal to the amount of such drawing not later than 11:00 a.m. on the Business Day  immediately after such Honor Date.  If the Borrower fails to so reimburse the L/C Issuer  by such day and time, the Administrative Agent shall promptly notify each Lender of the  Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and  the amount of such Lender’s Applicable Percentage thereof (after giving effect to any  reallocation pursuant to Section 2.15(b)).  In such event, the Borrower shall be deemed to  have requested a Borrowing of Revolving Loans that are Base Rate Loans to be disbursed  on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to  the minimum and multiples specified in Section 2.02 for the principal amount of Base  Rate Loans, but subject to the satisfaction (or waiver in accordance with Section 11.01)  of the conditions set forth in Section 5.02 (other than the delivery of a Loan Notice);  provided that, after giving effect to such Borrowing, the Total Revolving Outstandings  shall not exceed the Aggregate Revolving Commitments.  Any notice given by the L/C  Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by  





 






52  telephone if immediately confirmed in writing; provided that the lack of such an  immediate confirmation shall not affect the conclusiveness or binding effect of such  notice.  (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make  funds available (and the Administrative Agent may apply Cash Collateral provided for  this purpose) to the Administrative Agent for the account of the L/C Issuer at the  Administrative Agent’s Office in an amount equal to its Applicable Percentage of the  Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such  notice by the Administrative Agent, whereupon, subject to the provisions of Section  2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a  Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit  the funds so received to the L/C Issuer.  (iii) With respect to any Unreimbursed Amount that is not fully refinanced by  a Borrowing of Revolving Loans that are Base Rate Loans because the conditions set  forth in Section 5.02 cannot be satisfied (or waived in accordance with Section 11.01) or  for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer  an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced,  which L/C Borrowing shall be due and payable on demand (together with interest) and  shall bear interest at the Default Rate.  In such event, each Lender’s payment to the  Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)  shall be deemed payment in respect of its participation in such L/C Borrowing and shall  constitute an L/C Advance from such Lender in satisfaction of its participation obligation  under this Section 2.03.  (iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to  this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter  of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall  be solely for the account of the L/C Issuer.  (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to  reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by  this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any  circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right  which such Lender may have against the L/C Issuer, the Borrower or any other Person for  any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other  occurrence, event or condition, whether or not similar to any of the foregoing; provided,  however, that each Lender’s obligation to make Revolving Loans pursuant to this Section  2.03(c) is subject to the satisfaction (or waiver in accordance with Section 11.01) of the  conditions set forth in Section 5.02 (other than delivery by the Borrower of a Loan  Notice).  No such making of an L/C Advance shall relieve or otherwise impair the  obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment  made by the L/C Issuer under any Letter of Credit, together with interest as provided  herein.  (vi) If any Lender fails to make available to the Administrative Agent for the  account of the L/C Issuer any amount required to be paid by such Lender pursuant to the  foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),  then, without limiting the other provisions of this Credit Agreement, the L/C Issuer shall  be entitled to recover from such Lender (acting through the Administrative Agent), on  





 






53  demand, such amount with interest thereon for the period from the date such payment is  required to the date on which such payment is immediately available to the L/C Issuer at  a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by  the L/C Issuer in accordance with banking industry rules on interbank compensation, plus  any administrative, processing or similar fees customarily charged by the L/C Issuer in  connection with the foregoing.  If such Lender pays such amount (with interest and fees  as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included  in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as  the case may be.  A certificate of the L/C Issuer submitted to any Lender (through the  Administrative Agent) with respect to any amounts owing under this clause (vi) shall be  conclusive absent manifest error.  (d) Repayment of Participations.  (i) At any time after the L/C Issuer has made a payment under any Letter of  Credit and has received from any Lender such Lender’s L/C Advance in respect of such  payment in accordance with Section 2.03(c), if the Administrative Agent receives for the  account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or  interest thereon (whether directly from the Borrower or otherwise, including proceeds of  Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent  will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted,  in the case of interest payments, to reflect the period of time during which such Lender’s  L/C Advance was outstanding) in the same funds as those received by the Administrative  Agent.  (ii) If any payment received by the Administrative Agent for the account of  the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the  circumstances described in Section 11.05 (including pursuant to any settlement entered  into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative  Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of  the Administrative Agent, plus interest thereon from the date of such demand to the date  such amount is returned by such Lender, at a rate per annum equal to the Federal Funds  Rate from time to time in effect.  The obligations of the Lenders under this clause shall  survive the payment in full of the Obligations and the termination of this Credit  Agreement.  (e) Obligations Absolute.  The obligation of the Borrower to reimburse the L/C  Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be  absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of  this Credit Agreement under all circumstances, including the following:  (i) any lack of validity or enforceability of such Letter of Credit, this Credit  Agreement or any other Credit Document;  (ii) the existence of any claim, counterclaim, setoff, defense or other right  that any Credit Party or any Subsidiary may have at any time against any beneficiary or  any transferee of such Letter of Credit (or any Person for whom any such beneficiary or  any such transferee may be acting), the L/C Issuer or any other Person, whether in  connection with this Credit Agreement, the transactions contemplated hereby or by such  Letter of Credit or any agreement or instrument relating thereto, or any unrelated  transaction;  





 






54  (iii) any draft, demand, certificate or other document presented under such  Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or  any statement therein being untrue or inaccurate in any respect; or any loss or delay in the  transmission or otherwise of any document required in order to make a drawing under  such Letter of Credit;  (iv) waiver by the L/C Issuer of any requirement that exists for the L/C  Issuer’s protection and not the protection of the Borrower;  (v) honor of a demand for payment presented electronically even if such  Letter of Credit requires that demand be in the form of a draft;  (vi) any payment made by the L/C Issuer in respect of an otherwise  complying item presented after the date specified as the expiration date of, or the date by  which documents must be received under such Letter of Credit if presentation after such  date is authorized by the ISP or the UCP, as applicable;  (vii) any payment by the L/C Issuer under such Letter of Credit against  presentation of a draft or certificate that does not strictly comply with the terms of such  Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to  any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for  the benefit of creditors, liquidator, receiver or other representative of or successor to any  beneficiary or any transferee of such Letter of Credit, including any arising in connection  with any proceeding under any Debtor Relief Law; or  (viii) any other circumstance or happening whatsoever, whether or not similar  to any of the foregoing, including any other circumstance that might otherwise constitute  a defense available to, or a discharge of, any Credit Party or any Subsidiary.  The Borrower shall promptly examine a copy of each Letter of Credit and each amendment  thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s  instructions or other irregularity, the Borrower will promptly notify the L/C Issuer.  The Borrower  shall be conclusively deemed to have waived any such claim against the L/C Issuer and its  correspondents unless such notice is given as aforesaid.  (f) Role of L/C Issuer.  Each Lender and the Borrower agree that, in paying any  drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any  document (other than any sight draft, certificates and documents expressly required by such  Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or  the authority of the Person executing or delivering any such document.  None of the L/C Issuer,  the Administrative Agent, any of their respective Related Parties nor any correspondent,  participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or  omitted in connection herewith at the request or with the approval of the Lenders or the Required  Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or  willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any  document or instrument related to any Letter of Credit or Issuer Document.  The Borrower hereby  assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of  any Letter of Credit; provided, however, that this assumption is not intended to, and shall not,  preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary  or transferee at law or under any other agreement.  None of the L/C Issuer, the Administrative  Agent, any of their respective Related Parties nor any correspondent, participant or assignee of  





 






55  the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through  (viii) of Section 2.03(e); provided, however, that anything in such clauses to the contrary  notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may  be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to  consequential or exemplary, damages suffered by the Borrower which the Borrower proves were  caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful  failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight  draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit  unless the L/C Issuer is prevented or prohibited from so paying as a result of any order or  directive of any court or other Governmental Authority.  In furtherance and not in limitation of  the foregoing, the L/C Issuer may accept documents that appear on their face to be in order,  without responsibility for further investigation, regardless of any notice or information to the  contrary (or the L/C Issuer may refuse to accept and make payment upon such documents if such  documents are not in strict compliance with the terms of such Letter of Credit), and the L/C Issuer  shall not be responsible for the validity or sufficiency of any instrument transferring or assigning  or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or  proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.   The L/C Issuer may send a Letter of Credit or conduct any communication to or from the  beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”)  message or overnight courier, or any other commercially reasonable means of communicating  with a beneficiary.  (g) Applicability of ISP and UCP.  Unless otherwise expressly agreed by the L/C  Issuer and the Borrower when a Letter of Credit is issued (including any such agreement  applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby  Letter of Credit and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,  as most recently published by the International Chamber of Commerce at the time of issuance  shall apply to each commercial Letter of Credit.  Notwithstanding the foregoing, the L/C Issuer  shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the  Borrower shall not be impaired by, any action or inaction of the L/C Issuer required under any  law, order, or practice that is required to be applied to any Letter of Credit or this Credit  Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the  beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions,  opinions, practice statements, or official commentary of the ICC Banking Commission, the  Bankers Association for Finance and Trade – International Financial Services Association  (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any  Letter of Credit chooses such law or practice.  (h) Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for  the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee  (the “Letter of Credit Fee”) (i) for each commercial Letter of Credit, equal to the Applicable Rate  times the daily amount available to be drawn under such Letter of Credit and (ii) for each standby  Letter of Credit, equal to the Applicable Rate times the daily amount available to be drawn under  such Letter of Credit; provided, however, any Letter of Credit Fees otherwise payable for the  account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting  Lender has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to this Section  2.03 shall be payable, to the maximum extent permitted by applicable Laws, as provided in  Section 2.15(b), to the other Lenders in accordance with the upward adjustments in their  respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.15(b),  with the balance of such fee, if any, payable to the L/C Issuer for its own account.  For purposes  of computing the daily amount available to be drawn under any Letter of Credit, the amount of  





 






56  such Letter of Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees  shall be (i) due and payable on the first Business Day after the end of each March, June,  September and December, commencing with the first such date to occur after the issuance of such  Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)  computed on a quarterly basis in arrears.  If there is any change in the Applicable Rate during any  quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and  multiplied by the Applicable Rate separately for each period during such quarter that such  Applicable Rate was in effect.  Notwithstanding anything to the contrary contained herein, upon  the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees  shall accrue at the Default Rate. (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.   The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with  respect to each commercial Letter of Credit, at the rate specified in (A) the Bank of America Fee  Letter, with respect to Letters of Credit issued by Bank of America in its capacity as L/C Issuer  and (B) writing between the Borrower and any L/C Issuer other than Bank of America in its  capacity as L/C Issuer, in each case, computed on the amount of such Letter of Credit, and  payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of  Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the  Borrower and the L/C Issuer, computed on the amount of such increase, and payable upon the  effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at the  rate per annum specified in the applicable Fee Letter, computed on the daily amount available to  be drawn under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be  due and payable on the tenth Business Day after the end of each March, June, September and  December in respect of the most recently-ended quarterly period (or portion thereof, in the case of  the first payment), commencing with the first such date to occur after the issuance of such Letter  of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  For purposes of  computing the daily amount available to be drawn under any Letter of Credit, the amount of such  Letter of Credit shall be determined in accordance with Section 1.06.  In addition, the Borrower  shall pay directly to the L/C Issuer for its own account the customary issuance, presentation,  amendment and other processing fees, and other standard costs and charges, of the L/C Issuer  relating to letters of credit as from time to time in effect.  Such customary fees and standard costs  and charges are due and payable on demand and are nonrefundable.  (j) Conflict with Issuer Documents.  In the event of any conflict between the terms  hereof and the terms of any Issuer Document, the terms hereof shall control.  (k) Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit  issued or outstanding hereunder is in support of any obligations of, or is for the account of, a  Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all  drawings under such Letter of Credit.  The Borrower hereby acknowledges that the issuance of  Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the  Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.  (l) New or Successor L/C Issuer.    (i) Any L/C Issuer may resign as an issuer of Letters of Credit upon thirty  (30) days’ prior written notice to the Administrative Agent, the Lenders and the  Borrower.  Subject to the terms of the following sentence, the Borrower may replace any  L/C Issuer for any reason upon written notice to the Administrative Agent and the  applicable L/C Issuer, and the Borrower may add one or more additional L/C Issuers at  





 






57  any time upon notice to the Administrative Agent.  If the L/C Issuer shall resign or be  replaced, or if the Borrower shall decide to add a new L/C Issuer under this Credit  Agreement, then the Borrower may appoint any Lender as a successor issuer of Letters of  Credit or a new L/C Issuer, as the case may be, with the consent of the Administrative  Agent (such consent not to be unreasonably withheld) and the acceptance of such  appointment by such Lender, whereupon such successor L/C Issuer shall succeed to the  rights, powers and duties of the replaced or resigning L/C Issuer under this Credit  Agreement and the other Credit Documents, or such new issuer of Letters of Credit shall  be granted the rights, powers and duties of an L/C Issuer hereunder, and the term “L/C  Issuer” shall include such successor or such new issuer of Letters of Credit effective upon  such appointment.  At the time such resignation or replacement shall become effective,  the Borrower shall pay to the resigning or replaced L/C Issuer all accrued and unpaid fees  pursuant to Section 2.03(h) and (i).  The acceptance of any appointment by any Lender as  an L/C Issuer hereunder, whether as a successor issuer or new issuer of Letters of Credit  in accordance with this Credit Agreement, shall be evidenced by an agreement entered  into by such new or successor issuer of Letters of Credit, in a form satisfactory to the  Borrower and the Administrative Agent, and, from and after the effective date of such  agreement, such new or successor issuer of Letters of Credit shall be an “L/C Issuer”  hereunder.  After the resignation or replacement of an L/C Issuer hereunder, the resigning  or replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights  and obligations of an L/C Issuer under this Credit Agreement and the other Credit  Documents solely with respect to Letters of Credit issued by it prior to such resignation  or replacement and only for so long as such Letters of Credit remain outstanding, but  shall not be required to issue additional Letters of Credit.  In connection with any  resignation or replacement pursuant to this clause (i) (but, in case of any such resignation,  only to the extent that a successor issuer of Letters of Credit shall have been appointed),  either (A) the Borrower, the resigning or replaced L/C Issuer and the successor issuer of  Letters of Credit shall arrange to have any outstanding Letters of Credit issued by the  resigning or replaced L/C Issuer replaced with Letters of Credit issued by the successor  issuer of Letters of Credit or (B) the Borrower shall cause the successor issuer of Letters  of Credit, if such successor issuer is reasonably satisfactory to the replaced or resigning  L/C Issuer, to issue “back-stop” Letters of Credit naming the resigning or replaced L/C  Issuer as beneficiary for each outstanding Letter of Credit issued by the resigning or  replaced L/C Issuer, which new Letters of Credit shall have a face amount equal to the  Letters of Credit being back-stopped, and the sole requirement for drawing on such new  Letters of Credit shall be a drawing on the corresponding back-stopped Letters of Credit.   After any resigning or replaced L/C Issuer’s resignation or replacement as L/C Issuer, the  provisions of this Credit Agreement relating to an L/C Issuer shall inure to its benefit as  to any actions taken or omitted to be taken by it (A) while it was an L/C Issuer under this  Credit Agreement or (B) at any time with respect to Letters of Credit issued by such L/C  Issuer.  (ii) To the extent that there are, at the time of any resignation or replacement  as set forth in clause (i) above, any outstanding Letters of Credit, nothing herein shall be  deemed to impact or impair any rights and obligations of any of the parties hereto with  respect to such outstanding Letters of Credit (including, without limitation, any  obligations related to the payment of fees pursuant to Section 2.03(h) and (i) or the  reimbursement or funding of amounts drawn), except that the Borrower, the resigning or  replaced L/C Issuer and the successor issuer of Letters of Credit shall have the  obligations regarding outstanding Letters of Credit described in clause (i) above.  





 






58  (m) Letters of Credit Reports.  Unless otherwise agreed by the Administrative Agent,  each L/C Issuer shall, in addition to its notification obligations set forth elsewhere in this Section  2.03, provide the Administrative Agent a Letter of Credit Report, as set forth below:  (i) reasonably prior to the time that such L/C Issuer issues, amends, renews,  increases or extends a Letter of Credit, the date of such issuance, amendment, renewal,  increase or extension and the stated amount of the applicable Letters of Credit after  giving effect to such issuance, amendment, renewal or extension (and whether the  amounts thereof shall have changed);  (ii) on each Business Day on which such L/C Issuer makes a payment  pursuant to a Letter of Credit, the date and amount of such payment;  (iii) on any Business Day on which the Borrower fails to reimburse a  payment made pursuant to a Letter of Credit required to be reimbursed to such L/C Issuer  on such day, the date of such failure and the amount of such payment;  (iv) on any other Business Day, such other information as the Administrative  Agent shall reasonably request as to the Letters of Credit issued by such L/C Issuer; and  (v) for so long as any Letter of Credit issued by an L/C Issuer is outstanding,  such L/C Issuer shall deliver to the Administrative Agent (A) on the last Business Day of  each calendar month, (B) at all other times a Letter of Credit Report is required to be  delivered pursuant to this Credit Agreement, and (C) on each date that (1) an L/C Credit  Extension occurs or (2) there is any expiration, cancellation and/or disbursement, in each  case, with respect to any such Letter of Credit, a Letter of Credit Report appropriately  completed with the information for every outstanding Letter of Credit issued by such L/C  Issuer.  2.04 Swingline Loans.  (a) Swingline Facility.  Subject to the terms and conditions set forth herein, the  Swingline Lender, in reliance upon the agreements of the other Lenders set forth in this Section  2.04, may in its sole discretion make loans (each such loan, a “Swingline Loan”) to the Borrower  in Dollars from time to time on any Business Day during the Availability Period in an aggregate  amount not to exceed at any time outstanding the amount of the Swingline Sublimit or the  Swingline Lender’s Swingline Commitment, notwithstanding the fact that such Swingline Loans,  when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Loans  and L/C Obligations of the Lender acting as Swingline Lender, may exceed the amount of such  Lender’s Revolving Commitment; provided, however, that after giving effect to any Swingline  Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving  Commitments, and (ii) the Revolving Credit Exposure of any Lender shall not exceed such  Lender’s Revolving Commitment; provided, further, that the Borrower shall not use the proceeds  of any Swingline Loan to refinance any outstanding Swingline Loan.  Within the foregoing limits,  and subject to the other terms and conditions hereof, the Borrower may borrow under this Section  2.04, prepay under Section 2.05, and reborrow under this Section 2.04.  Each Swingline Loan  shall bear interest only at a rate based on the Base Rate.  Immediately upon the making of a  Swingline Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally  agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an  amount equal to the product of such Lender’s Applicable Percentage times the amount of such  Swingline Loan.  





 






59  (b) Borrowing Procedures.  Each Borrowing of Swingline Loans shall be made upon  the Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent, which  may be given by (A) a Swingline Loan Notice or (B) telephone.  Each such notice must be  received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the  requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a  minimum principal amount of $100,000 and integral multiples of $100,000 in excess thereof, and  (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice  must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of  a Swingline Loan Notice.  Promptly after receipt by the Swingline Lender of any Swingline Loan  Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in  writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not,  the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the  contents thereof.  Unless the Swingline Lender has received notice (by telephone or in writing)  from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the  date of the proposed Borrowing of Swingline Loans (A) directing the Swingline Lender not to  make such Swingline Loan as a result of the limitations set forth in the first proviso to the first  sentence of Section 2.04(a), or (B) that one (1) or more of the applicable conditions specified in  Article V is not then satisfied (or waived in accordance with Section 11.01), then, subject to the  terms and conditions hereof, the Swingline Lender will, not later than 3:00 p.m. on the borrowing  date specified in such Swingline Loan Notice, make the amount of its Swingline Loan available  to the Borrower at its office by crediting the account of the Borrower on the books of the  Swingline Lender in immediately available funds.  (c) Refinancing of Swingline Loans.  (i) The Swingline Lender may at any time in its sole and absolute discretion  request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline  Lender to so request on its behalf), that each Lender make a Revolving Loan that is a  Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the  amount of Swingline Loans then outstanding (after giving effect to any reallocation  pursuant to Section 2.15(b)).  Such request shall be made in writing (which written  request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with  the requirements of Section 2.02, without regard to the minimum and multiples specified  therein for the principal amount of Base Rate Loans, but subject to the satisfaction (or  waiver in accordance with Section 11.01) of the conditions set forth in Section 5.02  (other than the delivery of a Loan Notice); provided that, after giving effect to such  Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving  Commitments.  The Swingline Lender shall furnish the Borrower with a copy of the  applicable Loan Notice promptly after delivering such notice to the Administrative  Agent.  Each Lender shall make an amount equal to its Applicable Percentage of the  amount specified in such Loan Notice available to the Administrative Agent in  immediately available funds (and the Administrative Agent may apply Cash Collateral  available with respect to the applicable Swingline Loan) for the account of the Swingline  Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified  in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so  makes funds available shall be deemed to have made a Base Rate Loan to the Borrower  in such amount.  The Administrative Agent shall remit the funds so received to the  Swingline Lender.  (ii) If for any reason any Swingline Loan cannot be refinanced by such a  Borrowing of Revolving Loans in accordance with Section 2.04(c)(i), the request for  





 






60  Revolving Loans that are Base Rate Loans submitted by the Swingline Lender as set forth  herein shall be deemed to be a request by the Swingline Lender that each of the Lenders  fund its risk participation in the relevant Swingline Loan and each Lender’s payment to  the Administrative Agent for the account of the Swingline Lender pursuant to Section  2.04(c)(i) shall be deemed payment in respect of such participation.  (iii) If any Lender fails to make available to the Administrative Agent for the  account of the Swingline Lender any amount required to be paid by such Lender pursuant  to the foregoing provisions of this Section 2.04(c) by the time specified in Section  2.04(c)(i), the Swingline Lender shall be entitled to recover from such Lender (acting  through the Administrative Agent), on demand, such amount with interest thereon for the  period from the date such payment is required to the date on which such payment is  immediately available to the Swingline Lender at a rate per annum equal to the greater of  the Federal Funds Rate and a rate determined by the Swingline Lender in accordance  with banking industry rules on interbank compensation, plus any administrative,  processing or similar fees customarily charged by the Swingline Lender in connection  with the foregoing.  If such Lender pays such amount (with interest and fees as  aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in  the relevant Borrowing or funded participation in the relevant Swingline Loan, as the  case may be.  A certificate of the Swingline Lender submitted to any Lender (through the  Administrative Agent) with respect to any amounts owing under this clause (iii) shall be  conclusive absent manifest error.  (iv) Each Lender’s obligation to make Revolving Loans or to purchase and  fund risk participations in Swingline Loans pursuant to this Section 2.04(c) shall be  absolute and unconditional and shall not be affected by any circumstance, including (A)  any setoff, counterclaim, recoupment, defense or other right that such Lender may have  against the Swingline Lender, the Borrower or any other Person for any reason  whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,  event or condition, whether or not similar to any of the foregoing; provided, however,  that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is  subject to the conditions set forth in Section 5.02.  No such funding of risk participations  shall relieve or otherwise impair the obligation of the Borrower to repay Swingline  Loans, together with interest as provided herein.  (d) Repayment of Participations.  (i) At any time after any Lender has purchased and funded a risk  participation in a Swingline Loan, if the Swingline Lender receives any payment on  account of such Swingline Loan, the Swingline Lender will distribute to such Lender its  Applicable Percentage of such payment (appropriately adjusted, in the case of interest  payments, to reflect the period of time during which such Lender’s risk participation was  funded) in the same funds as those received by the Swingline Lender.  (ii) If any payment received by the Swingline Lender in respect of principal  or interest on any Swingline Loan is required to be returned by the Swingline Lender  under any of the circumstances described in Section 11.05 (including pursuant to any  settlement entered into by the Swingline Lender in its discretion), each Lender shall pay  to the Swingline Lender its Applicable Percentage thereof on demand of the  Administrative Agent, plus interest thereon from the date of such demand to the date such  amount is returned, at a rate per annum equal to the Federal Funds Rate.  The  





 






61  Administrative Agent will make such demand upon the request of the Swingline Lender.   The obligations of the Lenders under this clause shall survive the payment in full of the  Obligations and the termination of this Credit Agreement.  (e) Interest for Account of Swingline Lender.  The Swingline Lender shall be  responsible for invoicing the Borrower for interest on the Swingline Loans.  Until each Lender  funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this Section  2.04 to refinance such Lender’s Applicable Percentage of any Swingline Loan, interest in respect  of such Applicable Percentage shall be solely for the account of the Swingline Lender.  (f) Payments Directly to Swingline Lender.  The Borrower shall make all payments  of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.  2.05 Prepayments.  (a) Voluntary Prepayments of Loans.  (i) Revolving Loans and Term Loans.  The Borrower may, in its sole and  absolute discretion, upon notice from the Borrower to the Administrative Agent pursuant  to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or  from time to time voluntarily prepay Revolving Loans or any Term Loan, as specified by  the Borrower, 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. (1) three  (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on  the date of prepayment of Base Rate Loans; (B) any such 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 (or, if less, the entire principal amount thereof then outstanding); (C) any  prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole  multiple of $500,000 in excess thereof (or, if less, the entire principal amount thereof  then outstanding) and (D) any prepayment of the Term Loans shall be applied on a pro rata  basis (or, in the case any Term Loans other than the Term Loans A, on a less than pro rata  basis if agreed by the Lenders of such Term Loans) among the Term Loans then existing,  with such prepayment being applied to the remaining principal amortization payments  thereunder as directed by the Borrower.  Each such notice shall specify the date and  amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar  Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative  Agent will promptly notify each Lender of its receipt of each such notice, and of the  amount of such Lender’s Applicable Percentage 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.   Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest  on the amount prepaid, together with any additional amounts required pursuant to Section  3.05.  Subject to Section 2.15, each such prepayment shall be applied to the Loans of the  Lenders in accordance with their respective Applicable Percentages.  (ii) Swingline Loans.  The Borrower may, upon notice to the Swingline  Lender pursuant to delivery to the Swingline Lender of a Notice of Loan Prepayment  (with a copy to the Administrative Agent), at any time or from time to time, voluntarily  prepay Swingline Loans in whole or in part without premium or penalty; provided that (i)  such notice must be received by the Swingline Lender and the Administrative Agent not  later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be  





 






62  in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess  thereof (or, if less, the entire principal thereof then outstanding).  Each such notice shall  specify the date and amount of such prepayment.  If such notice is given by the Borrower,  the Borrower shall make such prepayment and the payment amount specified in such  notice shall be due and payable on the date specified therein.  (b) Mandatory Prepayments of Loans.  (i) Revolving Commitments.  If for any reason the Total Revolving  Outstandings at any time exceed the Aggregate Revolving Commitments then in effect,  the Borrower shall immediately prepay Revolving Loans and/or Swingline Loans and/or  Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess;  provided, however, that the Borrower shall not be required to Cash Collateralize the L/C  Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the  Revolving Loans and Swingline Loans the Total Revolving Outstandings exceed the  Aggregate Revolving Commitments then in effect.  (ii) Dispositions and Recovery Events.  Within five (5) Business Days of  receipt thereof, the Borrower shall prepay the Term Loans as hereafter provided in an  aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds  actually received by any Credit Party or any Restricted Subsidiary from all Dispositions  (other than Permitted Dispositions and Dispositions permitted under Sections 8.04(a)(i),  Section 8.04(a)(iv), 8.04(a)(vii)(B)(2), 8.04(a)(vii)(C), 8.04(a)(vii)(D) and 8.04(a)(viii))  and Recovery Events to the extent such Net Cash Proceeds are not reinvested in assets  (excluding current assets as classified by GAAP) that are useful in the business of the  Borrower and its Subsidiaries within three hundred sixty (360) days following actual  receipt of such Net Cash Proceeds; provided, however, if any portion of such Net Cash  Proceeds are not so reinvested within such three hundred sixty (360) day period but  within such three hundred sixty (360) day period are contractually committed to be  reinvested, then upon the termination of such contract or if such Net Cash Proceeds are  not so reinvested within five hundred forty (540) days of actual receipt thereof, such  remaining portion shall constitute Net Cash proceeds as of the date of such termination or  expiry and shall be immediately applied as set forth in this Section 2.05(b); provided,  further, that no such prepayment shall be required with respect to any individual  Disposition (for such purpose, treating any series of related Dispositions as a single such  transaction) that generates Net Cash Proceeds of $5,000,000 or less.  (iii) Debt Issuances.  Within one (1) Business Day of actual receipt by any  Credit Party or any Restricted Subsidiary of the Net Cash Proceeds of any Debt Issuance,  the Borrower shall prepay the Term Loans as hereafter provided in an aggregate amount  equal to one hundred percent (100%) of such Net Cash Proceeds.  (iv) Application of Mandatory Prepayments.  All amounts required to be paid  pursuant to this Section 2.05(b) shall be applied as follows:  (A) with respect to all amounts prepaid pursuant to Section 2.05(b)(i),  first, ratably to the L/C Borrowings and the Swingline Loans, second, to the  outstanding Revolving Loans, and, third, to Cash Collateralize the remaining  L/C Obligations; and  





 






63  (B) with respect to all amounts prepaid pursuant to Sections  2.05(b)(ii) and (iii), first, ratably to the Term Loans (with such amounts being  applied to the first four remaining principal amortization payments thereof in  direct order of maturity and then ratably to all remaining principal amortization  payments), second, ratably to the L/C Borrowings and the Swingline Loans,  and third, to the outstanding Revolving Loans (without any corresponding  permanent reduction in the Aggregate Revolving Commitments).  Within the parameters of the applications set forth above, prepayments shall be applied  first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest  Period maturities.  All prepayments under this Section 2.05(b) shall be subject to Section  3.05, but otherwise without premium or penalty, and shall be accompanied by interest on  the principal amount prepaid through the date of prepayment.  (v) Eurodollar Prepayment Account.  If the Borrower is required to make a  mandatory prepayment of Eurodollar Rate Loans under this Section 2.05(b), so long as  no Event of Default exists, the Borrower shall have the right, in lieu of making such  prepayment in full, to deposit an amount equal to such mandatory prepayment with the  Administrative Agent in a cash collateral account maintained (pursuant to documentation  reasonably satisfactory to the Administrative Agent) by and in the sole dominion and  control of the Administrative Agent.  Any amounts so deposited shall be held by the  Administrative Agent as collateral for the prepayment of such Eurodollar Rate Loans and  shall be applied to the prepayment of the applicable Eurodollar Rate Loans at the end of  the current Interest Periods applicable thereto or, sooner, at the election of the  Administrative Agent, upon the occurrence of an Event of Default.  At the request of the  Borrower, amounts so deposited shall be invested by the Administrative Agent in Cash  Equivalents maturing on or prior to the date or dates on which it is anticipated that such  amounts will be applied to prepay such Eurodollar Rate Loans; any interest earned on  such Cash Equivalents will be for the account of the Borrower and the Borrower will  deposit with the Administrative Agent the amount of any loss on any such Cash  Equivalents to the extent necessary in order that the amount of the prepayment to be  made with the deposited amounts shall not be reduced.  2.06 Termination or Reduction of Aggregate Revolving Commitments.  The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving  Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments to an  amount not less than the Total Revolving Outstandings; provided that (i) any such notice shall be received  by the Administrative Agent not later than 12:00 noon three (3) 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) if, after giving effect to any reduction of the  Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swingline Sublimit exceeds the  amount of the Aggregate Revolving Commitments, such sublimit shall be automatically reduced by the  amount of such excess.  The Administrative Agent will promptly notify the Lenders of any such notice of  termination or reduction of the Aggregate Revolving Commitments.  Except as provided in Section  2.15(e), any reduction of the Aggregate Revolving Commitments shall be applied to the Revolving  Commitment of each Lender according to its Applicable Percentage.  All fees accrued with respect  thereto until the effective date of any termination of the Aggregate Revolving Commitments shall be paid  on the effective date of such termination.  





 






64  2.07 Repayment of Loans.  (a) Revolving Loans.  The Borrower shall repay to the Lenders on the Maturity Date  the aggregate principal amount of all Revolving Loans outstanding on such date.  (b) Swingline Loans.  The Borrower shall repay each Swingline Loan on the earlier  to occur of (i) the date ten (10) Business Days after such Swingline Loan is made and (ii) the  Maturity Date. (c) Term Loan A.  The Borrower shall repay the outstanding principal amount of the  Term Loan A in installments on the dates and in the amounts set forth in the table below (as such  installments may hereafter be adjusted as a result of prepayments made pursuant to Section 2.05),  unless accelerated sooner pursuant to Section 9.02; provided that if the payment date set forth  below is not a Business Day, payment shall be due on the immediately preceding Business Day:  Payment Dates Principal Amortization  Payment March 15, 2022 $4,375,000.00 June 15, 2022 $4,375,000.00 September 15, 2022 $4,375,000.00 December 15, 2022 $4,375,000.00 March 15, 2023 $4,375,000.00 June 15, 2023 $4,375,000.00 September 15, 2023 $4,375,000.00 December 15, 2023 $4,375,000.00 March 15, 2024 $4,375,000.00 June 15, 2024 $4,375,000.00 September 15, 2024 $4,375,000.00 December 15, 2024 $4,375,000.00 March 15, 2025 $4,375,000.00 June 15, 2025 $4,375,000.00 September 15, 2025 $4,375,000.00 December 15, 2025 $4,375,000.00 March 15, 2026 $4,375,000.00 The Outstanding Amount of the Term Loan A, together with unpaid accrued interest, shall be due  and payable in full on the Maturity Date.  (d) Additional Term Loans.  The Outstanding Amount of any Additional Term Loan  established as an Incremental Credit Facility hereunder shall be repayable as provided in the  documentation establishing such Additional Term Loan.  Amounts repaid on any Additional  Term Loan may not be reborrowed.  2.08 Interest.  (a) Subject to the provisions of clause (b) below, with respect to the Term Loans,  Revolving Loans and Swingline Loans, (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 sum  of the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan  shall bear interest on the outstanding principal amount thereof from the applicable borrowing date  





 






65  at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swingline  Loan shall bear interest on the outstanding principal amount thereof from the applicable  borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.  Any  Additional Term Loan established as Incremental Credit Facilities hereunder shall bear interest on  the outstanding principal amount thereof as provided in the loan documentation establishing such  Additional Term Loan.  (b) (i) If any amount of principal of any Loan is not paid when due, 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.  (ii) If any amount (other than principal of any Loan) payable by the  Borrower under any Credit Document is not paid when due, whether at stated maturity,  by acceleration or otherwise, after giving effect to any applicable grace period, then upon  the request of the Required Lenders, such amount shall thereafter bear interest at a  fluctuating interest rate per annum at all times equal to the Default Rate to the fullest  extent permitted by applicable Laws.  (iii) 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.  2.09 Fees.  In addition to certain fees described in clauses (h) and (i) of Section 2.03:  (a) Commitment Fee.  The Borrower shall pay to the Administrative Agent, for the  account of each Lender in accordance with its Applicable Percentage, a commitment fee (the  “Commitment Fee”) equal to the product of (i) the Applicable Rate times (ii) the actual daily  amount by which the Aggregate Revolving Commitments exceed the sum of (y) the Outstanding  Amount of Revolving Loans and (z) the Outstanding Amount of L/C Obligations, subject to  adjustment as provided in Section 2.15. The Commitment Fee shall accrue at all times during the  Availability Period, including at any time during which one (1) or more of the conditions in  Article V is not satisfied (or waived in accordance with Section 11.01), and shall be due and  payable quarterly in arrears on the last Business Day of each March, June, September and  December, commencing with the first such date to occur after the Closing Date, and on the last  day of the Availability Period.  The Commitment Fee shall be calculated quarterly in arrears, and  if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be  computed and multiplied by the Applicable Rate separately for each period during such quarter  that such Applicable Rate was in effect.  For purposes of clarification, Swingline Loans shall not  be considered outstanding for purposes of determining the unused portion of the Aggregate  Revolving Commitments.  (b) Fee Letters.  The Borrower shall pay to the Joint Lead Arrangers and the  Administrative Agent for their own respective accounts fees in the amounts and at the times  





 






66  specified in the respective Fee Letters.  Such fees shall be fully earned when paid and shall not be  refundable for any reason whatsoever.  2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.  (a) All computations of interest for Base Rate Loans (including Base Rate Loans  determined by reference to the Eurodollar Rate) shall be made on the basis of a year of three  hundred sixty-five (365) or three hundred sixty-six (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 repaid or prepaid, provided that any Loan that is repaid on the  same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day.  Each  determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive  and binding for all purposes, absent manifest error.  (b) If, as a result of any restatement of or other adjustment to the financial statements  of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the  Consolidated Net Leverage Ratio as calculated by the Borrower as of any applicable date was  inaccurate and (ii) a proper calculation of the Consolidated Net Leverage Ratio would have  resulted in higher pricing for such period, the Borrower shall immediately and retroactively be  obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C  Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the  occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under  the Bankruptcy Code, automatically and without further action by the Administrative Agent, any  Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that  should have been paid for such period over the amount of interest and fees actually paid for such  period.  This clause (b) shall not limit the rights of the Administrative Agent, any Lender or the  L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(h) or 2.08(b) or under Article IX.   The Borrower’s obligations under this clause (b) shall survive through and including the date that  is one year after date of the termination of the Aggregate Revolving Commitments and the  repayment of all Obligations hereunder (other than contingent Obligations hereunder with respect  to which no claim has been made).  2.11 Evidence of Debt.  (a) The Credit Extensions made by each Lender shall be evidenced by one (1) 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 Credit Extensions  made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so  record or any error in doing so shall not, however, limit or otherwise affect the obligation of the  Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any  conflict between the accounts and records maintained by any Lender and the 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 promissory note, which shall evidence such  Lender’s Loans in addition to such accounts or records.  Each such promissory note shall (i) in  the case of Revolving Loans, be in the form of Exhibit 2.11(a)-1 (a “Revolving Note”), (ii) in the  





 






67  case of Swingline Loans, be in the form of Exhibit 2.11(a)-2 (a “Swingline Note”) and (iii) in the  case of any Term Loan, be in the form of Exhibit 2.11(a)-3 (a “Term Note”).  Each Lender may  attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and  maturity of its Loans and payments with respect thereto.  (b) In addition to the accounts and records referred to in clause (a), each Lender and  the Administrative Agent shall maintain in accordance with its usual practice accounts or records  evidencing the purchases and sales by such Lender of participations in Letters of Credit and  Swingline Loans.  In the event of any conflict between the accounts and records maintained by  the Administrative Agent and the accounts and records of any Lender in respect of such matters,  the accounts and records of the Administrative Agent shall control in the absence of manifest  error.  2.12 Payments Generally; Administrative Agent’s Clawback.  (a) General.  All payments to be made by the Borrower shall be made free and clear  of, and without condition or deduction for any counterclaim, defense, recoupment or setoff.   Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be  made to the Administrative Agent, for the account of the respective Lenders to which such  payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available  funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will  promptly distribute to each Lender its Applicable Percentage (or other applicable share as  provided herein) of such payment in like funds as received by wire transfer to such Lender’s  Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall be  deemed received on the next succeeding Business Day and any applicable interest or fee shall  continue to accrue.  If any payment to be made by the Borrower shall come due on a day other  than a Business Day, payment shall be made on the next following Business Day, and such  extension of time shall be reflected in computing interest or fees, as the case may be.  (b) (i) Funding by Lenders; Presumption by Administrative Agent.  Unless the  Administrative Agent shall have received notice from a Lender prior to the proposed date of any  Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior  to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the  Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may  assume that such Lender has made such share available on such date in accordance with Section  2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share  available in accordance with and at the time required by Section 2.02) and may, in reliance upon  such assumption, make available to the Borrower a corresponding amount.  In such event, if a  Lender has not in fact made its share of the applicable Borrowing available to the Administrative  Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative  Agent forthwith on demand such corresponding amount in immediately available funds with  interest thereon, for each day from and including the date such amount is made available to the  Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of  a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate  determined by the Administrative Agent in accordance with banking industry rules on interbank  compensation, plus any administrative, processing or similar fees customarily charged by the  Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be  made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such  Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,  the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid  by the Borrower for such period.  If such Lender pays its share of the applicable Borrowing to the  





 






68  Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in  such Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the  Borrower may have against a Lender that shall have failed to make such payment to the  Administrative Agent.  (ii) Payments by Borrower; Presumptions by Administrative Agent.  Unless the  Administrative Agent shall have received notice from the Borrower prior to the date on  which any payment is due to the Administrative Agent for the account of the Lenders or  any L/C Issuer hereunder that the Borrower will not make such payment, the  Administrative Agent may assume that the Borrower has made such payment on such  date in accordance herewith and may, in reliance upon such assumption, distribute to the  Lenders or the applicable L/C Issuer, as the case may be, the amount due. With respect to  any payment that the Administrative Agent makes for the account of the Lenders or any  L/C Issuer hereunder as to which the Administrative Agent determines (which  determination shall be conclusive absent manifest error) that any of the following applies  (such payment referred to as the “Rescindable Amount”) : (1) the Borrower has not in  fact made such payment; (2) the Administrative Agent has made a payment in excess of  the amount so paid by the Borrower (whether or not then owed); or (3) the  Administrative Agent has for any reason otherwise erroneously made such payment; then  each of the Lenders or the applicable L/C Issuer, as the case may be, severally agrees to  repay to the Administrative Agent forthwith on demand the Rescindable Amount so  distributed to such Lender or such L/C Issuer, in immediately available funds with  interest thereon, for each day from and including the date such amount is distributed to it  to but excluding the date of payment to the Administrative Agent, at the greater of the  Federal Funds Rate and a rate determined by the Administrative Agent in accordance  with banking industry rules on interbank compensation.  A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount  owing under this clause (b) shall be conclusive, absent manifest error.  (c) Failure to Satisfy Conditions Precedent.  If any Lender makes available to the  Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing  provisions of this Article II, and such funds are not made available to the Borrower by the  Administrative Agent because the conditions to the applicable Credit Extension set forth in  Article V are not satisfied or waived in accordance with the terms hereof, the Administrative  Agent shall promptly return such funds (in like funds as received from such Lender) to such  Lender, without interest.  (d) Obligations of Lenders Several.  The obligations of the Lenders hereunder to  make Loans, to fund participations in Letters of Credit and Swingline Loans and to make  payments pursuant to Section 11.04(c) are several and not joint.  The failure of any Lender to  make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on  any date required hereunder shall not relieve any other Lender of its corresponding obligation to  do so on such date, and no Lender shall be responsible for the failure of any other Lender to so  make its Loan, to purchase its participation or to make its payment under Section 11.04(c).  (e) Funding Source.  Nothing herein shall be deemed to obligate any Lender to  obtain the funds for any Loan in any particular place or manner or to constitute a representation  by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or  manner.  





 






69  (f) Insufficient Funds.  If at any time insufficient funds are received by and available  to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and  fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees  then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of  interest and fees then due to such parties, and (ii) second, toward payment of principal and L/C  Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the  amounts of principal and L/C Borrowings then due to such parties.  2.13 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain  payment in respect of any principal of or interest on any of the Loans made by it, or the participations in  L/C Obligations or in Swingline Loans held 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 and subparticipations in L/C Obligations and Swingline Loans of the other Lenders, or make  such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the  Lenders ratably in accordance with the aggregate amount of 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 2.13 shall not be construed to apply to (A)  any payment made by or on behalf of the Borrower pursuant to and in accordance with  the express terms of this Credit Agreement (including the application of funds arising  from the existence of a Defaulting Lender), (B) the application of Cash Collateral  provided for in Section 2.14, or (C) any payment obtained by a Lender as consideration  for the assignment of or sale of a participation in any of its Loans or subparticipations in  L/C Obligations or Swingline Loans to any assignee or participant, other than an  assignment to any Credit Party or any Subsidiary thereof (as to which the provisions of  this Section 2.13 shall apply).  Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so  under applicable Laws, that any Lender acquiring a participation pursuant to the foregoing arrangements  may exercise against such Credit Party rights of setoff and counterclaim with respect to such participation  as fully as if such Lender were a direct creditor of such Credit Party in the amount of such participation.  2.14 Cash Collateral.  (a) Certain Credit Support Events.  If (i) the L/C Issuer has honored any full or  partial drawing request under any Letter of Credit and such drawing has resulted in an L/C  Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason  remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to  Section 9.02(c) or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in  the case of clause (iii) above) or within one Business Day (in all other cases) following any  request by the Administrative Agent or the L/C Issuer provide Cash Collateral in an amount not  less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral  





 






70  provided pursuant to clause (iv) above, after giving effect to Section 2.15(b) and any Cash  Collateral provided by the Defaulting Lender).  (b) Grant of Security Interest.  The Borrower, and to the extent provided by any  Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the  Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the  Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts  and all balances therein, and all other property so provided as collateral pursuant hereto, and in all  proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be  applied pursuant to Section 2.14(c).  If at any time the Administrative Agent determines that Cash  Collateral is subject to any right or claim of any Person other than the Administrative Agent or  the L/C Issuer as herein provided (other than Liens permitted under clause (k) in the definition of  “Permitted Liens”), or that the total amount of such Cash Collateral is less than the Minimum  Collateral Amount, the Borrower or the relevant Defaulting Lender will, promptly upon demand  by the Administrative Agent, pay or provide to the Administrative Agent additional Cash  Collateral in an amount sufficient to eliminate such deficiency.  All Cash Collateral (other than  credit support not constituting funds subject to deposit) shall be maintained in blocked, non- interest bearing deposit accounts at Bank of America.  The Borrower or the relevant Defaulting  Lender shall pay on demand therefor from time to time all customary account opening, activity  and other administrative fees and charges in connection with the maintenance and disbursement  of Cash Collateral.  (c) Application.  Notwithstanding anything to the contrary contained in this Credit  Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15  or 9.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific  L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral  provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations  for which the Cash Collateral was so provided, prior to any other application of such property as  may otherwise be provided for herein.  (d) Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce  Fronting Exposure or to secure other obligations shall be released promptly following (i) the  elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including  by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its  assignee following compliance with Section 11.06(b)(vi))) or (ii) the good faith determination by  the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided,  however, the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral  shall not be released but instead held to support future anticipated Fronting Exposure or other  obligations.  2.15 Defaulting Lenders.  (a) Adjustments.  Notwithstanding anything to the contrary contained in this Credit  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 Credit Agreement  shall be restricted as set forth in the definition of “Required Lenders” and Section 11.01.  





 






71  (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 IX or  otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to  Section 11.08 shall be applied at such time or times as may be determined by the  Administrative Agent as follows: first, to the payment of any amounts owing by such  Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a  pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or  Swingline Lender hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting  Exposure with respect to such Defaulting Lender in accordance with Section 2.14; fourth,  as the Borrower may request (so long as no Default 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 Credit Agreement, as determined by the  Administrative Agent; fifth, if so determined by the Administrative Agent and the  Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such  Defaulting Lender’s potential future funding obligations with respect to Loans under this  Credit Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure  with respect to such Defaulting Lender with respect to future Letters of Credit issued  under this Credit Agreement, in accordance with Section 2.14; sixth, to the payment of  any amounts owing to the Lenders, the L/C Issuer or Swingline Lender as a result of any  judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or  the Swingline Lender against such Defaulting Lender as a result of such Defaulting  Lender’s breach of its obligations under this Credit Agreement; seventh, so long as no  Default or Event of Default exists, to the payment of any amounts owing to the Borrower  as a result of any judgment of a court of competent jurisdiction obtained by the Borrower  against such Defaulting Lender as a result of such Defaulting Lender’s breach of its  obligations under this Credit Agreement; and eighth, to such Defaulting Lender or as  otherwise directed by a court of competent jurisdiction; provided that if (x) such payment  is a payment of the principal amount of any Loans or L/C Borrowings in respect of which  such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans  were made or the related Letters of Credit were issued at a time when the conditions set  forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to  pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata  basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to,  such Defaulting Lender until such time as all Loans and funded and unfunded  participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in  accordance with the Commitments hereunder without giving effect to Section 2.15(b).   Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that  are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash  Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by  such Defaulting Lender, and each Lender irrevocably consents hereto.  (iii) Certain Fees.  (A) No Defaulting Lender shall be entitled to receive any fee payable  under Section 2.09(a) for any period during which such Lender is a Defaulting  Lender (and the Borrower shall not be required to pay any such fee that  otherwise would have been required to have been paid to such Defaulting  Lender).  





 






72  (B) Each Defaulting Lender shall be entitled to receive Letter of  Credit Fees for any period during which that Lender is a Defaulting Lender  only to the extent allocable to its Applicable Percentage of the stated amount of  Letters of Credit for which it has provided Cash Collateral pursuant to Section  2.14.  (C) With respect to any fee payable under Section 2.09(a) or any  Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant  to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting  Lender that portion of any such fee otherwise payable to such Defaulting  Lender with respect to such Defaulting Lender’s participation in L/C  Obligations or Swingline Loans that has been reallocated to such Non- Defaulting Lender pursuant to Section 2.15(b) below, (y) pay to the L/C Issuer  and Swingline Lender, as applicable, the amount of any such fee otherwise  payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s  or Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z)  not be required to pay the remaining amount of any such fee.  (b) Reallocation of Applicable Percentages to Reduce Fronting Exposure.  All or any  part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be  reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable  Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the  extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non- Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment.  No  reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder  against a Defaulting Lender arising from that Lender having become a Defaulting Lender,  including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s  increased exposure following such reallocation; provided, however, that any such claim shall be  subject to Section 11.19.  (c) Cash Collateral, Repayment of Swingline Loans.  If the reallocation described in  Section 2.15(b) above cannot, or can only partially, be effected, the Borrower shall, without  prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first,  prepay Swingline Loans in an amount equal to the Swingline Lenders’ Fronting Exposure and (y)  second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures  set forth in Section 2.14.  (d) Defaulting Lender Cure.  If the Borrower, the Administrative Agent, the  Swingline Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting  Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective  date specified in such notice and subject to any conditions set forth therein (which may include  arrangements with respect to any Cash Collateral to be provided by such Lender), that Lender  will, to the extent applicable, purchase at par that portion of outstanding Loans of the other  Lenders or take such other actions as the Administrative Agent may determine to be necessary to  cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans  to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages  (without giving effect to Section 2.15(b)), 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 such Lender was a Defaulting Lender;  provided, further, that except to the extent otherwise expressly agreed by the affected parties, no  





 






73  change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any  claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.  (e) Non-Ratable Reduction of Revolving Commitments.  During any period in which  there is a Defaulting Lender, the Borrower may (in its discretion) apply all or any portion (to be  specified by the Borrower) of any optional reduction of unused Revolving Commitments of such  Defaulting Lender as specified by the Borrower before applying any remaining reduction to all  Revolving Lenders in the manner otherwise specified in Section 2.06.  (f) New Swingline Loans/Letters of Credit. So long as any Revolving Lender is a  Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans  unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline  Loan and (ii) no L/C Issuer shall be required to issue, extend, increase, reinstate or renew any  Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect  thereto.  2.16 Reverse Dutch Auction Prepayments.  (a) Notwithstanding anything to the contrary contained in this Credit Agreement,  any Credit Party may at any time and from time to time purchase Term Loans at a purchase price  to be determined in accordance with the Auction Procedures (each, an “Auction”, and each such  Auction to be managed exclusively by the Administrative Agent or another financial institution of  recognized national standing selected by such Credit Party and reasonably acceptable to the  Administrative Agent (in such capacity, the “Auction Manager”)), so long as the following  conditions are satisfied:  (i) each Auction shall be conducted in accordance with the procedures,  terms and conditions set forth in this Section 2.16 and the Auction Procedures;  (ii) no Default or Event of Default shall have occurred and be continuing or  would result therefrom;  (iii) the principal amount (calculated on the face amount thereof) of any Term  Loan that such Credit Party offers to repay in any such Auction shall be no less than  $5,000,000 and whole increments of $500,000 in excess thereof (unless another amount  is agreed to by the Administrative Agent and the Auction Manager);  (iv) the aggregate principal amount (calculated on the face amount thereof) of  any Term Loan so prepaid by such Credit Party shall automatically be cancelled and  retired by the Borrower on the settlement date of the relevant prepayment;  (v) no more than one Auction may be ongoing at any one time; and  (vi) any Auction shall be offered to all Lenders with a Commitment or  outstanding Loans of the applicable Term Loan that is to be prepaid on a pro rata basis.  (b) Any purchase of Term Loans pursuant to this Section 2.16 shall be effective upon  recordation in the Register (in the manner set forth above) by the Administrative Agent.  Each  assignment shall be recorded in the Register immediately following the completion of the  relevant Auction conducted pursuant to the relevant Auction Procedures.  The date of such  recordation of a transfer shall be referred to in this Section 2.16 as the “Auction Effective Date”.   





 






74  After such assignments have been recorded in the Register, such Term Loans and, to the extent of  such Term Loans, the Credit Party and the Borrower, shall each be removed by the  Administrative Agent from the Register in their entirety.  The processing and recordation fee as  set forth in Section 11.06(b)(iv) shall not be applicable to any purchase of Term Loans pursuant  to this Section 2.16 or the concurrent assignment of Term Loans by any Credit Party to the  Borrower, in each case consummated pursuant to this Section 2.16.  (c) Each Credit Party shall make payment of the purchase price for Term Loans  accepted for purchase pursuant to the Auction Procedures by transmitting funds directly to the  assigning Lender.  Interest on such Term Loans accrued through the Auction Effective Date shall  be paid to the Lender that has assigned such Term Loans on the Auction Effective Date.  (d) The provisions of this Section 2.16 shall not require any Credit Party to offer to  purchase any Term Loans.  (e) The Administrative Agent and the Lenders hereby consent to the Auctions and  the other transactions contemplated by this Section 2.16 (provided that no Lender shall have an  obligation to participate in any such Auctions) and hereby waive the requirements of any  provision of this Credit Agreement (including, without limitation, Sections 2.05 and 2.13, it being  understood and acknowledged that prepayments of the Term Loans by a Credit Party  contemplated by this Section 2.16 shall not constitute Investments by such Credit Party) that may  otherwise prohibit any Auction or any other transaction contemplated by this Section 2.16.  The  Auction Manager acting in its capacity as such hereunder shall be entitled to the benefits of the  provisions of Article X and Section 11.04(b) mutatis mutandis as if each reference therein to the  “Administrative Agent” were a reference to the Auction Manager, and the Administrative Agent  shall cooperate with the Auction Manager as reasonably requested by the Auction Manager in  order to enable it to perform its responsibilities and duties in connection with each Auction.  2.17 Refinancing Facilities.  (a) The Borrower may from time to time, request (x) one or more new term loan  facilities to the credit facilities under this Credit Agreement (the “Specified Refinancing Term  Loans”) to refinance all or any portion of any Term Loans then outstanding under this Credit  Agreement and/or (y) one or more new revolving facilities to the credit facilities under this Credit  Agreement to refinance all or a portion of any class of Revolving Loans (the “Specified  Refinancing Revolving Loans”) or Revolving Commitments (the “Specified Refinancing  Revolving Commitments” and together with any Specified Refinancing Term Loans or  Refinancing Revolving Commitments, the “Specified Refinancing Facilities”), in each case  pursuant to procedures reasonably specified by the Administrative Agent and reasonably  acceptable to the Borrower; provided that such Specified Refinancing Facilities: (i) will rank pari  passu in right of payment as the other Loans and Commitments hereunder; (ii) will not have  obligors or contingent obligors that were not obligors or contingent obligors in respect of the  Obligations; (iii) will be (A) unsecured or (B) secured by the Collateral on a pari passu or junior  basis with the Obligations pursuant to an Acceptable Intercreditor Agreement that is reasonably  satisfactory to the Administrative Agent and the Borrower; (iv) will have a maturity date that is  not prior to the Maturity Date of, and will have a weighted average life to maturity that is not  shorter than the weighted average life to maturity of, the Revolving Loans and/or Term Loans  being refinanced, as applicable; (v) any Specified Refinancing Term Loan or Specified  Refinancing Revolving Loan shall share ratably in any prepayments of the Loans pursuant to  Section 2.05(b) (or otherwise provide for more favorable prepayment treatment for the then  outstanding Loans other than the Specified Refinancing Term Loans);  (vi) subject to clause (v)  





 






75  above, shall have terms and conditions that are the same as the Loan(s) being refinanced or, if not  consistent with the terms of the Loan(s) being refinanced, shall be reasonably satisfactory to the  Administrative Agent; (vii) no Event of Default shall have occurred and be continuing at the time  such Specified Refinancing Facilities are incurred; and (viii) the Net Cash Proceeds of such  Specified Refinancing Facilities shall be applied, substantially concurrently with the incurrence  thereof, to the pro rata prepayment of outstanding Loans being so refinanced, in each case  pursuant to Sections 2.05 and 2.07, as applicable; provided, however, that such Specified  Refinancing Facilities; (A) shall not have a principal or commitment amount greater than the  Loans being refinanced (excluding accrued interest, fees (including original issue discount and  upfront fees), discounts, premiums or expenses) and (B) may provide for any additional or  different financial or other covenants or other provisions that are agreed among the Borrower and  the lenders thereof and applicable only during periods after the Maturity Date of any of the Loans  that remain outstanding after giving effect to such Specified Refinancing Facilities or the date on  which all non-refinanced Obligations (other than contingent non-refinanced Obligations with  respect to which no claim has been made) are paid in full.  (b) The Borrower shall make any request for Specified Refinancing Facilities  pursuant to a written notice to the Administrative Agent specifying in reasonable detail the  proposed terms thereof.  Any proposed Specified Refinancing Facilities may be provided by  existing Lenders (it being understood that existing Lenders are not required to provide such  proposed Specified Refinancing Facilities) or Eligible Assignees in such respective amounts as  the Borrower may elect.  (c) The effectiveness of any Refinancing Amendment shall be subject to the  satisfaction (or waiver in accordance with Section 11.01) on the date thereof of each of the  conditions set forth in clause (a) above and Section 5.02, and, to the extent reasonably requested  by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board  resolutions, officers’ certificates and/or reaffirmation agreements, including any supplements or  amendments to the Credit Documents providing for such Specified Refinancing Facilities to be  secured thereby, generally consistent, where applicable, with those delivered on the First  Amendment Effective Date (other than changes to such legal opinions resulting from a Change in  Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the  Administrative Agent).  The Lenders hereby authorize the Administrative Agent to enter into  amendments to this Credit Agreement and the other Credit Documents with the Borrower as may  be necessary or desirable in order to establish any Specified Refinancing Facilities and to make  such technical amendments as may be necessary or appropriate in the reasonable opinion of the  Administrative Agent and the Borrower in connection with the establishment of such Specified  Refinancing Facilities, in each case on terms consistent with and/or to effect the provisions of this  Section 2.17, it being understood and agreed that no Lender shall be required to consent to such  amendment.  (d) Each class of Specified Refinancing Facilities incurred under this Section 2.17  shall be in an aggregate principal amount that is (i) not less than $25,000,000, or $5,000,000  increments in excess thereof or (ii) the amount required to refinance all of the applicable class of  Loans and/or Commitments.  (e) The Administrative Agent shall promptly notify each Lender as to the  effectiveness of each Refinancing Amendment.  Notwithstanding anything to the contrary in  Section 11.01, each of the parties hereto hereby agrees that, upon the effectiveness of any  Refinancing Amendment, this Credit Agreement shall be deemed amended to the extent (but only  to the extent) necessary to reflect the existence and terms of the Specified Refinancing Facilities  





 






76  incurred pursuant thereto (including the addition of such Specified Refinancing Facilities as  separate facilities hereunder and treated in a manner consistent with the credit facilities under this  Credit Agreement being refinanced, including for purposes of prepayments and voting).  Any  Refinancing Amendment may, without the consent of any Person other than the Borrower, the  Administrative Agent, the Lenders providing such Specified Refinancing Facilities and, in the  case of any Specified Refinancing Revolving Loans or Specified Refinancing Revolving  Commitments, the L/C Issuers, effect such amendments to this Credit Agreement and the other  Credit Documents as may be necessary or appropriate, in the reasonable opinion of the  Administrative Agent and the Borrower to effect the provisions of or be consistent with this  Section 2.17.   2.18 Amend and Extend Transactions.  (a) The Borrower may, by written notice to the Administrative Agent from time to  time, request an extension (each, an “Extension”) of the Maturity Date of any Loans (and, as  applicable, the Commitments relating thereto) to the extended maturity date specified in such  notice.  Such notice shall set forth (i) the amount of the Revolving Commitments and/or Term  Loans to be extended (which shall be in minimum increments of $5,000,000 and a minimum  amount of $25,000,000 or, if less, the remaining outstanding amount of Revolving Commitments  and/or Term Loans), and (ii) the date on which such Extension is requested to become effective  (which shall be not less than ten (10) Business Days nor more than sixty (60) days after the date  of such Extension notice (or such longer or shorter periods as the Administrative Agent shall  agree in its sole discretion)).  Each Lender holding the relevant Commitments and/or Loans to be  extended shall be offered (an “Extension Offer”) an opportunity to participate in such Extension  on a pro rata basis and on the same terms and conditions as each other Lender pursuant to  procedures established by, or reasonably acceptable to, the Administrative Agent.  Any Lender  approached to participate in such Extension may elect or decline, in its sole discretion, to  participate in such Extension.  If the aggregate principal amount of Revolving Commitments  and/or Term Loans in respect of which Lenders shall have accepted the relevant Extension Offer  shall exceed the maximum aggregate principal amount of Revolving Commitments and/or Term  Loans, as applicable, subject to the Extension Offer as set forth in the Extension notice, then the  Revolving Commitments and/or Term Loans, as applicable, of the applicable Lenders shall be  extended ratably up to such maximum amount based on the respective principal amounts with  respect to which such Lenders have accepted such Extension Offer.  (b) The following shall be conditions precedent to the effectiveness of any  Extension: (i) no Event of Default shall have occurred and be continuing immediately prior to and  immediately after giving effect to such Extension, (ii) the representations and warranties  contained in Article VI and the other Credit Documents are true and correct in all material  respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on  and as of the effective date of such Extension, except to the extent that such representations and  warranties specifically refer to an earlier date, in which case they are true and correct in all  material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all  respects) as of such earlier date, (iii) the L/C Issuers and the Swingline Lender shall have  consented to any Extension of the Revolving Commitments, in each case to the extent that such  Extension provides for the issuance or extension of Letters of Credit or making of Swingline  Loans at any time during the extended period, and (iv) the terms of such Extended Revolving  Commitments and Extended Term Loans shall comply with Section 2.18(c).  (c) The terms of each Extension shall be determined by the Borrower and the  applicable extending Lenders and set forth in an Extension Amendment; provided that (i) the final  





 






77  maturity date of any Extended Revolving Commitment or Extended Term Loan shall be no earlier  than the Maturity Date for the Revolving Commitments so extended or the Term Loans so  extended, as applicable, (ii) (A) there shall be no scheduled amortization of the loans or  reductions of commitments under any Extended Revolving Commitments, and (B) the weighted  average life to maturity of the Extended Term Loans shall be no shorter than the remaining  weighted average life to maturity of the Term Loans so extended, (iii) the Extended Revolving  Loans and the Extended Term Loans will rank pari passu in right of payment and with respect to  security with the existing Revolving Loans and the existing Term Loans and the borrower and  guarantors of the Extended Revolving Commitments or Extended Term Loans, as applicable,  shall be the same as the Borrower and Guarantors with respect to the existing Revolving Loans  and the existing Term Loans, as applicable, (iv) the interest rate margin, rate floors, fees, original  issue discount and premium applicable to any Extended Revolving Commitment (and the  Extended Revolving Loans thereunder) and Extended Term Loans shall be determined by the  Borrower and the applicable extending Lenders, and (v) to the extent the terms of the Extended  Revolving Commitments or Extended Term Loans are inconsistent with the terms set forth herein  (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to  the Administrative Agent.  (d) In connection with any Extension, the Borrower, the Administrative Agent and  each applicable extending Lender shall execute and deliver to the Administrative Agent an  Extension Amendment.  Notwithstanding anything to the contrary in Section 11.01, the Lenders  hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Credit  Agreement and the other Credit Documents shall be amended by, any Extension Amendment  entered into in connection with any Extension to the extent (and only to the extent) the  Administrative Agent deems necessary in order to (i) reflect the existence and terms of such  Extension, (ii) make such other changes to this Credit Agreement and the other Credit Documents  consistent with the provisions and intent of such Extension, and (iii) effect such other  amendments to this Credit Agreement and the other Credit Documents as may be necessary or  appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this  Section 2.18.  The Administrative Agent shall promptly notify each Lender as to the effectiveness  of each Extension Amendment.  The effectiveness of any Extension Amendment shall be subject  to the receipt by the Administrative Agent of (A) to the extent requested by the Administrative  Agent, customary opinions of legal counsel to the Credit Parties, addressed to the Administrative  Agent and each Lender (including each Person providing any portion of such Extension) dated as  of the effective date of such Extension, and (ii) such other documents and certificates it may  reasonably request relating to the necessary authority for such Extension, and any other matters  relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.  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 Credit Party  under any Credit Document shall be made without deduction or withholding for any Taxes,  except as required by applicable Laws.  If any applicable Laws (as determined in the good faith  discretion of the Administrative Agent or any Credit Party, as applicable) require the deduction or  





 






78  withholding of any Tax from any such payment by the Administrative Agent or a Credit Party,  then the Administrative Agent or such Credit Party shall be entitled to make such deduction or  withholding, upon the basis of the information and documentation to be delivered pursuant to  clause (e) below.  (ii) If any Credit Party or the Administrative Agent shall be required by the Internal  Revenue 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 clause (e) below, (B)  the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant  Governmental Authority in accordance with the Internal Revenue Code, and (C) to the extent that  the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the  applicable Credit Party shall be increased as necessary so that after any required withholding or  the making of all required deductions (including deductions applicable to additional sums payable  under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would  have received had no such withholding or deduction been made.  Each Recipient shall use  reasonable efforts to cooperate with the Credit Parties in seeking a refund of any payment made  pursuant to this Section 3.01 in respect of Taxes that, in the opinion of the independent certified  public accountants to the Borrower, were not correctly or legally asserted, unless, in such  Recipient’s sole discretion, such Recipient determines that such cooperation could have an  adverse consequence to such Recipient. (iii) If any Credit Party or the Administrative Agent shall be required by any  applicable Laws other than the Internal Revenue Code to withhold or deduct any Taxes from any  payment, then (A) such Credit Party or the Administrative Agent, as required by such Laws, shall  withhold or make such deductions as are determined by it, in its good faith discretion, to be  required based upon the information and documentation it has received pursuant to clause (e)  below, (B) such Credit 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 Credit Party shall be increased  as necessary so that after any required withholding or the making of all required deductions  (including deductions applicable to additional sums payable under this Section 3.01) the  applicable Recipient receives an amount equal to the sum it would have received had no such  withholding or deduction been made.  (b) Payment of Other Taxes by the Borrower.  Without limiting the provisions of clause (a)  above, the Credit 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) Each of the Credit Parties shall, and does hereby, jointly and severally indemnify  each Recipient, and shall make payment in respect thereof within ten (10) days after written  demand therefor (accompanied by any supporting documentation received from the taxing  authority imposing such Indemnified Taxes, except to the extent the applicable Recipient deems  such information to be confidential), for the full amount of any Indemnified Taxes (including  Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section  3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to  





 






79  such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with  respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or  asserted by the relevant Governmental Authority; provided, however, that no payment shall be  required that would duplicate a payment made pursuant to clause (a) above.  A certificate as to  the amount of such payment or liability delivered to the Borrower by a Lender or the L/C Issuer  (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on  behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.  Each of the Credit  Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent, and  shall make payment in respect thereof within ten (10) days after demand therefor, for any amount  which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative  Agent as required pursuant to Section 3.01(c)(ii) below.  (ii) Each Lender and the L/C Issuer shall, and does hereby, severally indemnify, and  shall make payment in respect thereof within ten (10) days after demand therefor, (A) the  Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C Issuer  (but only to the extent that any Credit Party has not already indemnified the Administrative Agent  for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (B)  the Administrative Agent and the Credit Parties, as applicable, against any Taxes attributable to  such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the  maintenance of a Participant Register and (C) the Administrative Agent and the Credit Parties, as  applicable, against any Excluded Taxes attributable to such Lender or the L/C Issuer, in each  case, that are payable or paid by the Administrative Agent or a Credit Party in connection with  any Credit 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  and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all  amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Credit  Agreement or any other Credit Document against any amount due to the Administrative Agent  under this clause (ii).    (d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent, as  the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a  Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative  Agent or the Administrative Agent shall deliver to the Borrower, 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 the Borrower 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 Credit Document shall deliver to the Borrower and the  Administrative Agent, at the time or times reasonably requested by the Borrower or the  Administrative Agent, such properly completed and executed documentation reasonably  requested by the Borrower or the Administrative Agent as will permit such payments to be made  without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably  requested by the Borrower or the Administrative Agent, shall deliver such other documentation  prescribed by applicable law or reasonably requested by the Borrower or the Administrative  Agent as will enable the Borrower or the Administrative Agent to determine whether or not such  Lender is subject to backup withholding or information reporting requirements.  Notwithstanding  





 






80  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), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable  judgment such completion, execution or submission would subject such Lender to any material  unreimbursed cost or expense or would materially prejudice the legal or commercial position of  such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the Borrower is  a U.S. 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 Credit Agreement (and from time to time thereafter upon the reasonable  request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9  certifying that such Lender is exempt from U.S. federal backup withholding tax;   (B) any Foreign Lender shall, to the extent it is legally entitled to do so,  deliver to the Borrower and the Administrative Agent (in such number of copies as shall  be requested by the recipient) on or prior to the date on which such Foreign Lender  becomes a Lender under this Credit 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 Credit Document, executed copies of IRS Form  W-8BEN or W-8BEN-E, 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  Credit Document, IRS Form W-8BEN or W-8BEN-E, 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 copies of IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits of the  exemption for portfolio interest under Section 881(c) of the Internal Revenue  Code, (x) a certificate substantially in the form of Exhibit 3.01(e)-1 to the effect  that such Foreign Lender is not a “bank” within the meaning of Section  881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the  Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue  Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of  the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y)  executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable; or  (4) to the extent a Foreign Lender is not the beneficial owner,  executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS  Form W-8BEN-E, IRS Form W-8BEN, a U.S. Tax Compliance Certificate  substantially in the form of Exhibit 3.01(e)-2 or Exhibit 3.01(e)-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  





 






81  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 3.01(e)-4 on behalf of each such direct and  indirect partner;  (C) any Foreign Lender shall, to the extent it is legally entitled to do so,  deliver to the Borrower and the Administrative Agent (in such number of copies as shall  be requested by the recipient) on or prior to the date on which such Foreign Lender  becomes a Lender under this Credit Agreement (and from time to time thereafter upon  the reasonable request of the Borrower or the Administrative Agent), executed copies of  any other form prescribed 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 Credit 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 Internal Revenue 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 Internal Revenue 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 Credit 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 the L/C  Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or  deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be.  If any  Recipient determines, in its sole discretion exercised in good faith, that it has received a refund (including  any application thereof to another amount owed to the refunding Governmental Authority) of any Taxes  as to which it has been indemnified by any Credit Party or with respect to which any Credit Party has paid  additional amounts pursuant to this Section 3.01, it shall pay to the Credit Party an amount equal to such  refund (including any application thereof to another amount owed to the refunding Governmental  Authority) (but only to the extent of indemnity payments made, or additional amounts paid, by a Credit  Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all reasonable  out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any  interest paid by the relevant Governmental Authority with respect to such refund), provided that the  Credit Party, upon the request of the Recipient, agrees to repay the amount paid over to the Credit Party  (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the  





 






82  Recipient in the event the Recipient is required to repay such refund (including any application thereof to  another amount owed to the refunding Governmental Authority) to such Governmental Authority.   Notwithstanding anything to the contrary in this clause (f), in no event will the applicable Recipient be  required to pay any amount to the Credit Party pursuant to this clause (f) the payment of which would  place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if  the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or  otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had  never been paid.  This clause (f) shall not be construed to require any Recipient to make available its tax  returns (or any other information relating to its taxes that it deems confidential) to any Credit 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  or the L/C Issuer, the termination of the Aggregate Revolving 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 of such Lender’s Eurodollar Rate Loans  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, together with any additional  amounts required pursuant to Section 3.05.  3.03 Inability to Determine Rates.  If the Required Lenders determine that for any reason in connection with any request for a  Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being  offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period  





 






83  of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the  Eurodollar Base 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, or (c) the Eurodollar Base 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 notify the  Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar  Rate Loans shall be suspended 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 determining the Base Rate shall be suspended, in each case until the Administrative Agent  (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the  Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of  Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a  Borrowing of Base Rate Loans in the amount specified therein.  3.04 Increased Costs.  (a) Increased Costs Generally.  If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit,  compulsory loan, insurance charge or similar requirement against assets of, deposits with  or for the account of, or credit extended or participated in by, any Lender (except any  reserve requirement reflected in the Eurodollar Rate) or the L/C Issuer;  (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes,  (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and  (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,  or other obligations, or its deposits, reserves, other liabilities or capital attributable  thereto; or  (iii) impose on any Lender or the L/C Issuer or the London interbank market  any other condition, cost or expense affecting this Credit Agreement or Eurodollar Rate  Loans made by such Lender or any Letter of Credit or participation therein;  and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to  or continuing 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 increase the cost to such Lender or  the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its  obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received  or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other  amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the  L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the  L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.  (b) Capital and Liquidity Requirements.  If any Lender or the L/C Issuer determines  that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such  Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or  liquidity requirements has or would have the effect of materially reducing the rate of return on  such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s  holding company, if any, as a consequence of this Credit Agreement, the Commitments of such  Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the  Letters of Credit issued by the L/C Issuer, to a level materially below that which such Lender or  





 






84  the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for  such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the  policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy)  by a cost or an amount the Lender deems in good faith material, then from time to time the  Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount  or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s  holding company for any such reduction suffered.  (c) Certificates for Reimbursement.  A certificate of a Lender or the L/C Issuer  setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its  holding company, as the case may be, as specified in clause (a) or (b) of this Section 3.04 and  delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such  Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate  within ten (10) days after receipt thereof.  (d) Delay in Requests.  Failure or delay on the part of any Lender or the L/C Issuer  to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not  constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,  provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer  pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or  reductions suffered more than six (6) months prior to the date that such Lender or the L/C Issuer,  as the case may be, notifies the Borrower of the Change in Law giving rise to such increased  costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation  therefor (except that, if the Change in Law giving rise to such increased costs or reductions is  retroactive, then the six (6)-month period referred to above shall be extended to include the period  of retroactive effect thereof).  (e) Notwithstanding any other provision of this Section 3.04, no Lender or L/C  Issuer shall demand compensation for any increased cost or reduction pursuant to this Section  3.04 if it shall not at the time be the general policy or practice of such Lender or L/C Issuer to  demand such compensation from borrowers similarly situated in similar circumstances under  comparable provisions of other credit agreements.  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 Eurodollar 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 Eurodollar Rate Loan on the date or in  the amount notified by the Borrower; or  (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 11.13;  





 






85  including any loss or expense arising from the liquidation or reemployment of funds obtained by it,  excluding any loss of anticipated profits, to maintain such Loan or from fees payable to terminate the  deposits from which such funds were obtained.  The Borrower shall also pay any customary administrative  fees charged by such Lender in connection with the foregoing.  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  Base Rate used in determining 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 (x) any Lender requests  compensation under Section 3.04, (y) the Borrower is required to pay any Indemnified Taxes or  additional amounts to any Lender, the L/C Issuer, or any Governmental Authority for the account  of any Lender or the L/C Issuer pursuant to Section 3.01, or (z) any Lender gives a notice  pursuant to Section 3.02, then such Lender or the L/C Issuer, as applicable, 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 or the L/C Issuer, as applicable, 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 or the L/C Issuer, as the case may be, to any  unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the  L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable and  documented out-of-pocket costs and expenses incurred by any Lender or the L/C Issuer in  connection with any such designation or assignment.  (b) Replacement of Lenders.  If any Lender requests compensation under Section  3.04, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any  Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01,  and, in each case, such Lender is unable to designate a different lending office in accordance with  Section 3.06(a), the Borrower may replace such Lender in accordance with Section 11.13.  3.07 Successor LIBOR.  (a) Notwithstanding anything to the contrary in this Credit Agreement or any other  Credit Documents, if the Administrative Agent determines (which determination shall be  conclusive absent manifest error), or the Borrower or the Required Lenders notify the  Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the  Borrower or the Required Lenders (as applicable) have determined, that:  (i) adequate and reasonable means do not exist for ascertaining LIBOR for  any Interest Period hereunder or any other tenors of LIBOR, including, without  limitation, because the LIBOR Screen Rate is not available or published on a current  basis and such circumstances are unlikely to be temporary; or   (ii) the administrator of the LIBOR Screen Rate or a Governmental  Authority having jurisdiction over the Administrative Agent or such administrator has  made a public statement identifying a specific date after which LIBOR or the LIBOR  





 






86  Screen Rate shall no longer be made available, or used for determining the interest rate of  loans; provided, that, at the time of such statement, there is no successor administrator  that is satisfactory to the Administrative Agent, that will continue to provide LIBOR after  such specific date (such specific date, the “Scheduled Unavailability Date”); or  (iii) the administrator of the LIBOR Screen Rate or a Governmental  Authority having jurisdiction over such administrator has made a public statement  announcing that all Interest Periods and other tenors of LIBOR are no longer  representative; or  (iv) syndicated loans currently being executed, or that include language  similar to that contained in this Section, are being executed or amended (as applicable) to  incorporate or adopt a new benchmark interest rate to replace LIBOR;  then, in the case of clauses (i)-(iii) above, on a date and time determined by the  Administrative Agent (any such date, the “LIBOR Replacement Date”), which date shall be at the  end of an Interest Period or on the relevant interest payment date, as applicable, for interest  calculated and shall occur within a reasonable period of time after the occurrence of any of the  events or circumstances under clauses (i), (ii) or (iii) above and, solely with respect to clause (ii)  above, no later than the Scheduled Unavailability Date, LIBOR will be replaced hereunder and  under any Credit Document with, subject to the proviso below, the first available alternative set  forth in the order below for any payment period for interest calculated that can be determined by  the Administrative Agent, in each case, without any amendment to, or further action or consent of  any other party to, this Credit Agreement or any other Credit Document (the “LIBOR Successor  Rate”; and any such rate before giving effect to the Related Adjustment, the “Pre-Adjustment  Successor Rate”):  (x) Term SOFR plus the Related Adjustment; and  (y)  SOFR plus the Related Adjustment;   and in the case of clause (iv) above, the Borrower and Administrative Agent may amend  this Credit Agreement solely for the purpose of replacing LIBOR under this Credit Agreement  and under any other Credit Document in accordance with the definition of “LIBOR Successor  Rate” and such amendment will become effective at 5:00 p.m., on the fifth Business Day after the  Administrative Agent shall have notified all Lenders and the Borrower of the occurrence of the  circumstances described in clause (iv) above unless, prior to such time, Lenders comprising the  Required Lenders have delivered to the Administrative Agent written notice that such Required  Lenders object to the implementation of a LIBOR Successor Rate pursuant to such clause; provided, that, if the Administrative Agent determines that Term SOFR has become  available, is administratively feasible for the Administrative Agent and would have been  identified as the Pre-Adjustment Successor Rate in accordance with the foregoing if it had been  so available at the time that the LIBOR Successor Rate then in effect was so identified, and the  Administrative Agent notifies the Borrower and each Lender of such availability, then from and  after the beginning of the Interest Period, relevant interest payment date or payment period for  interest calculated, in each case, commencing no less than thirty (30) days after the date of such  notice, the Pre-Adjustment Successor Rate shall be Term SOFR and the LIBOR Successor Rate  shall  be Term SOFR plus the relevant Related Adjustment.    





 






87  The Administrative Agent will promptly (in one or more notices) notify the Borrower and  each Lender of (x) any occurrence of any of the events, periods or circumstances under clauses (i)  through (iii) above, (y) a LIBOR Replacement Date and (z) the LIBOR Successor Rate.  Any LIBOR Successor Rate shall be applied in a manner consistent with market practice;  provided that to the extent such market practice is not administratively feasible for the  Administrative Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise  reasonably determined by the Administrative Agent.  Notwithstanding anything else herein, if at any time any LIBOR Successor Rate as so  determined would otherwise be less than 0%, the LIBOR Successor Rate will be deemed to be  0% for the purposes of this Credit Agreement and the other Credit Documents.  In connection with the implementation of a LIBOR Successor Rate, the Administrative  Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time  and, notwithstanding anything to the contrary herein or in any other Credit Document, any  amendments implementing such LIBOR Successor Rate Conforming Changes will become  effective without any further action or consent of any other party to this Credit Agreement;  provided that, with respect to any such amendment effected, the Administrative Agent shall post  each such amendment implementing such LIBOR Successor Rate Conforming Changes to the  Borrower and the Lenders reasonably promptly after such amendment becomes effective.  If the events or circumstances of the type described in Section 3.07(a)(i)-(iii) have  occurred with respect to the LIBOR Successor Rate then in effect, then the successor rate thereto  shall be determined in accordance with the definition of “LIBOR Successor Rate.”  (b) Notwithstanding anything to the contrary herein, (i) after any such determination  by the Administrative Agent or receipt by the Administrative Agent of any such notice described  under Section 3.07(a)(i)-(iii), as applicable, if the Administrative Agent determines that none of  the LIBOR Successor Rates is available on or prior to the LIBOR Replacement Date, (ii) if the  events or circumstances described in Section 3.07(a)(iv) have occurred but none of the LIBOR  Successor Rates is available, or (iii) if the events or circumstances of the type described in  Section 3.07(c)(i)-(iii) have occurred with respect to the LIBOR Successor Rate then in effect and  the Administrative Agent determines that none of the LIBOR Successor Rates is available, then  in each case, the Administrative Agent and the Borrower may amend this Credit Agreement  solely for the purpose of replacing LIBOR or any then current LIBOR Successor Rate in  accordance with this Section at the end of any Interest Period, relevant interest payment date or  payment period for interest calculated, as applicable, with another alternate benchmark rate  giving due consideration to any evolving or then existing convention for similar Dollar  denominated syndicated credit facilities for such alternative benchmarks and, in each case,  including any Related Adjustments and any other mathematical or other adjustments to such  benchmark giving due consideration to any evolving or then existing convention for similar  Dollar denominated syndicated credit facilities for such benchmarks, which adjustment or method  for calculating such adjustment shall be published on an information service as selected by the  Administrative Agent from time to time in its reasonable discretion and may be periodically  updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a  LIBOR Successor Rate. Any such amendment shall become effective at 5:00 p.m. on the fifth  Business Day after the Administrative Agent shall have posted such proposed amendment to all  Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders  have delivered to the Administrative Agent written notice that such Required Lenders object to  such amendment.  





 






88  (c) If, at the end of any Interest Period, relevant interest payment date or payment  period for interest calculated, no LIBOR Successor Rate has been determined in accordance with  clause (a) or (b) of this Section and the circumstances under clauses (a)(i) or (a)(iii) above exist or  the Scheduled Unavailability Date has occurred (as applicable), 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, Interest Periods, interest payment dates or payment periods), and (y) the  Eurodollar Rate component shall no longer be utilized in determining the Base Rate, until the  LIBOR Successor Rate has been determined in accordance with clause (a) or (b) above. Upon  receipt of such notice, the Borrower may revoke any pending request for a Borrowing of,  conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar  Rate Loans, Interest Periods, interest payment dates or payment periods) or, failing that, will be  deemed to have converted such request into a request for a Borrowing of Base Rate Loans  (subject to the foregoing clause (y)) in the amount specified therein.  3.08 Survival.  All of the Credit Parties’ obligations under this Article III shall survive termination of the  Aggregate Revolving Commitments, repayment of all other Obligations hereunder (other than contingent  Obligations with respect to which no claim has been made), and resignation of the Administrative Agent.  ARTICLE IV.  GUARANTY  4.01 The Guaranty.  Each of the Guarantors hereby jointly and severally guarantees to each Swap Contract Provider,  each Treasury Management Bank, the Administrative Agent and each Lender, as primary obligor and not  as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a  mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise) strictly in  accordance with the terms thereof.  The Guarantors hereby further agree that if any of the Obligations are  not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a  mandatory Cash Collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay  the same, without any demand or notice whatsoever, and that in the case of any extension of time of  payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether  at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization  or otherwise) in accordance with the terms of such extension or renewal.  Notwithstanding any provision to the contrary contained herein or in any other of the Credit  Documents, Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor  under this Credit Agreement and the other Credit Documents shall not exceed an aggregate amount equal  to the largest amount that would not render such obligations subject to avoidance under applicable Debtor  Relief Laws.  4.02 Obligations Unconditional.  The obligations of the Guarantors under Section 4.01 are joint and several, absolute and  unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the  Credit Documents, any Swap Contracts or Treasury Management Agreements or any other documents  





 






89  relating to the Obligations, or any substitution, release, impairment or exchange of any other guarantee of  or security for any of the Obligations, and, to the fullest extent permitted by applicable Laws, irrespective  of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or  defense of a surety or guarantor (other than a payment in full of all outstanding Obligations, unless such  any payment with respect to such Obligations is rescinded or must be otherwise restored by any holder of  the Obligations), it being the intent of this Section 4.02 that the obligations of the Guarantors hereunder  shall be absolute and unconditional under any and all circumstances.  Each Guarantor agrees that such  Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the  Borrower or any other Guarantor for amounts paid under this Article IV until such time as the Obligations  have been paid in full and the Commitments have expired or terminated.  Without limiting the generality  of the foregoing, it is agreed that, to the fullest extent permitted by Law, the occurrence of any one (1) or  more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall  remain absolute and unconditional as described above:  (a) at any time or from time to time, without notice to any Guarantor, the time for  any performance of or compliance with any of the Obligations shall be extended, or such  performance or compliance shall be waived;  (b) any of the acts mentioned in any of the provisions of any of the Credit  Documents, any Swap Contract between any Credit Party and any Swap Contract Provider or any  Treasury Management Agreement between any Credit Party and any Treasury Management  Bank, or any other agreement or instrument expressly incorporated by reference in the Credit  Documents, such Swap Contracts or such Treasury Management Agreements shall be done or  omitted;  (c) the maturity of any of the Obligations shall be accelerated, or any of the  Obligations shall be modified, supplemented or amended in any respect, or any right under any of  the Credit Documents, any Swap Contract between any Credit Party and any Swap Contract  Provider or any Treasury Management Agreement between any Credit Party and any Treasury  Management Bank, or any other agreement or instrument expressly incorporated by reference in  the Credit Documents, such Swap Contracts or such Treasury Management Agreements shall be  waived or any other guarantee of any of the Obligations or any security therefor shall be released,  impaired or exchanged in whole or in part or otherwise dealt with;  (d) any Lien granted to, or in favor of, the Administrative Agent or any other holder  of the Obligations as security for any of the Obligations shall fail to attach or be perfected; or  (e) any of the Obligations shall be determined to be void or voidable (including,  without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the  claims of any Person (including, without limitation, any creditor of any Guarantor).  With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,  presentment, demand of payment, protest and all notices whatsoever, and any requirement that the  Administrative Agent or any other holder of the Obligations exhaust any right, power or remedy or  proceed against any Person under any of the Credit Documents, any Swap Contract between any Credit  Party and any Swap Contract Provider or any Treasury Management Agreement between any Credit Party  and any Treasury Management Bank, or any other agreement or instrument expressly incorporated by  reference in the Credit Documents, such Swap Contracts or such Treasury Management Agreements, or  against any other Person under any other guarantee of, or security for, any of the Obligations.  





 






90  4.03 Reinstatement.  The obligations of the Guarantors under this Article IV shall be automatically reinstated if and to  the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is  rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of  any Debtor Relief Law or otherwise, and each Guarantor agrees that it will indemnify the Administrative  Agent and each other holder of the Obligations on demand for all reasonable costs and expenses  (including, without limitation, the fees, charges and disbursements of counsel) incurred by the  Administrative Agent or such holder of the Obligations in connection with such rescission or restoration,  including any such costs and expenses incurred in defending against any claim alleging that such payment  constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law.  4.04 Certain Additional Waivers.  Each Guarantor further agrees that such Guarantor shall have no right of recourse to security for  the Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02 and through  the exercise of rights of contribution pursuant to Section 4.06.  4.05 Remedies.  The Guarantors agree that, to the fullest extent permitted by Law, as between the Guarantors, on  the one hand, and the Administrative Agent and the other holders of the Obligations, on the other hand,  the Obligations may be declared to be forthwith due and payable as specified in Section 9.02 (and shall be  deemed to have become automatically due and payable in the circumstances specified in Section 9.02) for  purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition preventing such  declaration (or preventing the Obligations from becoming automatically due and payable) as against any  other Person and that, in the event of such declaration (or the Obligations being deemed to have become  automatically due and payable), the Obligations (whether or not due and payable by any other Person)  shall forthwith become due and payable by the Guarantors for purposes of Section 4.01.  The Guarantors  acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the  Security Documents and that the holders of the Obligations may exercise their remedies thereunder in  accordance with the terms thereof.  4.06 Rights of Contribution.  The Guarantors hereby agree as among themselves that, if any Guarantor shall make an Excess  Payment (as defined below), such Guarantor shall have a right of contribution from each other Guarantor  in an amount equal to such other Guarantor’s Contribution Share (as defined below) of such Excess  Payment.  The payment obligations of any Guarantor under this Section 4.06 shall be subordinate and  subject in right of payment to the Obligations until such time as the Obligations have been paid-in-full  and the Commitments have terminated, and none of the Guarantors shall exercise any right or remedy  under this Section 4.06 against any other Guarantor until such Obligations have been paid-in-full and the  Commitments have terminated.  For purposes of this Section 4.06, (a) “Excess Payment” shall mean the  amount paid by any Guarantor in excess of its Ratable Share of any Obligations; (b) “Ratable Share” shall  mean, for any Guarantor in respect of any payment of Obligations, the ratio (expressed as a percentage) as  of the date of such payment of Obligations of (i) the amount by which the aggregate present fair salable  value of all of its assets and properties exceeds the amount of all debts and liabilities of such Guarantor  (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations  of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all  assets and other properties of all of the Credit Parties exceeds the amount of all of the debts and liabilities  (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations  





 






91  of the Credit Parties hereunder) of the Credit Parties; provided, however, that, for purposes of calculating  the Ratable Shares of the Guarantors in respect of any payment of Obligations, any Guarantor that  became a Guarantor subsequent to the date of any such payment shall be deemed to have been a  Guarantor on the date of such payment and the financial information for such Guarantor as of the date  such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such  payment; and (c) “Contribution Share” shall mean, for any Guarantor in respect of any Excess Payment  made by any other Guarantor, the ratio (expressed as a percentage) as of the date of such Excess Payment  of (i) the amount by which the aggregate present fair salable value of all of its assets and properties  exceeds the amount of all debts and liabilities of such Guarantor (including contingent, subordinated,  unmatured, and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii)  the amount by which the aggregate present fair salable value of all assets and other properties of the  Credit Parties other than the maker of such Excess Payment exceeds the amount of all of the debts and  liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the  obligations of the Credit Parties) of the Credit Parties other than the maker of such Excess Payment;  provided, however, that, for purposes of calculating the Contribution Shares of the Guarantors in respect  of any Excess Payment, any Guarantor that became a Guarantor subsequent to the date of any such  Excess Payment shall be deemed to have been a Guarantor on the date of such Excess Payment and the  financial information for such Guarantor as of the date such Guarantor became a Guarantor shall be  utilized for such Guarantor in connection with such Excess Payment.  This Section 4.06 shall not be  deemed to affect any right of subrogation, indemnity, reimbursement or contribution that any Guarantor  may have under Law against the Borrower in respect of any payment of Obligations.  4.07 Guarantee of Payment; Continuing Guarantee.  The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing  guarantee, and shall apply to all Obligations whenever arising.  4.08 Keepwell.   Each Credit Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of the  security interest under the Credit Documents, in each case, by any Specified Loan Party, becomes  effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally  and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with  respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to  honor all of its obligations under this Guaranty and the other Credit Documents in respect of such Swap  Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby  incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this  Article IV voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not  for any greater amount).  The obligations and undertakings of each Qualified ECP Guarantor under this  Section 4.08 shall remain in full force and effect until the Obligations (other than contingent Obligations  with respect to which no claim has been made) have been indefeasibly paid and performed in full.  Each  Qualified ECP Guarantor intends this Section 4.08 to constitute, and this Section 4.08 shall be deemed to  constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit  of, each Specified Loan Party for all purposes of the Commodity Exchange Act.  4.09 Appointment of Borrower.     Each of the Credit Parties hereby appoints the Borrower to act as its agent for all purposes of this  Credit Agreement, the other Credit Documents and all other documents and electronic platforms entered  into in connection herewith and agrees that (a) the Borrower may execute and deliver such documents and  provide such authorizations on behalf of such Credit Parties as the Borrower deems necessary,  





 






92  appropriate or desirable in its sole discretion and each Credit Party shall be obligated by all of the terms  of any such document and/or authorization executed on its behalf, (b) any notice or communication  delivered by the Administrative Agent, L/C Issuer or a Lender to the Borrower shall be deemed delivered  to each Credit Party and (c) the Administrative Agent, L/C Issuer or the Lenders may accept, and be  permitted to rely on, any document, authorization, instrument or agreement executed and delivered by the  Borrower on behalf of each of the Credit Parties.  ARTICLE V.  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS  5.01 Conditions of Effectiveness.  This Credit Agreement shall become effective upon, and the obligation of each Lender to make  the initial Loans is subject to, the satisfaction (or waiver in accordance with Section 11.01) of the  following conditions precedent:  (a) Execution of Credit Agreement and Credit Documents.  Receipt of (i) a  counterpart of this Credit Agreement, (ii) a counterpart of the Pledge Agreement, and (iii) for the  account of each Lender requesting a promissory note, a Note, executed by a duly authorized  officer of each party thereto.  (b) Legal Opinion.  Receipt of a New York counsel legal opinion and, to the extent  requested by the Administrative Agent, applicable local counsel opinions relating to this Credit  Agreement and the other Credit Documents and the transactions contemplated herein and therein,  in form and substance reasonably acceptable to the Administrative Agent, which opinions shall  include, without limitation, (i) an opinion that the execution, delivery and performance of the  Credit Documents and the performance of the transactions contemplated hereby will not conflict  with any material Indebtedness of the Credit Parties or any of the Credit Parties’ organizational  documents and (ii) opinions as to perfection of the Liens granted to the Administrative Agent  pursuant to the Pledge Agreement.  (c) Financial Statements.  Receipt of (i) the consolidated audited financial statements  of the Borrower and its consolidated Subsidiaries for the fiscal years ended 2016, 2017 and 2018,  including balance sheets, income statements and cash flow statements audited by independent  public accountants of recognized national standing and prepared in conformity with GAAP and  (ii) the Interim Financial Statements.  (d) Corporate Documents.  Receipt of the following (or their equivalent) for each  Credit Party, each (other than with respect to clause (iv)) certified by the secretary or assistant  secretary of such Credit Party as of the Closing Date to be true and correct and in force and effect  pursuant to a certificate substantially in the form attached hereto as Exhibit 5.01(d):  (i) Articles of Incorporation.  Copies of the articles of incorporation or  charter documents certified to be true and complete as of a recent date by the appropriate  Governmental Authority of the state of its organization (or a certification that such  articles of incorporation or charter documents previously delivered to the Administrative  Agent have not been amended and remain in full force and effect).  





 






93  (ii) Resolutions.  Copies of resolutions of the board of directors or  comparable managing body approving and adopting the respective Credit Documents, the  transactions contemplated therein and authorizing execution and delivery thereof.  (iii) Bylaws.  Copies of the bylaws, operating agreement or partnership  agreement certified by a secretary or assistant secretary as of the Closing Date to be true  and correct and in force and effect as of such date (or a certification that such bylaws,  operating agreement or partnership agreement previously delivered to the Administrative  Agent have not been amended and remain in full force and effect).  (iv) Good Standing.  Copies, where applicable, of certificates of good  standing, existence or its equivalent certified as of a recent date by the appropriate  Governmental Authorities of the State of organization.  (v) Incumbency.  An incumbency certificate of each Credit Party certified by  a secretary or assistant secretary to be true and correct as of the Closing Date.  (e) Personal Property Collateral.  The Administrative Agent shall have received, in  form and substance reasonably satisfactory to the Administrative Agent:  (i) (A) searches of UCC filings in the jurisdiction of incorporation or  formation, as applicable, of the Credit Parties, copies of the financing statements on file  in such jurisdictions evidencing that no Liens exist other than Permitted Liens and (B) tax  lien, judgment and pending litigation searches;  (ii) completed UCC financing statements for each appropriate jurisdiction as  is necessary to perfect the Administrative Agent’s security interest in the Collateral;  (iii) stock or membership certificates, if any, evidencing the Equity Interests  pledged to the Administrative Agent pursuant to the Pledge Agreement and duly executed  in blank undated stock or transfer powers; and  (iv) duly executed consents as are necessary to perfect the Lenders’ security  interest in the Collateral.  Notwithstanding the foregoing, it is understood and agreed that, to the extent any lien search or  Pledged Collateral (as defined in the Pledge Agreement) (including the creation or perfection of  any security interest therein) is not or cannot be provided and/or perfected on the Closing Date  (other than (x) UCC lien searches in the jurisdiction of organization of the Borrower or any  Guarantor, (y) a lien on such pledged Collateral that may be perfected solely by the filing of a  financing statement under the UCC and (z) the pledge and perfection of the security interests in  the Equity Interests of the Borrower and the Guarantors with respect to which a Lien may be  perfected on the Closing Date by the delivery of a stock or equivalent certificate) after the  Borrower uses commercially reasonable efforts to do so or without undue burden or expense, then  the provision of any such lien search and/or provision and/or perfection of a security interest in  such pledged Collateral shall not constitute a condition precedent to the obligation of each Lender  to make its initial Credit Extension on the Closing Date, but may instead be delivered within  forty-five (45) days (or such longer period as the Administrative Agent may reasonably agree in  its discretion) after the Closing Date.  





 






94  (f) Fees.  Receipt by the Administrative Agent and the Lenders of all fees, if any,  then owing pursuant to the Fee Letters, Section 2.09 or pursuant to any Credit Document and  receipt by legal counsel to the Administrative Agent of all reasonable and documented fees,  expenses and disbursements required to be paid on or before the Closing Date that have been  invoiced at least three (3) days prior to the Closing Date.  (g) Officer’s Certificate.  Receipt by the Administrative Agent of a certificate of a  Responsible Officer of the Borrower on the Closing Date certifying that after giving effect to the  Credit Extensions and other transactions contemplated herein, the conditions specified in Sections  5.01(h) and 5.02(a)(i) have been satisfied as of the Closing Date.  (h) No Material Adverse Effect.  There shall not have occurred since January 27,  2018 any event or condition that has had or would be reasonably expected, either individually or  in the aggregate, to have a Material Adverse Effect.  (i) Consents.  The Administrative Agent shall have received evidence that all  necessary governmental consents and approvals, if any, in connection with the financings and  other transactions contemplated hereby have been received.  (j) Solvency Certificate.  The Administrative Agent shall have received an officer’s  certificate for the Credit Parties prepared by the chief financial officer of the Borrower in  substantially the form of Exhibit 5.01(j).  (k) “Know Your Customer” and Patriot Act Information.  Receipt by the  Administrative Agent or any Lender of all documentation and other information that the  Administrative Agent or such Lender shall have reasonably requested at least ten (10) days prior  to the Closing Date in order to comply with its ongoing obligations under applicable “know your  customer” and anti-money laundering laws and regulations, including (i) the Patriot Act and (ii) if  the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a  Beneficial Ownership Certification in relation to the Borrower.  (l) Existing Credit Agreement.  The Borrower shall have (i) paid all accrued and  unpaid interest with respect to the outstanding loans under the Existing Credit Agreement through  the Closing Date, (ii) paid all accrued fees owing to the lenders under the Existing Credit  Agreement through the Closing Date and (iii) repaid any loans under the Existing Credit  Agreement to the extent necessary to keep the outstanding loans ratable with the revised  commitments under this Credit Agreement as of the Closing Date.  Without limiting the generality of the provisions of the last paragraph of Section 10.03, for  purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that  has signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to be  satisfied with, each document or other matter required thereunder to be consented to or approved by or  acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from  such Lender prior to the proposed Closing Date specifying its objection thereto.  5.02 Conditions to all Credit Extensions.  (a) The obligation of each Lender to honor any Request for Credit Extension is subject to the  following conditions precedent:  





 






95  (i) Representations and Warranties.  The representations and warranties made by  any Credit Party herein or in any other Credit Document or which are contained in any certificate  furnished at any time under or in connection herewith or therewith shall (i) with respect to  representations and warranties that contain a materiality qualification, be true and correct (after  giving effect to such materiality qualification set forth therein) and (ii) with respect to  representations and warranties that do not contain a materiality qualification, be true and correct  in all material respects, in each case, on and as of the date of such Credit Extension as if made on  and as of such date except for any representation or warranty made as of an earlier date, in which  case any such representation or warranty shall be true and correct (or true and correct in all  material respects, as applicable) as of such earlier date.     (ii) No Default or Event of Default.  No Default or Event of Default shall have  occurred and be continuing on such date or after giving effect to the Credit Extension to be made  on such date.  (iii) Outstanding Amounts.  Immediately after giving effect to the Credit Extension to  be made on such date (and the application of the proceeds thereof), (i) the Total Revolving  Outstandings at such time shall not exceed the Aggregate Revolving Commitments, (ii) the L/C  Obligations shall not exceed the Letter of Credit Sublimit and (iii) the outstanding Swingline  Loans shall not exceed the Swingline Sublimit.  (iv) Request for Credit Extension.  The Administrative Agent and, if applicable, the  L/C Issuer or the Swingline Lender shall have received a Request for Credit Extension in  accordance with the requirements hereof.  (b) Each Request for Credit Extension submitted by the Borrower shall be deemed to be a  representation and warranty that the conditions specified in Sections 5.02(a) and (b) have been satisfied  on and as of the date of the applicable Credit Extension.  ARTICLE VI.  REPRESENTATIONS AND WARRANTIES  To induce the Lenders to enter into this Credit Agreement and to make Credit Extensions herein  provided for, each of the Credit Parties hereby represents and warrants to the Administrative Agent and to  each Lender that:  6.01 Financial Condition.  The Borrower has delivered to the Administrative Agent and the Lenders balance sheets and the  related statements of income and of cash flows of the Borrower and its Subsidiaries for the Borrower’s  fiscal year ended January 30, 2021 audited by PricewaterhouseCoopers, certified public accountants.  The  financial statements referred to above are, in all material respects, true and correct and present fairly the  consolidated financial condition of the Borrower and its Subsidiaries in accordance with GAAP as of such  date.  All such financial statements, including the related schedules and notes thereto, have been prepared  in accordance with GAAP applied consistently throughout the periods involved (except as disclosed  therein).  





 






96  6.02 No Material Adverse Change.  Since January 30, 2021, there has been no development or event which has had or could  reasonably be expected to have a Material Adverse Effect.  6.03 Organization; Existence.  Each Credit Party (a) is duly organized, validly existing and in good standing under the laws of  the jurisdiction of its organization, (b) has the corporate or other necessary power and authority, and the  legal right to own and operate its property, to lease the property it operates as lessee and to conduct the  business in which it is currently engaged, except as would not, in the aggregate, have a Material Adverse  Effect and (c) is duly qualified as a foreign entity and in good standing under the laws of each jurisdiction  where its ownership, lease or operation of property or the conduct of its business requires such  qualification, other than in such jurisdictions where the failure to be so qualified and in good standing  would not, in the aggregate, have a Material Adverse Effect.  6.04 Power; Authorization; Enforceable Obligations.  (a) Each Credit Party has the corporate or other necessary power and authority, and the legal  right, to make, deliver and perform the Credit Documents to which it is a party and has taken all  necessary corporate or other action to authorize the execution, delivery and performance by it of the  Credit Documents to which it is a party.    (b) No consent or authorization of, filing with, notice to or other act by or in respect of, any  Governmental Authority or any other Person is required in connection with acceptance of any Credit  Extension by the Borrower or the making of the guaranties hereunder or with the execution, delivery or  performance of any Credit Documents by the Credit Parties (other than those which have been obtained)  or with the validity or enforceability of any Credit Document against the Credit Parties.    (c) Each Credit Document to which it is a party constitutes a valid and legally binding  obligation of each Credit Party enforceable in accordance with its terms, subject to bankruptcy,  insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability  relating to or affecting creditors’ rights and to general equity principles.  6.05 Conflict.  The execution, delivery and performance of the Credit Documents, the Borrowings hereunder and  the use of the proceeds of the Loans will not (a) violate any Requirement of Law or Sanctions applicable  to the Credit Parties or the Restricted Subsidiaries (except those as to which waivers or consents have  been obtained), (b) conflict with, result in a breach of or constitute a default under (i) the articles of  incorporation, bylaws or other organizational documents of such Person, (ii) any material indenture,  material agreement or other material instrument to which such Person is a party or by which any of its  properties may be bound or (iii) any approval of any Governmental Authority relating to such Person, or  (c) result in, or require, the creation or imposition of any Lien (other than Permitted Liens) on any of their  respective properties or revenues pursuant to any Requirement of Law.  6.06 No Material Litigation  No claim, litigation, investigation or proceeding of or before any arbitrator or Governmental  Authority is pending or, to the best knowledge of the Credit Parties, threatened by or against any Credit  Party or any of its Subsidiaries or against any of their respective properties which (a) relates to the Credit  





 






97  Documents or any of the transactions contemplated hereby or thereby or (b) could reasonably be expected  to have a Material Adverse Effect.  6.07 No Default.  No Default or Event of Default has occurred and is continuing.  6.08 Taxes.  Each of the Credit Parties and its Subsidiaries has filed, or caused to be filed, all federal and state  income tax returns and other material tax returns required to be filed and paid (a) all amounts of taxes  shown thereon to be due (including interest and penalties) and (b) all other material taxes, fees,  assessments and other governmental charges (including mortgage recording taxes, documentary stamp  taxes and intangibles taxes) owing by it, except, in either case, for such taxes (i) which are not yet  delinquent or (ii) that are being contested in good faith and by proper proceedings, and against which  adequate reserves are being maintained in accordance with GAAP.  Neither any of the Credit Parties nor  any of its Subsidiaries are aware as of the First Amendment Effective Date of any proposed tax  assessments against it or any of its Subsidiaries which could reasonably be expected to have a Material  Adverse Effect.    6.09 ERISA.  (a) There are no pending claims, actions or lawsuits, or action by any Governmental  Authority, with respect to any Pension Plan that could reasonably be expected to have a Material  Adverse Effect.    (b) Except as would not have a Material Adverse Effect, (i) no ERISA Event has  occurred or is reasonably to occur with respect to any Pension Plan or Multiemployer Plan; (ii) as  of the most recent valuation date for any Pension Plan, the funding target attainment percentage  (as defined in Section 430(d)(2) of the Internal Revenue Code) is sixty percent (60%) or higher;  (iii) neither any Credit Party nor any ERISA Affiliate has incurred any liability to the PBGC other  than for the payment of premiums, and there are no premium payments which have become due  that are unpaid; and (iv) neither any Credit Party nor any ERISA Affiliate has engaged in a  transaction that could be subject to Section 4069 or Section 4212(c) of ERISA.  (c) The Borrower represents and warrants as of the First Amendment Effective Date  that the Borrower is not and will not be using “plan assets” (within the meaning of Section 3(42)  of ERISA or otherwise) of one or more Benefit Plans with respect to the Borrower’s entrance  into, participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments or this Credit Agreement.  6.10 Governmental Regulations, Etc.  (a) No part of the proceeds of the Loans hereunder will be used, directly or  indirectly, for the purpose of purchasing or carrying any “margin stock” within the meaning of  Regulation U.  No Indebtedness being reduced or retired out of the proceeds of the Loans  hereunder was or will be incurred for the purpose of purchasing or carrying any margin stock  within the meaning of Regulation U or any “margin security” within the meaning of Regulation  T.  “Margin stock” within the meaning of Regulation U does not constitute more than twenty-five  percent (25%) of the value of the consolidated assets of the Borrower and its Subsidiaries.   Neither the execution and delivery hereof by the Borrower, nor the performance by it of any of  





 






98  the transactions contemplated by this Credit Agreement (including, without limitation, the direct  or indirect use of the proceeds of the Loans) will violate or result in a violation of Regulation T,  U or X.  (b) None of the Credit Parties is an “investment company” registered or required to  be registered under the Investment Company Act of 1940, as amended.  6.11 Subsidiaries.  Set forth on Schedule 6.11 (or such later schedule delivered to the Administrative Agent pursuant  to Section 7.02(a)) is a list of all the Subsidiaries of the Credit Parties, including a list setting forth  Material Domestic Subsidiaries, Material Foreign Subsidiaries, Immaterial Domestic Subsidiaries,  Immaterial Foreign Subsidiaries, Immaterial Guarantors and Unrestricted Subsidiaries on the First  Amendment Effective Date (or as of the date on which Schedule 6.11 was most recently delivered to the  Administrative Agent pursuant to Section 7.02(a)), the jurisdiction of their incorporation and the direct or  indirect ownership interest of the Borrower therein.  6.12 Use of Proceeds.  The Credit Extensions will be used solely (a) to refinance certain existing Indebtedness, (b) to  provide general working capital, (c) for other general corporate purposes and (d) for Permitted  Acquisitions.  6.13 Compliance with Laws.  Each Credit Party and each Subsidiary is in compliance with all Requirements of Law and  Sanctions, except to the extent that the failure to comply therewith would not, individually or in the  aggregate, reasonably be expected to have a Material Adverse Effect.    6.14 Accuracy and Completeness of Information.  All written information, other than the Projections (as defined below), which has been made  available to the Administrative Agent or the Lenders by any Credit Party or any Credit Parties’  representatives, taken as a whole together with all supplements delivered by any Credit Party to the  Administrative Agent or any Lender from time to time, in connection with the transactions contemplated  hereby is true and correct in all material respects and does not contain any untrue statement of a material  fact or omit to state a material fact necessary to make the statements contained therein not misleading in  any material manner, in light of the circumstances under which it has been made, and all financial  projections concerning the Borrower and its Subsidiaries that have been made available to the  Administrative Agent or the Lenders by the Borrower and its Subsidiaries or any of their representatives  (the “Projections”) have been prepared in good faith based upon assumptions believed in good faith by  the Borrower to be reasonable at the time furnished, it being understood and agreed that the Projections  are subject to uncertainty and that there can be no assurances that they will be achieved and that actual  results may differ materially from the Projections.  There is no fact now known to any of the Credit  Parties which has, or could reasonably be expected to have, a Material Adverse Effect which fact has not  been set forth herein, in the financial statements of the Credit Parties furnished to the Administrative  Agent and/or the Lenders, or in any certificate, opinion or other written statement made or furnished by,  or on behalf of, the Credit Parties to the Administrative Agent and/or the Lenders or disclosed in any  filing made by any Credit Party with the SEC.  As of the First Amendment Effective Date, to the  knowledge of the Credit Parties the information included in the Beneficial Ownership Certification, if  any, is true and correct in all respects.  





 






99  6.15 Environmental Matters.  (a) Except where such non-compliance or violation or liability would not reasonably  be expected to have a Material Adverse Effect, the facilities and properties owned, leased or  operated by any of the Credit Parties and their Subsidiaries (the “Properties”) do not contain any  Materials of Environmental Concern in amounts or concentrations which (i) constitute a violation  of, or (ii) have resulted in liability under, any Environmental Law.  (b) Except where such non-compliance or violation would not reasonably be  expected to have a Material Adverse Effect, and to the best knowledge of the Credit Parties with  respect to Properties that are leased, the Properties and all operations of the Credit Parties and  their Subsidiaries at the Properties are in compliance, and have in the last three (3) years been in  compliance, with all applicable Environmental Laws.    (c) Except where such non-compliance, violation or liability would not reasonably  be expected to have a Material Adverse Effect, none of the Credit Parties or any of its  Subsidiaries has received any written notice of, or otherwise become aware of, any violation,  alleged violation, non-compliance, liability or potential liability regarding environmental matters  or compliance with Environmental Laws with regard to any of the Properties or the business  operated by any of the Credit Parties for which any of the Credit Parties has liability (the  “Business”).  (d) Except where such violation or liability would not reasonably be expected to  have a Material Adverse Effect, Materials of Environmental Concern have not been transported  or disposed of from the Properties in violation of, or in a manner or to a location which has given  rise to liability under any Environmental Law, nor have any Materials of Environmental Concern  been generated, treated, stored or disposed of at, on or under any of the Properties in violation of,  or in a manner that has given rise to liability under, any applicable Environmental Law.  (e) Except as would not reasonably be expected to have a Material Adverse Effect,  no judicial proceeding or governmental or administrative action is pending or, to the knowledge  of any Credit Party, threatened, under any Environmental Law to which any of the Credit Parties  is or, to the knowledge of any Credit Party, would reasonably be expected to be named as a party  with respect to the Properties or the Business, nor are there any consent decrees or other decrees,  consent orders, administrative orders or other orders, or other administrative or judicial directives  outstanding under any Environmental Law with respect to the Properties or the Business.  (f) Except where such violation or remediation would not reasonably be expected to  have a Material Adverse Effect, there has been no release or threat of release of Materials of  Environmental Concern at or from the Properties, or arising from or related to the operations of  any of the Credit Parties in connection with the Properties or otherwise in connection with the  Business, in violation of or in amounts or in a manner requiring remediation under Environmental  Laws.  6.16 Solvency.  The amount of “fair saleable value” of the assets of the Credit Parties, on a consolidated basis,  exceeds (i) the value of all liabilities of the Credit Parties, on a consolidated basis, including contingent  and other liabilities, and (ii) the amount that will be required to pay the probable liabilities of the Credit  Parties, on a consolidated basis, on their existing debts (including contingent liabilities) as such debts  become absolute and matured.  The Credit Parties, on a consolidated basis, (a) do not have an  





 






100  unreasonably small amount of capital for the operation of the businesses in which they are engaged or  (b) are able to pay their liabilities, including contingent and other liabilities, as they mature.  For purposes  of this Section 6.16, (x) “not have an unreasonably small amount of capital for the operation of the  businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, including  contingent and other liabilities, as they mature” means that the Credit Parties, on a consolidated basis, will  be able to generate enough cash from operations, asset dispositions or refinancing, or a combination  thereof, to meet its obligations as they become due, and (y) the amount of any contingent liability has  been computed as the amount that, in light of all of the facts and circumstances existing as of the First  Amendment Effective Date, represents the amount that can reasonably be expected to become an actual or  matured liability.  6.17 Insurance.  As of the Closing Date, the present insurance coverage of the Credit Parties and the Restricted  Subsidiaries complies with the requirements set forth in Section 7.05.  6.18 Anti-Corruption Laws.  The Borrower and its Subsidiaries are currently conducting their businesses in compliance with  the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti- corruption laws applicable to the Borrower and its Subsidiaries and have instituted and currently maintain  policies and procedures reasonably designed to promote and achieve compliance with such laws in all  material respects.  6.19 Sanctions.  Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower and its  Subsidiaries, any director, officer, employee or affiliate thereof, is an individual or entity that is, or is  owned fifty percent (50%) or more, individually or in the aggregate, directly or indirectly, or controlled  by one or more individuals or entities that are (i) currently the subject of any Sanctions, (ii) included on  OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets  and the Investment Ban List, or any similar published list enforced by any other relevant sanctions  authority applicable to the Borrower and its Subsidiaries or (iii) located, organized or resident in a  Designated Jurisdiction.  6.20 Security Documents.  The Security Documents create valid security interests in, and Liens on, the Collateral purported  to be covered thereby.  Except as set forth in the Security Documents, upon the filing of appropriate  financing statements with the Secretary of State of the state of incorporation or organization for each  Credit Party and the Administrative Agent obtaining control or possession (in the State of New York,  with respected to certificated securities) over those items of Collateral in which a security interest is  perfected through control or possession, the Administrative Agent shall have perfected security interests  and Liens in the Collateral, prior to all other Liens other than Permitted Liens.  6.21 No Affected Financial Institution.  No Credit Party is an Affected Financial Institution.   





 






101  ARTICLE VII.  AFFIRMATIVE COVENANTS  The Credit Parties covenant and agree that on the Closing Date, and so long as this Credit  Agreement is in effect and until the Commitments have been terminated, no Loans remain outstanding  and all amounts owing hereunder or under any other Credit Document (other than (A) indemnification  obligations which survive the termination of this Credit Agreement and (B) any obligations and liabilities  under Swap Contracts or Treasury Management Agreements other than such outstanding obligations then  due and payable as to which arrangements satisfactory to the applicable Swap Contract Provider or  Treasury Management Bank have not been made) have been paid in full, the Credit Parties shall, and shall  cause each Restricted Subsidiary to:  7.01 Financial Statements.  Furnish, or cause to be furnished, to the Administrative Agent for the benefit of the Lenders:  (a) Audited Financial Statements.  As soon as available, but in any event within  ninety (90) days after the end of each fiscal year of the Borrower (commencing with the fiscal  year ending January 26, 2019), a consolidated balance sheet of the Borrower and its Subsidiaries  as of the end of the fiscal year and the related consolidated statements of income, retained  earnings, shareholders’ equity and cash flows for the year, audited by an independent certified  public accounting firm of nationally recognized standing, setting forth in each case in  comparative form the figures for the previous year, reported without a “going concern” or like  qualification or exception, or qualification indicating that the scope of the audit was inadequate to  permit such independent certified public accountants to certify such financial statements without  such qualification.    (b) Company-Prepared Financial Statements.  As soon as available, but in any event  within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the  Borrower (commencing with the fiscal quarter ending October 27, 2018), a company-prepared  consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the quarter and  related company-prepared consolidated statements of income for such quarterly period and for the  fiscal year to date and cash flows for the fiscal year to date; in each case setting forth in  comparative form the consolidated figures for the corresponding period or periods of the  preceding fiscal year or the portion of the fiscal year ending with such period, as applicable, in  each case subject to normal recurring year-end adjustments.    (c) Annual Operating Budget.  As soon as available, but in any event within sixty  (60) days after the end of each fiscal year of the Borrower, a copy of a detailed annual operating  budget of the Borrower and its Subsidiaries for the next four (4) fiscal quarter period prepared on  a quarterly basis, in form and substance reasonably satisfactory to the Administrative Agent,  together with a summary of the material assumptions made in the preparation of such annual  budget.  (d) Unrestricted Subsidiaries.  For any period in which Unrestricted Subsidiaries  collectively account for more than seven and one-half percent (7.5%) of Consolidated Total  Assets, (i) within the time periods specified in Section 7.01(a) and (b) (as applicable), unaudited  consolidating financial statements reflecting adjustments necessary to eliminate the assets,  accounts and operations of such Unrestricted Subsidiaries from such financial statements  delivered pursuant to Section 7.01(a) or (b), subject to normal recurring year-end adjustments,  





 






102  and (ii) within the time period specified in Section 7.01(c), a schedule to the annual operating  budget delivered pursuant to Section 7.01(c) providing a break-out of such Unrestricted  Subsidiaries.   All such financial statements shall be true and correct in all material respects (subject, in the case  of interim statements, to normal recurring year-end adjustments) and shall be prepared in reasonable  detail and in accordance with GAAP applied consistently throughout the periods reflected therein and  further accompanied by a description of, and an estimation of the effect on the financial statements on  account of, a change in the application of accounting principles as provided in Section 1.03.  7.02 Certificates; Other Information.  Furnish, or cause to be furnished, to the Administrative Agent for distribution to the Lenders:  (a) Accountant’s Certificate and Reports.  Concurrently with the delivery of the  financial statements referred to in Section 7.01(a) above, a certificate of the independent certified  public accountants reporting on such financial statements stating that in making the examination  necessary therefor no knowledge was obtained of any Default or Event of Default relating to  financial or accounting matters or violations of Section 7.07, except as specified in such  certificate.  (b) Officer’s Certificate.  Concurrently with the delivery of the financial statements  referred to in Sections 7.01(a) and 7.01(b) above, a certificate of a Responsible Officer, delivered  to the Administrative Agent at its credit contact address, with a copy to the Administrative Agent  at its syndication agency services address, in each case as set forth in Section 11.02 (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), stating that, to the best of such Responsible Officer’s  knowledge and belief, (i) the financial statements fairly present in all material respects the  financial condition of the parties covered by such financial statements, (ii) during such period  each Credit Party has observed or performed its covenants and other agreements hereunder and  under the other Credit Documents, and satisfied the conditions contained in this Credit  Agreement to be observed, performed or satisfied by it (except to the extent cured or waived in  accordance with the provisions hereof) and (iii) such Responsible Officer has obtained no  knowledge of any Default or Event of Default except as specified in such certificate.  Such  certificate shall include (i) the calculations required to indicate compliance with Section 7.07 as  of the last day of the period covered by such financial statements and (ii) solely with respect to  the certificate delivered in connection with Section 7.01(a), an updated Schedule 6.11 as of the  most recently ended fiscal quarter of the Borrower; provided that the Borrower shall deliver an  updated Schedule 6.11 each time a Guarantor is required to be added pursuant to Section 7.09 or  is released from its obligations in a transaction permitted by this Credit Agreement.  A form of  Compliance Certificate is attached as Exhibit 7.02(b).  (c) Public Information.  Promptly after the same are sent, copies of all reports (other  than those otherwise provided pursuant to Section 7.01 or accessible to the public via  www.sec.gov or any successor or other website maintained by the SEC) and other financial  information which any Credit Party sends to its public stockholders, and promptly upon written  request after the same are filed, copies of all financial statements and non-confidential reports  which any Credit Party may make to, or file with, the SEC.  





 






103  (d) Permitted Acquisition Report.  Where the total consideration, including, without  limitation, assumed Indebtedness, Earn Out Obligations and any other deferred payments (the  “Total Consideration”) for such Permitted Acquisition is expected to exceed $150,000,000:  (i) not less than five (5) Business Days prior to the consummation of such  Permitted Acquisition, a reasonably detailed description of the material terms of (A) such  Permitted Acquisition (including, without limitation, the purchase price and method and  structure of payment) and (B) each Target;  (ii) (A) if the Total Consideration is expected to be greater than  $150,000,000 but less than $300,000,000, not less than five (5) Business Days prior to  the consummation of such Permitted Acquisition, audited financial statements (or, if  unavailable, management-prepared financial statements) of the Target for its most recent  fiscal year and unaudited year-to-date statements through the most recently prepared  fiscal quarter and (B) if the Total Consideration is expected to be greater than or equal to  $300,000,000, (I) not later than the date and time required by the SEC for delivery of  such audited financial statements of the Target, audited financial statements of the Target  for its most recent fiscal year prepared by a nationally recognized independent certified  public accountants or by independent certified public accountants reasonably acceptable  to the Administrative Agent and unaudited fiscal year-to-date statements for the most  recent fiscal quarter or (II) if the audited or unaudited financial statements of the Target  referenced in clause (I) are unavailable five (5) Business Days prior to the consummation  of such Permitted Acquisition, not less than five (5) Business Days prior to the  consummation of such Permitted Acquisition, unaudited financial statements of the  Target and its Subsidiaries, certified by the chief executive officer, chief financial officer,  treasurer or controller of the Target to the effect that such statements are fairly stated in  all material respects when considered in relation to the consolidated financial statements  of the Target and its Subsidiaries, subject only to normal year-end audit adjustments and  the absence of footnotes;  (iii) if the Total Consideration is expected to be greater than $300,000,000,  consolidated projected income statements of the Borrower and its consolidated  Subsidiaries (giving effect to such Permitted Acquisition and the consolidation with the  Borrower of each relevant Target) for the three (3)-year period following the  consummation of such Permitted Acquisition, in reasonable detail, together with any  appropriate statement of assumptions and pro forma adjustments reasonably acceptable to  the Administrative Agent; and  (iv) a certificate, in form and substance reasonably satisfactory to the  Administrative Agent, executed by a Responsible Officer of the Borrower (A) setting  forth the best good faith estimate of the Total Consideration to be paid for each Target,  (B) certifying that (y) such Permitted Acquisition complies with the requirements of this  Credit Agreement and (z) after giving effect to such Permitted Acquisition and any  borrowings in connection therewith, the Borrower believes in good faith that it will have  sufficient availability under the Aggregate Revolving Commitments to meet its ongoing  working capital requirements and (C) demonstrating compliance with clauses (b) and (d)  of the definition of “Permitted Acquisition”.  (e) Regulation U Certificate.  Upon the written request of any Lender (through the  Administrative Agent) or the Administrative Agent, a certificate in conformity with the  requirements of FR Form U-1 referred to in Regulation U, signed by a Responsible Officer,  





 






104  stating that no part of the proceeds of the Loans under this Credit Agreement will be used,  directly or indirectly, for the purpose of purchasing or carrying any “margin stock” within the  meaning of Regulation U, or for the purpose of purchasing or carrying or trading in any  securities.  (f) Patriot Act; Beneficial Ownership Regulation.  Promptly following any written  request therefor, information and documentation reasonably requested by the Administrative  Agent or any Lender (through the Administrative Agent) for purposes of compliance with  applicable “know your customer” requirements under the Patriot Act, the Beneficial Ownership  Regulation or other applicable anti-money laundering laws.  (g) Other Information.  Promptly, such additional financial and other information as  the Administrative Agent, at the request of any Lender, may from time to time reasonably  request.  Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02(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) on which the  Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at  the website address listed on Schedule 11.02 or on the website of the SEC at http://www.sec.gov; or (ii)  on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to  which each Lender and the Administrative Agent have access (whether a commercial, third-party website  or whether sponsored by the Administrative Agent); provided that the Borrower shall deliver paper copies  of such documents to the Administrative Agent upon its written request to the Borrower to deliver such  paper copies until a written request to cease delivering paper copies is given by the Administrative  Agent.  The Administrative Agent shall have no obligation to request the delivery of or to maintain paper  copies of the documents referred to above.  The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead  Arrangers may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials  and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower  Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar  electronic system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may have  personnel who do not wish to receive MNPI with respect to the Borrower or its Affiliates, or the  respective securities of any of the foregoing, and who may be engaged in investment and other market- related activities with respect to such Persons’ securities.  The Borrower hereby agrees that so long as the  Borrower is the issuer of any outstanding debt or equity securities that are registered (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 Joint Lead Arrangers, the L/C Issuer and the Lenders to treat  such Borrower Materials as not containing any MNPI (although it may be sensitive and proprietary) with  respect to the Borrower or its securities for purposes of United States federal and state securities laws  (provided, however, that to the extent such Borrower Materials constitute Information, they shall be  treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be  made available through a portion of the Platform designated “Public Side Information;” and (z) the  Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that  are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated  “Public Side Information”.  Notwithstanding the foregoing, the Borrower shall be under no obligation to  mark any Borrower Materials “PUBLIC.”  





 






105  7.03 Notices.  Give notice to the Administrative Agent (for distribution to the Lenders) of:  (a) Defaults.  Promptly (but in any event within three (3) Business Days), after any  Credit Party knows or has reason to know thereof, the occurrence of any Default or Event of  Default, if and to the extent such Default or Event of Default shall then be continuing.  (b) Legal Proceedings.  Promptly, any litigation, or any investigation or proceeding  (including without limitation, any environmental proceeding) known to a Credit Party, relating to  a Credit Party or any of its Subsidiaries which would reasonably be expected to have a Material  Adverse Effect.  (c) ERISA.  Promptly, (i) the occurrence of (or if a Responsible Officer determines it  is reasonably expected to occur) any Reportable Event with respect to any Pension Plan, the  creation of any Lien in favor of the PBGC (other than a Permitted Lien) or a Pension Plan or any  withdrawal from, or the termination or Insolvency of, any Multiemployer Plan, that in each case  is reasonably likely to have a Material Adverse Effect or (ii) the institution of proceedings or the  taking of any other action by the PBGC or the Borrower or any ERISA Affiliate or any  Multiemployer Plan with respect to the withdrawal from, or the terminating or Insolvency of, any  Multiemployer Plan, that in each case is reasonably likely to have a Material Adverse Effect.  (d) Other.  Promptly, any other development or event which a Responsible Officer of  the Borrower determines is reasonably likely to have a Material Adverse Effect.  Each notice pursuant to this Section 7.03 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 proposes to take with respect thereto.  7.04 Maintenance of Existence; Compliance with Laws.  (a) (i) Except as permitted under Section 8.04, preserve, renew and keep in full force  and effect the corporate existence of (A) each of the Credit Parties and (B) each Subsidiary that is  not a Credit Party, where such failure to preserve, renew and keep in full force and effect the  corporate existence of such Subsidiary could reasonably be expected to have a Material Adverse  Effect and (ii) take all reasonable action to maintain all rights, privileges, licenses and franchises  necessary or desirable in the normal conduct of its business other than any such rights, privileges,  licenses and franchises the loss of which would not, in the aggregate, reasonably be expected to  have a Material Adverse Effect.  (b) Comply with all Requirements of Law (including, without limitation, all  Environmental Laws and ERISA) applicable to it except to the extent that failure to comply  therewith would not, in the aggregate, have a Material Adverse Effect.  7.05 Maintenance of Property; Insurance.  Keep all material property useful and necessary in its business in reasonably good working order  and condition (ordinary wear and tear excepted); maintain with financially sound and reputable insurance  companies casualty, liability, business interruption and such other insurance (which may include plans of  self-insurance) with such coverage and deductibles, and in such amounts as may be consistent with  prudent business practice and in any event consistent with normal industry practice; and furnish to the  





 






106  Administrative Agent such information as to the insurance carried as the Administrative Agent shall  reasonably request in writing.  7.06 Inspection of Property; Books and Records; Discussions.  Keep proper books of records and account in which full, true and correct entries in conformity  with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its  businesses and activities; and permit, during regular business hours and upon reasonable prior notice by  the Administrative Agent, the Administrative Agent to visit and inspect any of its properties and examine  and make abstracts (including photocopies) from any of its books and records at any reasonable time, and  to discuss the business, operations, properties and financial and other condition of the Credit Parties and  their Restricted Subsidiaries with officers and employees of the Credit Parties and their Restricted  Subsidiaries and with their independent certified public accountants; provided, however, that so long as  no Event of Default shall have occurred and be continuing, the Administrative Agent shall not exercise  such right more than twice in any calendar year.  The cost of the inspection referred to in the preceding  sentence shall be for the account of the Lenders unless an Event of Default has occurred and is  continuing, in which case the cost of such inspection shall be for the account of the Borrower.  7.07 Financial Covenants.  (a) Consolidated Net Leverage Ratio.  Maintain a Consolidated Net Leverage Ratio  of the Borrower and its Restricted Subsidiaries, which shall be calculated at the end of each fiscal  quarter of the Borrower, of not greater than 3.50:1.00; provided, however, that the Consolidated  Net Leverage Ratio level set forth above may, at the election of the Borrower and upon written  notice to the Administrative Agent prior to the consummation of a Qualified Permitted  Acquisition, be increased by 0.50:1.00 (a “half-turn”) in connection with a Permitted Acquisition  with aggregate cash and non-cash consideration (including assumed Indebtedness, the good faith  estimate by the Borrower of the maximum amount of any deferred purchase price obligations  (including the Borrower’s good faith estimate of any anticipated Earn Out Obligations) and  Equity Interests) paid in connection therewith in excess of $150,000,000 (each such Permitted  Acquisition, a “Qualified Permitted Acquisition”), with a 0.25:1.0 step-down for the first four  fiscal quarter period ending after the date that is six (6) months after such Permitted Acquisition  and another 0.25:1.0 step-down (returning the required Consolidated Net Leverage Ratio to the  then otherwise required ratio) for the first four fiscal quarter period ending after the date that is  twelve (12) months after such Permitted Acquisition; provided further that, (w) in any event, the  maximum Consolidated Net Leverage Ratio for any period of four fiscal quarters shall not be  increased to be greater than 4.00:1.00, (x) the Consolidated Net Leverage Ratio levels shall not be  increased pursuant to the foregoing proviso on more than two occasions during the term of this  Credit Agreement (commencing on the First Amendment Effective Date), (y) following any  increase in the Consolidated Net Leverage Ratio level pursuant to the foregoing proviso, no  subsequent increase in the Consolidated Net Leverage Ratio level pursuant to the foregoing  proviso may be made until after the required Consolidated Net Leverage Ratio has been at the  applicable level set forth above (without giving effect to any increase pursuant to the foregoing  proviso) for at least one full fiscal quarter and (z) any such increase of the Consolidated Net  Leverage Ratio levels pursuant to this Section 7.07(a) shall apply only with respect to the  calculation of the Consolidated Net Leverage Ratio for purposes of determining compliance with  this Section 7.07(a) and for purposes of any Qualified Permitted Acquisition Pro Forma  Calculation.  





 






107  (b) Consolidated Interest Coverage Ratio.  Maintain a Consolidated Interest  Coverage Ratio of the Borrower and its Restricted Subsidiaries, which shall be calculated at the  end of each fiscal quarter of the Borrower, of not less than 3.00:1.00.  7.08 Use of Proceeds.  Use the Loans solely for the purposes provided in Section 6.12.  7.09 Additional Guarantors.  (a) Cause each of the Borrower’s Material Domestic Subsidiaries (other than U.S.  Foreign Holdcos) that is a Restricted Subsidiary which is not a party to this Credit Agreement,  whether newly formed, after acquired or otherwise existing to promptly become a “Guarantor”  hereunder by way of execution and delivery of a Guarantor Joinder Agreement, together with a  secretary’s certificate, an incumbency certificate, resolutions, a good standing certificate,  organization documents, a New York legal counsel opinion (with customary opinions regarding  enforceability, no conflicts with Laws or specified agreements of material indebtedness,  governmental consents and approvals, status under Investment Company Act of 1940, execution  (to the extent governed by New York Law) and security (attachment and perfection of pledged  Equity Interests)) and, solely with respect to Material Domestic Subsidiaries, a local counsel  opinion (with customary existence, power, authority, execution (to the extent governed by local  Law), no conflicts with Laws or organizational documents and governmental consents and  approvals).  (b) To the extent that the Borrower’s Immaterial Domestic Subsidiaries (other than  Unrestricted Subsidiaries and U.S. Foreign Holdcos) which are not Guarantors collectively own  greater than twenty percent (20%) of Consolidated Total Assets, cause one (1) or more of such  Immaterial Domestic Subsidiaries to promptly become a “Guarantor” hereunder by way of  execution and delivery of a Guarantor Joinder Agreement, together with a secretary’s certificate,  an incumbency certificate, resolutions, a good standing certificate, organization documents and a  New York legal counsel opinion (with customary opinions regarding enforceability, no conflicts  with Laws or specified agreements of material indebtedness, governmental consents and  approvals, status under Investment Company Act of 1940, execution (to the extent governed by  New York Law) and security (attachment and perfection of Equity Interests)), to reduce the  Consolidated Total Assets ownership percentage of the remaining Immaterial Domestic  Subsidiaries that are not Guarantors to twenty percent (20%) or below; provided that (i) the  Credit Parties may elect to release any Immaterial Domestic Subsidiary as a Guarantor hereunder  to the extent the Borrower delivers to the Administrative Agent a certificate of a Responsible  Officer certifying that, after giving effect to such release, the Borrower’s Immaterial Domestic  Subsidiaries that are not Guarantors collectively own no more than twenty percent (20%) of  Consolidated Total Assets and (ii) it is acknowledged and agreed that upon receipt of such  certificate, such Immaterial Domestic Subsidiary shall be released as a Guarantor hereunder and  the Administrative Agent shall promptly take such action to evidence such release of such  Immaterial Domestic Subsidiary from its Guaranty as is reasonably requested by, and at the  expense of, the Credit Parties.  (c) At the option of the Borrower, cause any Domestic Subsidiary that is not  otherwise required to become a Guarantor pursuant to Section 7.09(a) or 7.09(b) to become a  “Guarantor” hereunder by way of execution and delivery of a Guarantor Joinder Agreement,  together with a secretary’s certificate, an incumbency certificate, resolutions, a good standing  





 






108  certificate (if applicable) and organization documents; provided that the Borrower shall not be  required to deliver a legal opinion in connection with such joinder.  (d) Notwithstanding anything to the contrary in this Section 7.09, if (i) the Borrower  designates any Guarantor as an Unrestricted Subsidiary in accordance with the terms of the  definition of Unrestricted Subsidiary or (ii) any Guarantor is sold or otherwise Disposed of in a  transaction that is not prohibited under the terms of this Credit Agreement, it is acknowledged  and agreed that, in any of such cases, such Guarantor shall be automatically released from its  Guaranty without the need to take any further action and that the Administrative Agent shall  promptly take such action to evidence such release of such Guarantor from its Guaranty as is  reasonably requested by, and at the expense of, the Credit Parties.  7.10 Payment of Taxes.  Pay, discharge or otherwise satisfy before becoming delinquent, all of its federal taxes, state  income taxes and other material taxes and any additional costs that are imposed as a result of any failure  to so pay, discharge or otherwise satisfy such taxes, except when the amount or validity of such taxes and  costs is currently being contested in good faith by appropriate proceedings and reserves, if applicable, in  conformity with GAAP with respect thereto have been provided on the books of the Borrower or its  Restricted Subsidiaries, as the case may be.  7.11 Environmental Laws.  (a) Comply in all material respects with, and take commercially reasonably steps to  ensure compliance in all material respects by all tenants and subtenants, if any, with, all  applicable Environmental Laws and obtain and comply in all material respects with and maintain,  and take commercially reasonably steps to ensure that all tenants and subtenants obtain and  comply in all material respects with and maintain, any and all licenses, approvals, notifications,  registrations or permits required by applicable Environmental Laws except to the extent that  failure to do so could not reasonably be expected to have a Material Adverse Effect; and  (b) Conduct and complete all investigations, studies, sampling and testing, and all  remedial, removal and other actions required under Environmental Laws and promptly comply in  all material respects with all lawful orders and directives of all Governmental Authorities  regarding Environmental Laws except to the extent that the same are being contested in good  faith by appropriate proceedings and the pendency of such proceedings would not reasonably be  expected to have a Material Adverse Effect.  7.12 Pledged Equity Interests.  Cause one hundred percent (100%) of the Equity Interests in each of its direct or indirect  Domestic Subsidiaries (other than U.S. Foreign Holdcos, Unrestricted Subsidiaries, Immaterial Domestic  Subsidiaries and direct or indirect Subsidiaries of Foreign Subsidiaries) and sixty-five percent (65%) (or  such greater percentage that, as a result of a Change in Law, could not reasonably be expected to cause  the undistributed earnings of such Foreign Subsidiary or U.S. Foreign Holdco, as applicable, as  determined for U.S. federal income tax purposes, to be included in the income of a direct, indirect or  constructive shareholder of such Foreign Subsidiary or U.S. Foreign Holdco or otherwise to cause any  materially adverse tax consequences to the Borrower or any Guarantor) of the voting Equity Interests and  one hundred percent (100%) of the non-voting Equity Interests (provided that any Equity Interests  constituting “stock entitled to vote” within the meaning of Treasury Regulation section 1.956-2(c)(2) shall  be treated as voting Equity Interests) of its first-tier Foreign Subsidiaries (other than Unrestricted  





 






109  Subsidiaries and Immaterial Foreign Subsidiaries) and its U.S. Foreign Holdcos, in each case to the extent  directly owned by such Credit Party, to be subject to a first priority, perfected Lien in favor of the  Administrative Agent pursuant to the terms and conditions of the Security Documents; provided that the  Credit Parties shall not be required to grant or maintain any such Liens after the Collateral Release Date  and the Administrative Agent shall promptly take all action reasonably required to release such Liens,  including the delivery to the Borrower of all stock certificates and stock powers held by the  Administrative Agent and the filing of UCC financing termination statements; provided, further, however,  if, on or after the Collateral Release Date, the Borrower’s corporate family rating from Moody’s is  downgraded below Baa3 or the Borrower’s corporate rating from S&P is downgraded below BBB-, or  either the Borrower’s corporate family rating from Moody’s or the Borrower’s corporate rating from S&P  fails to be in effect, each Credit Party shall grant to the Administrative Agent the Liens contemplated by  this Section 7.12 and shall take all actions required hereunder to reinstate the Liens on Collateral granted  pursuant to the Security Documents immediately prior to the Collateral Release Date.    In the event that (a) a Guarantor is designated by the Borrower as an Unrestricted Subsidiary in  accordance with the terms of the definition of Unrestricted Subsidiary, (b) any Equity Interests pledged  under the Pledge Agreement are Disposed of in a transaction not prohibited under the terms of this Credit  Agreement, (c) any issuer of Equity Interests pledged under the Pledge Agreement is dissolved in  compliance with this Credit Agreement, (d) any Pledgor is released, dissolved or the subject of a merger  (in which the Pledgor is not the surviving entity) in a transaction permitted under this Credit Agreement  (including, without limitation, pursuant to Section 7.09), (e) any Pledgor is no longer required to be a  Credit Party by the terms of this Credit Agreement, including, without limitation, due to such Pledgor  ceasing to be a Guarantor pursuant to the terms of this Credit Agreement or (f) any Equity Interests  pledged under the Pledge Agreement are no longer required to be pledged by the terms of this Credit  Agreement, the Lien on such Equity Interests or such Pledgor, as the case may be, shall be automatically  released without the need for any further action, and the Administrative Agent shall promptly take such  actions reasonably requested by, and at the expense of, the Credit Parties to evidence the release of the  Lien on such Equity Interests or to release such Pledgor, including without limitation the delivery to the  Borrower of such Subsidiary’s certificated Equity Interests and stock powers previously delivered to it, if  any, and the filing of a UCC termination statement with respect to any UCC financing statement  pertaining to such Equity Interests.  7.13 Further Assurances.  (a) To the extent the Credit Parties are required to pledge any Collateral in  accordance with the terms hereof or the Security Documents, upon the reasonable written request  of the Administrative Agent, promptly perform or cause to be performed any and all acts and  execute or cause to be executed any and all documents for filing under the provisions of the UCC  or any other Requirement of Law which are necessary or advisable to maintain in favor of the  Administrative Agent, for the benefit of the Secured Parties, Liens on the Collateral that are duly  perfected in accordance with the requirements of, or the obligations of the Credit Parties under,  the Credit Documents and all applicable Requirements of Law.  (b) Upon the request of the Administrative Agent and other than as expressly  provided in Section 7.09(c), promptly cause to be delivered to the Administrative Agent a local  counsel opinion, in form and substance substantially similar to the local counsel opinions  received on the First Amendment Effective Date and otherwise reasonably satisfactory to the  Administrative Agent and at the Credit Parties’ expense, with respect to any Guarantor that has  become a Material Domestic Subsidiary since the First Amendment Effective Date for which the  Administrative Agent did not receive a legal opinion on the First Amendment Effective Date.  





 






110  7.14 Anti-Corruption Laws.  (a) Conduct its businesses in compliance with the United States Foreign Corrupt  Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption laws applicable  to the Borrower and its Subsidiaries and maintain policies and procedures reasonably designed to  promote and achieve compliance with such laws in all material respects.   (b)  Not directly or, to the knowledge of the Borrower, indirectly use the proceeds of  any Credit Extension for any purpose which would result in a violation in any material respect of  the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other  similar anti-corruption laws applicable to the Borrower and its Subsidiaries.  7.15 Sanctions.  Not directly or, to the knowledge of the Borrower, indirectly use the proceeds of any Credit  Extension, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture  partner or other individual or entity, (i) to fund in violation of Sanctions 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 (ii) in any other manner that would constitute a violation of Sanctions by the Borrower or  any of its Subsidiaries or the Administrative Agent, the L/C Issuer, the Swingline Lender or any Lender  as a result of their participation in the transaction.   ARTICLE VIII.  NEGATIVE COVENANTS  The Credit Parties covenant and agree that on the Closing Date, and so long as this Credit  Agreement is in effect and until the Commitments have been terminated, no Loans remain outstanding  and all amounts owing hereunder or under any other Credit Document (other than (A) indemnification  obligations which survive the termination of this Credit Agreement and (B) any obligations and liabilities  under Swap Contracts or Treasury Management Agreements other than such outstanding obligations then  due and payable as to which arrangements satisfactory to the applicable Swap Contract Provider or  Treasury Management Bank have not been made) have been paid in full:  8.01 Indebtedness.  Each of the Credit Parties will not, nor will it permit any of the Restricted Subsidiaries to,  contract, create, incur, assume or permit to exist any Indebtedness, except:  (a) Indebtedness arising or existing under this Credit Agreement and the other Credit  Documents;  (b) Indebtedness of the Borrower and its Subsidiaries existing as of the First  Amendment Effective Date as referenced in the financial statements referenced in Section 6.01  (and set out more specifically in Schedule 8.01) hereto and any Permitted Refinancing thereof;  (c) Indebtedness of the Borrower and its Restricted Subsidiaries incurred after the  First Amendment Effective Date consisting of Capital Leases or Indebtedness incurred to provide  all or a portion of the purchase price or cost of construction of an asset; provided that (i) such  Indebtedness when incurred shall not exceed the purchase price or cost of construction of such  





 






111  asset; (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the  principal balance outstanding thereon at the time of such refinancing plus any reasonable fees,  premiums and other financing costs payable in connection therewith; and (iii) the total amount of  all such Indebtedness shall not exceed $100,000,000 at any time outstanding;  (d) unsecured intercompany Indebtedness among the Borrower and its Restricted  Subsidiaries, provided that any such Indebtedness shall be fully subordinated to the Obligations  hereunder on terms reasonably satisfactory to the Administrative Agent;  (e) Indebtedness and obligations owing under Swap Contracts entered into in order  to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for  speculative purposes;  (f) Indebtedness and obligations of the Credit Parties and the Restricted Subsidiaries  owing under documentary letters of credit for the purchase of goods or other merchandise  generally;  (g) Guaranty Obligations in respect of Indebtedness of any Credit Party or any  Restricted Subsidiary to the extent such Indebtedness is permitted to exist or be incurred pursuant  to this Section 8.01;  (h) obligations with respect to performance, payment and other surety bonds  incurred in the ordinary course of business;  (i) Indebtedness of the Credit Parties and Restricted Subsidiaries not otherwise  contemplated by this Section 8.01 in an aggregate amount not to exceed the sum of (i)  $75,000,000 at any time outstanding plus (ii) such additional amount so long as at the time of  incurrence, the Consolidated Net Leverage Ratio is less than or equal to 3.00:1.00 on a Pro Forma  Basis after giving effect to the incurrence of such Indebtedness, it being understood and agreed  that any Indebtedness so incurred shall be deemed to have been incurred under clause (ii) prior to  clause (i) above; provided that (x) not more than $75,000,000 of such Indebtedness may be  secured and (y) the aggregate principal amount of all Indebtedness incurred by Restricted  Subsidiaries that are not Credit Parties pursuant to this Section 8.01(i) shall not exceed  $50,000,000 at any time outstanding;  (j) Indebtedness of the Borrower in the form of senior, unsecured notes in an  aggregate amount not to exceed $500,000,000 and issued pursuant to that certain Indenture dated  as of the First Amendment Effective Date, with U.S. Bank National Association, as trustee (and  any Permitted Refinancing thereof);  (k) Subordinated Indebtedness of the Credit Parties and the Restricted Subsidiaries so  long as at the time of incurrence, the Consolidated Net Leverage Ratio is less than or equal to  3.25:1.00 on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness;  (l) Indebtedness arising from netting services, overdraft protection, treasury  management obligations and otherwise in connection with deposit, securities and commodities  accounts in the ordinary course of business;  (m) Indebtedness arising from agreements providing for Earn Out Obligations or  similar obligations, or from guaranties, performance, payment or other surety bonds securing the  





 






112  performance of the Borrower and any Restricted Subsidiary pursuant to such agreements, in  connection with Permitted Acquisitions or dispositions permitted hereunder;  (n) Indebtedness consisting of Investments permitted by clauses (c), (j), (k), (l) and  (m) the definition of Permitted Investments;   (o) Indebtedness incurred in connection with any Sale and Leaseback Transaction  permitted by Section 8.10;  (p) Indebtedness of any Person that becomes a Subsidiary of the Borrower after the  First Amendment Effective Date or assumed in connection with a Permitted Acquisition, which  Indebtedness is existing at the time such Person becomes a Subsidiary of the Borrower or at the  time of the Permitted Acquisition and was not incurred solely in contemplation of such Person’s  becoming a Subsidiary or such Permitted Acquisition;   (q) unsecured Convertible Bond Indebtedness, as the same may be refinanced  pursuant to any Permitted Refinancing thereof; provided that at the time of incurrence, the  Consolidated Net Leverage Ratio is less than or equal to 2.75:1.00 on a Pro Forma Basis after  giving effect to the incurrence of such Indebtedness;   (r) Attributable Receivables Amounts; provided that the aggregate of all such  Attributable Receivables Amounts outstanding at any time pursuant to this clause (r) shall not  exceed the highest amount that is or would have been permitted under the definition of  “Permitted Receivables Transaction”;   (s) any repurchase or indemnification obligations arising as a result of any breach of  any covenant or representation made as part of any Permitted Receivables Transaction; and  (t) all premiums (if any), interest (including post-petition interest), fees, expenses,  charges and additional or contingent interest on obligations described in the foregoing clauses.  8.02 Liens.  Each of the Credit Parties will not, nor will it permit any of its Restricted Subsidiaries to,  contract, create, incur, assume or permit to exist any Lien with respect to any of its property or assets of  any kind (whether real or personal, tangible or intangible), whether now owned or hereafter acquired,  except for Permitted Liens.  8.03 Nature of Business.  Each of the Credit Parties will not, nor will it permit any of its Restricted Subsidiaries to, alter the  character of its business in any material respect from that conducted as of the First Amendment Effective  Date.  8.04 Consolidation, Merger, Sale or Purchase of Assets, Etc.  Each of the Credit Parties will not, nor will it permit any of its Restricted Subsidiaries to,  (a) dissolve, liquidate or wind up its affairs, sell, transfer, lease or otherwise dispose  of its property or assets except that the following, without duplication, shall be expressly  permitted:  





 






113  (i) the sale, transfer (including by way of license), lease or other disposition  of inventory, materials, tools, property, equipment, software and intellectual property  whether now owned or hereafter acquired, in the ordinary course of business (including,  without limitation, Dispositions of vehicles for purposes of fleet maintenance that are  substantially consistent with the Credit Parties’ past practices and that are in the ordinary  course of business), including any of the foregoing with an Unrestricted Subsidiary  (subject to Section 8.06) (it being understood that a Disposition of all of the Equity  Interests of, or all or substantially all of the assets of, a Subsidiary or a Disposition of a  line of business or a division of a Credit Party or a Subsidiary shall not constitute  Disposition in the ordinary course of business);  (ii) the sale, lease, transfer or other disposition of obsolete or worn-out  property or assets, whether now owned or hereafter acquired, in the ordinary course of  business;  (iii) the sale, transfer or other disposition of cash and Cash Equivalents for  fair market value;  (iv) Dispositions (A) of accounts receivable in connection with the collection  or compromise thereof in the ordinary course of business and (B) made as part of a  Permitted Receivables Transaction;  (v) licenses, sublicenses, leases or subleases granted to others not interfering  in any material respect with the business of the Borrower and its Subsidiaries;  (vi) the disposition of property or assets as a direct result of a Recovery  Event;  (vii) (A) the sale, lease or transfer (including by way of license) of property or  assets between Credit Parties, (B) the sale, lease or transfer (including by way of license)  of other property or assets between (1) any Credit Party and any Restricted Subsidiary  that is not a Credit Party in an aggregate amount not to exceed $60,000,000 during the  term of this Credit Agreement (commencing on the First Amendment Effective Date) and  (2) subject to Section 8.06, any Credit Party or any Restricted Subsidiary that is not a  Credit Party and any Unrestricted Subsidiary in an aggregate amount not to exceed  $60,000,000 during the term of this Credit Agreement (commencing on the First  Amendment Effective Date), (C) the sale, lease or transfer (including by way of license)  of property or assets between Subsidiaries that are not Credit Parties and (D) any  conversion of a Restricted Subsidiary from one corporate form to another;  (viii) (A) the sale, lease or transfer (including by way of license) of property or  assets not to exceed $60,000,000 in the aggregate in any fiscal year and (B) the sale, lease  or transfer (including by way of license) of property or assets not to exceed $50,000,000  during the term of this Credit Agreement (commencing on the First Amendment  Effective Date); provided, that the aggregate amount of property or assets sold, leased or  transferred (including by way of license) pursuant to the immediately foregoing clauses  (A) and (B) shall not exceed $75,000,000 in the aggregate in any fiscal year;  (ix) the liquidation and/or dissolution of any Immaterial Domestic Subsidiary  or any Immaterial Foreign Subsidiary; provided that the Credit Parties shall remain in  compliance with Section 7.09(b) after giving effect to any such liquidation or dissolution;  





 






114  (x) Dispositions and Investments permitted under Section 8.05; and  (xi) Dispositions of non-core assets acquired in a Permitted Acquisition;  provided that (A) such Dispositions are completed within eighteen (18) months of such  Permitted Acquisition and (B) such non-core assets do not exceed twenty-five percent  (25%) of the total tangible assets acquired in such Permitted Acquisition.  provided, that, in the case of clauses (i), (iii) and (vi) above, at least seventy-five percent (75%) of the  consideration received therefor by the Borrower or any such Subsidiary is in the form of cash or Cash  Equivalents; or  (b) (i) purchase, lease or otherwise acquire (including by way of license), whether in  a single transaction or a series of related transactions, the property or assets of any Person (other  than purchases or other acquisitions of inventory, materials, tools, property, equipment, software  or intellectual property in the ordinary course of business, including any of the foregoing with an  Unrestricted Subsidiary (subject to Section 8.06), except as otherwise limited or prohibited  herein) or (ii) enter into any transaction of merger or consolidation, except, in each case, for  (A) Investments or acquisitions permitted pursuant to Section 8.05, (B) the merger or  consolidation of a Credit Party or other Subsidiary with and into another Credit Party (with the  Credit Party being the surviving entity; provided, that, if the Borrower is a party to such  transaction, the Borrower shall be the surviving entity), (C) the merger or consolidation of an  Unrestricted Subsidiary with and into any Restricted Subsidiary or another Unrestricted  Subsidiary or (D) the merger or consolidation of a Restricted Subsidiary with and into another  Restricted Subsidiary.  8.05 Advances; Investments and Loans.  Each of the Credit Parties will not, nor will it permit any of its Restricted Subsidiaries to, make  any Investment except for (a) Permitted Investments, (b) other Investments not permitted by clause (a);  provided that (i) no Default or Event of Default shall exist immediately before and immediately after  giving effect to such Investment, (ii) the Credit Parties shall be in compliance with the financial covenants  in Section 7.07 on a Pro Forma Basis after giving effect to such Investment, and (iii)  the aggregate  amount of all Investments made pursuant to this clause (b) plus the aggregate amount of all Restricted  Payments made pursuant to Section 8.09(l) shall not exceed $50,000,000 at any time outstanding, and (c)  so long as no Default or Event of Default has occurred and is continuing or would result therefrom, (i) to  make Investments in an aggregate amount not to exceed $150,000,000 for the period from the First  Amendment Effective Date through the Maturity Date and (ii) if the Consolidated Net Leverage Ratio  would be less than or equal to 3.00 to 1.0 as of the last fiscal quarter end on a Pro Forma Basis, after  giving effect thereto, to make unlimited Investments (it being understood and agreed that Investments  made pursuant to this clause (ii) shall not be included in the calculation of the amount available for  Investments pursuant to the foregoing clause (i)).  8.06 Transactions with Affiliates.  Except as permitted under this Credit Agreement or among Credit Parties or wholly owned  Restricted Subsidiaries, each of the Credit Parties will not, nor will it permit any of its Restricted  Subsidiaries to, enter into any transaction or series of transactions, whether or not in the ordinary course  of business, with any officer, director, shareholder or Affiliate other than on terms and conditions  substantially as favorable as would be obtainable in a comparable arm’s-length transaction with a Person  other than an officer, director, shareholder or Affiliate.  





 






115  8.07 Fiscal Year; Organizational Documents.  Each of the Credit Parties will not, nor will it permit any of its Restricted Subsidiaries to, (a)  change its fiscal year and (b) amend, modify or change its articles of incorporation (or corporate charter  or other similar organizational document) or bylaws (or other similar document) in any manner materially  adverse to the interests of the Lenders without the prior written consent of the Required Lenders; provided  that no Credit Party shall (i) except as permitted under Section 8.04, alter its legal existence or, in one  transaction or a series of transactions, merge into or consolidate with any other entity, or sell all or  substantially all of its assets, (ii) change its state of incorporation or organization, without providing ten  (10) days prior written notice to the Administrative Agent (or such shorter period as the Administrative  Agent may consent to) and without filing (or confirming that the Administrative Agent has filed) such  financing statements and amendments to any previously filed financing statements as the Administrative  Agent may require or (iii) change its registered legal name, without providing ten (10) days prior written  notice to the Administrative Agent (or such shorter period as the Administrative Agent may consent to)  and without filing (or confirming that the Administrative Agent has filed) such financing statements and  amendments to any previously filed financing statements as the Administrative Agent may require. 8.08 Limitation on Restricted Actions.  Each of the Credit Parties will not, nor will it permit any of its Restricted Subsidiaries to, directly  or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or  restriction on the ability of any such Person to (a) pay dividends or make any other distributions to any  Credit Party on its Equity Interests or with respect to any other interest or participation in, or measured  by, its profits, (b) pay any Indebtedness or other obligation owed to any Credit Party, (c) make loans or  advances to any Credit Party, (d) sell, lease or transfer any of its properties or assets to any Credit Party,  or (e) act as a Guarantor and pledge its assets pursuant to the Credit Documents or any renewals,  refinancings, exchanges, refundings or extension thereof, except (in respect of any of the matters referred  to in clauses (a)-(d) above) for such encumbrances or restrictions existing under or by reason of (i) this  Credit Agreement or any other Credit Document, (ii) applicable Laws, (iii) any document or instrument  governing Indebtedness incurred pursuant to Sections 8.01(c), (i), (j), (k), (o) or (q); provided that with  respect to Indebtedness incurred pursuant to Sections 8.01(i), (j), (k) and (q), any such restriction shall not  apply to this Credit Agreement or any other Credit Document or (iv) any Permitted Lien or any document  or instrument governing any Permitted Lien; provided that any such restriction contained therein relates  only to the asset or assets subject to such Permitted Lien.  8.09 Restricted Payments.  Each of the Credit Parties will not, nor will it permit any of its Restricted Subsidiaries to, directly  or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, except (a) to  make dividends or other distributions payable solely in the same class of Equity Interests of such Person;  (b) to make dividends or other distributions payable to any Credit Party (directly or indirectly through  Subsidiaries); (c) subject to the subordination terms thereof, to make regularly scheduled interest  payments under any Subordinated Indebtedness; (d) the repurchase, redemption or other acquisition or  retirement for value of any Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower  held by any current or former officer, director or employee of the Borrower or any of its Restricted  Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’  agreement or similar agreement; provided that (i) the aggregate price paid for all such repurchased,  redeemed, acquired or retired Equity Interests may not exceed $25,000,000 in any twelve (12)-month  period plus the portion of such amount available but unused from prior twelve (12)-month periods and (ii)  such amount in any calendar year may be increased by an amount not to exceed (A) the net cash proceeds  received by the Borrower from the sale of Equity Interests (other than Disqualified Stock) of the  





 






116  Borrower to members of management or directors of the Borrower and its Restricted Subsidiaries that  occurs after the First Amendment Effective Date (to the extent such cash proceeds from the sale of such  Equity Interests have not otherwise been applied to the payment of Restricted Payments), plus (B) the net  cash proceeds of key man life insurance policies received by the Borrower and its Restricted Subsidiaries  after the First Amendment Effective Date, less (C) the amount of any Restricted Payments made pursuant  to clauses (ii)(A) and (ii)(B) of this clause (d); (e) the repurchase of Equity Interests deemed to occur (i)  upon the exercise of stock options, warrants or other convertible securities (other than, for the avoidance  of doubt, convertible securities constituting Convertible Bond Indebtedness) to the extent such Equity  Interests represent a portion of the exercise price thereof or (ii) upon the transfer of shares of restricted  stock to the Borrower in connection with the payment of withholding tax by the Borrower or a Restricted  Subsidiary following a sale of shares of restricted stock by the holder thereof; (f) so long as no Default or  Event of Default has occurred and is continuing or would result therefrom, (i) to make dividends,  repurchase shares of its Equity Interests and make other Restricted Payments in an aggregate amount not  to exceed $175,000,000 for the period from the First Amendment Effective Date through the Maturity  Date and (ii) if the Consolidated Net Leverage Ratio would be less than or equal to 3.00 to 1.0 as of the  last fiscal quarter end on a Pro Forma Basis, after giving effect thereto, to make unlimited dividends,  share repurchases and other Restricted Payments (it being understood and agreed that Restricted  Payments made pursuant to this clause (ii) shall not be included in the calculation of the amount available  for Restricted Payments pursuant to the foregoing clause (i)); (g) the Borrower may (i) enter into Capped  Call Transactions, Convertible Bond Hedge Transactions and Warrant Transactions in connection with  the issuance of Convertible Bond Indebtedness permitted under Section 8.01(q) and satisfy its obligations  to pay premiums upon entering into such transactions and (ii) make any payment in connection therewith  by delivery of shares of the Borrower’s common stock upon net share settlement thereof (together with  cash in lieu of fractional shares) or set-off, netting and/or payment of an early termination payment or  similar payment thereunder upon any early termination thereof, in each case made in Borrower’s common  stock; (h) the Borrower may issue shares of its common stock, make cash payments of interest required  pursuant to the related indenture, make cash payments required to be made under the related indenture in  an amount (excluding any required payment of interest with respect to such Convertible Bond  Indebtedness and excluding any payment of cash in lieu of a fractional share) equal to or less than the  principal amount of the Convertible Bond Indebtedness in respect of which such cash payment is made  and/or make cash payments in lieu of issuing fractional shares, in each case, to satisfy obligations in  respect of Convertible Bond Indebtedness (including, for the avoidance of doubt, cash payments in lieu of  issuing fractional shares pursuant to the terms of any related Capped Call Transaction, Convertible Bond  Hedge Transaction or Warrant Transaction); (i) the Borrower may make cash payments to satisfy  obligations in respect of Convertible Bond Indebtedness, Capped Call Transactions, Convertible Bond  Hedge Transactions and Warrant Transactions solely to the extent the Borrower does not have the option  of satisfying such payment obligations through the issuance of the Borrower’s common stock or is  required to satisfy such payment obligations in cash, it being understood and agreed that any payment  made in cash in connection with Convertible Bond Indebtedness, Capped Call Transactions, Convertible  Bond Hedge Transactions and Warrant Transactions by set-off, netting and/or payment of an early  termination payment or similar payment thereunder upon any early termination thereof, in each case, after  using commercially reasonable efforts to satisfy such obligation (or the portion thereof remaining after  giving effect to any netting or set-off against termination or similar payments under an applicable  Convertible Bond Hedge Transaction) by delivery of shares of the Borrower’s common stock shall be  deemed to be a payment obligation required to be satisfied in cash; (j) the Borrower may receive shares of  its own common stock and/or cash on account of settlements and/or early terminations or unwinds  howsoever documented or agreed of any Convertible Bond Hedge Transactions, Capped Call  Transactions or Warrant Transactions; (k) the repurchase, redemption or other acquisition or retirement  for value of any Equity Interests of the Borrower in connection with any Convertible Bond Indebtedness  with proceeds received (or substantially simultaneously received) from the issuance of such Convertible  Bond Indebtedness, in an aggregate amount not to exceed $100,000,000, it being understood and agreed  





 






117  that any payment, repurchase, redemption or other acquisition or retirement for value of any Equity  Interests of the Borrower made in connection with any Permitted Refinancing shall be permitted and shall  not be subject to any dollar limitation; and (l) other Restricted Payments not permitted by the foregoing  clauses; provided that (i) no Default or Event of Default shall exist immediately before and immediately  after giving effect to such Restricted Payment, (ii) the Credit Parties shall be in compliance with the  financial covenants in Section 7.07 on a Pro Forma Basis after giving effect to such Restricted Payment,  and (iii)  the aggregate amount of all Restricted Payments made pursuant to this clause (l) plus the  aggregate amount of all Investments made pursuant to Section 8.05(b) shall not exceed $50,000,000 at  any time outstanding.  8.10 Sale and Leaseback Transactions.  Each of the Credit Parties will not, nor will permit any of its Restricted Subsidiaries to, enter into  any Sale and Leaseback Transaction; provided that any of the Credit Parties and the Restricted  Subsidiaries will be permitted to enter into Sale and Leaseback Transactions so long as (a) the sale of the  property is for fair market value and otherwise permitted by this Credit Agreement and (b) the rental  payments to be made with respect to all such Sale and Leaseback Transactions does not exceed  $5,000,000 in the aggregate in any fiscal year.  8.11 No Further Negative Pledges.  Each of the Credit Parties will not, nor will it permit any of its Restricted Subsidiaries to, enter  into, assume or become subject to any agreement prohibiting or otherwise restricting the creation or  assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, or  requiring the grant of any security for such obligation if security is given for some other obligation,  except (a) pursuant to this Credit Agreement and the other Credit Documents, (b) pursuant to any  document or instrument governing Indebtedness incurred pursuant to Sections 8.01(b), (c), (i), (j), (k), (o)  or (q) provided that, (i) with respect to Indebtedness incurred pursuant to Section 8.01(c), any such  restriction contained therein relates only to the asset or assets constructed or acquired in connection  therewith and (ii) with respect to Indebtedness incurred pursuant to Sections 8.01(i), (j), (k), (o) and (q),  any such restriction shall not apply to this Credit Agreement or any other Credit Document, and, and  (c) in connection with any Permitted Lien or any document or instrument governing any Permitted Lien,  provided that any such restrictions contained therein relates only to the asset or assets subject to such  Permitted Lien.  8.12 Capital Expenditures.  Each of the Credit Parties will not, nor will it permit any of its Restricted Subsidiaries to, make or  become legally obligated to make Consolidated Capital Expenditures (excluding normal replacements and  maintenance that are properly charged to current operations), except for Consolidated Capital  Expenditures in the ordinary course of business not exceeding, in the aggregate for the Borrower and its  Restricted Subsidiaries, the sum of (i) $250,000,000 during any fiscal year plus (ii) Consolidated Capital  Proceeds during such fiscal year plus (iii) thirty percent (30%) of Consolidated EBITDA (determined  after giving effect to all Permitted Acquisitions on a Pro Forma Basis), provided that the amount set forth  in this clause (iii) shall be available only to the extent that there shall exist no Default or Event of Default  immediately before and immediately after giving effect to any proposed expenditure. ARTICLE IX.  EVENTS OF DEFAULT AND REMEDIES  





 






118  9.01 Events of Default.  An Event of Default shall exist upon the occurrence of any of the following specified events  (each an “Event of Default”):  (a) The Borrower shall fail to pay any principal on any Loan when due in accordance  with the terms hereof; or the Borrower shall fail to reimburse the L/C Issuer for any L/C  Obligations when due in accordance with the terms hereof; or the Borrower shall fail to pay any  interest on any Loan or any fee or other amount payable hereunder when due in accordance with  the terms hereof and such failure shall continue unremedied for three (3) Business Days (or any  Guarantor shall fail to pay on the Guaranty in respect of any of the foregoing or in respect of any  other Guaranty Obligations thereunder within the aforesaid period of time); or  (b) Any representation or warranty made or deemed made herein or in any of the  other Credit Documents or which is contained in any certificate, document or financial or other  statement furnished at any time under or in connection with this Credit Agreement shall prove to  have been incorrect, false or misleading in any material respect on or as of the date made or  deemed made; provided however, that if such representation or warranty is capable of being  cured, it shall not constitute an Event of Default unless such representation or warranty continues  uncured for a period of ten (10) Business Days following the earlier of a Responsible Officer of  the applicable Credit Party obtaining knowledge thereof or receipt by such Credit Party of a  written notice thereof from the Administrative Agent; or  (c) (i) Any Credit Party shall fail to perform, comply with or observe any term,  covenant or agreement applicable to it contained in Sections 7.03(a), 7.04(a)(i) (but only with  respect to the Borrower and its Material Domestic Subsidiaries), 7.07 or 7.08 or in Article VIII or  (ii) any Credit Party shall fail to perform, comply with or observe any covenant or agreement  contained in Section 7.01 and such failure shall continue unremedied for a period of five (5)  Business Days; or (iii) any Credit Party shall fail to comply with any other covenant contained in  this Credit Agreement or the other Credit Documents or any other agreement, document or  instrument among any Credit Party, the Administrative Agent and the Lenders or executed and  delivered by any Credit Party in favor of the Administrative Agent or the Lenders (other than as  described in Sections 9.01(a), 9.01(b), 9.01(c)(i) or 9.01(c)(ii) above), and such failure is capable  of cure but continues for thirty (30) days following the earlier of a Responsible Officer of the  applicable Credit Party obtaining knowledge thereof or receipt by such Credit Party of a written  notice thereof from the Administrative Agent; or  (d) Any Credit Party or any of its Restricted Subsidiaries shall (i) default in any  payment of principal of or interest on any Indebtedness (other than as specified in clause (a)  above) in a principal amount outstanding of at least the Threshold Amount in the aggregate for  the Credit Parties and their Restricted Subsidiaries beyond the period of grace, if any, provided in  the instrument or agreement under which such Indebtedness was created or (ii) default in the  observance or performance of any other agreement or condition relating to any Indebtedness in a  principal amount outstanding of at least the Threshold Amount in the aggregate for the Credit  Parties and their Restricted Subsidiaries or contained in any instrument or agreement evidencing,  securing or relating thereto, or any other event shall occur or condition exist, the effect of which  default or other event or condition is to cause, or to permit the holder or holders of such  Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf  of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if  required, such Indebtedness to become due or required to be prepaid, repurchased or redeemed  prior to its stated maturity; provided that this clause (d) shall not apply to (x) Indebtedness that  





 






119  becomes due as a result of a voluntary sale, transfer or other disposition (including as a result of a  casualty or condemnation event) of property or assets, (y) termination events or similar events  pursuant to the terms of any Swap Contract (other than a failure to make a payment required as a  result of such termination or similar event) and (z) any redemption, settlement, conversion (or  satisfaction of a condition permitting holders of Convertible Bond Indebtedness to convert),  required repurchase (or satisfaction of a condition permitting holders of Convertible Bond  Indebtedness to require the repurchase) or offer to repurchase of Convertible Bond Indebtedness  in accordance with its terms and the satisfaction by the Borrower or any Restricted Subsidiary of  its obligations in connection therewith (other than, in either case, as a result of a default by the  Borrower or any Restricted Subsidiary thereunder or an event of the type that constitutes an Event  of Default); or  (e) (i) Any Credit Party other than an Immaterial Guarantor shall commence any  case, proceeding or other action (A) under any existing or future Law of any jurisdiction,  domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors,  seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt  or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation,  dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment  of a receiver, trustee, custodian, conservator or other similar official for it or for all or any  substantial part of its assets, or any Credit Party other than an Immaterial Guarantor shall make a  general assignment for the benefit of its creditors; or (ii) there shall be commenced against any  Credit Party other than an Immaterial Guarantor any case, proceeding or other action of a nature  referred to in clause (i) above which (A) results in the entry of an order for relief or any such  adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period  of sixty (60) days; or (iii) there shall be commenced against any Credit Party other than an  Immaterial Guarantor any case, proceeding or other action seeking issuance of a warrant of  attachment, execution, distraint or similar process against all or any substantial part of its assets  which results in the entry of an order for any such relief which shall not have been vacated,  discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or  (iv) any Credit Party other than an Immaterial Guarantor shall take any action in furtherance of,  or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i),  (ii), or (iii) above; or (v) any Credit Party other than an Immaterial Guarantor shall generally not,  or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or  (f) One (1) or more judgments or decrees shall be entered against any Credit Party or  any of its Restricted Subsidiaries involving in the aggregate a liability (to the extent not paid  when due or covered by insurance) of the Threshold Amount or more and all such judgments or  decrees shall not have been paid and satisfied, vacated, discharged, stayed or bonded pending  appeal within sixty (60) days from the entry thereof; or  (g) 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 one or more Credit  Parties under Title IV of ERISA that, together with all other such ERISA Events, if any, could  have a Material Adverse Effect; or  (h) There shall occur a Change of Control; or  (i) The Guaranty or any provision thereof shall cease to be in full force and effect or  any Guarantor or any Person acting by or on behalf of any Guarantor shall, in writing, purport to  revoke, terminate or rescind any Guarantor’s obligations under the Guaranty, except in  accordance with the Credit Documents; or   





 






120  (j) Any Credit Document (other than those which are ministerial or immaterial in  nature) shall fail to be in full force and effect or to give the Administrative Agent and/or the  Lenders the security interests, liens, rights, powers, priority and privileges purported to be created  thereby (except as such documents may be terminated or no longer in force and effect in  accordance with the terms thereof, other than those indemnities and provisions which by their  terms shall survive) or, except any Lien shall fail to be a first priority, perfected Lien on a  material portion of the Collateral or any Credit Party or any Person acting by or on behalf of any  Credit Party shall, in writing, purport to revoke, terminate or rescind any Obligation, except in  accordance with the Credit Documents.  9.02 Remedies upon Event of Default.  If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of,  or may, with the consent of, the Required Lenders, take any or all of the following actions:  (a) declare the commitment of each Lender to make Loans and any obligation of the  L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and  obligation shall be terminated;  (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued  and unpaid thereon, and all other amounts owing or payable hereunder or under any other Credit  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;  (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount  equal to the then Outstanding Amount thereof); and  (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and  remedies available to it, the Lenders and the L/C Issuer under the Credit Documents or applicable  Laws;  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, the obligation of each Lender to make Loans and any  obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid  principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall  automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C  Obligations as aforesaid shall automatically become effective, in each case without further act of the  Administrative Agent or any Lender.  9.03 Application of Funds.  After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically  become immediately due and payable and the L/C Obligations have automatically been required to be  Cash Collateralized as set forth in the proviso to Section 9.02), any amounts received on account of the  Obligations shall 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 fees, charges and disbursements of counsel to the Administrative Agent and  amounts payable under Article III) payable to the Administrative Agent in its capacity as such;  





 






121  Second, to payment of that portion of the Obligations constituting fees, indemnities and other  amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C  Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer  arising under the Credit Documents and amounts payable under Article III), ratably among them in  proportion to the respective amounts described in this clause Second payable to them;  Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of  Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic  payments, and any interest accrued thereon, due under any Swap Contract between any Credit Party or  any Subsidiary and any Swap Contract Provider, to the extent such Swap Contract is permitted by Section  8.01(e), ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders) and  the L/C Issuer in proportion to the respective amounts described in this clause Third held by them;  Fourth, to (a) payment of that portion of the Obligations constituting accrued and unpaid principal  of the Loans and L/C Borrowings, (b) payment of breakage, termination or other payments, and any  interest accrued thereon, due under any Swap Contract between any Credit Party and any Swap Contract  Provider, to the extent such Swap Contract is permitted by Section 8.01(e), (c) payments of amounts due  under any Treasury Management Agreement between any Credit Party and any Treasury Management  Bank and (d) Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn  amount of Letters of Credit, in proportion to the respective amounts described in this clause Fourth,  ratably among the Lenders (and, in the case of such Swap Contracts and Treasury Management  Agreements, Swap Contract Providers or Treasury Management Banks, as applicable) and the L/C Issuer;  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.  Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of  Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters  of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit  have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations,  if any, in the order set forth above.  Notwithstanding the foregoing, Obligations arising under Swap Contracts and Treasury  Management Agreements may be excluded from the application described above without any liability to  the Administrative Agent, if the Administrative Agent has not received written notice, together with such  supporting documentation as the Administrative Agent may request, from the applicable Swap Contract  Provider or Treasury Management Bank.  Each Swap Contract Provider and Treasury Management Bank  not a party to this Credit Agreement that has given the notice contemplated by the preceding sentence  shall, by such notice, be deemed to have acknowledged and accepted the appointment of the  Administrative Agent pursuant to the terms of Article X for itself and its Affiliates as if a “Lender” party  hereto.  ARTICLE X.  ADMINISTRATIVE AGENT  





 






122  10.01 Appointment and Authority.  Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its  behalf as the Administrative Agent hereunder and under the other Credit 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, the Lenders and the L/C Issuer, and no Credit Party shall have rights as a third  party beneficiary of any of such provisions other than as provided in Section 10.06 and Section 10.10.  It  is understood and agreed that the use of the term “agent” herein or in any other Credit 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.  The Administrative Agent shall also act as the “collateral agent” under the Credit Documents, and  each of the Lenders (on behalf of itself and its Affiliates) (including in its capacities as a Lender,  Swingline Lender, Swap Contract Provider and/or Treasury Management Bank, as applicable) and the  L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of  such Lender (and its Affiliates) and the L/C Issuer for purposes of acquiring, holding and enforcing any  and all Liens on Collateral granted by any of the Credit Parties to secure any of the Obligations, together  with such powers and discretion as are reasonably incidental thereto.  In this connection, the  Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed  by the Administrative Agent pursuant to Section 10.05 for purposes of holding or enforcing any Lien on  the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights  and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of  all provisions of this Article X and Article XI (including Section 11.04(c), as though such co-agents, sub- agents and attorneys-in-fact were the “collateral agent” under the Credit Documents) as if set forth in full  herein with respect thereto.  10.02 Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers  in its capacity as a Lender as any other Lender and may exercise the same as though it were not the  Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or  unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder  in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own  securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any  kind of business with any Credit Party or any Subsidiary or other Affiliate thereof as if such Person were  not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.  10.03 Exculpatory Provisions.  The Administrative Agent shall not have any duties or obligations except those expressly set forth  herein and in the other Credit Documents, and its duties hereunder shall be administrative in nature.   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;  





 






123  (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 Credit 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 Credit 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 Credit Document or  applicable Laws, including for the avoidance of doubt any action that may be in violation of the  automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or  termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and  (c) shall not, except as expressly set forth herein and in the other Credit Documents,  have any duty to disclose, and shall not be liable for the failure to disclose, any information  relating to any Credit Party 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 11.01 and 9.02) or (ii) in the absence of its own gross negligence or  willful misconduct as determined by a court of competent jurisdiction by final and non-appealable  judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and  until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or the  L/C Issuer.  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 Credit Agreement or  any other Credit 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 Credit Agreement,  any other Credit Document or any other agreement, instrument or document, or the creation, perfection or  priority of any Lien purported to be created by the Security Documents, (v) the value or the sufficiency of  any Collateral, or (vi) the satisfaction of any condition set forth in Article V or elsewhere herein, other  than to confirm receipt of items expressly required to be delivered to the Administrative Agent.  10.04 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, or the issuance of a Letter  of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the  Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer  unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C  Issuer prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of  Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Credit  





 






124  Parties), independent accountants and other experts selected by it, and shall not be liable for any action  taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.  10.05 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 Credit Document by or through any one (1) 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.    10.06 Resignation of Administrative Agent.  (a) The Administrative Agent may at any time give notice of its resignation to the  Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of resignation, the  Required Lenders shall have the right, with the consent of the Borrower so long as no Event of  Default has occurred and is continuing, which consent shall not be unreasonably withheld or  delayed, to appoint a successor, which shall be a bank with an office in the United States, or an  Affiliate of any such bank with an office in the United States.  If no such successor shall have  been so appointed by the Required Lenders and shall have accepted such appointment within  thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such  earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then  the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and  the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth  above.  Whether or not a successor has been appointed, such resignation shall become effective in  accordance with such notice on the Resignation Effective Date.  (b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to  clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by  applicable law, by notice in writing to the Borrower and such Person remove such Person as  Administrative Agent and, with the consent of the Borrower so long as no Event of Default has  occurred and continues, which consent shall not be unreasonably withheld or delayed, appoint a  successor.  If no such successor shall have been so appointed by the Required Lenders and shall  have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by  the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless  become effective in accordance with such notice on the Removal Effective Date.  (c) With effect from the Resignation Effective Date or the Removal Effective Date  (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its  duties and obligations hereunder and under the other Credit Documents (except that in the case of  any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C  Issuer under any of the Credit Documents, the retiring or removed Administrative Agent shall  continue to hold such collateral security until such time as a successor Administrative Agent is  appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring  or removed Administrative Agent, all payments, communications and determinations provided to  be made by, to or through the Administrative Agent shall instead be made by or to each Lender  and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor  Administrative Agent with the consent of the Borrower so long as no Event of Default has  





 






125  occurred and is continuing, which consent shall not be unreasonably withheld or delayed, as  provided for above.  Upon the acceptance of a successor’s appointment as Administrative Agent  hereunder, such successor shall succeed to and become vested with all of the rights, powers,  privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in  Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the  retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal  Effective Date, as applicable), and the retiring or removed Administrative Agent shall be  discharged from all of its duties and obligations hereunder or under the other Credit Documents  (if not already discharged therefrom as provided above in this Section 10.06).  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  or removed Administrative Agent’s resignation or removal hereunder and under the other Credit  Documents, the provisions of this Article X and Section 11.04 shall continue in effect for the  benefit of such retiring or removed Administrative Agent, its sub-agents and their respective  Related Parties in respect of any actions taken or omitted to be taken by any of them while the  retiring or removed Administrative Agent was acting as Administrative Agent.   (d) Any resignation or removal of the Administrative Agent pursuant to this Section  10.10 shall also constitute its resignation or removal as L/C Issuer and Swingline Lender.  The  retiring L/C Issuer shall retain all the rights, powers, privileges and duties of the L/C Issuer  hereunder with respect to all Letters of Credit outstanding as of the effective date of its  resignation or removal as L/C Issuer and all L/C Obligations with respect thereto, including the  right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed  Amounts pursuant to Section 2.03(c).  The retiring Swingline Lender shall retain all the rights of  the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and  outstanding as of the effective date of such resignation or removal, including the right to require  the Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans  pursuant to Section 2.04(c).  Upon the appointment by the Borrower of a successor L/C Issuer or  Swingline Lender hereunder (which successor shall in all cases be a Lender other than a  Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights,  powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as applicable, (b) the  retiring L/C Issuer and Swingline Lender shall be discharged from all of their respective duties  and obligations hereunder or under the other Credit Documents and (c) the successor L/C Issuer  shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time  of such succession or make other arrangements satisfactory to the retiring L/C Issuer to  effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.  10.07 Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and the L/C Issuer 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 Credit Agreement.  Each Lender and the L/C Issuer 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  Credit Agreement, any other Credit Document or any related agreement or any document furnished  hereunder or thereunder.  





 






126  10.08 No Other Duties; Etc.  Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication  agents, co-documentation agents or co-agents shall have any powers, duties or responsibilities under this  Credit Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the  Administrative Agent, a Lender or the L/C Issuer hereunder.  10.09 Administrative Agent May File Proofs of Claim; Credit Bids.  (a) In case of the pendency of any proceeding under any Debtor Relief Law or any other  judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the  principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by  declaration or otherwise and irrespective of whether the Administrative Agent shall have made any  demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or  otherwise:  (i) to file and prove a claim for the whole amount of the principal and interest owing  and unpaid in respect of the Loans, L/C Obligations and all other Obligations arising under the  Credit Documents that are owing and unpaid and to file such other documents as may be  necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the  Administrative Agent (including any claim for the reasonable compensation, expenses,  disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and  their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the  Administrative Agent under Sections 2.03(h) and (i), 2.09 and 11.04) allowed in such judicial  proceeding; and  (ii) to collect and receive any monies or other property payable or deliverable on any  such claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the  Administrative Agent and, if the Administrative Agent shall consent to the making of such payments  directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the  reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its  agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 11.04.  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 the L/C Issuer any plan of reorganization,  arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C  Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C  Issuer in any such proceeding.  (b) The holders of the Obligations hereby irrevocably authorize the Administrative Agent, at  the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including  accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed  in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more  acquisition vehicles) all or any portion of the Collateral (x) at any sale thereof conducted under the  provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code,  or any similar Laws in any other jurisdictions to which a Credit Party is subject, (y) at any other sale or  foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction  of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable  





 






127  Law.  In connection with any such credit bid and purchase, the Obligations owed to the holders thereof  shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to  contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis  that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of  the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased  (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to  consummate such purchase).  In connection with any such bid (i) the Administrative Agent shall be  authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for  the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative  Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or  Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders,  irrespective of the termination of this Credit Agreement and without giving effect to the limitations on  actions by the Required Lenders contained in clauses (a)(i) through (a)(vii) of Section 11.01, and (ii) to  the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for  any reason (as a result of another bid being higher or better, because the amount of Obligations assigned  to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise),  such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or  debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to  the acquisition vehicle shall automatically be cancelled, without the need for any Lender or any  acquisition vehicle to take any further action.  10.10 Collateral and Guaranty Matters.  Without limiting the provisions of Section 10.09, each of the Lenders (including in its capacities  as a potential Swap Contract Provider or Treasury Management Bank) and the L/C Issuer irrevocably  authorize the Administrative Agent, at its option and in its discretion,  (a) to release any Lien on any property granted to or held by the Administrative  Agent under any Credit Document (i) upon termination of the Aggregate Revolving  Commitments and payment in full of all Obligations (other than (A) contingent Obligations and  (B) any obligations and liabilities under Swap Contracts or Treasury Management Agreements  other than such outstanding obligations then due and payable as to which arrangements  satisfactory to the applicable Swap Contract Provider or Treasury Management Bank have not  been made) and the expiration or termination of all Letters of Credit (other than Letters of Credit  as to which other arrangements reasonably satisfactory to the Administrative Agent and the L/C  Issuer shall have been made), (ii) that is transferred or to be transferred as part of or in connection  with any Disposition permitted hereunder or under any other Credit Document or any Recovery  Event, (iii) that is permitted to be released pursuant to Section 7.12 or (iii) as approved in  accordance with Section 11.01;  (b) to subordinate any Lien on any property granted to or held by the Administrative  Agent under any Credit Document to the holder of any Lien on such property that is permitted by  Section 8.02 and clause (c) in the definition of “Permitted Liens”; and  (c) to release any Guarantor from its obligations under the Guaranty as a result of a  transaction permitted hereunder, including, without limitation, if such release is permitted under  the terms of Sections 7.09(b) or (c).  Upon request by the Administrative Agent at any time, the Required Lenders will confirm in  writing the Administrative Agent’s authority to release or subordinate its interest in particular types or  





 






128  items of property, or to release any Guarantor from its obligations under the Guaranty, pursuant to this  Section 10.10.    In each case as specified in this Section 10.10, the Administrative Agent will promptly execute  and deliver to the applicable Credit Party, at the Credit Parties’ sole expense, such documents as any  Credit Party may reasonably request in order to evidence the release of such item of Collateral from the  security interest granted under the Security Documents or to subordinate its security interest in such item  or to release such Guarantor from its obligations under the Guaranty, as applicable, in each case in  accordance with the terms of this Section 10.10 and the Credit Documents.  The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into  any representation or warranty regarding the existence, value or collectability of the Collateral, the  existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by  any Credit Party in connection therewith, nor shall the Administrative Agent be responsible or liable to  the Lenders for any failure to monitor or maintain any portion of the Collateral.  10.11 Secured Treasury Management Agreements and Secured Swap Contracts.   No Swap Contract Provider or Treasury Management Bank that obtains the benefit of the  provisions of Section 9.03, the Guaranty or any Collateral by virtue of the provisions hereof or any Credit  Document shall have any right to notice of any action or to consent to, direct or object to any action  hereunder or under any other Credit Document or otherwise in respect of the Collateral (including the  release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or  modification of the provisions hereof or of the Guaranty or any Credit Document) other than in its  capacity as a Lender and, in such case, only to the extent expressly provided in the Credit Documents.   Notwithstanding any other provision of this Article X to the contrary, the Administrative Agent shall not  be required to verify the payment of, or that other satisfactory arrangements have been made with respect  to, Obligations arising under Swap Contracts or Treasury Management Agreements except to the extent  expressly provided herein and unless the Administrative Agent has received written notice of such  Obligations, together with such supporting documentation as the Administrative Agent may request, from  the applicable Swap Contract Provider or Treasury Management Bank.  The Administrative Agent shall  not be required to verify the payment of, or that other satisfactory arrangements have been made with  respect to, Obligations arising under Swap Contracts or Treasury Management Agreements in the case of  a Maturity Date.   10.12 ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party  hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the  Administrative Agent, the Joint Lead Arrangers and their respective Affiliates, and not, for the  avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least  one of the following is and will be true:   (i) such Lender is not using “plan assets” (within the meaning of  Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such  Lender’s entrance into, participation in, administration of and performance of the Loans,  the Letters of Credit, the Commitments or this Credit Agreement,  (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84- 14 (a class exemption for certain transactions determined by independent qualified  





 






129  professional asset managers), PTE 95-60 (a class exemption for certain transactions  involving insurance company general accounts), PTE 90-1 (a class exemption for certain  transactions involving insurance company pooled separate accounts), PTE 91-38 (a class  exemption for certain transactions involving bank collective investment funds) or PTE  96-23 (a class exemption for certain transactions determined by in-house asset managers),  is applicable with respect to such Lender’s entrance into, participation in, administration  of and performance of the Loans, the Letters of Credit, the Commitments and this Credit  Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such  Lender to enter into, participate in, administer and perform the Loans, the Letters of  Credit, the Commitments and this Credit Agreement, (C) the entrance into, participation  in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Credit Agreement satisfies the requirements of sub-sections (b)  through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the  requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such  Lender’s entrance into, participation in, administration of and performance of the Loans,  the Letters of Credit, the Commitments and this Credit Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in  writing between the Administrative Agent, in its sole discretion, and such Lender.   (b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause  (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty  and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such  Lender further (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date  such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and  not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party,  that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved  in such Lender’s entrance into, participation in, administration of and performance of the Loans,  the Letters of Credit, the Commitments and this Credit Agreement (including in connection with  the reservation or exercise of any rights by the Administrative Agent under this Credit  Agreement, any Credit Document or any documents related hereto or thereto).  10.13 Recovery of Erroneous Payments.  Without limitation of any other provision in this Credit Agreement, if at any time the  Administrative Agent makes a payment hereunder in error to any Lender or any L/C Issuer (each, a “Loan  Party”), whether or not in respect of an Obligation due and owing by the Borrower at such time, where  such payment is a Rescindable Amount, then in any such event, each Loan Party receiving a Rescindable  Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable  Amount received by such Loan Party in immediately available funds in the currency so received, with  interest thereon, for each day from and including the date such Rescindable Amount is received by it to  but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate  and a rate determined by the Administrative Agent in accordance with banking industry rules on  interbank compensation. Each Loan Party irrevocably waives any and all defenses, including any  “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly  paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any  





 






130  Rescindable Amount.  The Administrative Agent shall inform each Loan Party promptly upon  determining that any payment made to such Loan Party comprised, in whole or in part, a Rescindable  Amount.  ARTICLE XI.  MISCELLANEOUS  11.01 Amendments, Etc.  No amendment or waiver of any provision of this Credit Agreement or any other Credit  Document, and no consent to any departure by any Credit Party therefrom, shall be effective unless in  writing signed by the Required Lenders and the Borrower or the applicable Credit Party, as the case may  be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective  only in the specific instance and for the specific purpose for which given; provided, that  (a) no such amendment, waiver or consent shall:  (i) extend or increase the Commitment of a Lender (or reinstate any  Commitment terminated pursuant to Section 9.02) without the written consent of such  Lender whose Commitment is being extended or increased (it being understood and  agreed that a waiver of any condition precedent set forth in Section 5.02 or of any Default  or a mandatory reduction in Commitments is not considered an extension or increase in  Commitments of any Lender);  (ii) postpone any date fixed by this Credit Agreement or any other Credit  Document for any payment (excluding mandatory prepayments) of principal, interest,  fees or other amounts due to the Lenders (or any of them) or any scheduled reduction of  the Commitments hereunder or under any other Credit Document without the written  consent of each Lender entitled to receive such payment or whose Commitments are to be  reduced;  (iii) reduce the principal of, or the rate of interest specified herein on, any  Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this Section 11.01)  any fees or other amounts payable hereunder or under any other Credit Document  without the written consent of each Lender entitled to receive such amount; provided,  however, that only the consent of the Required Lenders shall be necessary to (A) amend  the definition of “Default Rate” or waive any obligation of the Borrower to pay interest  or Letter of Credit Fees at the Default Rate or (B) to amend any financial covenant  hereunder (or any definition used therein) even if the effect of such amendment would be  to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable  hereunder;  (iv) change any provision of this Section 11.01(a) or the definition of  “Required Lenders” without the written consent of each Lender directly affected thereby;  (v) release all or substantially all of the Collateral without the written consent  of each Lender whose Obligations are secured by such Collateral;  





 






131  (vi) change Section 2.05, Section 2.13, Section 2.17 or Section 9.03 in a  manner that would alter the pro rata sharing of payments required thereby without the  written consent of each Lender directly and adversely affected thereby;  (vii) release the Borrower without the consent of each Lender, or, except in  connection with a transaction permitted under Section 8.04, all or substantially all of the  value of the Guaranty without the written consent of each Lender whose Obligations are  guaranteed thereby, except to the extent such release is permitted pursuant to Section  10.10 (in which case such release may be made by the Administrative Agent acting  alone); or  (b) prior to the termination of the Revolving Commitments, unless also signed by  Lenders (other than Defaulting Lenders) holding in the aggregate at least a majority of the  Revolving Commitments, no such amendment, waiver or consent shall, (i) waive any Default for  purposes of Section 5.02(a)(ii), (ii) amend, change, waive, discharge or terminate Sections 5.02 or  9.01 in a manner adverse to such Lenders or (iii) amend, change, waive, discharge or terminate  Section 7.07 (or any definition used therein) or this Section 11.01(b); or  (c) [reserved];  (d) unless also signed by any L/C Issuer, no amendment, waiver or consent shall  affect the rights or duties of such L/C Issuer under this Credit Agreement or any Issuer Document  relating to any Letter of Credit issued or to be issued by it;  (e) unless also signed by the Swingline Lender, no amendment, waiver or consent  shall affect the rights or duties of the Swingline Lender under this Credit Agreement;  (f) unless also signed by the Administrative Agent, no amendment, waiver or  consent shall affect the rights or duties of the Administrative Agent under this Credit Agreement  or any other Credit Document;  (g) for the avoidance of doubt and notwithstanding provisions to the contrary in this  Section 11.01 or elsewhere in this Credit Agreement, this Credit Agreement may be amended (or  amended and restated) with the written consent of the Credit Parties and the Administrative Agent  (and the consent of the Lenders or the Required Lenders shall not be required, other than the  consent of any Lenders providing the Incremental Credit Facilities referred to below) for the  purpose of including one (1) or more Incremental Credit Facilities as contemplated by Section  2.01(c) by (i) increasing the Aggregate Revolving Commitments and/or (ii) adding one (1) or  more Term Loans hereunder or otherwise to effect the provisions of Section 2.01(c);  provided, however, that notwithstanding anything to the contrary herein, (i) each of the Fee Letters may  be amended, or rights or privileges thereunder waived, in a writing executed and delivered only by the  parties thereto, (ii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization  plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the  Bankruptcy Code supersedes the unanimous consent provisions set forth herein, (iii) the Required Lenders  shall determine whether or not to allow a Credit Party to use cash collateral in the context of a bankruptcy or  insolvency proceeding and such determination shall be binding on all of the Lenders, (iv) (A) the L/C  Commitment reflected on Schedule 2.03 may be amended from time to time by the Borrower, the  Administrative Agent and the applicable L/C Issuer, to reflect the L/C Commitment of such L/C Issuer in  effect from time to time and (B) the Swingline Commitment reflected on Schedule 2.04 may be amended  from time to time by the Borrower, the Administrative Agent and the Swingline Lender to reflect the  





 






132  Swingline Commitment of the Swingline Lender in effect from time to time and (v) any provision of this  Credit Agreement or any other Credit Document may be amended by an agreement in writing entered into  between the Borrower and the Administrative Agent for the purpose of curing any ambiguity, omission,  defect or inconsistency so long as, in each case, the Lenders shall have received at least five (5) Business  Days’ prior notice thereof and the Administrative Agent shall not have received, within five (5) Business  Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the  Required Lenders object to such amendment. 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 any Defaulting Lender may not be increased or extended without the consent of such  Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each  affected Lender that by its terms affects any Defaulting Lender more adversely than other affected  Lenders shall require the consent of such Defaulting Lender.  11.02 Notices; Effectiveness; Electronic Communications.  (a) Notices Generally.  Except in the case of notices and other communications  expressly permitted to be given by telephone (and except as provided in clause (b) below), all  notices and other communications provided for herein shall be in writing and shall be delivered  by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier  as follows, and all notices and other communications expressly permitted hereunder to be given  by telephone shall be made to the applicable telephone number, as follows:  (i) if to any Credit Party, the Administrative Agent, the L/C Issuer or the  Swingline Lender, to the address, telecopier number, electronic mail address or telephone  number specified for such Person on Schedule 11.02; and  (ii) if to any other Lender, to the address, telecopier number, electronic mail  address or telephone number specified in its Administrative Questionnaire (including, as  appropriate, notices delivered solely to the Person designated by a Lender on its  Administrative Questionnaire then in effect for the delivery of notices that may contain  MNPI relating to the Borrower).  Notices and other communications sent by hand or overnight courier service, or mailed by  certified or registered mail, shall be deemed to have been given when received; notices and other  communications sent by telecopier 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 clause (b) below, shall be effective as  provided in such clause (b).  (b) Electronic Communications.  Notices and other communications to the Lenders  and the L/C Issuer hereunder may be delivered or furnished by electronic communication  (including e-mail and Internet or intranet websites) pursuant to procedures approved by the  Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the  L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, 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  





 






133  notices and other communications to it hereunder by electronic communications pursuant to  procedures approved by it, provided that approval of such procedures may be limited to particular  notices or communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent  to an e-mail address shall be deemed received upon the sender’s receipt of an 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 (i) of notification that such  notice or communication is available and identifying the website address therefor.  (c) The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS  AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE  ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY  OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY  OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER  CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE  BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent  or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower,  any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses  of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s 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 non-appealable judgment to have resulted from the bad  faith, gross negligence or willful misconduct of such Agent Party; provided, however, that in no  event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any  other Person for indirect, special, incidental, consequential or punitive damages (as opposed to  direct or actual damages).  (d) Change of Address, Etc.  Each of the Borrower, the Administrative Agent, the  L/C Issuer and the Swingline Lender may change its address, electronic 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, electronic address, telecopier or telephone  number for notices and other communications hereunder by notice to the Borrower, the  Administrative Agent, the L/C Issuer and the Swingline Lender.  In addition, each Lender agrees  to notify the Administrative Agent from time to time to ensure that the Administrative Agent has  on record (i) an effective address, contact name, telephone number, 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 agrees to cause at least one  (1) individual at or on behalf of such Public Lender to at all times have selected the “Private Side  Information” or similar designation on the content declaration screen of the Platform in order to  enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance  procedures and applicable Laws, including United States Federal and state securities laws, to  make reference to Borrower Materials that are not made available through the “Public Side  





 






134  Information” portion of the Platform and that may contain MNPI with respect to the Borrower or  its securities for purposes of United States Federal or state securities laws.  (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative  Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices  (including, without limitation, telephonic or electronic notices, Loan Notices, Letter of Credit  Applications, Notice of Loan Prepayment and Swingline Loan Notices) purportedly given by or  on behalf of any Credit Party 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 Credit Parties shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the  Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the  reliance by such Person on each notice purportedly given by or on behalf of a Credit Party.  All  telephonic notices to and other telephonic communications with the Administrative Agent may be  recorded by the Administrative Agent, and each of the parties hereto hereby consents to such  recording.  11.03 No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by  any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver  thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or  under any other Credit Document preclude any other or further exercise thereof or the exercise of any  other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and  provided under each other Credit Document are cumulative and not exclusive of any rights, remedies,  powers and privileges provided by Law.  Notwithstanding anything to the contrary contained herein or in any other Credit Document, the  authority to enforce rights and remedies hereunder and under the other Credit Documents against the  Credit 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 9.02 for the benefit of all the Lenders and the L/C Issuer; 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 Credit Documents, (b) the L/C Issuer or the Swingline Lender from  exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or  Swingline Lender, as the case may be) hereunder and under the other Credit Documents, (c) any Lender  from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13), or  (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the  pendency of a proceeding relative to any Credit Party under any Debtor Relief Law; provided, further,  that if at any time there is no Person acting as Administrative Agent hereunder and under the other Credit  Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative  Agent pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the  preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders,  enforce any rights and remedies available to it and as authorized by the Required Lenders.  11.04 Expenses; Indemnity; and Damage Waiver.  (a) Costs and Expenses.  The Credit Parties shall pay (i) all reasonable and  documented out-of-pocket expenses incurred by the Administrative Agent, its Affiliates and the  Joint Lead Arrangers (including the reasonable and documented out-of-pocket fees, charges and  





 






135  disbursements of counsel for the Administrative Agent and the Joint Lead Arrangers), in  connection with the syndication of the credit facilities provided for herein, the preparation,  negotiation, execution, delivery and administration of this Credit Agreement and the other Credit  Documents or any amendments, modifications or waivers of the provisions hereof or thereof  (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all  reasonable and documented out-of-pocket expenses incurred by the L/C Issuer in connection with  the issuance, amendment, renewal or extension of any Letter of Credit or any demand for  payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by  the Administrative Agent, any Lender or the L/C Issuer (including the reasonable and  documented out-of-pocket fees, charges and disbursements of any counsel for the Administrative  Agent, any Lender or the L/C Issuer), and shall pay all reasonable and documented out-of-pocket  legal fees and time charges for attorneys (other than internal counsel), in connection with the  enforcement or protection of its rights (A) in connection with this Credit Agreement and the other  Credit Documents, including its rights under this Section 11.04, or (B) in connection with the  Loans made or Letters of Credit issued hereunder, including all such reasonable and documented  out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of  such Loans or Letters of Credit.  (b) Indemnification by the Credit Parties.  The Credit Parties shall indemnify the  Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each  Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)  against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities  and related expenses (including the reasonable and documented fees, charges and disbursements  of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from  all fees and time charges and disbursements for attorneys who may be employees of any  Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or  by any Credit Party arising out of, in connection with, or as a result of (i) the execution or  delivery of this Credit Agreement, any other Credit 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, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related  Parties only, the administration of this Credit Agreement and the other Credit Documents  (including, without duplication, in respect of any matters addressed in Section 3.01), (ii) any Loan  or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by  the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented  in connection with such demand do not strictly comply with the terms of such Letter of Credit),  (iii) any actual or alleged presence or release of Materials of Environmental Concern on or from  any property owned or operated by a Credit Party or any of its Subsidiaries, or any Environmental  Liability related in any way to a Credit Party or any of its Subsidiaries, or (iv) any actual or  prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether  based on contract, tort or any other theory, whether brought by a third party or by any Credit  Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity  shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,  liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and  non-appealable judgment to have resulted from the gross negligence or willful misconduct of  such Indemnitee, (y) result from a claim brought by any Credit Party against an Indemnitee for  breach in bad faith of such Indemnitee’s obligations hereunder or under any other Credit  Document, if such Credit Party has obtained a final and non-appealable judgment in its favor on  such claim as determined by a court of competent jurisdiction or (z) result from disputes solely  among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its  role as the Administrative Agent or a Joint Lead Arranger and other than any claims arising out of  





 






136  any act or omission on the part of the Borrower or any of its affiliates.  Without limiting the  provisions of Section 3.01(c), this Section 11.04(b) shall not apply with respect to Taxes other  than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claims.  (c) Reimbursement by Lenders.  To the extent that the Credit Parties for any reason  fail to indefeasibly pay any amount required under clause (a) or (b) of this Section 11.04 to be  paid by them to the Administrative Agent (and any sub-agent thereof), the L/C Issuer or any  Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative  Agent (and any sub-agent thereof), the L/C Issuer or such Related Party, as the case may be, such  Lender’s Applicable Percentage (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 (and any sub-agent thereof) or the L/C  Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the  Administrative Agent (and any sub-agent thereof) or L/C Issuer in connection with such capacity.   The obligations of the Lenders under this clause (c) are subject to the provisions of  Section 2.12(d).  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by  applicable Laws, no party hereto shall assert, and each party hereto hereby waives, any claim  against any other party, on any theory of liability, for special, indirect, consequential or punitive  damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result  of, this Credit Agreement, any other Credit Document or any agreement or instrument  contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of  Credit or the use of the proceeds thereof; provided, that this sentence shall in no way diminish the  Borrower’s indemnification obligations under Section 11.04(b).  No Indemnitee referred to in  clause (b) above shall be liable for any damages arising from the use by unintended recipients of  any information or other materials distributed to such unintended recipients by such Indemnitee  through telecommunications, electronic or other information transmission systems in connection  with this Credit Agreement or the other Credit Documents or the transactions contemplated  hereby or thereby other than for direct or actual damages resulting from the gross negligence or  willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a  court of competent jurisdiction.  (e) Payments.  All amounts due under this Section 11.04 shall be payable not later  than ten (10) Business Days after written demand therefor.  (f) Survival.  The agreements in this Section 11.04 and the indemnity provisions of  Section 11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the  Swingline Lender, the replacement of any Lender, the termination of the Commitments and the  repayment, satisfaction or discharge of all the other Obligations.  11.05 Payments Set Aside.  To the extent that any payment by or on behalf of any Credit Party is made to the Administrative  Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises  its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently  invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any  settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be  repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief  Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended  





 






137  to be satisfied shall be revived and continued in full force and effect as if such payment had not been  made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to  the Administrative Agent upon demand its applicable share (without duplication) of any amount so  recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand  to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in  effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall  survive the payment in full of the Obligations and the termination of this Credit Agreement.  11.06 Successors and Assigns.  (a) Successors and Assigns Generally.  The provisions of this Credit Agreement and  the other Credit Documents shall be binding upon and inure to the benefit of the parties hereto  and thereto and their respective successors and assigns permitted hereby, except that the  Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or  thereunder without the prior written consent of the Administrative Agent and each Lender and no  Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an  assignee in accordance with the provisions of clause (b) of this Section 11.06, (ii) by way of  participation in accordance with the provisions of clause (d) of this Section 11.06 or (iii) by way  of pledge or assignment of a security interest subject to the restrictions of clause (f) of this  Section 11.06 (and any other attempted assignment or transfer by any party hereto shall be null  and void).  Nothing in this Credit Agreement, expressed or implied, shall be construed to confer  upon any Person (other than the parties hereto, their respective successors and assigns permitted  hereby, Participants to the extent provided in clause (d) of this Section 11.06 and, to the extent  expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C  Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this  Credit Agreement.  (b) Assignments by Lenders.  Any Lender may at any time assign to one (1) or more  assignees all or a portion of its rights and obligations under this Credit Agreement and the other  Credit Documents (including all or a portion of its Commitment and the Loans (including for  purposes of this clause (b), participations in L/C Obligations and in Swingline Loans) at the time  owing to it); provided that any such assignment shall be subject to the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount of  the assigning Lender’s Commitment and the related Loans at the time owing to  it or contemporaneous assignments to related Approved Funds that equal at  least the amount specified in clause (b)(i)(B) of this Section 11.06 in the  aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender  or an Approved Fund, no minimum amount need be assigned; and  (B) in any case not described in clause (b)(i)(A) of this Section  11.06, 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  such Trade Date, shall not be less than $10,000,000, in the case of any  assignment in respect of the revolving credit facility provided hereunder, or  





 






138  $5,000,000, in the case of any assignment in respect of the term loan facility  provided hereunder, unless (1) for the remaining outstanding amount under the  revolving credit facility or term loan facility hereunder, or (2) each of the  Administrative Agent and, so long as no Event of Default has occurred and is  continuing, the Borrower otherwise consents (each such consent not to be  unreasonably withheld or delayed).  (ii) Proportionate Amounts.  Each partial assignment shall be made as an  assignment of a proportionate part of all the assigning Lender’s Loans and Commitments,  and rights and obligations with respect thereto, assigned, except that this clause (ii) shall  not (A) apply to the Swingline Lender’s rights and obligations in respect of Swingline  Loans or (B) prohibit any Lender from assigning all or a portion of its rights and  obligations in respect of its Revolving Commitment (and the related Revolving Loans  thereunder) and its outstanding Term Loans, if any, on a non-pro rata basis;  (iii) Required Consents.  No consent shall be required for any assignment  except to the extent required by clause (b)(i)(B) of this Section 11.06 and, in addition:  (A) the consent of the Borrower (such consent not to be  unreasonably withheld) 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, in the case of an  assignment of Term Loans, 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 for assignments in respect  of (1) any Revolving Loans or Revolving Commitment if such assignment is to  a Person that is not a Lender with a Revolving Commitment or an Affiliate of  such Lender or (2) any Term Loan to a Person that is not a Lender, an Affiliate  of a Lender or an Approved Fund; and  (C) the consent of the L/C Issuer (such consent not to be  unreasonably withheld or delayed) shall be required for any assignment in  respect of Revolving Loans and Revolving Commitments; and  (D) the consent of the Swingline Lender (such consent not to be  unreasonably withheld or delayed) shall be required for any assignment in  respect of Revolving Loans and Revolving Commitments.  (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 assignment.  The assignee, if it shall not be a Lender,  shall deliver to the Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons.  No such assignment shall be made to  (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) any Defaulting  





 






139  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) 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, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y)  acquire (and fund as appropriate) its full pro rata share of all Loans and participations in  Letters of Credit and Swingline Loans in accordance with its Applicable Percentage.   Notwithstanding the foregoing, in the event that any assignment of rights and obligations  of any Defaulting Lender hereunder shall become effective under applicable Laws  without compliance with the provisions of this clause (vi), then the assignee of such  interest shall be deemed to be a Defaulting Lender for all purposes of this Credit  Agreement until such compliance occurs.  Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this  Section 11.06, from and after the effective date specified in each Assignment and Assumption, the  assignee thereunder shall be a party to this Credit Agreement and, to the extent of the interest assigned by  such Assignment and Assumption, have the rights and obligations of a Lender under this Credit  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 Credit Agreement (and, in the  case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations  under this Credit Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled  to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring  prior to the effective date of such assignment); provided, that except to the extent otherwise expressly  agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of  any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  Upon  request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any  assignment or transfer by a Lender of rights or obligations under this Credit Agreement that does not  comply with this clause (b) shall be treated for purposes of this Credit Agreement as a sale by such  Lender of a participation in such rights and obligations in accordance with clause (d) of this Section  11.06.  (c) Register.  The Administrative Agent, acting solely for this purpose as an agent of  the Borrower (and such agency being solely for tax purposes), shall maintain at the  Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the  equivalent thereof in electronic form) and a register for the recordation of the names and  addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of  the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to  time (the “Register”).  The entries in the Register shall be conclusive (absent manifest error), and  the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is  recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of  





 






140  this Credit Agreement, notwithstanding notice to the contrary.  In addition, 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  Credit Agreement (including all or a portion of its Commitment and/or the Loans (including such  Lender’s participations in L/C Obligations and/or Swingline Loans) owing to it); provided that  (i) such Lender’s obligations under this Credit Agreement shall remain unchanged, (ii) such  Lender shall remain solely responsible to the other parties hereto for the performance of such  obligations and (iii) the Borrower, the Administrative Agent, the other Lenders and the L/C Issuer  shall continue to deal solely and directly with such Lender in connection with such Lender’s  rights and obligations under this Credit Agreement.  For the avoidance of doubt, each Lender  shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of  any participation.  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 Credit Agreement and to  approve any amendment, modification or waiver of any provision of this Credit 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  clauses (i) through (vii) of Section 11.01(a) that affects such Participant.  Subject to clause (e) of  this Section 11.06, the Borrower agrees that each Participant shall be entitled to the benefits 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 clause (b) of this Section 11.06 (it being understood that the  documentation required under Section 3.01(e) shall be delivered to the Lender who sells the  participation) to the same extent as if it were a Lender and had acquired its interest by assignment  pursuant to clause (b) of this Section 11.06; provided that such Participant (A) agrees to be  subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under clause (b) of  this Section 11.06 and (B) shall not be entitled to receive any greater payment under Sections  3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the  applicable participation would have been entitled to receive, except to the extent such entitlement  to receive a greater payment results from a Change in Law that occurs after the Participant  acquired the applicable participation.  Each Lender that sells a participation agrees, at the  Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to  effectuate the provisions of Section 3.06 with respect to any Participant.  To the extent permitted  by Law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a  Lender, provided 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 Credit 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 Credit 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  





 






141  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 Credit Agreement  notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent  (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant  Register.  (e) Certain Pledges.  Any Lender may at any time pledge or assign a security interest  in all or any portion of its rights under this Credit 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; provided that no such pledge or assignment shall release such Lender from  any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a  party hereto.  (f) Resignation as L/C Issuer or Swingline Lender after Assignment.   Notwithstanding anything to the contrary contained herein, if at any time Bank of America  assigns all of its Revolving Commitment and Revolving Loans pursuant to clause (b) above,  Bank of America may, (i) upon thirty (30) days’ notice to the Borrower and the Lenders, resign as  L/C Issuer and/or (ii) upon thirty (30) days’ notice to the Borrower, resign as Swingline Lender.   In the event of any such resignation as L/C Issuer or Swingline Lender, the Borrower shall be  entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender  hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall  affect the resignation of Bank of America as L/C Issuer or Swingline Lender, as the case may be.   If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and  duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the  effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto  (including the right to require the Lenders to make Base Rate Loans or fund risk participations in  Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swingline  Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect  to Swingline Loans made by it and outstanding as of the effective date of such resignation,  including the right to require the Lenders to make Base Rate Loans or fund risk participations in  outstanding Swingline Loans pursuant to Section 2.04(c).  Upon the appointment of a successor  L/C Issuer and/or Swingline Lender, (1) such successor shall succeed to and become vested with  all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as  the case may be, and (2) the successor L/C Issuer shall issue letters of credit in substitution for the  Letters of Credit, if any, outstanding at the time of such succession or make other arrangements  satisfactory to Bank of America to effectively assume the obligations of Bank of America with  respect to such Letters of Credit.  11.07 Treatment of Certain Information; Confidentiality.  (a) Information and Confidentiality. Each of the Administrative Agent, the Lenders  and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below),  except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’  respective partners, directors, officers, employees, agents, trustees, advisors and representatives  (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), (b)  to the extent requested by any regulatory authority purporting to have jurisdiction over it  (including any self-regulatory authority, such as the National Association of Insurance  Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena  or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any  





 






142  remedies hereunder or under any other Credit Document or any action or proceeding relating to  this Credit Agreement or any other Credit Document or the enforcement of rights hereunder or  thereunder, (f) subject to an agreement containing provisions substantially the same as those of  this Section 11.07, to (i) any assignee of or Participant in, or any prospective assignee of or  Participant in, any of its rights or obligations under this Credit Agreement or any Eligible  Assignee invited to become a Lender pursuant to Section 2.01(c) or (ii) any actual or prospective  counterparty (or its advisors) to any swap or derivative transaction relating to a Credit Party and  its obligations, (g) on a confidential basis to (i) any rating agency in connection with rating the  Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) 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 facilities provided hereunder, (h) with the  consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other  than as a result of a breach of this Section 11.07 or other confidentiality obligations owing to the  Borrower or any other Credit Party but only to the extent the Administrative Agent, such Lender  or such L/C Issuer has actual knowledge of such other confidentiality obligations or (y) becomes  available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective  Affiliates on a non-confidential basis from a source other than the Borrower.  For purposes of this Section 11.07, “Information” means all information received from or  on behalf of a Credit Party or any Subsidiary relating to the Credit Parties or any Subsidiary or  any of their respective businesses, other than any such information that is available to the  Administrative Agent, any Lender or the L/C Issuer on a non-confidential basis prior to  disclosure by such Credit Party or any Subsidiary, provided that, in the case of information  received from a Credit Party or any Subsidiary after the Closing Date, such information is clearly  identified at the time of delivery as confidential.  Any Person required to maintain the  confidentiality of Information as provided in this Section 11.07 shall be considered to have  complied with its obligation to do so if such Person has exercised the same degree of care to  maintain the confidentiality of such Information as such Person would accord to its own  confidential information.  Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a)  the Information may include MNPI concerning a Credit Party or a Subsidiary, as the case may be,  (b) it has developed compliance procedures regarding the use of MNPI and (c) it will handle such  MNPI in accordance with applicable Laws, including United States Federal and state securities  Laws.  (b) Customary Advertising Material. The Credit Parties consent to the publication by  the Administrative Agent or any Lender of customary advertising material relating to the  transactions contemplated hereby using the name, product photographs, logo or trademark of the  Credit Parties.  11.08 Set-off.  If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and  each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest  extent permitted by applicable Laws, to set off and apply any and all deposits (general or special, time or  demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever  currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the  account of any Credit Party against any and all of the obligations of such Credit Party now or hereafter  existing under this Credit Agreement or any other Credit Document to such Lender or the L/C Issuer,  irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this  





 






143  Credit Agreement or any other Credit Document and although such obligations of such Credit Party may  be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different  from the branch or office holding such deposit or obligated on such 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 2.15 and, pending such payment, shall be segregated by such Defaulting Lender  from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders,  and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing  in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right  of setoff.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section  11.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender, the  L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to notify the  Borrower and the Administrative Agent promptly after any such setoff and application, provided that the  failure to give such notice shall not affect the validity of such setoff and application.  11.09 Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Credit Document, the interest paid or  agreed to be paid under the Credit Documents shall not exceed the maximum rate of non-usurious interest  permitted by applicable Laws (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 Laws, (a) characterize any  payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary  prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal  parts the total amount of interest throughout the contemplated term of the Obligations hereunder.  11.10 Counterparts; Integration; Effectiveness; Amendment and Restatement.  (a) This Credit Agreement may be executed in counterparts (and by different parties  hereto in different counterparts), each of which shall constitute an original, but all of which when  taken together shall constitute a single contract.  This Credit Agreement and the other Credit  Documents constitute the entire contract among the parties relating to the subject matter hereof  and supersede any and all previous agreements and understandings, oral or written, relating to the  subject matter hereof.  Except as provided in Section 5.01, this Credit Agreement shall become  effective when it shall have been executed and delivered by the Administrative Agent and when  the Administrative Agent shall have received counterparts hereof that, when taken together, bear  the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a  signature page of this Credit Agreement by facsimile or other electronic imaging means (e.g.  “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Credit  Agreement.  (b) The parties to the Existing Credit Agreement each hereby agrees that, at such  time as this Credit Agreement shall have become effective pursuant to the terms of Section 5.01,  (a) the Existing Credit Agreement automatically shall be deemed amended and restated in its  entirety by this Credit Agreement, and (b) the Commitments and Loans under the Existing Credit  Agreement and as defined therein automatically shall be replaced with the Commitments and  Loans hereunder.  This Credit Agreement is not a novation of the Existing Credit Agreement.   





 






144  11.11 Survival of Representations and Warranties.  All representations and warranties made hereunder and in any other Credit Document or other  document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the  execution and delivery hereof and thereof.  Such representations and warranties have been or will be  relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the  Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent  or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and  shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain  unpaid or unsatisfied or any Letter of Credit shall remain outstanding.  11.12 Severability.  If any provision of this Credit Agreement or the other Credit Documents is held to be illegal,  invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this  Credit Agreement and the other Credit Documents shall not be affected or impaired thereby and (b) the  parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions  with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid  or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate  or render unenforceable such provision in any other jurisdiction.  Without limiting the foregoing  provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in this Credit  Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good  faith by the Administrative Agent, the L/C Issuer or the Swingline Lender, as applicable, then such  provisions shall be deemed to be in effect only to the extent not so limited.  11.13 Replacement of Lenders.  If (a) any Lender requests compensation under Section 3.04, (b) the Borrower is required to pay  any additional amount or indemnification payment to any Lender or any Governmental Authority for the  account of any Lender pursuant to Section 3.01, (c) a Lender (a “Non-Consenting Lender”) does not  consent to a proposed change, waiver, discharge or termination with respect to any Credit Document that  has been approved by the Required Lenders as provided in Section 11.01 but requires unanimous consent  of all Lenders or all Lenders directly affected thereby (as applicable) or (d) any Lender is a Defaulting  Lender, then the Borrower may, at its sole expense and effort and with the reasonable assistance and  cooperation of such Lender, upon notice to such Lender and the Administrative Agent, require such  Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions  contained in, and consents required by, Section 11.06), all of its interests, rights and obligations under this  Credit Agreement and the related Credit 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 11.06(b) (unless waived by the Administrative Agent in its sole discretion);  (b) such Lender shall have received payment of an amount equal to the outstanding  principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other  amounts payable to it hereunder and under the other Credit 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);  





 






145  (c) in the case of any such assignment resulting from a claim for compensation under  Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will  result in a reduction in such compensation or payments thereafter;  (d) such assignment does not conflict with applicable Laws; and  (e) in the case of any such assignment resulting from a Non-Consenting Lender’s  failure to consent to a proposed change, waiver, discharge or termination with respect to any  Credit Document, the applicable replacement bank, financial institution or Fund consents to the  proposed change, waiver, discharge or termination; provided that the failure by such Non- Consenting Lender to execute and deliver an Assignment and Assumption shall not impair the  validity of the removal of such Non-Consenting Lender and the mandatory assignment of such  Non-Consenting Lender’s Commitments and outstanding Loans and participations in L/C  Obligations and Swingline Loans pursuant to this Section 11.13 shall nevertheless be effective  without the execution and delivery by such Non-Consenting Lender of an Assignment and  Assumption.  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.  11.14 Governing Law; Jurisdiction; Etc.  (a) GOVERNING LAW.  THIS CREDIT AGREEMENT SHALL BE GOVERNED  BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW  YORK.  (b) SUBMISSION TO JURISDICTION.  EACH CREDIT PARTY  IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE  ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION,  WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR  OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C  ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO  THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE  TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN  THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND  OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW  YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE  PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE  JURISDICTION OF SUCH COURTS  AND AGREES THAT ALL CLAIMS IN RESPECT OF  ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND  DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAWS, 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 CREDIT AGREEMENT OR IN ANY OTHER  CREDIT DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE  AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY  ACTION, LITIGATION OR PROCEEDING RELATING TO THIS CREDIT AGREEMENT  





 






146  OR ANY OTHER CREDIT DOCUMENT AGAINST ANY CREDIT PARTY OR ITS  PROPERTIES IN THE COURTS OF ANY JURISDICTION.  (c) WAIVER OF VENUE.  EACH PARTY HERETO IRREVOCABLY AND  UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY  APPLICABLE LAWS, 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 CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN  ANY COURT REFERRED TO IN CLAUSE (B) OF THIS SECTION 11.14.  EACH OF THE  PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAWS, THE DEFENSE OF AN INCONVENIENT FORUM  TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.  (d) SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 11.02.  NOTHING IN THIS CREDIT AGREEMENT WILL AFFECT THE RIGHT  OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED  BY APPLICABLE LAWS.  11.15 Waiver of Right to Trial by Jury.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAWS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN  ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO  THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS  CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY  OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,  AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR  OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,  SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND  THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT  AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE  MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.  11.16 No Advisory or Fiduciary Responsibility.  In connection with all aspects of each transaction contemplated hereby (including in connection  with any amendment, waiver or other modification hereof or of any other Credit Document), each of the  Credit Parties acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the  arranging and other services regarding this Credit Agreement provided by the Administrative Agent, the  Joint Lead Arrangers and the Lenders are arm’s-length commercial transactions between the Credit  Parties and their respective Affiliates, on the one hand, and the Administrative Agent, the Joint Lead  Arrangers and the Lenders, on the other hand, (B) each of the Credit Parties has consulted its own legal,  accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Credit  Parties is capable of evaluating, and understands and accepts, the terms, risks and conditions of the  transactions contemplated hereby and by the other Credit Documents; (ii) (A) the Administrative Agent,  the Joint Lead Arrangers and each Lender each is and has been acting solely as a principal and, except as  expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an  advisor, agent or fiduciary for the Credit Parties or any of their respective Affiliates, or any other Person  and (B) neither the Administrative Agent, the Joint Lead Arrangers nor any Lender has any obligation to  the Credit Parties or any of their respective Affiliates with respect to the transactions contemplated hereby  





 






147  except those obligations expressly set forth herein and in the other Credit Documents; and (iii) the  Administrative Agent, the Joint Lead Arrangers and the Lenders and their respective Affiliates may be  engaged in a broad range of transactions that involve interests that differ from those of the Credit Parties  and their respective Affiliates, and neither the Administrative Agent, the Joint Lead Arrangers nor any  Lender has any obligation to disclose any of such interests to the Credit Parties and their respective  Affiliates.  To the fullest extent permitted by Law, each of the Credit Parties hereby waives and releases  any claims that it may have against the Administrative Agent and the Joint Lead Arrangers with respect to  any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction  contemplated hereby.  11.17 Electronic Execution.  This Credit Agreement and any document, amendment, approval, consent, information, notice,  certificate, request, statement, disclosure or authorization related to this Credit Agreement (each a  “Communication”), including Communications required to be in writing, may be in the form of an  Electronic Record and may be executed using Electronic Signatures.  Each Credit Party agrees that any  Electronic Signature on or associated with any Communication shall be valid and binding on such Credit  Party to the same extent as a manual, original signature, and that any Communication entered into by  Electronic Signature, will constitute the legal, valid and binding obligation of such Credit Party  enforceable against such in accordance with the terms thereof to the same extent as if a manually  executed original signature was delivered.   Any Communication may be executed in as many  counterparts as necessary or convenient, including both paper and electronic counterparts, but all such  counterparts are one and the same Communication.  For the avoidance of doubt, the authorization under  this paragraph may include, without limitation, use or acceptance by the Administrative Agent and each  of the Lenders of a manually signed paper Communication which has been converted into electronic form  (such as scanned into PDF format), or an electronically signed Communication converted into another  format, for transmission, delivery and/or retention. The Administrative Agent and each of the Lenders  may, at its option, create one or more copies of any Communication in the form of an imaged Electronic  Record (“Electronic Copy”), which shall be deemed created in the ordinary course of the such Person’s  business, and destroy the original paper document.  All Communications in the form of an Electronic  Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the  same legal effect, validity and enforceability as a paper record.  Notwithstanding anything contained  herein to the contrary, the Administrative Agent is under no obligation to accept an Electronic Signature  in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to  procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the  Administrative Agent has agreed to accept such Electronic Signature, the Administrative Agent and each  of the Lenders shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf  of any Credit Party without further verification and (b) upon the request of the Administrative Agent or  any Lender, any Electronic Signature shall be promptly followed by such manually executed counterpart.   For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to  them, respectively, by 15 USC §7006, as it may be amended from time to time.  11.18 Patriot Act Notice.  Each Lender that is subject to the Patriot Act 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 “Patriot 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 Patriot Act.  The  Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all  





 






148  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 Patriot Act.    11.19 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.  Notwithstanding anything to the contrary in any Credit 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 Affected Financial Institution arising under any Credit Document, to the extent  such liability is unsecured, may be subject to the write-down and conversion powers of the applicable  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any  Lender that is an Affected Financial Institution; and  (b) the effects of any Bail-in Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent undertaking, or  a bridge institution that may be issued to it or otherwise conferred on it, and that such  shares or other instruments of ownership will be accepted by it in lieu of any rights with  respect to any such liability under this Credit Agreement or any other Credit Document;  or  (iii) the variation of the terms of such liability in connection with the exercise  of the write-down and conversion powers of the applicable Resolution Authority.  11.20 Acknowledgement Regarding Any Supported QFCs.   To the extent that the Credit Documents provide support, through a guarantee or otherwise, for  any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit  Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with  respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit  Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together  with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such  Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the  Credit Documents and any Supported QFC may in fact be stated to be governed by the laws of the State  of New York and/or of the United States or any other state of the United States):  In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported  QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such  Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC  or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer  would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit  Support (and any such interest, obligation and rights in property) were governed by the laws of the United  States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered  Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the  





 






149  Credit Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that  may be exercised against such Covered Party are permitted to be exercised to no greater extent than such  Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and  the Credit Documents were governed by the laws of the United States or a state of the United States.  Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties  with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to  a Supported QFC or any QFC Credit Support.    [SIGNATURE PAGES OMITTED]  





 






CHAR1\1787937v4 Schedule 2.01  COMMITMENTS AND APPLICABLE PERCENTAGES  Lender Revolving  Commitment Applicable  Percentage of  Aggregate  Revolving  Commitments Term Loan A Applicable  Percentage of  Term Loan A Bank of America, N.A. $81,250,000.00 12.500000000% $43,750,000.00 12.500000000% Wells Fargo Bank, National  Association $81,250,000.00 12.500000000% $43,750,000.00 12.500000000%  Truist Bank $81,250,000.00 12.500000000% $43,750,000.00 12.500000000% Citizens Bank, N.A. $55,250,000.00 8.500000000% $29,750,000.00 8.500000000% MUFG Union Bank, N.A. $55,250,000.00 8.500000000% $29,750,000.00 8.500000000% PNC Bank, National  Association $55,250,000.00 8.500000000% $29,750,000.00 8.500000000%  BMO Harris Bank, N.A. $42,250,000.00 6.500000000% $22,750,000.00 6.500000000% Capital One, National  Association $42,250,000.00 6.500000000% $22,750,000.00 6.500000000%  Fifth Third Bank $42,250,000.00 6.500000000% $22,750,000.00 6.500000000% TD Bank, N.A. $42,250,000.00 6.500000000% $22,750,000.00 6.500000000% Bank of the West $30,875,000.00 4.750000000% $16,625,000.00 4.750000000% Goldman Sachs Bank USA $30,875,000.00 4.750000000% $16,625,000.00 4.750000000% Synovus Bank $9,750,000.00 1.500000000% $5,250,000.00 1.500000000% Total: $650,000,000.00 100.000000000% $350,000,000.00 100.000000000% 





 






Schedule 6.11  SUBSIDIARIES  Subsidiary Jurisdiction Equity Interest Holder  Percent  Ownership  (%)  Material Domestic Subsidiaries  Ansco & Associates, LLC Delaware Dycom Investments, Inc. 100  Dycom Capital Management, Inc. Delaware Dycom Investments, Inc. 100  Dycom Corporate Identity, Inc. Delaware Dycom Capital Management,  Inc.  100  Dycom Investments, Inc. Delaware Dycom Industries, Inc. 100  Dycom Identity, LLC Delaware Dycom Corporate Identity, Inc.  Locating, Inc.  97.461  2.539  Ervin Cable Construction, LLC Delaware Dycom Investments, Inc. 100  Lambert's Cable Splicing  Company, LLC  Delaware Dycom Investments, Inc. 100  UtiliQuest, LLC Georgia Dycom Investments, Inc. 100  Immaterial Domestic Subsidiaries – Guarantors  Apex Digital, LLC Delaware Dycom Investments, Inc. 100  Atlantic Communications Services,  LLC  Delaware RJE Telecom, LLC 100  Blair Park Services, LLC Delaware Dycom Investments, Inc. 100  Broadband Express, LLC Delaware Broadband Installation Services,  LLC  100  Broadband Installation Services,  LLC  Delaware Dycom Investments, Inc. 100  CableCom, LLC Delaware Dycom Investments, Inc. 100  C-2 Utility Contractors, LLC Delaware Dycom Investments, Inc. 100  Cavo Broadband Communications,  LLC  Delaware Prince Telecom, LLC 100  CCLC, Inc. Delaware Spectrum Wireless Solutions,  LLC  100  Communications Construction  Group, LLC  Delaware Dycom Investments, Inc. 100  Engineering Associates, LLC Georgia Dycom Investments, Inc. 100  Fiber Technologies Solutions, LLC Delaware Dycom Investments, Inc. 100  Globe Communications, LLC North Carolina Dycom Investments, Inc. 100  Golden State Utility Co. Delaware Dycom Investments, Inc. 100  





 






Subsidiary Jurisdiction Equity Interest Holder  Percent  Ownership  (%)  Ivy H. Smith Company, LLC Delaware Dycom Investments, Inc. 100  Kanaan Communications, LLC Delaware Dycom Investments, Inc. 100  Locating, Inc. Washington Dycom Investments, Inc. 100  Midtown Express, LLC Delaware Broadband Installation Services,  LLC  100  NeoCom Solutions, LLC Georgia Dycom Investments, Inc. 100  Nichols Construction, LLC Delaware Dycom Investments, Inc. 100  Niels Fugal Sons Company, LLC Delaware Dycom Investments, Inc. 100  North Sky Communications, LLC Delaware Dycom Investments, Inc. 100  OSP Services, LLC Delaware Dycom Investments, Inc. 100  Parkside Site & Utility Company  Corporation  Delaware Dycom Investments, Inc. 100  Parkside Utility Construction, LLC Delaware Dycom Investments, Inc. 100  Pauley Construction, LLC Arizona Dycom Investments, Inc. 100  Point to Point Communications,  Inc. Louisiana Dycom Identity, LLC 100  Precision Valley Communications  of Vermont, LLC Delaware Dycom Investments, Inc. 100  Prince Telecom, LLC Delaware Dycom Investments, Inc. 100  Professional Teleconcepts, LLC  Illinois Dycom Investments, Inc. 100  Professional Teleconcepts, LLC  New York Dycom Investments, Inc. 100  RJE Telecom, LLC Delaware Dycom Investments, Inc. 100  Sage Telecommunications Corp. of  Colorado, LLC Colorado Dycom Investments, Inc. 100  Spectrum Wireless Solutions, LLC Delaware Dycom Investments, Inc. 100  Star Construction, LLC Delaware Dycom Investments, Inc. 100  Stevens Communications, LLC Delaware Dycom Investments, Inc. 100  TCS Communications, LLC Delaware Dycom Investments, Inc. 100  TelCom Construction, LLC Minnesota Dycom Investments, Inc. 100  Tesinc, LLC Delaware Dycom Investments, Inc. 100  Texstar Enterprises, LLC Texas Dycom Investments, Inc. 100  Tjader & Highstrom Utility  Services, LLC Delaware Dycom Investments, Inc. 100  Trawick Construction Company,  LLC Florida Dycom Investments, Inc. 100  





 






Subsidiary Jurisdiction Equity Interest Holder  Percent  Ownership  (%)  Triple-D Communications, LLC Delaware Globe Communications, LLC 100  Underground Specialties, LLC Delaware Dycom Investments, Inc. 100  VCI Construction, LLC Delaware Dycom Investments, Inc. 100  VCI Utility Services Holdings,  LLC Delaware Dycom Investments, Inc. 100  VCI Utility Services, LLC Delaware VCI Utility Services Holdings,  LLC 100  White Mountain Cable  Construction, LLC Delaware Dycom Investments, Inc. 100  Immaterial Domestic Subsidiaries - Non-Guarantor   Alabama Broadband, LLC Delaware Dycom Investments, Inc. 100  Dycom Aviation, LLC Delaware Dycom Investments, Inc. 100  NCS, LLC Delaware Dycom Investments, Inc. 100  North Sky Telecom, Inc. Delaware Dycom Investments, Inc. 100  RJE Canada, Inc. Delaware Dycom Investments, Inc. 100  UNTRA EXPRESS, LLC Delaware Dycom Aviation, LLC 100  Immaterial Foreign Subsidiaries – Non-Guarantor  North Sky Telecom, ULC British Columbia  Canada North Sky Telecom, Inc. 100  RJE Canada, ULC Alberta Canada RJE Canada, Inc. 100  Unrestricted Subsidiaries  CertusView Solutions, LLC Delaware Dycom Investments, Inc. 100  CertusView Technologies, LLC Delaware Dycom Investments, Inc. 100  Gardens Capital Management,  LLC Delaware Dycom Investments, Inc. 100  





 






Schedule 8.01  INDEBTEDNESS EXISTING ON THE CLOSING DATE  1) Lost Instrument Bond in the amount of $160,000.00.  2) Indebtedness incurred in connection with the Liens described in Schedule 8.02.  3) Indebtedness incurred under the 2021 Convertible Notes.   





 






Schedule 8.02  EQUIPMENT LIENS  Equipment Liens listed below and any extension, renewal, refinancing, refunding or replacement thereof:  Debtor Secured Party Filing Number  Date of  Filing  Collateral  C-2 Utility Contractors, LLC Les Schwab Warehouse  Center, Inc.  2005 3345544 10/27/2005 Equipment Lease  Cablecom, LLC Les Schwab Warehouse  Center, Inc.  2006 63377975 9/29/2006 Equipment Lease  Cablecom, LLC U.S. Bank Equipment  Finance  2018 3346257 5/16/2018 Equipment Lease  Cablecom, LLC RDO Equipment Co. 2019 0993639 2/12/2019 Equipment Lease  Dycom Industries, Inc. U.S. Bank Equipment  Finance  2016 08970440 9/26/2016 Equipment Lease  Ervin Cable Construction, LLC Brandeis Machinery &  Supply Company  2016 3344775 6/3/2016 Equipment Lease  Ervin Cable Construction, LLC Datamax of Kansas City 2017 3487938 5/26/2017 Equipment Lease  Ervin Cable Construction, LLC Datamax of Kansas City 2017 3488043 5/26/2017 Equipment Lease  Ervin Cable Construction, LLC GreatAmerica Financial  Services Corporation 2019 7974160 11/12/2019 Equipment Lease  Golden State Utility Co. Les Schwab Warehouse  Center, Inc.  2009 4084635 12/21/2009 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2016 5913460 9/27/2016 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2016 5914021 9/27/2016 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2016 5914278 9/27/2016 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 3083629 5/7/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 3534365 5/24/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 4381691 6/27/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 5621798 8/15/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 5901737 8/27/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 5992009 8/30/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 6822023 10/3/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 7603414 11/2/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 7705102 11/7/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 7914050 11/15/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 8004745 11/19/2018 Equipment Lease  





 






Debtor Secured Party Filing Number  Date of  Filing  Collateral  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 8173128 11/27/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 8203529 11/28/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 8206084 11/28/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 8206480 11/28/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2018 8206696 11/28/2018 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2019 0711312 1/31/2019 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2019 3054934 5/2/2019 Equipment Lease  Niels Fugal Sons Company, LLC RDO Equipment Co. 2019 4522400 7/1/2019 Equipment Lease  North Sky Communications, Inc. Les Schwab Warehouse  Center, Inc. 2010 0335525 1/29/2010 Equipment Lease  Prince Telecom, LLC Les Schwab Warehouse  Center, Inc. 2012 0069478 1/6/2012 Equipment Lease  RJE Telecom, LLC GreatAmerica Financial  Services Corporation 2017 2283783 4/7/2017 Equipment Lease  Sage Telecommunications Corp. of  Colorado, LLC All Copy Products, Inc. 20202020751 2/28/2020 Equipment Lease  TelCom Construction, LLC Dell Financial Services LLC 201436554163 5/12/2014 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota,  Inc. 891630400029 6/10/2016 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota,  Inc. 891636800021 6/10/2016 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota,  Inc. 891643000026 6/10/2016 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota,  Inc. 891659600022 6/10/2016 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota,  Inc. 891663100021 6/10/2016 Equipment Lease  TelCom Construction, LLC RDO Equipment Co. 993218900558 1/9/2018 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1054291700022 12/14/2018 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1074472900021 3/13/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1074473900022 3/13/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1082354100020 4/25/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1082389800028 4/25/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1082404200029 4/25/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1082408200023 4/25/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1082432800028 4/26/2019 Equipment Lease  TelCom Construction, LLC U.S. Bank Equipment  Finance 1124172501287 12/11/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1126690000020 12/19/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1126693600025 12/19/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1128723100028 12/27/2019 Equipment Lease  





 






Debtor Secured Party Filing Number  Date of  Filing  Collateral  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1128730200020 12/27/2019 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1136574400027 1/22/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1139104100025 1/31/2020 Equipment Lease  TelCom Construction, LLC U.S. Bank Equipment  Finance 1140316801421 2/6/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1141332100021 2/11/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1141336900021 2/11/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1145027300025 2/27/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1145029700025 2/27/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1145032900025 2/27/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1147259100028 3/9/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1147260400028 3/9/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1149247400021 3/17/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1149251000020 3/17/2020 Equipment Lease  TelCom Construction, LLC Ditch Witch of Minnesota &  Iowa 1223585500029 3/11/2021 Equipment Lease  Tesinc, LLC CIT Bank, N.A. 2017 6911595 10/17/2017 Equipment Lease  Tesinc, LLC CIT Bank, N.A. 2020 3380492 5/13/2020 Equipment Lease  Tesinc, LLC CIT Bank, N.A. 2020 4533057 6/30/2020 Equipment Lease  Texstar Enterprises, LLC Wells Fargo Equipment  Finance, Inc. 11-0031993461 11/1/2011 Equipment Lease  Texstar Enterprises, LLC Ditch Witch Financial  Services, a Program of Bank  of the West 16-0015319107 5/11/2016 Equipment Lease  Texstar Enterprises, LLC Wells Fargo Vendor  Financial Services, LLC 16-0022190465 7/7/2016  Equipment Lease  Texstar Enterprises, LLC Wells Fargo Vendor  Financial Services, LLC 16-0022304705 7/8/2016 Equipment Lease  Texstar Enterprises, LLC Wells Fargo Vendor  Financial Services, LLC 16-0029028290 9/3/2016  Equipment Lease  Texstar Enterprises, LLC Wells Fargo Vendor  Financial Services, LLC 16-0029236837 9/5/2016  Equipment Lease  Texstar Enterprises, LLC  Financial Servicing, LLC 16-0031181445 9/21/2016  Equipment Lease  Texstar Enterprises, LLC Wells Fargo Vendor  Financial Services, LLC  17-0005133050 2/14/2017 Equipment Lease  Texstar Enterprises, LLC RDO Equipment Co. 17-0035736335 10/23/2017 Equipment Lease  Texstar Enterprises, LLC RDO Equipment Co. 17-0035737609 10/23/2017 Equipment Lease  Texstar Enterprises, LLC RDO Equipment Co. 17-0035738973 10/23/2017 Equipment Lease  Texstar Enterprises, LLC RDO Equipment Co. 17-0035740774 10/23/2017 Equipment Lease  Texstar Enterprises, LLC RDO Equipment Co. 17-0035743323 10/23/2017 Equipment Lease  





 






Debtor Secured Party Filing Number  Date of  Filing  Collateral  Texstar Enterprises, LLC RDO Equipment Co. 17-0035745729 10/23/2017 Equipment Lease  Texstar Enterprises, LLC RDO Equipment Co. 17-0035750179 10/23/2017 Equipment Lease  Texstar Enterprises, LLC RDO Equipment Co. 17-0035751685 10/23/2017 Equipment Lease  Texstar Enterprises, LLC RDO Equipment Co. 17-0035754092 10/23/2017 Equipment Lease  Texstar Enterprises, LLC McGrath RentCorp 20-0007442867 2/25/2020 Equipment Lease  Underground Specialties, LLC Les Schwab Warehouse  Center, Inc. 2007 0960574 3/14/2007 Equipment Lease  UtiliQuest, LLC LEAF Capital Funding,  LLC 007-2020-052164 10/16/2020 Equipment Lease  





 






Schedule 8.05  INVESTMENTS EXISTING ON THE CLOSING DATE  The Investments as of the Closing Date in the following Subsidiaries:   Unrestricted Subsidiaries:  CertusView Technologies, LLC US $114,969,929  CertusView Solutions, LLC US $959,000  Gardens Capital Management, LLC US $4,000,000  Foreign Subsidiaries:  RJE Canada, ULC  US $216,558  North Sky Telecom, ULC US $848,576  Non-Guarantor Restricted Subsidiaries:  Investments constituting ownership of the non-Guarantor Restricted Subsidiaries as set forth under the  headings “Immaterial Domestic Subsidiaries – Non-Guarantor” and “Immaterial Foreign Subsidiaries –  Non-Guarantor” on Schedule 6.11. 





 






CHAR1\1787937v4 Exhibit 2.02  [FORM OF] LOAN NOTICE  Date:  ___________, _____  To: Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Amended and Restated Credit Agreement, dated as of October 19, 2018  (as amended, restated, amended and restated, modified, supplemented, increased or extended from time to  time, the “Credit Agreement”), by and among Dycom Industries, Inc., a Florida corporation (the  “Borrower”), the Guarantors from time to time party thereto, the Lenders from time to time party thereto  and Bank of America, N.A., as Administrative Agent, Swingline Lender and L/C Issuer.  Capitalized  terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.  The undersigned hereby requests (select one):  A Borrowing of [Revolving][Term] Loans  A conversion or continuation of [Revolving][Term] Loans  1. On    (a Business Day).  2. In the amount of $ .1 3. Comprised of [Base Rate Loans][Eurodollar Rate Loans].  [4. For Eurodollar Rate Loans:  with an Interest Period of [1, 2, 3 or 6] months.]  [With respect to such Borrowing, the Borrower hereby represents and warrants that (a) such request  complies with the requirements of Section 2.01 of the Credit Agreement and (b) each of the conditions set  forth in (i) Section 5.02(a) of the Credit Agreement and (ii) Section 5.01 of the Credit Agreement, solely  with regard to the initial Request for Credit Extension on the Closing Date, have been satisfied or waived  in accordance with Section 11.01 of the Credit Agreement on and as of the date of such Borrowing.]2 DYCOM INDUSTRIES, INC.,  a Florida corporation  By:   Name:  Title:  1 In the case of a Borrowing of, or conversion to, Eurodollar Rate Loans, not less than $5,000,000 or a whole  multiple of $1,000,000 in excess thereof and in the case of a Borrowing of, or conversion to, Base Rate Loans, not  less than $1,000,000 or a whole multiple of $500,000 in excess thereof.   2 Insert bracketed language solely in connection with a borrowing. Not applicable to a conversion or continuation of  Loans.