executed-thirdamendmenta






EXECUTION VERSION  CHAR1\1795656v5  THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT      THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated  as of June 8, 2021 (this “Agreement”) is entered into among Louisiana-Pacific Corporation, a Delaware  corporation (the “Borrower”), the Lenders and Voting Participants party hereto, American AgCredit, PCA,  as Administrative Agent and CoBank, ACB, as L/C Issuer.  Capitalized terms used but not otherwise  defined herein have the meanings provided in the Credit Agreement (as defined below).    RECITALS     WHEREAS, the Borrower, the Guarantors from time to time party thereto, the Lenders from time  to time party thereto, American AgCredit, PCA, as Administrative Agent and CoBank, ACB, as L/C Issuer,  have entered into that certain Amended and Restated Credit Agreement dated as of June 27, 2019 (as  amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit  Agreement”);    WHEREAS, the Borrower has requested that the Lenders and Voting Participants agree to amend  the Credit Agreement as further set forth herein; and    WHEREAS, the Lenders and Voting Participants party hereto are willing to agree to such  amendments, subject to the terms and conditions set forth herein.    AGREEMENT     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. Amendments. Effective as of the Third Amendment Effective Date (as defined below), (a)  the Credit Agreement (other than the Schedules and Exhibits thereto) is hereby amended and restated in its  entirety to read in the form of such Credit Agreement attached hereto as Annex I and (b) (i) Schedules 2.01,  6.13, 6.20(a), 8.01, 8.02, 8.03 and 11.06(e) to the Credit Agreement are hereby amended and restated in  their entirety to read in the form of such Schedules attached hereto as Schedules 2.01, 6.13, 6.20(a), 8.01,  8.02, 8.03 and 11.06(e) and (ii) Exhibit A to the Credit Agreement is hereby amended in and restated in its  entirety to read in the form of Exhibit A attached hereto.   2. Conditions Precedent.  This Agreement shall become effective upon satisfaction or waiver  of the following conditions (such date, the “Third Amendment Effective Date”):  (a) Receipt by the Administrative Agent of a copy of this Agreement duly executed  by the Borrower, any Guarantors, Lenders, Voting Participants, and the Administrative Agent.    (b) Receipt by the Administrative Agent of favorable opinions of legal counsel to the  Borrower and any Guarantors, addressed to the Administrative Agent and each Lender, dated as of  the Third Amendment Effective Date, in form and substance reasonably satisfactory to the  Administrative Agent.    (c) Receipt by the Administrative Agent of a certificate of each Loan Party, dated as  of such date and signed by an Authorized Officer, attaching (i) copies of the Organization  Documents of each Loan Party certified to be true and complete as of a recent date by the  appropriate Governmental Authority of the state or other jurisdiction of its incorporation or  organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party  to be true and correct as of the Third Amendment Effective Date, (ii) such certificates of resolutions  





 






2  CHAR1\1795656v5  or other action, incumbency certificates and/or other certificates of Responsible Officers of each  Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority  and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in  connection with this Amendment and the other Loan Documents to which such Loan Party is a  party; and (iii) such documents and certifications as the Administrative Agent may reasonably  require to evidence that each Loan Party is duly organized or formed, and is validly existing, in  good standing and qualified to engage in business in its state of organization or formation.    (d) Receipt by the Administrative Agent of a certificate signed by a Responsible  Officer of the Borrower certifying that before and after giving effect to this Amendment, (i) the  representations and warranties made by the Borrower and each other Loan Party contained in  Article VI of the Credit Agreement or any other Loan Document are true and correct in all material  respects as of the date hereof, 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  as of such earlier date, (ii) no Default exists, or would result from the transactions contemplated by  the Third Amendment, (iii) no material adverse change since June 27, 2019 has occurred in the  business, assets, income, properties, liabilities (actual or contingent), operations or financial  condition of the Borrower and its Subsidiaries, taken as a whole; provided, that, with respect to this  clause (iii) and, for purposes of the foregoing clause (i), which incorporates Section 6.05(c) of the  Credit Agreement, the impacts of the ongoing COVID-19 pandemic on the business, assets,  income, properties, liabilities (actual or contingent), operations or financial condition of the  Borrower and its Subsidiaries, taken as a whole, that have been disclosed to the Administrative  Agent and Lenders prior to the Third Amendment Effective Date, or otherwise publicly available  in filings with the Securities and Exchange Commission made prior to the Third Amendment  Effective Date, shall be in disregarded, in each case to the extent so disclosed, (iv) no material  approval, consent, exemption, authorization or other action by, or notice to, or filing with, any  Governmental Authority or any other Person is necessary or required in connection with the  execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement  other than those that have already been obtained and are in full force and effect, and (v) no actions,  suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties, threatened  or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or  against any Loan Party or any of its Subsidiaries or against any of their properties or revenues exists  that (x) purport to affect or pertain to this Agreement or any of the transactions contemplated hereby  or (y) could reasonably be expected to have a Material Adverse Effect.    (e) Receipt by the Administrative Agent of the financial statements for the fiscal  quarter ended March 31, 2021 and such other budgets, forecasts, projections and other financial  information reasonably requested by the Administrative Agent prior to the Third Amendment  Effective Date.    (f) At least two (2) Business Days prior to the Third Amendment Effective Date the  Borrower shall have provided to the Administrative Agent, to the extent requested at least five (5)  days prior to the Third Amendment Effective Date, (i) an updated beneficial ownership certificate  to the extent that there have been any changes in beneficial ownership since the  delivery of the  beneficial ownership certificate on or about the Closing Date, and (ii) other information required  by the Lenders in order to company with the applicable “know-your-customer” and anti-money  laundering rules and regulations, including, without limitation, the PATRIOT ACT.    (g) Receipt by the Administrative Agent, the Arrangers and the Lenders of any fees  and expenses required to be paid on or before the Third Amendment Effective Date, including, but  not limited to, the fees of counsel to the Administrative Agent.  





 






3  CHAR1\1795656v5  3. Miscellaneous.      (a) The Credit Agreement (as amended hereby) and the obligations of the Loan Parties  thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain  in full force and effect according to their terms.    (b) The Borrower hereby represents and warrants as follows:     (i) Each Loan Party has taken all necessary action to authorize the execution,  delivery and performance of this Agreement.     (ii) This Agreement has been duly executed and delivered by the Loan Parties  and constitutes each of the Loan Parties’ legal, valid and binding obligations, enforceable  in accordance with its terms, except as such enforceability may be limited by Debtor Relief  Laws and general principles of equity (regardless of whether such enforceability is  considered in a proceeding in equity or at law).      (c) 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 instrument.  This Agreement and any certificate or other instrument delivered hereunder or  in connection herewith and signature pages thereto may be executed and delivered by electronic  means (including electronic image, facsimile, “.pdf”, “.tif” and “.jpeg”), and thereupon such  agreement, certificate or instrument shall be treated in each case and in all manner and respects and  for all purposes as an original agreement, certificate or instrument and shall be considered to have  the same binding legal effect as if it were an original manually-signed counterpart thereof delivered  in person.      (e) THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR  CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED  UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE  TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND  CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.       (f) The Borrower agrees to reimburse the Administrative Agent for the reasonable and  documented out-of-pocket expenses incurred by it in connection with this Agreement, including  the reasonable and documented fees, charges and disbursements of Moore & Van Allen PLLC,  counsel for the Administrative Agent.         [The Signature Pages Follow] 





 






 





 






 





 






LOUISIANA-PACIFIC CORPORATION  THIRD AMENDMENT  L/C ISSUER:   COBANK, ACB,  as L/C Issuer  By:   Name: Robert Prickett  Title: Vice President 





 






 





 






LOUISIANA-PACIFIC CORPORATION  THIRD AMENDMENT  COBANK, FCB,  as a Lender  By:   Name: Robert Prickett  Title: Vice President  





 






FARM CREDIT SERVICES OF AMERICA, PCA,  as a Lender  By:  Name: Dustin Oswald  Title: Vice President  LOUISIANA-PACIFIC CORPORATION  THIRD AMENDMENT  





 






 





 






 





 






 





 






LOUISIANA-PACIFIC CORPORATION  THIRD AMENDMENT  GREENSTONE FARM CREDIT SERVICES, FLCA,  as a Voting Participant   By:__________________________________________   Name: Shane Prichard  Title:   VP of Capital Markets     





 






 





 






LOUISIANA-PACIFIC CORPORATION THIRD AMENDMENT NORTHWEST FARM CREDIT SERVICES, FLCA, as a Voting Participant By:__________________________________________ Name: Jeremy A. Roewe Title:  Vice President 





 






 





 






LOUISIANA-PACIFIC CORPORATION  THIRD AMENDMENT  FARM CREDIT WEST, FLCA,  as a Voting Participant   By:__________________________________________   Name:  Robert Stornetta  Title:    SVP – Capital Markets     





 






LOUISIANA-PACIFIC CORPORATION  THIRD AMENDMENT  CAPITAL FARM CREDIT, FLCA,  as a Voting Participant   By:__________________________________________   Name:  Vladimir Kolesnikov  Title:     Capital Markets Director      





 






 





 






 





 






  CHAR1\1795656v5  ANNEX I    See attached.     





 






EXECUTION VERSION  CHAR1\1799470v5  ANNEX I  AMENDED AND RESTATED CREDIT AGREEMENT  Dated as of June 27, 2019  among  LOUISIANA-PACIFIC CORPORATION,  as the Borrower,    CERTAIN SUBSIDIARIES OF THE BORROWER   from time to time party hereto,  as the Guarantors,  AMERICAN AGCREDIT, PCA,  as Administrative Agent,  COBANK, ACB,  as L/C Issuer  and  THE LENDERS PARTY HERETO    and    AMERICAN AGCREDIT, PCA,  as Sole Lead Arranger 





 






i  CHAR1\1799470v5  TABLE OF CONTENTS  Page  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ...................................................................... 5  1.01 Defined Terms .................................................................................................................... 5  1.02 Other Interpretive Provisions ............................................................................................ 34  1.03 Accounting Terms ............................................................................................................. 34  1.04 Rounding ........................................................................................................................... 36  1.05 Times of Day .................................................................................................................... 36  1.06 Letter of Credit Amounts .................................................................................................. 36  1.08 UCC Terms ....................................................................................................................... 36  1.09 Divisions ........................................................................................................................... 37  ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS ...................................................... 37  2.01 Commitments .................................................................................................................... 37  2.02 Borrowings, Conversions and Continuations of Loans .................................................... 39  2.03 Letters of Credit ................................................................................................................ 41  2.04 Prepayments ...................................................................................................................... 49  2.05 Termination or Reduction of Aggregate Commitments ................................................... 49  2.06 Repayment of Loans ......................................................................................................... 50  2.07 Interest .............................................................................................................................. 50  2.08 Fees ................................................................................................................................... 51  2.09 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate............. 51  2.10 Evidence of Debt .............................................................................................................. 52  2.11 Payments Generally; Administrative Agent’s Clawback .................................................. 52  2.12 Sharing of Payments by Lenders ...................................................................................... 55  2.13 Cash Collateral .................................................................................................................. 55  2.14 Defaulting Lenders ........................................................................................................... 58  ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY ....................................................... 60  3.01 Taxes ................................................................................................................................. 60  3.02 Illegality ............................................................................................................................ 64  3.03 Inability to Determine Rates ............................................................................................. 65  3.04 Increased Costs ................................................................................................................. 67  3.05 Compensation for Losses .................................................................................................. 68  3.06 Mitigation Obligations; Replacement of Lenders ............................................................. 69  3.07 Survival ............................................................................................................................. 69  ARTICLE IV GUARANTY ....................................................................................................................... 70  4.01 The Guaranty .................................................................................................................... 70  4.02 Obligations Unconditional ................................................................................................ 70  4.03 Reinstatement .................................................................................................................... 71  4.04 Certain Additional Waivers .............................................................................................. 71  4.05 Remedies ........................................................................................................................... 71  4.06 Rights of Contribution ...................................................................................................... 72  4.07 Guarantee of Payment; Continuing Guarantee ................................................................. 72  4.08 Keepwell ........................................................................................................................... 72  ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS ............................................... 72  5.01 Conditions of Initial Credit Extension .............................................................................. 72  5.02 Conditions to all Credit Extensions .................................................................................. 75  





 






ii  CHAR1\1799470v5  ARTICLE VI REPRESENTATIONS AND WARRANTIES .................................................................... 75  6.01 Existence, Qualification and Power .................................................................................. 75  6.02 Authorization; No Contravention ..................................................................................... 76  6.03 Governmental Authorization; Other Consents .................................................................. 76  6.04 Binding Effect ................................................................................................................... 76  6.05 Financial Statements; No Material Adverse Effect........................................................... 76  6.06 Litigation ........................................................................................................................... 77  6.07 No Default......................................................................................................................... 77  6.08 Ownership of Property; Liens ........................................................................................... 77  6.09 Environmental Compliance .............................................................................................. 77  6.10 Insurance ........................................................................................................................... 78  6.11 Taxes ................................................................................................................................. 78  6.12 ERISA Compliance ........................................................................................................... 78  6.13 Subsidiaries ....................................................................................................................... 80  6.14 Margin Regulations; Investment Company Act................................................................ 80  6.15 Disclosure ......................................................................................................................... 80  6.16 Compliance with Laws ..................................................................................................... 81  6.17 Intellectual Property; Licenses, Etc .................................................................................. 81  6.18 Solvency............................................................................................................................ 81  6.19 Perfection of Security Interests in the Collateral .............................................................. 81  6.20 Business Locations ........................................................................................................... 81  6.21 Labor Matters .................................................................................................................... 82  6.22 Sanction Concerns and Anti-Corruption Laws ................................................................. 82  ARTICLE VII AFFIRMATIVE COVENANTS ........................................................................................ 82  7.01 Financial Statements ......................................................................................................... 82  7.02 Certificates; Other Information ......................................................................................... 83  7.03 Notices .............................................................................................................................. 84  7.04 Payment of Obligations .................................................................................................... 85  7.05 Preservation of Existence, Etc .......................................................................................... 85  7.06 Maintenance of Properties ................................................................................................ 85  7.07 Maintenance of Insurance ................................................................................................. 86  7.08 Compliance with Laws ..................................................................................................... 86  7.09 Books and Records ........................................................................................................... 86  7.10 Inspection Rights .............................................................................................................. 86  7.11 Use of Proceeds ................................................................................................................ 86  7.12 Additional Subsidiaries ..................................................................................................... 87  7.13 ERISA Compliance ........................................................................................................... 87  7.14 Pledged Assets .................................................................................................................. 87  7.15 Farm Credit Equity ........................................................................................................... 88  7.16 Post-Closing Obligations .................................................. Error! Bookmark not defined.  ARTICLE VIII NEGATIVE COVENANTS ............................................................................................. 90  8.01 Liens ................................................................................................................................. 90  8.02 Investments ....................................................................................................................... 92  8.03 Indebtedness...................................................................................................................... 93  8.04 Fundamental Changes ....................................................................................................... 94  8.05 Dispositions ...................................................................................................................... 95  8.06 Restricted Payments .......................................................................................................... 95  8.07 Change in Nature of Business ........................................................................................... 96  8.08 Transactions with Affiliates and Insiders.......................................................................... 96  





 






iii  CHAR1\1799470v5  8.09 Burdensome Agreements .................................................................................................. 96  8.10 Use of Proceeds ................................................................................................................ 97  8.11 Financial Covenants .......................................................................................................... 97  8.12 Organization Documents; Fiscal Year; Legal Name, State of Formation and  Form of Entity ................................................................................................................... 97  8.13 Sanctions ........................................................................................................................... 98  ARTICLE IX EVENTS OF DEFAULT AND REMEDIES ...................................................................... 98  9.01 Events of Default .............................................................................................................. 98  9.02 Remedies Upon Event of Default ................................................................................... 100  9.03 Application of Funds ...................................................................................................... 101  ARTICLE X ADMINISTRATIVE AGENT ............................................................................................ 102  10.01 Appointment and Authority ............................................................................................ 102  10.02 Rights as a Lender ........................................................................................................... 102  10.03 Exculpatory Provisions ................................................................................................... 103  10.04 Reliance by Administrative Agent .................................................................................. 103  10.05 Delegation of Duties ....................................................................................................... 104  10.06 Resignation of Administrative Agent ............................................................................. 104  10.07 Non-Reliance on Administrative Agent and Other Lenders ........................................... 105  10.08 No Other Duties; Etc ....................................................................................................... 106  10.09 Administrative Agent May File Proofs of Claim ............................................................ 106  10.10 Collateral and Guaranty Matters ..................................................................................... 106  10.11 Treasury Management Banks and Swap Banks .............................................................. 107  ARTICLE XI MISCELLANEOUS .......................................................................................................... 108  11.01 Amendments, Etc ............................................................................................................ 108  11.02 Notices and Other Communications; Facsimile Copies ................................................. 110  11.03 No Waiver; Cumulative Remedies; Enforcement ........................................................... 111  11.04 Expenses; Indemnity; and Damage Waiver .................................................................... 112  11.05 Payments Set Aside ........................................................................................................ 114  11.06 Successors and Assigns .................................................................................................. 114  11.07 Treatment of Certain Information; Confidentiality ......................................................... 119  11.08 Set-off ............................................................................................................................. 119  11.09 Interest Rate Limitation .................................................................................................. 120  11.10 Counterparts; Integration; Effectiveness ......................................................................... 120  11.11 Survival of Representations and Warranties ................................................................... 121  11.12 Severability ..................................................................................................................... 121  11.13 Replacement of Lenders ................................................................................................. 121  11.14 Governing Law; Jurisdiction; Etc ................................................................................... 122  11.15 Waiver of Right to Trial by Jury ..................................................................................... 123  11.16 Electronic Execution of Assignments and Certain Other Documents ............................ 123  11.17 USA PATRIOT Act ........................................................................................................ 124  11.18 No Advisory or Fiduciary Relationship .......................................................................... 124  11.19 Judgment Currency ......................................................................................................... 125  





 






iv  CHAR1\1799470v5  SCHEDULES  2.01 Commitments and Applicable Percentages  4.01(h) Farm Credit Equities to be Purchased on or prior to the Closing Date  6.09 Environmental Matters  6.10 Insurance  6.13 Subsidiaries  6.17 IP Rights  6.20(a) Locations of Real Property  6.20(b) Taxpayer and Organizational Identification Numbers  6.20(c) Changes in Legal Name, State of Formation and Structure  8.01 Liens Existing on the Third Amendment Effective Date  8.02 Investments Existing on the Third Amendment Effective Date  8.03 Indebtedness Existing on the Third Amendment Effective Date  11.02 Certain Addresses for Notices  11.06(e) Voting Participants at the Third Amendment Effective Date    EXHIBITS  A Form of Loan Notice  B Form of Note  C Form of Compliance Certificate  D Form of Joinder Agreement  E Form of Assignment and Assumption  F Forms of U.S. Tax Compliance Certificates  G Form of Secured Party Designation Notice  H  Form of Voting Participant Notification and Consent  





 






  CHAR1\1799470v5  AMENDED AND RESTATED CREDIT AGREEMENT  This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of June 27, 2019  among LOUISIANA-PACIFIC CORPORATION, a Delaware corporation (the “Borrower”), the  Guarantors (defined herein), the Lenders (defined herein), AMERICAN AGCREDIT, PCA, as  Administrative Agent and COBANK, ACB, as L/C Issuer.  PRELIMINARY STATEMENTS:  WHEREAS, the Borrower, the Guarantors party thereto, the Lenders party thereto and American  AgCredit, PCA, as administrative agent, have entered into that certain Credit Agreement dated as of  December 6, 2013 (as amended or modified from time to time prior to the date hereof, the “Existing  Credit Agreement”); and  WHEREAS, the parties hereto wish to amend and restate the Existing Credit Agreement to (a)  make available to the Borrower increased and extended Commitments and (b) make certain other  amendments and modifications, all as more fully set forth herein;    NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained,  the parties hereto covenant and agree as follows:  ARTICLE I    DEFINITIONS AND ACCOUNTING TERMS  1.01 Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:  “Accordion Increase” has the meaning specified in Section 2.01(b).  “Acquisition” means the acquisition by any Loan Party or any Subsidiary of a Loan Party,  whether in a single transaction or in a series of related transactions, of any business, division, line of  business or other business unit of another Person or 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 and  whether for cash, property, services, assumption of Indebtedness, securities or otherwise; provided that  any acquisition by a Loan Party of assets or Voting Stock of another Loan Party and any acquisition by a  Loan Party or Subsidiary of assets or Voting Stock of a Subsidiary that is not a Loan Party shall not  constitute an “Acquisition” for purposes of this Agreement.  “Additional Term Loan” means each loan made under each Additional Term Loan Facility.  “Additional Term Loan Facility” has the meaning specified in Section 2.01(b).  “Additional Term Loan Facility Agreement” means an agreement evidencing a new Additional  Term Loan Facility in form and substance reasonably acceptable to the Administrative Agent and the  Borrower.  “Additional Term Loan Facility Commitment” means, as to any Lender at any time, its  commitment to an Additional Term Loan Facility as set forth in an Additional Term Loan Facility  





 






  6  CHAR1\1799470v5  Agreement, as such commitment is thereafter assigned or modified and “Additional Term Loan Facility  Commitments” means the aggregate Additional Term Loan Facility Commitments of all of the Lenders.   “Adjusted Base Rate” at any time shall mean the highest of (i) the Prime Rate, (ii) the rate which  is 1/2 of 1% in excess of the Federal Funds Rate and (iii) Eurodollar Rate for a Eurodollar Rate Loan with  an interest period of one month commencing on such day plus 1.00%.  For purposes of this definition, the  Eurodollar Rate shall be determined using LIBOR as otherwise determined by the Administrative Agent  in accordance with the definition of LIBOR, except that (x) if a given day is a Business Day, such  determination shall be made on such day (rather than two (2) Business Days prior to the commencement  of an Interest Period) or (y) if a given day is not a Business Day, LIBOR for such day shall be the rate  determined by the Administrative Agent pursuant to preceding the clause (x) for the most recent Business  Day preceding such day.  Any change in the Adjusted Base Rate due to a change in the Prime Rate, the  Federal Funds Rate or such Eurodollar Rate shall be effective as of the opening of business on the day of  such change in the Prime Rate, the Federal Funds Rate or such Eurodollar Rate, respectively.  In no event  shall the Adjusted Base Rate be less than 0.00%.  “Administrative Agent” means American AgCredit in its capacity as administrative agent under  any of the Loan Documents, or any successor administrative agent.  “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 11.02 or such other address or account as the Administrative Agent may  from time to time notify the Borrower and the Lenders.  “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the  Administrative Agent.  “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  Person specified.  “Aggregate Commitments” means, at any time, the Commitments of all the Lenders.    “Agreement” means this Credit Agreement.  “American AgCredit” means American AgCredit, PCA and its successors and assigns.  “Applicable Percentage” means, with respect to any Lender at any time, the percentage of (x) the  Revolving Loan Facility represented by such Lender’s Commitment at such time or (y) the Additional  Term Loan Facility represented by such Lender’s Additional Term Loan Facility Commitment at such  time, as applicable. If the commitment of each Lender to make Loans or Additional Term 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 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. The Applicable Percentage shall be subject to adjustment provided in  Section 2.14.  The Applicable Percentage of each Lender as of the Third Amendment Effective Date is set  forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption or other  agreement pursuant to which such Lender becomes a party hereto, as applicable.  “Applicable Rate” means with respect to Loans, Letters of Credit and the Commitment Fee, the  following percentages per annum, based upon the EBITDA/Interest Ratio as set forth in the most recent  Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(a):  





 






  7  CHAR1\1799470v5  Pricing  Tier  EBITDA/Interest  Ratio  Commitment Fee  Eurodollar Rate  Loans /Letter of  Credit Fee   Base Rate  Loans  1 > 6.0:1.0 0.200% 1.500% 0.500%  2  > 4.0:1.0 but ≤  6.0:1.0  0.250% 1.625% 0.625%  3  > 2.5:1.0 but ≤  4.0:1.0  0.325% 2.000% 1.000%  4  >1.5:1.0 but <  2.5:1.0  0.375% 2.250% 1.250%  5 < 1.5:1.0 0.425% 2.500% 1.500%    Any increase or decrease in the Applicable Rate resulting from a change in the EBITDA/Interest  Ratio shall become effective as of the fifth Business Day immediately following the date a Compliance  Certificate is delivered pursuant to Section 7.02(a); provided, however, that if a Compliance Certificate is  not delivered when due in accordance with such Section, then, upon written notice by the Administrative  Agent to the Borrower (which shall be delivered by the Administrative Agent at the request of the  Required Lenders), Pricing Tier 5 shall apply as of the first Business Day after the date on which such  Compliance Certificate was required to have been delivered and shall continue to apply until the first  Business Day immediately following the date a Compliance Certificate is delivered in accordance with  Section 7.02(a), whereupon the Applicable Rate shall be adjusted based upon the calculation of the  EBITDA/Interest Ratio contained in such Compliance Certificate.  The Applicable Rate for any Loans in  effect from the Third Amendment Effective Date to the fifth Business Day immediately following the  date a Compliance Certificate is delivered pursuant to Section 7.02(a) for the fiscal quarter ending June  30, 2021 shall be determined based upon Pricing Tier 1.  Notwithstanding anything to the contrary  contained in this definition, the determination of the Applicable Rate for any period shall be subject to the  provisions of Section 2.09(b).      “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  “Arranger” means American AgCredit, PCA, in its capacity as sole lead arranger.  “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 F or any other form  (including electronic documentation generated by an electronic platform) approved by the Administrative  Agent.  “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any  Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of  such date in accordance with GAAP and (b) in respect of any Synthetic Lease of any Person, 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.  





 






  8  CHAR1\1799470v5  “Audited Financial Statements” means the audited consolidated balance sheet of the Borrower  and its Subsidiaries for the fiscal year ended December 31, 2018, and the related consolidated statements  of income or operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such  fiscal year, including the notes thereto.  “Available Tenor” shall mean, as of any date of determination and with respect to the then- current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such  Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any  payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this  Agreement as of such date.  “Availability Period” means the period from and including the Third Amendment Effective Date  to the earliest of (i) the Maturity Date, (ii) the date of termination of the Commitments pursuant to Section  2.05, and (iii) 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.   “Base Rate Loan” means a Loan that bears interest based on the Adjusted Base Rate.  “Benchmark” shall mean, initially, LIBOR; provided, that, if a replacement of LIBOR (or any  subsequent Benchmark) has occurred pursuant to Section 3.03(c), then “Benchmark” means the  applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such  prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published  component used in the calculation thereof.  “Benchmark Replacement” shall mean, for any Available Tenor:  (a) for purposes of Section 3.03(c)(i), the first alternative set forth below that can be  determined by the Administrative Agent:  (i) the sum of: (A) Term SOFR and (B) 0.11448% (11.448 basis points) for  an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an  Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an  Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an  Available Tenor of twelve-months’ duration, or  (ii) the sum of: (A) Daily Simple SOFR and (B) the spread adjustment  selected or recommended by the Relevant Governmental Body for the replacement of the  tenor of LIBOR with a SOFR-based rate having approximately the same length as the  interest payment period specified in Section 3.03(c)(i); and  (b) for purposes of Section 3.03(c)(ii), the sum of (i) the alternate benchmark rate  and (ii) an adjustment (which may be a positive or negative value or zero), in each case, that has  been selected by the Administrative Agent and the Borrowers as the replacement for such  Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing  market convention, including any applicable recommendations made by the Relevant  Governmental Body, for Dollar-denominated syndicated credit facilities at such time;  provided, that, if the Benchmark Replacement as determined pursuant to clause (a) or (b) above  would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the  purposes of this Agreement and the other Loan Documents.  





 






  9  CHAR1\1799470v5  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including changes to the definition of  “Adjusted Base Rate,” the definition of “Eurodollar Base Rate,” the definition of “Business Day,” the  definition of “Interest Period,” timing and frequency of determining rates and making payments of  interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability  and length of lookback periods, the applicability of breakage provisions, and other technical,  administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect  the adoption and implementation of such Benchmark Replacement and to permit the administration  thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the  Administrative Agent decides that adoption of any portion of such market practice is not administratively  feasible or if the Administrative Agent determines that no market practice for the administration of such  Benchmark Replacement exists, in such other manner of administration as the Administrative Agent  decides is reasonably necessary in connection with the administration of this Agreement and the other  Loan Documents).  “Benchmark Transition Event” means, with respect to any then-current Benchmark other than  LIBOR, the occurrence of a public statement or publication of information by or on behalf of the  administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such  Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New  York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution  authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar  insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that  (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such  Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there  is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b)  all Available Tenors of such Benchmark are or will no longer be representative of the underlying market  and economic reality that such Benchmark is intended to measure and that representativeness will not be  restored.  “Beneficial Ownership Certification” means a certification regarding the beneficial ownership  required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Borrower” has the meaning specified in the introductory paragraph hereto.  “Borrower Materials” has the meaning specified in Section 7.02(e).  “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the  case of Eurodollar Rate Loans, having the same Interest Period, made by each of the Lenders pursuant to  Section 2.01(a).  “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, New York City (or the  Administrative Agent’s Office in Fields Landing, California is in fact closed) and, if such day relates to  any Eurodollar Rate Loan, means any such day that is also a London Banking Day.  “Businesses” means, at any time, a collective reference to the businesses operated by the  Borrower and its Subsidiaries at such time.  





 






  10  CHAR1\1799470v5  “Canadian Benefit Plans” shall mean any material plan, fund, program, or policy, whether oral or  written, formal or informal, funded or unfunded, insured or uninsured, providing benefits including  medical, hospital care, dental, sickness, accident, disability, life insurance, or other benefits under which  the Borrower or any of its Subsidiaries has any liability with respect to any Canadian employees or  former Canadian employees, but excluding any Canadian Pension Plan or Canadian Union Plan.     “Canadian Dollar” and “CAD$” means the lawful currency of Canada.    “Canadian Dollar Equivalent” means, at any time, with respect to any amount denominated in  Dollars, the equivalent amount thereof in Canadian Dollars as determined by the L/C Issuer at such time  on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase  of Canadian Dollars with Dollars.   “Canadian Pension Plans” shall mean each pension, supplementary pension, retirement savings or  other retirement income plan or arrangement of any kind, registered or non-registered, established,  maintained or contributed to by the Borrower or any of its Subsidiaries for its Canadian employees or  former Canadian employees, except for (a) the Canada Pension Plan and the Quebec Pension Plan that are  maintained by the Government of Canada and the Province of Quebec, respectively, and (b) any Canadian  Union Plans.   “Canadian Union Plans” shall mean any plan, fund, program, or policy, whether oral or written,  formal or informal, funded or unfunded, insured or uninsured, providing employee benefits including  medical, dental, hospital care, sickness, accident, disability, life insurance, pension, retirement or savings  benefits and all other benefit plans for the benefit of Canadian employees or former Canadian employees  of the Borrower or any of its Subsidiaries which are not maintained, sponsored or administered by any the  Borrower or any of its Subsidiaries, but to which the Borrower or any of its Subsidiaries is required to  contribute pursuant to a collective agreement or to a participation agreement.  “Capital Lease” means, as applied to any Person, any lease of any property by that Person as  lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance  sheet of that Person.  “Capitalization Ratio” means, as of any calculation date, the ratio of (a) Funded Indebtedness of  the Borrower and its Subsidiaries as of such calculation date minus the amount of unrestricted cash on  hand of the Borrower and its Subsidiaries on a consolidated basis as of such calculation date to (b) Total  Capitalization of the Borrower and its Subsidiaries on a consolidated basis as of such calculation date.  This ratio may be expressed as a percentage.    “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent or  its designee, for the benefit of one or more of the L/C Issuer or the Lenders, as collateral for L/C  Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or  deposit account balances (in the applicable currency) or, if the Administrative Agent and the L/C Issuer  shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form  and substance satisfactory to the Administrative Agent and the L/C Issuer.  “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, as at any date, (a) securities issued or directly and fully guaranteed or  insured by the United States or Canada or any agency or instrumentality thereof (provided that the full  faith and credit of the United States or Canada is pledged in support thereof) having maturities of not  more than 365 days from the date of acquisition, (b) Dollar or Canadian Dollar denominated time  





 






  11  CHAR1\1799470v5  deposits, bankers acceptances or certificates of deposit of (i) any Lender, (ii) any commercial bank of  recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short- term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at  least P-1 or the equivalent thereof (any such bank being an “Approved Bank”), in each case with  maturities of not more than 365 days from the date of acquisition, (c) commercial paper and variable or  fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate  notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better  by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within nine months of the  date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company  (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of  $500,000,000 for direct obligations issued by or fully guaranteed by the United States or Canada in which  such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on  the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase  obligations and (e) Investments, classified in accordance with GAAP as current assets, in money market  investment programs registered under the Investment Company Act of 1940 which are administered by  reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are  limited to Investments of the character described in one or more of the foregoing subdivisions (a) through  (d).  “Change in Law” means the occurrence, after the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,  regulation or treaty or in the administration, interpretation, implementation or application thereof by any  Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive  (whether or not having the force of law) by any Governmental Authority; provided, that, notwithstanding  anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and  all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all  requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel  Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign  regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law”, regardless of the date enacted, adopted or issued.  “Change of Control” means the occurrence of any of the following events:    (a) the transfer (in one transaction or a series of transactions) of all or substantially all of  the assets of any Loan Party to any Person or group of related Persons for purposes of Section  13(d) of the Exchange Act (a “Group”), other than, with respect to the assets of any Loan Party  other than the Borrower, to another Loan Party and other than as permitted in Section 8.05 hereof;  or    (b) the liquidation or dissolution of any Loan Party or the adoption of a plan by the  stockholders of any Loan Party relating to the dissolution or liquidation of such Loan Party, other  than as permitted in Section 8.04 hereof; or    (c) any Person or Group shall become the owner, directly or indirectly, beneficially, of  Voting Stock representing more than 50% of the aggregate Voting Stock of the Borrower (it  being understood that no contingent right to elect any director of the Borrower shall be given  effect for purposes of this definition until it becomes absolute or vested and exercisable);    (d)  the first day on which a majority of the members of the board of directors of the  Borrower are not Continuing Directors; or    





 






  12  CHAR1\1799470v5  (e) except to the extent permitted by Section 8.05 hereof, the failure of the Borrower to,  directly or indirectly, own and control one hundred percent (100%) of each class of the Equity  Interests of any Loan Party.    “Closing Date” means the date hereof.  “CoBank” means CoBank, ACB and its successors and assigns.  “Collateral” means a collective reference to all personal property with respect to which Liens in  favor of the Administrative Agent, for the benefit of the holders of the Obligations, are purported to be  granted pursuant to and in accordance with the terms of the Collateral Documents.  “Collateral Documents” means a collective reference to the Security Agreement and any other  security documents as may be executed and delivered by the Loan Parties pursuant to the terms of Section  7.14(a).  “Collateral Reinstatement” has the meaning specified in Section 7.14(b).  “Collateral Release” has the meaning specified in Section 7.14(b).  “Commitment” means, as to each Lender, its obligation to (a) make Loans to the Borrower  pursuant to Section 2.01(a) and (b) purchase participations in L/C Obligations, in an aggregate principal  amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on  Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party  hereto, as applicable, as such amount may be adjusted from time to time in accordance with this  Agreement. The aggregate principal amount of the Commitments in effect on the Third Amendment  Effective Date is FIVE HUNDRED FIFTY MILLION DOLLARS ($550,000,000).  “Commitment Fee” has the meaning specified in Section 2.08(a).  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).  “Compliance Certificate” means a certificate substantially in the form of Exhibit D.  “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 Net Tangible Assets” means, with respect to any Person, the aggregate amount of  assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all  current liabilities (excluding any Indebtedness for money borrowed having a maturity of less than 12  months from the date of the most recent consolidated balance sheet of such person but which by its terms  is renewable or extendable beyond 12 months from such date at the option of the borrower) and (b)  goodwill, trade names, patents, unamortized debt discount and expense and any other like intangibles, all  as set forth in the most recent consolidated balance sheet of such person and compute in accordance with  GAAP.  “Consolidated Net Worth” means, as of any date, (a) the total assets of the Borrower and its  Subsidiaries that would be reflected on the Borrower’s consolidated balance sheet as of such date  prepared in accordance with GAAP, after eliminating all amounts properly attributable to non-Subsidiary  interests, if any, in the stock and surplus of Subsidiaries, minus (b) the total liabilities of the Borrower and  its Subsidiaries that would be reflected on the Borrower’s consolidated balance sheet as of such date  





 






  13  CHAR1\1799470v5  prepared in accordance with GAAP; provided that in determining such Consolidated Net Worth, there  shall be excluded (i) any changes after December 31, 2019 in “Accumulated Other Comprehensive  Income (Loss)” as shown on the balance sheet of the Borrower and its Subsidiaries on a consolidated  basis and prepared in accordance with GAAP and (ii) any amounts reclassified to the “Consolidated  Statement of Operations” from “Accumulated Other Comprehensive Income (Loss)” after December 31,  2019.   “Continuing Director” means, as of any date of determination, any member of the board of  directors of the Borrower who:  (a) was a member of such board of directors on the Closing Date; or (b)  was nominated for election or elected to such board of directors with the approval or subsequent  ratification of a majority of the Continuing Directors who were members of such board of directors at the  time of such nomination or election.  “Contractual Obligation” means, as to any Person, any provision of any security issued by such  Person or of any agreement, instrument or other undertaking to which such Person is a party or by which  it or any of its property is bound.  “Control” means the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the ability to exercise voting power,  by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto; provided  that for purposes of Section 8.08, a Person shall be deemed to be Controlled by another Person if such  other Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary  voting power for the election of directors, managing general partners or the equivalent.  “Credit Exposure” means, as to any Lender at any time, the unused Commitments, the aggregate  principal amount at such time of its outstanding Loans and such Lender’s participation in L/C Obligations  at such time.  “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit  Extension.  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will  include a lookback) being established by the Administrative Agent in accordance with the conventions for  this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for  syndicated business loans; provided, that, if the Administrative Agent decides that any such convention is  not administratively feasible for the Administrative Agent, then the Administrative Agent may establish  another convention in its reasonable discretion.  “Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and  Insolvency Act (Canada) 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, Canada or other applicable jurisdictions from time to time in  effect.  “Default” means any event or condition that constitutes an Event of Default or that, with the  giving of any notice, the passage of time, or both, would be an Event of Default.  “Default Rate” means when used with respect to Obligations, an interest rate equal to (i) the  Adjusted Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per  annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an  





 






  14  CHAR1\1799470v5  interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan  plus 2% per annum, in each case to the fullest extent permitted by applicable Laws.  “Defaulting Lender” means, subject to Section 2.14(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 determination that one or more conditions precedent to funding  (each of which conditions precedent, together with any applicable default, shall be specifically identified  in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, or any  other Lender any other amount required to be paid by it hereunder (including in respect of its participation  in Letters of Credit) within two Business Days of the date when due, (b) has notified the Borrower, the  Administrative Agent or the L/C Issuer in writing that it does not intend to comply with its funding  obligations hereunder, or has made a public statement to that effect (unless such writing or public  statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is  based on such Lender’s determination that a condition precedent to funding (which condition precedent,  together with any applicable default, shall be specifically identified in such writing or public statement)  cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the  Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the  Borrower that it will comply with its prospective funding obligations hereunder (provided that such  Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written  confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent  company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (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; provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or  acquisition of any Equity Interests 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 2.14(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 and each other  Lender promptly following such determination.   “Designated Jurisdiction” means any country or territory to the extent that such country or  territory is the subject of any Sanction.  “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including  any Sale and Leaseback Transaction) of any property by any Loan Party or any Subsidiary (including the  Equity Interests of any Subsidiary) to another Person, including any sale, assignment, transfer or other  disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated  therewith, but excluding (a) the sale, lease, license, transfer or other disposition of inventory in the ordinary  course of business; (b) the sale, lease, license, transfer or other disposition in the ordinary course of  business of non-strategic surplus, obsolete or worn out property or property no longer strategically used  or useful in the conduct of business of any Loan Party or any of its Subsidiaries; (c) any sale, lease,  license, transfer or other disposition of property to any Loan Party or any Subsidiary; provided, that if the  transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) to the  





 






  15  CHAR1\1799470v5  extent such transaction constitutes an Investment, such transaction is permitted under Section 8.02, (d)  any Involuntary Disposition, (e) the sale or discount of accounts in the ordinary course of business, (f)  termination of a lease of real or personal property that is not necessary in the ordinary course of business and  that could not reasonably be expected to result in a Material Adverse Effect, (g) the granting of Permitted  Liens, (h) dispositions of cash and Cash Equivalents in the ordinary course of business and conversions of  Cash Equivalents into cash or other Cash Equivalents, (i) dispositions expressly permitted by Sections 8.02,  8.04 or 8.06, (j) the leasing or subleasing of assets in the ordinary course of business and (k) the lapse of  registered patents, trademarks and other intellectual property of any Loan Party or any Subsidiary to the  extent not economically desirable in the conduct of such Person’s business.  “Dollar” and “$” mean lawful money of the United States.  “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars,  such amount, and (b) with respect to any amount denominated in Canadian Dollars, the equivalent  amount thereof in Dollars as determined by the L/C Issuer at such time on the basis of the Spot Rate  (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Canadian  Dollars.    “Domestic Subsidiary” means each Subsidiary that is organized under the laws of the United  States, any state, territory or district thereof or any other jurisdiction within the United States.  “Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th)  Business Day after the date notice of such Early Opt-in Election is provided to the Lenders and the  Borrower, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on  the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders  and the Borrower, written notice of objection to such Early Opt-in Election from either Lenders  comprising the Required Lenders.  “Early Opt-in Election” means the occurrence of:  (a) a notification by the Administrative Agent to (or the request by the Borrowers to  the Administrative Agent to notify) each of the other parties hereto that at least five (5) currently  outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of  amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any  other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are  identified in such notice and are publicly available for review), and  (b) the joint election by the Administrative Agent and the Borrowers to trigger a  fallback from LIBOR and the provision by the Administrative Agent of written notice of such  election to the Lenders.  “EBITDA” means, for any period, the sum of (a)  Net Income for such period plus (b) an amount  which, in the determination of Net Income for such period has been deducted for (i)  Interest Charges for  such period, (ii) without duplication, total Federal, state, foreign or other income taxes for such period,  (iii) all depreciation expense for such period, (iv) all amortization expense for such period, (v) all other  non-cash charges or expenses and (vi) expenses or charges related to any transaction or series of  transactions constituting an equity offering, Investment, recapitalization, or incurrence of Indebtedness, in  each case permitted by this Agreement.  All amount other than the amounts described in clause (v) shall  be determined in accordance with GAAP.    





 






  16  CHAR1\1799470v5  “EBITDA/Interest Ratio” means, as of any calculation date, the ratio of (a) EBITDA to (b) cash  Interest Charges for the most recent four quarter period.  For purposes of calculating this ratio, if  EBITDA is negative EBITDA shall be deemed to be $1.00 (one dollar).     “Eligible Assignee” means any Person that meets the requirements to be an assignee under  Section 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 federal, state, local, foreign and other applicable  statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,  franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the  environment or the release of any materials into the environment, including those related to hazardous  substances or wastes, air emissions and discharges to waste or public systems.  “Environmental Liability” means any liability, contingent or otherwise (including any liability for  damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other  Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a)  violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment  or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or  threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or  other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the  foregoing.  “Equity Interests”  means, with respect to any Person, all of the shares of capital stock, limited  liability company interests or membership interests of (or other ownership or profit interests in) such  Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of  shares of capital stock, limited liability company interests or membership interests of (or other ownership  or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of  capital stock, limited liability company interests or membership interests of (or other ownership or profit  interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of  such shares (or such other interests), and all of the other ownership or profit interests in such Person  (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or  not such shares, warrants, options, rights or other interests are outstanding on any date of determination.  “ERISA” means the Employee Retirement Income Security Act of 1974 and any regulations  issued pursuant thereto.  “ERISA Affiliate” means any trade or business (whether or not incorporated) under common  control with the Borrower within the meaning of Section 414(b) or (c) of the 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 the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a  plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or  a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a  complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or  notification that a Multiemployer Plan is in reorganization; (d) the commencement of proceedings by the  PBGC to terminate a Pension Plan or Multiemployer Plan under Sections 4041(c) or 4041A of ERISA;  (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition  which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a  





 






  17  CHAR1\1799470v5  trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at- risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the  Internal Revenue Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability  under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of  ERISA, upon the Borrower or any ERISA Affiliate.  “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 (“LIBOR”), or a comparable successor rate which is  approved by the Administrative Agent, as reported by Bloomberg Information Services (or such  other commercially available source providing quotations of LIBOR as may be designated by the  Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London  Banking 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;  provided, that subject to Section 3.03(c), if an interest rate is not ascertainable pursuant to the  foregoing provisions of this clause (a), the Eurodollar Base Rate shall be determined by the  Administrative Agent as the average of the rates per annum at which Dollar deposits are offered for  such Interest Period by major banks in the London interbank market; and  (b) for any interest rate calculation with respect to a Base Rate Loan on any date, the  rate per annum equal to LIBOR, at approximately 11:00 a.m. London time determined two  London Banking Days prior to such date for Dollar deposits being delivered in the London  interbank market for a term of one month commencing that day; provided, that subject to Section  3.03(c) if an interest rate is not ascertainable pursuant to the foregoing provisions of this clause  (b), the Eurodollar Base Rate shall be determined by the Administrative Agent as the average of  the rates per annum at which Dollar deposits are offered for such Interest Period by major banks  in the London interbank market.  provided, that if the Eurodollar Base Rate shall be less than zero, such rate shall be deemed zero  for purposes of this Agreement. Notwithstanding the foregoing, unless otherwise specified in any  amendment to this Agreement entered into in accordance with Section 3.03(c) in the event that a  Benchmark Replacement with respect to LIBOR is implemented, then all references herein of  LIBOR shall be deemed to be references to such Benchmark Replacement (including the  corresponding rate that would apply to any determination of the Adjusted Base Rate).     “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 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 bearing interest at a rate based on 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 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 with respect to any Lender, that percentage  (expressed as a decimal) which is in effect on such day, as prescribed by the FRB, for determining the  reserve requirement (if any) for such Lender in respect of eurocurrency funding (currently referred to as  





 






  18  CHAR1\1799470v5  “Eurocurrency liabilities” in Regulation D of the FRB).  The Eurodollar Reserve Percentage shall be  adjusted automatically on and as of the effective date of any change in any such reserve percentage.  “Event of Default” has the meaning specified in Section 9.01.  “Exchange Act” shall mean the Securities Exchange Act of 1934, together with all rules,  regulations and interpretations thereunder or related thereto.  “Excluded Property” means, with respect to any Loan Party, including any Person that becomes a  Loan Party after the Closing Date as contemplated by Section 7.12, (a) any owned or leased real property,  (b) any personal property which is located outside of the United States, (c) any personal property  (including, without limitation, motor vehicles) in respect of which perfection of a Lien is not either (i)  governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed  in either the United States Copyright Office or the United States Patent and Trademark Office (provided that,  unless an Event of Default has occurred and is continuing, the Borrower and the other Loan Parties will  not be required to take any action to perfect Liens on the Collateral to secure the Obligations other than  the filing of UCC-1 financing statements naming each Loan Party as debtor and the Administrative Agent  as secured party), (d) 35% of the Equity Interests of any direct Foreign Subsidiary or Foreign Subsidiary  Holding Company of a Loan Party and (e) any property which, subject to the terms of Section 8.09, is  subject to a Lien of the type described in Section 8.01(i) pursuant to documents which prohibit such Loan  Party from granting any other Liens in such property, (f) subject to the proviso in the last paragraph of  Section 2 of the Security Agreement, any lease, license, contract or other agreement to the extent that a  grant of a security interest therein would violate or invalidate such lease, license, contract or agreement or  create a right of termination in favor of any other party thereto after giving effect to the applicable anti- assignment provisions of the Uniform Commercial Code or other applicable statute or regulation, but  excluding the proceeds or receivables thereof, (g) any “intent-to-use” trademark applications and (h) those  assets that the cost or burden of obtaining a security interest in are excessive in relation to the value of the  security to be afforded thereby, as reasonably determined by the Borrower and the Administrative Agent.  “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 under a Loan Document by  such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or  becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by  virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in  the Commodity Exchange Act (determined after giving effect to Section 4.08 hereof and any and all  guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such  Guarantor, or grant by such Guarantor of a security interest, becomes effective with respect to such Swap  Obligation.  If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract,  such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts  for which such Guaranty or security interest becomes illegal.  “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  





 






  19  CHAR1\1799470v5  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 U.S. federal withholding taxes imposed  under FATCA.  “Existing Credit Agreement” has the meaning provided in the Preliminary Statements hereto.  “Extended Commitment” means any Commitment the maturity of which shall have been  extended pursuant to Section 2.15.  “Extended Loans” means any Loans made pursuant to the Extended Commitments.   “Extension” has the meaning specified in Section 2.15.   “Extension Amendment” means an amendment to this Agreement (which may, at the option of  the Administrative Agent, be in the form of an amendment and restatement of this Agreement) providing  for any Extended Commitments pursuant to Section 2.15, which shall be consistent with the applicable  provisions of this Agreement and otherwise satisfactory to the parties thereto. Each Extension  Amendment shall be executed by the Administrative Agent and the L/C Issuer (to the extent Section 2.15  would require the consent of the L/C Issuer for the amendments effected in such Extension Amendment),  the applicable Loan Parties and the other parties specified in Section 2.15 (but not to any other Lender).  Any Extension Amendment may include conditions for delivery of opinions of counsel and other  documentation consistent with the conditions in Section 5.01, all to the extent reasonably requested by the  Administrative Agent or the other parties to such Extension Amendment.  “Extension Offer” has the meaning specified in Section 2.15.   “Facilities” means, at any time, a collective reference to the facilities and real properties owned,  leased or operated by any Loan Party or any Subsidiary.  “Farm Credit Equities” has the meaning given such term in Section 7.15(a).   “Farm Credit Lender” means federally-chartered Farm Credit System lending institution  organized and existing pursuant to the provisions of the Farm Credit Act of 1971, as the same may be  amended or supplemented from time to time.  “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this  Agreement (or any amended or successor version that is substantively comparable and not materially  more onerous to comply with), any current or future regulations thereunder or official interpretations  thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code (or any  amended or successor version described above), and any intergovernmental agreements implementing the  foregoing.  “FCA” means the Financial Conduct Authority.  “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the  interest rates on overnight federal funds transactions with members of the Federal Reserve System  arranged by federal funds brokers on such day, 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  





 






  20  CHAR1\1799470v5  Day as so published on the next succeeding Business Day, or (b) if no such rate is published on such next  succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward,  if necessary, to the nearest 1/8 of 1%) charged to the Administrative Agent on the applicable day on such  transactions, as determined by the Administrative Agent and (c) in no event shall the Federal Funds Rate  be less than zero.  “Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank  of New York at http://www.newyorkfed.org, or any successor source.  “Fee Letter” means (i) the letter agreement, dated as April 27, 2021, between the Borrower and  the Arranger and (ii) the letter agreement, dated as of June 8, 2021, between the Borrower and CoBank.  “First Amendment Effective Date” means May 1, 2020.  “Fitch” means Fitch Ratings, Inc. and any successor thereto.  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the  execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise)  with respect to the LIBOR.  “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, with respect to any Person, a Subsidiary of such Person that is a  “controlled foreign corporation” under Section 957 of the Internal Revenue Code.  “Foreign Subsidiary Holding Company” means any Subsidiary all or substantially all of the assets  of which consist of Equity Interests in one or more Foreign Subsidiaries.  “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, 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.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.  “Funded Indebtedness” means, on a consolidated basis, without duplication, (i) all Indebtedness  of such Person for borrowed money, (ii) all purchase money Indebtedness of such Person, including  without limitation all Attributable Indebtedness in respect of Capital Leases of such Person, (iii) all  Guarantee obligations of such Person with respect to Indebtedness of another Person that otherwise  constitutes Funded Indebtedness pursuant hereto, (iv) the maximum available amount of all Letters of  Credit or acceptances issued or created for the account of such Person (except to the extent 100% cash  collateralized), (v) all Indebtedness described in clauses (i) and (ii) above of another Person secured by a  Lien on any property of such Person, whether or not such Indebtedness has been assumed, with the  





 






  21  CHAR1\1799470v5  amount of such Indebtedness deemed to be the lesser of the fair market value of the property secured and  the principal amount of the debt secured thereby, and (vi) the Attributable Indebtedness in respect of any  Synthetic Lease and the attributed principal amount under any tax retention operating lease, off-balance  sheet loan or similar off-balance sheet financing product to which such Person is a party, where such  transaction is considered borrowed money Indebtedness for tax purposes in accordance with GAAP.    “GAAP” means the generally accepted accounting principles set forth in the opinions and  pronouncements of the Accounting Principles Board and the American Institute of Certified Public  Accountants and any 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, that are  applicable to the circumstances as of the date of determination, consistently applied.   “Governmental Authority” means the government of the United States or any other nation, or of  any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,  regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,  regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).  “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person  guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable  or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly,  and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or  supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or  lease property, securities or services for the purpose of assuring the obligee in respect of such  Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,  (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or  level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such  Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the  obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to  protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of  such Person securing any Indebtedness or other obligation of any other Person, whether or not such  Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any  holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to  be an amount equal to the stated or determinable amount of the related primary obligation, or portion  thereof, in respect of which such Guarantee is made or, if lower, the stated maximum amount for which  such Person may be liable, or if not stated or determinable, the maximum reasonably anticipated liability  in respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a  verb has a corresponding meaning.  “Guarantors” means (a) each Domestic Subsidiary identified as a “Guarantor” on the signature  pages hereto, (b) each other Person that joins as a Guarantor pursuant to Section 7.12, (c) with respect to  (i) Obligations under any Secured Swap Agreement, (ii) Obligations under any Secured Treasury  Management Agreement, (iii) any Swap Obligation of a Specified Loan Party (determined before giving  effect to Sections 4.01 and 4.08) under the Guaranty, the Borrower and (d) the successors and permitted  assigns of the foregoing.  “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent,  the Lenders and the other holders of the Obligations pursuant to Article IV.  “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous  or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or  





 






  22  CHAR1\1799470v5  asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all  other substances or wastes of any nature regulated pursuant to any Environmental Law.  “Honor Date” has the meaning set forth in Section 2.03(c).  “IBA” means the administrator for the London interbank offered rate for Dollars.  “Impacted Loan” has the meaning specified in Section 3.03(a).  “Indebtedness” means, with respect to any Person, without duplication, (i) all obligations for  borrowed money, purchase money obligations, conditional sale or title retention obligations, or similar  obligations of such Person as of the date on which Indebtedness is to be determined, (ii) all obligations  secured by any Lien on, or payable out of the proceeds of production from, any property or asset owned  or held by such Person subject thereto, whether or not the indebtedness secured thereby shall have been  assumed, with the amount of such Indebtedness deemed to be the lesser of the fair market value of the  property secured and the principal amount of the debt secured thereby, (iii) all indebtedness of others with  respect to which such Person has become liable by way of a Guarantee, (iv) all liabilities appearing on its  balance sheet in accordance with GAAP in respect of capital lease obligations, and (v) any renewals and  extensions thereof.  Indebtedness shall not include any of the foregoing items to the extent such  indebtedness has been legally defeased.  For purposes hereof, the amount of any Indebtedness in respect  of a Guarantee shall be the amount of such Guarantee as determined in accordance with the penultimate  sentence of the definition of “Guarantee” in this Section 1.01.  “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to  any payment made by or on account of any obligation of any Loan Party under any Loan Document and  (b) to the extent not otherwise described in clause (a), Other Taxes.  “Indemnitees” has the meaning specified in Section 11.04(b).  “Information” has the meaning specified in Section 11.07.  “Interest Charge” means, with respect to any period, the sum (without duplication) of the  following (in each case eliminating all offsetting debits and credits between the Borrower and its  Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated  financial statements of the Borrower and its Subsidiaries in accordance with GAAP):  (a) all interest in  respect of Indebtedness of the Borrower and its Subsidiaries (including imputed interest on capital lease  obligations) deducted in determining Net Income for such period, and (b) all debt discount and expense  amortized or required to be amortized in the determination of Net Income for such period.  “Interest Payment Date” means (a) as to any Eurodollar Rate Loan, the last day of each Interest  Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a  Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the  beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan,  the first Business Day after the end of each March, June, September and December and the Maturity Date.  “Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the date  such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and  ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Loan  Notice;  provided that:  





 






  23  CHAR1\1799470v5  (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, in the case of a Eurodollar Rate  Loan, such Business Day falls in another calendar month, in which case such Interest Period shall  end on the next preceding Business Day;  (b) any Interest Period pertaining to a Eurodollar Rate Loan that begins on the last  Business Day of a calendar month (or on a day for which there is no numerically corresponding  day in the calendar month at the end of such Interest Period) shall end on the last Business Day of  the calendar month at the end of such Interest Period; and  (c) no Interest Period shall extend beyond the Maturity Date.   “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.  “Internal Revenue Service” means the United States Internal Revenue Service.  “Investment” means, as to any Person, any direct or indirect acquisition or investment by such  Person of or in another Person, whether by means of (a) the purchase or other acquisition of Equity  Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt  of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person,  including any partnership or joint venture interest in such other Person and any arrangement pursuant to  which the investor Guarantees Indebtedness of such other Person, or (c) an Acquisition.  For purposes of  covenant compliance, the amount of any Investment shall be the amount actually invested, without  adjustment for subsequent increases or decreases in the value of such Investment.  “Investment Grade Rating” has the meaning specified in Section 7.14(b).  “Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation  or other taking for public use of, any property of any Loan Party or any of its Subsidiaries.  “IP Rights” has the meaning specified in Section 6.17.  “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 any such Letter of Credit.  “Joinder Agreement” means a joinder agreement substantially in the form of Exhibit D executed  and delivered by a Domestic Subsidiary in accordance with the provisions of Section 7.12.  “Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties,  rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,  including the interpretation or administration thereof by any Governmental Authority charged with the  enforcement, interpretation or administration thereof, and all applicable administrative orders, directed  duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental  Authority, in each case whether or not having the force of law.  





 






  24  CHAR1\1799470v5  “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 made or refinanced as a Borrowing.  “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 CoBank or any replacement financial institution designated by the L/C  Issuer.  “L/C Obligations” means, as at any date of determination, the Dollar Equivalent of the aggregate  amount available to be drawn under all outstanding Letters of Credit plus the Dollar Equivalent of 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 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.  “Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto or in  an Assignment and Assumption, as applicable, and any Lender of an Additional Term Loan and their  successors and assigns.  “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 standby letter of credit, in a form acceptable to the L/C Issuer in its  sole and absolute discretion, issued by the L/C Issuer pursuant to the provisions hereof and providing for  the payment of cash upon the honoring of a presentation thereunder.    “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 five 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 Sublimit” means an amount equal to the lesser of (a) the Aggregate  Commitments and (b) $60,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the  Aggregate Commitments.  “LIBOR” has the meaning specified in the definition of “Eurodollar Base Rate”.  “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,  encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or  preferential arrangement in the nature of a security interest of any kind or nature whatsoever.  





 






  25  CHAR1\1799470v5  “Loan” means an extension of credit by a Lender to the Borrower under Section 2.01(a) and each  loan made under an Additional Term Loan Facility.  “Loan Documents” means this Agreement, each Note, each Issuer Document, each Joinder  Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of  Section 2.13 of this Agreement, the Collateral Documents and the Fee Letter (but specifically excluding  any Secured Swap Agreements or any Secured Treasury Management Agreements).  “Loan Notice” means a notice of (a) a Borrowing of 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 A.  “Loan Parties” means, collectively, the Borrower and each Guarantor.  “London Banking Day” means any day on which dealings in Dollar deposits are conducted by  and between banks in the London interbank eurodollar market.  “Master Agreement” has the meaning specified in the definition of “Swap Contract”.  “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect  upon, the business, assets, properties, liabilities (actual or contingent) or financial condition of the  Borrower and its Subsidiaries taken as a whole; (b) an impairment of the ability of any Loan Party to  perform its material obligations under any Loan Document to which it is a party; or (c) a material adverse  effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan  Document to which it is a party.  “Material Subsidiary” means any Subsidiary that holds Consolidated Net Tangible Assets equal  to, or greater than, 10% of the Consolidated Net Tangible Assets of the Borrower and its Subsidiaries (in  each case determined in accordance with GAAP) as of the end of the most recent fiscal quarter prior to  the date of determination for which financial information in respect thereof is available.  Notwithstanding  the foregoing, any Subsidiary of the Borrower that is or becomes a guarantor of the Borrower’s 3.625%  senior notes due 2029, or any other senior notes issued by the Borrower or another Loan Party with an  aggregate outstanding principal amount in excess of the Threshold Amount, shall be a Material Subsidiary for  purposes of this Agreement.  “Maturity Date” means June 8, 2027.  “Maximum Aggregate Increase Amount” has the meaning specified in Section 2.01(b).  “Maximum Rate” has the meaning specified in Section 11.09.   “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the  existence of a Defaulting Lender, an amount equal to 102% of the Fronting Exposure of the L/C Issuer  with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral  consisting of cash or deposit account balances provided in accordance with the provisions of Section  2.13(a)(i), (a)(ii) or (a)(iii), an amount equal to 102% of the Outstanding Amount of all L/C Obligations,  and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole  discretion.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  





 






  26  CHAR1\1799470v5  “Multiemployer Plan” means any employee benefit plan of the type described in Section  4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make  contributions, or during the preceding five plan years, has made or been obligated to make contributions.  “Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including  the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan  is described in Section 4064 of ERISA.  “Net Income” or “Net Loss” means net income or loss, as the case may be, of the Borrower and  its Subsidiaries on a consolidated basis as determined in accordance with GAAP before earnings and  losses attributable to non-Subsidiary interests, excluding (i) any after tax gain or loss resulting from  dispositions of assets outside of the ordinary course of business, (ii) extraordinary items,  (iii) undistributed income from non-Subsidiary investments, and (iv) write-ups of assets.  “New Lender” has the meaning given to it in Section 2.01(c)(iii).  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or  amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the  terms of Section 11.01 and (b) has been approved by the Required Lenders.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.  “Note” or “Notes” has the meaning given to it in Section 2.10(a), either individually or  collectively as the case maybe.  “Obligations” means, with respect to the Borrower and each Guarantor, all advances to, and  debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document  or otherwise with respect to any Loan, Letter of Credit, Secured Treasury Management Agreement or  Secured Swap Agreement, whether direct or indirect (including those acquired by assumption), absolute  or contingent, due or to become due, now existing or hereafter arising and including interest and fees that  accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding  under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of  whether such interest and fees are allowed claims in such proceeding; provided, that the “Obligations” of  a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.  “OFAC” means the Office of Foreign Assets Control of the United States Department of the  Treasury.  “Organization Documents” means, (a) with respect to any corporation, the certificate or articles  of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any  non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of  formation or organization and operating or limited liability company agreement; and (c) with respect to  any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other  applicable agreement of formation or organization and any agreement, instrument, filing or notice with  respect thereto filed in connection with its formation or organization with the applicable Governmental  Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles  of formation or organization of such entity.  “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  





 






  27  CHAR1\1799470v5  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in  any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any  Loan or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible, recording,  filing or similar Taxes that arise from any payment made under, from the execution, delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest under, or  otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).  “Outstanding Amount” means (a) with respect to 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 Dollar Equivalent of 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).  “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.  “Pension Act” means the Pension Protection Act of 2006.  “Pension Funding Rules” means the rules of the Internal Revenue Code and ERISA regarding  minimum required contributions (including any installment payment thereof) to Pension Plans and set  forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the  Internal Revenue Code and Section 302 of ERISA, each as in effect prior to the Pension Act and,  thereafter, Section 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304  and 305 of ERISA.  “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or  a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate  and is either covered by Title IV of ERISA or is subject to minimum funding standards under Section 412  of the Internal Revenue Code.  “Permitted Acquisitions” means other Investments consisting of an Acquisition, provided, that (a)  no Default shall have occurred and be continuing or would result from such Acquisition, (b) the property  acquired (or the property of the Person acquired) in such Acquisition is, as mutually determined by the  Borrower and the Administrative Agent, used or useful in the same or a related line of business as the  Borrower and its Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or  expansions thereof), (c) if the Acquisition involves the Acquisition of a Person or Persons that will be  required to become a Loan Party pursuant to Section 7.12 upon consummation of the Acquisition, the  Administrative Agent shall have received all items required to be delivered by the terms of Section 7.12  and/or Section 7.14, (d) in the case of an Acquisition of the Equity Interests of another Person, the board  of directors (or other comparable governing body) of such other Person shall have duly approved such  Acquisition, (e) in the case of an Acquisition involving aggregate consideration (including assumed  Indebtedness) in excess of $100,000,000, the Borrower shall have delivered to the Administrative Agent a  





 






  28  CHAR1\1799470v5  certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Loan  Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent  fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to Section  7.01(a) or (b), and (f) if such transaction involves the purchase of an interest in a partnership between the  Borrower (or a Subsidiary) as a general partner and entities unaffiliated with the Borrower or such  Subsidiary as the other partners, such transaction shall be effected by having such equity interest acquired  by a corporate holding company directly or indirectly wholly-owned by the Borrower newly formed for  the sole purpose of effecting such transaction.  “Permitted Liens” means, at any time, Liens in respect of property of any Loan Party or any of its  Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.  “Permitted Refinancing” means Indebtedness constituting a refinancing or extension of  Indebtedness that (a) has an aggregate outstanding principal amount (or accreted value, if applicable) not  greater than the aggregate principal amount of the Indebtedness being refinanced or extended except by  an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and  fees and expenses reasonably incurred, in connection therewith and by an amount equal to any existing  commitments unutilized thereunder, (b) has a weighted average maturity (measured as of the date of such  refinancing or extension) and maturity no shorter than that of the Indebtedness being refinanced or  extended, (c) is not entered into as part of a Sale and Leaseback Transaction, (d) is not secured by a Lien  on any assets other than collateral of a type securing the Indebtedness being refinanced or extended, (e)  the obligors of which are the same as the obligors of the Indebtedness being refinanced or extended and  (f) is determined by the Borrower in good faith to be otherwise on terms (excluding terms as to rate, fees,  discount, premiums, term and amortization) no less favorable to the Loan Parties and their Subsidiaries,  taken as a whole, than those of the Indebtedness being refinanced or extended.  “Person” means an individual, sole proprietorship, partnership, corporation, limited liability  company, business trust, joint stock company, trust, unincorporated association, joint venture,  governmental authority, or other entity of whatever nature.  “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including  a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to  which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.  “Platform” has the meaning specified in Section 7.02(e).  “Prime Rate” means, as of any day, a variable rate of interest per annum equal to the “U.S. prime  rate” as reported on such day in the Money Rates Section of the Eastern Edition of The Wall Street  Journal, or if the Eastern Edition of The Wall Street Journal is not published on such date, the rate as last  published in the Eastern Edition of the Wall Street Journal. In the event the Eastern Edition of The Wall  Street Journal ceases to publish such rate or an equivalent on a regular basis, the term “Prime Rate” shall  be determined on any date by reference to such other regularly published average prime rate for such date  applicable to such commercial banks as is acceptable to the Administrative Agent in its reasonable  discretion. Any change in Prime Rate shall be automatic, without the necessity of notice provided to the  Borrower or any other Loan Party.   “Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, in respect of a  Specified Transaction, that such Specified Transaction and the related transactions in connection  therewith (to the extent applicable) shall be deemed to have occurred as of the first day of the applicable  period of measurement for the applicable covenant or requirement.  In furtherance of the foregoing: (a) (i)  with respect to any Disposition or Involuntary Disposition, income statement and cash flow statement  





 






  29  CHAR1\1799470v5  items (whether positive or negative) attributable to the Person or property disposed of shall be excluded to  the extent such items are not otherwise excluded in such income statement items for the Borrower and its  Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01,  and (ii) with respect to any Acquisition, income statement items attributable to the Person or property  acquired shall be included to the extent relating to any period applicable in such calculations to the extent  (A) such items are not otherwise included in such income statement items for the Borrower and its  Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01  and (B) such items are supported by financial statements or other information reasonably satisfactory to  the Administrative Agent, (b) any retirement of Indebtedness and (c) any incurrence or assumption of  Indebtedness by the Borrower or any Subsidiary (and if such Indebtedness has a floating or formula rate,  such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this  definition determined by utilizing the rate which is or would be in effect with respect to such  Indebtedness as at the relevant date of determination); provided, that, (x) Pro Forma Basis, Pro Forma  Compliance and Pro Forma Effect in respect of any Specified Transaction shall be calculated in a  reasonable and factually supportable manner and certified by a Responsible Officer of the Borrower and  (y) any such calculation shall be subject to the applicable limitations set forth in the definition of  EBITDA.    “Public Lender” has the meaning specified in Section 7.02(e).  “Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding  $10,000,000 or that qualified at such time as an “eligible contract participant” under the Commodity  Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time  under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  “Recipient” means the Administrative Agent, the L/C Issuer, any Lender or any other recipient of  any payment to be made by or on account of any obligation of any Loan Party hereunder.  “Register” has the meaning specified in Section 11.06(c).  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of  such Person and of such Person’s Affiliates.  “Release Date” has the meaning specified in Section 7.14(b).  “Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or  the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of  Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor  thereto.  “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty-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 and (b) with respect to an L/C Credit Extension, a Letter of Credit  Application.    “Required Lenders” means, at any time, Lenders holding more than 50% of the sum of (i) the  Outstanding Amount of all Loans and (ii) the aggregate unused Commitments.  With respect to any  matter requiring the approval of the Required Lenders, it is understood that Voting Participants shall have  





 






  30  CHAR1\1799470v5  the voting rights specified in Section 11.06(e) as to such matter.  The unused Commitments of, and the  portion of the Loans held or deemed held by, any Defaulting Lender shall be disregarded in determining  Required Lenders at any time.   “Responsible Officer” means the chief executive officer, president, chief financial officer, any  vice president, any director or treasurer of a Loan Party and, solely for purposes of the delivery of  certificates pursuant to Sections 5.01 or 7.12(b), the secretary or any assistant secretary of a Loan Party.   Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be  conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action  on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted  on behalf of such Loan Party.  “Restricted Payment” means any dividend or other distribution (whether in cash, securities or  other property) with respect to any Equity Interests of any Loan Party or any Subsidiary, specifically  including any distributions by the Borrower including any sinking fund or similar deposit, on account of  the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests  or on account of any return of capital to the Borrower’s stockholders, partners or members (or the  equivalent Person thereof).  “Revaluation Date” means each of the following:  (i) each date of issuance of a Letter of Credit  denominated in Canadian Dollars, (ii) each date of an amendment of any Letter of Credit denominated in  Canadian Dollars having the effect of increasing the amount thereof (solely with respect to the increased  amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in  Canadian Dollars and (iv) such additional dates as the Administrative Agent or the L/C Issuer shall  determine or the Required Lenders shall require.  “Revolving Loan Facility” means, at any time, the aggregate amount of the Lenders’  Commitments at such time.   “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill  Companies, Inc., and any successor thereto.  “Sale and Leaseback Transaction” means, with respect to any Loan Party or any Subsidiary, any  arrangement, directly or indirectly, with any Person whereby the Loan Party or such Subsidiary shall sell  or transfer any property used or useful in its business, whether now owned or hereafter acquired, and  thereafter rent or lease such property or other property that it intends to use for substantially the same  purpose or purposes as the property being sold or transferred.  “Sanctions” means any international economic sanction administered or enforced by the United  States government (including, without limitation, OFAC), the United Nations Security Council, the  European Union, Her Majesty’s Treasury or other relevant sanctions authority.  “Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender  substantially in the form of Exhibit G.  “Secured Swap Agreement” means any Swap Contract permitted under Section 8.03 between any  Loan Party and any Swap Bank; provided that for any of the foregoing to be included as a “Secured Swap  Agreement” on any date of determination by the Administrative Agent, the applicable Swap Bank (other  than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured  Party Designation Notice to the Administrative Agent prior to such date of determination.  





 






  31  CHAR1\1799470v5  “Secured Treasury Management Agreement” means any Treasury Management Agreement  between any Loan Party and any Treasury Management Bank; provided, however, that for any of the  foregoing to be included as a “Secured Treasury Management Agreement” on any date of determination  by the Administrative Agent, the applicable Treasury Management Bank (other than the Administrative  Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation  Notice to the Administrative Agent prior to such date of determination.  “Security Agreement” means the security and pledge agreement dated as of the Closing Date  executed in favor of the Administrative Agent, for the benefit of the holders of the Obligations, by each of  the Loan Parties, as amended or modified from time to time in accordance with the terms hereof.  “SOFR” means a rate per annum equal to the secured overnight financing rate for such Business  Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured  overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at  http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as  such by the administrator of the secured overnight financing rate from time to time).  “Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on such  date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other  commitments as they mature, (b) such Person does not intend to, and does not believe that it will, incur  debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, (c) such  Person does not have unreasonably small capital, (d) the fair value of the property of such Person (which  for this purpose, shall include, without limitation, rights of contribution and subrogation in respect of  obligations for which such Person has provided a guarantee) is greater than the total amount of liabilities,  including, without limitation, contingent liabilities, of such Person and (e) the present fair salable value of  the assets of such Person (which for this purpose, shall include, without limitation, rights of contribution  and subrogation in respect of obligations for which such Person has provided a guarantee) is not less than  the amount that will be required to pay the probable liability of such Person on its debts as they become  absolute and matured.  In computing the amount of contingent liabilities at any time, it is intended that  such liabilities will be computed at the amount which, in light of all the facts and circumstances existing  at such time, represents the amount that can reasonably be expected to become an actual or matured  liability.  “Specified Loan Party” has the meaning set forth in Section 4.08.  “Specified Representations” means, collectively, those representations and warranties set forth in  Sections 6.17 and 6.19.  “Specified Transaction” means, any Acquisition or other Investment, Disposition, Involuntary  Disposition, Restricted Payment, incurrence of Indebtedness, increase in Commitments or other event that  by the terms of the Loan Documents requires Pro Forma Compliance with a test or covenant or requires  such test or covenant to be calculated on a Pro Forma Basis, in each case, other than in connection with  Restricted Payments made pursuant to Section 8.06(c), to the extent the fair market value of the property  involved in any such Acquisition or other Investment, Disposition or Involuntary Disposition, the  principal amount of any such Indebtedness or the amount of any such Restricted Payment is in excess of  $50,000,000 or to the extent such transaction is otherwise identified by the Borrower as a Specified  Transaction.  “Spot Rate” for a currency means the rate determined by the L/C Issuer to be the rate quoted by  the L/C Issuer as the spot rate for the purchase by the L/C Issuer of such currency with another currency  through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two  





 






  32  CHAR1\1799470v5  Business Days prior to the date as of which the foreign exchange computation is made; provided that the  L/C Issuer may obtain such spot rate from another financial institution designated by the L/C Issuer if it  does not have as of the date of determination a spot buying rate for any such currency; and provided  further that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange  computation is made in the case of any Letter of Credit denominated in Canadian Dollars.    “Subsidiary” means (a) any corporation, association, limited liability company, partnership, joint  stock company, business trust, or other similar organization of which more than 50 percent of the ordinary  voting power for the election of a majority of the members of the board of directors or other governing  body of such entity is held or controlled by the Borrower; or (b) any joint venture or partnership in which  the Borrower has more than 50 percent ownership interest.    “Swap Bank” means (a) any Person that is a Lender or an Affiliate of a Lender at the time that it  becomes a party to a Swap Contract with any Loan Party and (b) any Lender on the Closing Date or  Affiliate of such Lender that is party to a Swap Contract with any Loan Party in existence on the Closing  Date, in each case to the extent permitted by Section 8.03(d).  “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative  transactions, forward rate transactions, commodity swaps, commodity options, forward commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward bond or forward bond price or forward bond index transactions, interest rate options, forward  foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement (any such master agreement, together with any related schedules, a “Master Agreement”),  including any such obligations or liabilities under any Master Agreement.  “Swap Obligation” means with respect to any Guarantor any obligation to pay or perform under  any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of  the Commodity Exchange Act.  “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking  into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a)  for any date on or after the date such Swap Contracts have been closed out and termination value(s)  determined in accordance therewith, such termination value(s) and (b) for any date prior to the date  referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap  Contracts, as determined based upon one or more mid-market or other readily available quotations  provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate  of a Lender).  “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.  





 






  33  CHAR1\1799470v5  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.  “Term SOFR” means, for the applicable corresponding tenor, the forward-looking term rate based  on SOFR that has been selected or recommended by the Relevant Governmental Body.  “Third Amendment Effective Date” means June 8, 2021.  “Threshold Amount” means $50,000,000.  “Total Capitalization” means the sum of (i) Consolidated Net Worth and (ii) Funded Indebtedness  of the Borrower and its.   “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C  Obligations.   “Treasury Management Agreement” means any agreement governing the provision of treasury or  cash management services, including deposit accounts, overdraft, credit or debit card, 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 (a) any Person that is a Lender or an Affiliate of a Lender  at the time that it becomes a party to a Treasury Management Agreement with any Loan Party and (b) any  Lender on the Closing Date or Affiliate of such Lender that is a party to a Treasury Management  Agreement with any Loan Party in existence on the Closing Date.  “Type” means, with respect to any Loan, its character as a Base Rate Loan or a Eurodollar Rate  Loan.  “UCC” means the Uniform Commercial Code, as in effect from time to time, of the State of New  York or of any other state or jurisdiction the laws of which are required as a result thereof to be applied in  connection with the issue of the validity, perfection and effect of perfection or non-perfection of security  interests.   “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).  “United States” and “U.S.” mean the United States of America.  “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).  “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. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).  “Voting Participant” shall have the meaning given such term in Section 11.06(e).  “Voting Participant Notification” shall have the meaning given such term in Section 11.06(e).   





 






  34  CHAR1\1799470v5  “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.  “Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the time  owned by the Borrower directly or indirectly through other Persons 100% of whose Equity Interests are at  the time owned, directly or indirectly, by the Borrower.  1.02 Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified  herein or in such other Loan Document:  (a) The definitions of terms herein shall apply equally to the singular and plural  forms of the terms defined.  Whenever the context may require, any pronoun shall include the  corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and  “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will”  shall be construed to have the same meaning and effect as the word “shall.”  Unless the context  requires otherwise, (i) any definition of or reference to any agreement, instrument or other  document (including the Loan Documents and any Organization Document) shall be construed as  referring to such agreement, instrument or other document as from time to time amended,  supplemented or otherwise modified (subject to any restrictions on such amendments,  supplements or modifications set forth herein or in any other Loan Document), (ii) any reference  herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the  words “hereto”, “herein,” “hereof” and “hereunder,” and words of similar import when used in  any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to  any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,  Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and  Schedules to, the Loan Document in which such references appear, (v) any reference to any law  shall include all statutory and regulatory rules, regulations, orders and provisions consolidating,  amending, replacing or interpreting such law and any reference to any law 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 real and personal property and tangible and  intangible assets and properties, including cash, securities, accounts and contract rights.  (b) In the computation of periods of time from a specified date to a later specified  date, the word “from” means “from and including;” the words “to” and “until” each mean “to but  excluding;” and the word “through” means “to and including.”  (c) Section headings herein and in the other Loan Documents are included for  convenience of reference only and shall not affect the interpretation of this Agreement or any  other Loan Document.  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 Agreement shall be prepared in conformity with, GAAP applied on a consistent  





 






  35  CHAR1\1799470v5  basis, as in effect from time to time; provided, however, that calculations of Attributable  Indebtedness under any Synthetic Lease or the implied interest component of any Synthetic Lease  shall be made by the Borrower in accordance with accepted financial practice and consistent with  the terms of such Synthetic Lease.  (b) Changes in GAAP.  If at any time any change in GAAP would affect the  computation of any financial ratio or requirement set forth in any Loan Document, and either the  Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the  Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original  intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders  and the Borrower); provided that, until so amended, (i) such ratio or requirement shall continue to  be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall  provide to the Administrative Agent and the Lenders financial statements and other documents  required under this Agreement or as 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) Changes with regards to Capital Leases. Notwithstanding anything to the  contrary contained herein, in the event of an accounting change requiring all leases to be  capitalized, only those leases that would constitute Capital Leases on December 31, 2017 (and if  entered into after the date hereof, to the extent they would have constituted Capital Leases as of  such date) shall be considered Capital Leases and all calculations and deliverables under this  Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance  therewith.   (d) Pro Forma Calculations.  Notwithstanding anything to the contrary contained  herein, all calculations of the EBITDA/Interest Ratio (including for purposes of determining the  Applicable Rate), Consolidated Net Worth and the Capitalization Ratio shall be made on a Pro  Forma Basis with respect to all Specified Transactions occurring during the applicable four  quarter period to which such calculation relates, and/or subsequent to the end of such four quarter  period but not later than the date of such calculation; provided, that, notwithstanding the  foregoing, when calculating the EBITDA/Interest Ratio and/or the Capitalization Ratio for  purposes of determining (x) compliance with Section 8.11 or (y) the Applicable Rate, any  Specified Transaction and any related adjustment contemplated in the definition of Pro Forma  Basis that occurred subsequent to the end of the applicable four quarter period shall not be given  Pro Forma Effect.    (e) FASB ASC 825 and FASB ASC 470-20.  Notwithstanding the above, for  purposes of determining compliance with any covenant (including the computation of any  financial covenant) contained herein, the effects of FASB ASC 825 and FASB ASC 470-20 on  financial liabilities shall be disregarded.   (f) Consolidation of Variable Interest Entities.  All references herein to consolidated  financial statements of the Borrower and its Subsidiaries or to the determination of any amount  for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in  each case, be deemed to include each variable interest entity that the Borrower is required to  consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as  defined herein.    





 






  36  CHAR1\1799470v5  1.04 Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall  be calculated by dividing the appropriate component by the other component, carrying the result to one  place more than the number of places by which such ratio is expressed herein and rounding the result up  or down to the nearest number (with a rounding-up if there is no nearest number).  1.05 Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Pacific  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 Dollar Equivalent of 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 or more automatic increases in the stated amount thereof, the amount of  such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such  Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in  effect at such time.    1.07 Exchange Rates; Currency Equivalents.  (a) The L/C Issuer shall determine the Spot Rates as of each Revaluation Date to be  used for calculating Dollar Equivalent amounts of L/C Credit Extensions and Outstanding  Amounts denominated in Canadian Dollars.  Such Spot Rates shall become effective as of such  Revaluation Date and shall be the Spot Rates employed in converting any amounts between the  applicable currencies until the next Revaluation Date to occur.  Except for purposes of financial  statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or  except as otherwise provided herein, the applicable amount of any currency (other than Dollars)  for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by  the L/C Issuer.  (b) Wherever in this Agreement in connection with the issuance, amendment or  extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is  expressed in Dollars, but such Letter of Credit is denominated in Canadian Dollars, such amount  shall be the relevant Canadian Dollar Equivalent of such Dollar amount (rounded to the nearest  unit of Canadian Dollars, with 0.5 of a unit being rounded upward), as determined by the L/C  Issuer.    1.08 UCC Terms.  Terms defined in the UCC in effect on the Closing Date and not otherwise defined herein shall,  unless the context otherwise indicates, have the meanings provided by those definitions. Subject to the  foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.     





 






  37  CHAR1\1799470v5  1.09 Divisions.  For all purposes under the Loan Documents, in connection with any division or plan of division  under Delaware law (or any comparable event under a different jurisdiction’s laws), 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.    ARTICLE II    THE COMMITMENTS AND CREDIT EXTENSIONS  2.01 The Credit Facility.    (a) Commitments. Subject to the terms and conditions set forth herein, each Lender  severally agrees to make revolving Loans to the Borrower in Dollars from time to time on any  Business Day during the Availability Period in an aggregate amount not to exceed at any time  outstanding the amount of such Lender’s Commitment; provided, however, that after giving  effect to any Borrowing of Loans, (i) the Outstanding Amount of Loans shall not exceed the  Aggregate Commitments, and (ii) the Credit Exposure of any Lender with respect to the  Revolving Loan Facility shall not exceed such Lender’s Commitment.  Within the limits of each  Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may  borrow under this Section 2.01(a), prepay under Section 2.04, and reborrow under this Section  2.01(a).  Loans may be Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as  further provided herein.  (b) Accordion Option. Provided that no Event of Default or Default has occurred and  is continuing as of the request date or the effective date thereof after giving effect thereto, the  Borrower may from time to time upon thirty (30) days’ written notice (or such shorter period as  the Administrative Agent shall agree) request (i) an increase in the aggregate amount of  Commitments and/or (ii) the addition of a separate term loan facility (an “Additional Term Loan  Facility) (each such increase or separate facility pursuant to the foregoing clauses (i) and (ii), an  “Accordion Increase”), in each case in accordance with this Section 2.01(b); provided, that the  aggregate principal amount of all Accordion Increases made pursuant to this Section 2.01(b) shall  not exceed $300,000,000 (the “Maximum Aggregate Increase Amount”).  (c) Increasing Lenders; New Lenders.  (i) Offer to Lenders or New Lenders. The Borrower may offer one or more  Lenders under the Agreement, or new lenders that are Eligible Assignees, the opportunity  (but not obligation), in such amounts as the Borrower may determine, to participate in the  Accordion Increase by increasing such Lender’s Commitment under this Agreement or,  in the case of a new lender or an Additional Term Loan Facility, by issuing a  Commitment under this Agreement or an Additional Term Loan Facility Commitment  under an Additional Term Loan Facility Agreement. The Borrower shall first offer the  then existing Lenders, on a pro rata basis, the opportunity to participate in any Accordion  Increase prior to making such offer to new lenders, but no existing Lender shall be  obligated to participate in any such Accordion Increase.  (ii) Increasing Lenders. Each of the then existing Lenders increasing its  Commitment or providing a term loan in connection with an Accordion Increase (each an  





 






  38  CHAR1\1799470v5  “Increasing Lender”) shall confirm such agreement pursuant to an acknowledgement in a  form reasonably acceptable to the Administrative Agent, signed by it and the Borrower  and delivered to the Administrative Agent at least five days before the effective date of  such increase.  (iii) New Lenders. Each new lender (if any) joining the Agreement to provide  a Commitment or term loan in connection with an Accordion Increase (each a “New  Lender”) shall be subject to the consents required, if any, for Eligible Assignee under the  Agreement solely to the extent required under Section 11.06(b)(iii).  (iv) New Lender Joinder. Each New Lender shall execute a lender joinder in  form reasonably acceptable to the Administrative Agent.  (d) Facility Increase Notice. If one or more subscriptions to participate in a requested  Accordion Increase are obtained, the Administrative Agent shall provide to each Lender a notice  setting forth (i) the amount and terms of the Accordion Increase and, after giving effect thereto,  the aggregate Commitments or Additional Term Loan Facility Commitments, (ii) the effective  date of the Accordion Increase, and (iii) for each Lender under the Revolving Loan Facility or  Additional Term Loan Facility, its respective (x) Commitment and Applicable Percentage of the  aggregate Commitments or (y) Additional Term Loan Facility Commitment and Applicable  Percentage of the aggregate Additional Term Loan Facility Commitments, after giving effect to  the Accordion Increase.  (e) Conditions to the Implementation of an Accordion Increase. On the effective date  of an Accordion Increase:  (i) Notes; Corporate Authorizations; Payment of Fees. The Borrower shall  (x) execute and deliver a replacement Note for any increasing Lender that may require  one, and (y) pay to the Administrative Agent (and, if applicable, the Arranger) such fees  as may be described in any applicable fee letter, to be retained by the Administrative  Agent (and, if applicable, the Arranger) or distributed to other Lenders subscribing to the  Accordion Increase, as provided therein, all of which shall be conditions to effectiveness  of the Accordion Increase;  (ii) Records. The Administrative Agent shall record in its records the new or  adjusted Commitment or Additional Term Loan Facility Commitment, as applicable, and  the Applicable Percentage of each Lender, after giving effect to the Accordion Increase;   (iii) Confirmation. The Administrative Agent shall confirm, in writing, that  the Accordion Increase has become effective and that the aggregate Commitments have  been increased by the amount thereof or the Additional Term Loan Facility Commitments  are in place, as applicable; and  (iv) Borrower Certificate. As a condition precedent to the effectiveness of  any Accordion Increase, the Borrower shall deliver to the Administrative Agent a  certificate of the Borrower, dated as of such date and signed by an Authorized Officer, (i)  certifying and attaching all necessary resolutions, consents and /or approvals of the  Borrower approving or consenting to such Accordion Increase and (ii) certifying that,  before and after giving effect to such Accordion Increase, (A) the representations and  warranties made by the Borrower and other Loan Parties in each Loan Document shall be  true and correct in all material respects (or, if such representation or warranty is qualified  





 






  39  CHAR1\1799470v5  by materiality or material adverse effect, it shall be accurate in all respects as drafted) as  of the date of the Accordion Increase (and after giving effect thereto), other than those  representations and warranties made or deemed made as of an earlier date, which  representations and warranties shall remain true and correct in all material respects as of  such earlier date, and except that for purpose hereof, the representation and warranties  contained in clauses (a) and (b) of Section 6.05 shall be deemed to refer to the most  recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01,  (B) no Default or Event of Default exists or would result therefrom, (C) after giving  effect to the Accordion Increase, the Borrower shall be in compliance with the financial  covenant in Section 8.11 hereof on a Pro Forma Basis and (D) following the Collateral  Release (if such event occurs) and prior to the Collateral Reinstatement Date (if such  event occurs), the Specified Representations shall not apply.   (f) Terms of Accordion Increase. For the avoidance of doubt, (i) each commitment  increase and/or new commitment made in connection with an Accordion Increase shall constitute  a Commitment or Additional Term Loan Facility Commitment hereunder, as applicable, and (ii)  each Accordion Increase that is a result of an increase to the Commitments hereunder shall be  subject to the same terms and conditions as all other Commitments. The Borrower and each New  Lender providing an Additional Term Loan Facility shall execute and deliver to the  Administrative Agent an Additional Term Loan Facility Agreement and such other  documentation as the Administrative Agent shall reasonably specify to evidence the commitment  of such New Lender and specify the terms of the Additional Term Loan Commitment.  The  Additional Term Loan Facility Agreement shall specify the pricing, maturity date and other terms  of the Additional Term Loan Facility; provided, that:  (i) the final maturity date of the Additional Term Loan Facility shall be no  earlier than the Maturity Date;  (ii) the Additional Term Loan Facility shall be guaranteed on a pari passu  basis with the existing Loans; and  (iii) the other terms and documentation in respect of an Additional Term  Loan Facility shall be as agreed between the Borrower and the Lenders providing the  Additional Term Loan Facility (but in any case subject to the specific limitations and  requirements set forth above) and the Administrative Agent.  (g) Amendments.  Each of the parties hereto hereby agrees that, upon the  effectiveness of an Additional Term Loan Facility Agreement, this Agreement shall be amended  to the extent (but only to the extent) necessary to reflect the existence and terms of such  Additional Term Loan Facility evidenced thereby as provided for in Section 11.01.  Any such  deemed amendment may be memorialized in writing by the Administrative Agent and the  Borrower and furnished to the other parties hereto, it being understood that such Additional Term  Loan Facility Agreement may, without the consent of the other Lenders, effect such amendments  to this Agreement or any other Loan Document as may be necessary or appropriate, in the  opinion of the Administrative Agent, to effect the provisions of this Section 2.01.  2.02 Borrowings, Conversions and Continuations of Loans.  (a) Each Borrowing, each conversion of Loans from one Type to the other, and each  continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to  the Administrative Agent, which may be given by telephone.  Each such notice must be received  





 






  40  CHAR1\1799470v5  by the Administrative Agent not later than 9:00 a.m. (or such later time as agreed by  Administrative Agent) (i) three Business Days prior to the requested date of any Borrowing of,  conversion to or continuation of, Eurodollar Rate Loans, and (ii) on the requested date of any  Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower pursuant to this Section  2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan  Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Each  Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal  amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.  Except as provided in  Section 2.03(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal  amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Loan Notice  (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing,  a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii)  the requested date of the Borrowing, conversion or continuation, as the case may be (which shall  be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued,  (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if  applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to  specify a Type of a Loan in a Loan Notice or if the Borrower fails to give a timely notice  requesting a conversion or continuation, then the 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 month.  (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly  notify each Lender of the amount of its Applicable Percentage of the 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.  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 11:00 a.m. on the Business Day specified in the  applicable Loan Notice.  Upon satisfaction 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 received by the  Administrative Agent either by (i) crediting the account of the Borrower on the books of the  Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each  case in accordance with instructions provided to (and acceptable to) the Administrative Agent by  the Borrower; provided, however, that if, on the date of a Borrowing of 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) A Eurodollar Rate Loan may be continued or converted only on the last day of  the Interest Period for such Eurodollar Rate Loan unless the Borrower pays all amounts required  to be paid pursuant to Section 3.05 in connection with such continuation or conversion.  During  the existence of an Event of 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  





 






  41  CHAR1\1799470v5  shall notify the Borrower and the Lenders of any change in the prime rate used in determining the  Adjusted 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 5 Interest  Periods in effect with respect to all Loans.  2.03 Letters of Credit.  (a) The Letter of Credit Commitment.  (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 denominated in Dollars or  Canadian 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, (x) the Outstanding Amount of  Loans shall not exceed the Commitments, (y) the Credit Exposure of any Lender with  respect to the Revolving Loan Facility shall not exceed such Lender’s Commitment and  (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit  Sublimit.  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.    (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 months after the date of issuance  or last extension, unless the Required Lenders 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 the L/C Issuer has 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  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;  





 






  42  CHAR1\1799470v5  (B) the issuance of such Letter of Credit would violate one or more  policies of the L/C Issuer applicable to letters of credit generally;  (C) except as otherwise agreed by the Administrative Agent and the  L/C Issuer, such Letter of Credit is in an initial stated amount less than $25,000  or CAD$25,000, as applicable;  (D) such Letter of Credit is to be denominated in a currency other  than Dollars or Canadian Dollars; or  (E) any Lender is at that time a Defaulting Lender, unless the L/C  Issuer has entered into arrangements, including the delivery of Cash Collateral,  satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such  Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after  giving effect to Section 2.14(a)(iv)) with respect to the Defaulting Lender arising  from either the Letter of Credit then proposed to be issued or that Letter of Credit  and all other L/C Obligations as to which the L/C Issuer has actual or potential  Fronting Exposure, as it may elect in its sole discretion.  (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 the beneficiary of such Letter of Credit does not accept the proposed amendment  to such 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.  (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 in accordance with Section 11.02 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 9:00 a.m. at least three (3)  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 satisfactory to the L/C Issuer: (A) the proposed issuance date of the  





 






  43  CHAR1\1799470v5  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 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 Loan Party, at least one Business Day prior to the requested  date of issuance or amendment of the applicable Letter of Credit, that one or more  applicable conditions contained in Article V shall not be satisfied, 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 will issue a Letter of Credit that has automatic extension  provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto- Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at  least once in each twelve-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-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, on the Non-Extension Notice Date 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 Business Days before the  Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders  





 






  44  CHAR1\1799470v5  have elected not to permit such extension or (2) from the Administrative Agent, any  Lender or the Borrower that one or more of the applicable conditions specified in Section  5.02 is not then satisfied, 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 L/C Issuer of a notice of drawing under a Letter of  Credit by the beneficiary thereof, the L/C Issuer shall notify the Borrower and the  Administrative Agent thereof.  In the case of a Letter of Credit denominated in Canadian  Dollars, the Borrower shall reimburse the L/C Issuer in Canadian Dollars.  Not later than  9:00 a.m. on the first Business Day after the date of any payment by the L/C Issuer under  a Letter of Credit (each such date of payment by the L/C Issuer, an “Honor Date”), the  Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount  equal to the sum of (A) the amount of such drawing and (B) if such reimbursement is not  received on the Honor Date, interest on the amount of such drawing at the Adjusted Base  Rate plus the Applicable Rate from the Honor Date to the first Business Day after the  Honor Date (the “Required Reimbursement Date”).  If the Borrower fails to so reimburse  the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender  of the Required Reimbursement Date, the amount of the unreimbursed drawing  (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a  Letter of Credit denominated in Canadian Dollars) and accrued interest thereon to the  Required Reimbursement Date (the “Unreimbursed Amount”), and the amount of such  Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed to  have requested a Borrowing of Base Rate Loans to be disbursed on the Required  Reimbursement 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 conditions set forth in Section 5.02 (other than the delivery  of a Loan Notice) and provided that, after giving effect to such Borrowing, the Total  Outstandings shall not exceed the Aggregate 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  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 11:00 a.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.  





 






  45  CHAR1\1799470v5  (iii) With respect to any Unreimbursed Amount that is not fully refinanced by  a Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot  be satisfied 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 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 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 Loans pursuant to this Section 2.03(c) is  subject to 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 Agreement, the L/C Issuer shall be  entitled to recover from such Lender (acting through the Administrative Agent), on  demand, such amount with interest thereon for the period from the date such payment is  required to the date on which such payment is immediately available to the L/C Issuer at  a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by  the L/C Issuer in accordance with banking industry rules on interbank compensation.  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  





 






  46  CHAR1\1799470v5  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 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 Agreement under all circumstances, including the following:  (i) any lack of validity or enforceability of such Letter of Credit, this  Agreement or any other Loan Document;  (ii) the existence of any claim, counterclaim, setoff, defense or other right  that the Borrower or any Subsidiary may have at any time against any beneficiary or any  transferee of such Letter of Credit (or any Person for whom any such beneficiary or any  such transferee may be acting), the L/C Issuer or any other Person, whether in connection  with this Agreement, the transactions contemplated hereby or by such Letter of Credit or  any agreement or instrument relating thereto, or any unrelated transaction;  (iii) any draft, demand, certificate or other document presented under such  Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or  any statement 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 or any waiver by the L/C Issuer  which does not in fact materially prejudice the Borrower;  (v) honor of a demand for payment presented electronically even if such  Letter of Credit requires that demand be in the form of a draft;  (vi) any payment made by the L/C Issuer in respect of an otherwise  complying item presented after the date specified as the expiration date of, or the date by  which documents must be received under such Letter of Credit if presentation after such  date is authorized by the 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  





 






  47  CHAR1\1799470v5  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;   (viii) any adverse change in the relevant exchange rates or in the availability of  Canadian Dollars to the Borrower or any Subsidiary or in the relevant currency markets  generally; or  (ix) 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, the Borrower 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 immediately 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  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 the L/C Issuer 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, 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  





 






  48  CHAR1\1799470v5  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; Limitation of Liability.  Unless otherwise  expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued the rules of  the ISP shall apply to each standby Letter of Credit.  Notwithstanding the foregoing, the L/C  Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies  against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or  permitted under any law, order, or practice that is required or permitted to be applied to any  Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C  Issuer or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions,  practice statements, or official commentary of the ICC Banking Commission, the Bankers  Association for Finance and Trade - International Financial Services Association (BAFT-IFSA),  or the Institute of International Banking Law & Practice, whether or not any Letter of Credit  chooses such law or practice.  (h) Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for  the account of each Lender in accordance, subject to Section 2.14, with its Applicable Percentage  a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Eurodollar  Rate multiplied by the Dollar Equivalent of the daily maximum stated amount of each other  Letter of Credit, as applicable.  For purposes of computing the daily maximum stated amount of  any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with  Section 1.06.  Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii)  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 a Letter of Credit,  on the Letter of Credit Expiration Date and thereafter on demand.  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 with respect  to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the Dollar  Equivalent of the actual daily maximum stated amount of such Letter of Credit (whether or not  such maximum amount is then in effect under such Letter of Credit) and 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, foreign exchange  costs and 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.  





 






  49  CHAR1\1799470v5  (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.  2.04 Prepayments.  (a) Voluntary Prepayments.  Subject to Section 3.05, the Borrower may at any time  or from time to time repay Loans in whole or in part without premium or penalty, such  prepayment to be applied as specified by the Borrower.  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 2.14, each such  prepayment shall be applied to the Loans of the Lenders in accordance with their respective  Applicable Percentages.   (b) Mandatory Prepayments.  (i) If for any reason the Total Outstandings at any time exceed the  Aggregate Commitments at such time, the Borrower shall immediately prepay Loans and  L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C  Borrowings) 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 2.04(b) unless after the prepayment in full of the Loans, the Total Outstandings  exceed the Aggregate Commitments then in effect.  (ii) If the Administrative Agent notifies the Borrower at any time that the  Outstanding Amount of all L/C Obligations at such time exceeds an amount equal to  100% (or 105% if the excess over 100% is due solely to foreign exchange fluctuations) of  the Letter of Credit Sublimit then in effect, then, within two Business Days after receipt  of such notice, the Borrower shall prepay L/C Borrowings and/or Cash Collateralize the  L/C Obligations (other than the L/C Borrowings) in an aggregate amount sufficient to  reduce such Outstanding Amount as of such date of payment to an amount not to exceed  100% of the Letter of Credit Sublimit then in effect.  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.    2.05 Termination or Reduction of Aggregate Commitments.  (a) Optional Reductions.  The Borrower may, upon notice to the Administrative  Agent, terminate the Commitment, or from time to time permanently reduce the Commitment to  an amount not less than the Outstanding Amount of the Loans and L/C Obligations; provided that  (i) any such notice shall be received by the Administrative Agent not later than 10:00 a.m. three  (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction  shall be in an aggregate amount of $1,000,000 or any whole multiple of $1,000,000 in excess  thereof and (iii) the Borrower shall not terminate or reduce (A) the Commitment if, after giving  





 






  50  CHAR1\1799470v5  effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of such  Loans would exceed the Commitments, or (B) the Letter of Credit Sublimit if, after giving effect  thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder  would exceed the Letter of Credit Sublimit,  (b) Mandatory Reductions.  If after giving effect to any reduction or termination of  Commitments under this Section 2.05, the Letter of Credit Sublimit exceeds the Aggregate  Commitments at such time, the Letter of Credit Sublimit shall be automatically reduced by the  amount of such excess.  (c) Notice.  The Administrative Agent will promptly notify the Lenders of any  termination or reduction of the Letter of Credit Sublimit or the Commitment under this Section  2.05.  Upon any reduction of the Commitment, the Commitment of each Lender shall be reduced  by such Lender’s Applicable Percentage of such reduction amount.  All fees in respect of the  Commitments accrued until the effective date of any termination of such Commitments shall be  paid on the effective date of such termination.  2.06 Repayment of Loans.  The Borrower shall repay to the Lenders, on the Maturity Date, the aggregate principal  amount of all Loans outstanding on such date.  2.07 Interest.  (a) Subject to the provisions of clause (b) below, (i) each Eurodollar Rate Loan shall  bear interest on the outstanding principal amount thereof for each Interest Period at a rate per  annum equal to the sum of the Eurodollar Rate for such Interest Period plus the Applicable Rate  and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from  the applicable borrowing date at a rate per annum equal to the Adjusted Base Rate plus the  Applicable Rate.  (b) (i) If any amount of principal of any Loan is not paid when due (without  regard to any applicable grace periods), whether at stated maturity, by acceleration or  otherwise, all outstanding Obligations hereunder 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) is not paid when due  (after giving effect to any applicable grace periods), whether at stated maturity, by  acceleration or otherwise, then upon written notice by the Administrative Agent to the  Borrower (which shall be delivered by the Administrative Agent at the request of the  Required Lenders), such amount shall thereafter bear interest at a fluctuating interest rate  per annum at all times equal to the Default Rate to the fullest extent permitted by  applicable Laws.  (iii) Upon written notice by the Administrative Agent to the Borrower (which  shall be delivered by the Administrative Agent at the request of the Required Lenders),  while any Event of Default exists, the Borrower shall pay interest on the principal amount  of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all  times equal to the Default Rate to the fullest extent permitted by applicable Laws.  





 






  51  CHAR1\1799470v5  (iv) 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.  (d) Anything herein to the contrary notwithstanding, the obligations of the Borrower  to any Lender hereunder shall be subject to the limitation that payments of interest shall not be  required for any period for which interest is computed hereunder, to the extent (but only to the  extent) that contracting for or receiving such payment by such Lender would be contrary to the  provisions of any law applicable to such Lender limiting the highest rate of interest that may be  lawfully contracted for, charged or received by such Lender, and in such event the Borrower shall  pay such Lender interest at the highest rate permitted by applicable Laws.  2.08 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”) at a rate per annum equal to the product of (i) the Applicable Rate times (ii)  the actual daily amount by which the Aggregate Commitments exceed the sum of (y) the  Outstanding Amount of Loans and (z) the Outstanding Amount of L/C Obligations, subject to  adjustment as provided in Section 2.14.  The Commitment Fee shall accrue at all times during the  Availability Period, including at any time during which one or more of the conditions in Article V  is not met, and shall be due and payable quarterly in arrears 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 Third Amendment Effective Date; provided, that (A) no Commitment Fee shall accrue  on the Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender  and (B) any Commitment Fee accrued with respect to the Commitment of a Defaulting Lender  during the period prior to the time such Lender became a Defaulting Lender and unpaid at such  time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender.   The Commitment Fee shall be calculated quarterly in arrears, and if there is any change in the  Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by  the Applicable Rate separately for each period during such quarter that such Applicable Rate was  in effect.  (b) Fee Letter.  The Borrower shall pay to the Administrative Agent for its own  account the fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be  fully earned when paid and shall be non-refundable for any reason whatsoever.  2.09 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 365 or  366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest  shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees  or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest  





 






  52  CHAR1\1799470v5  shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan,  or any portion thereof, for the day on which the Loan or such portion is paid, provided that any  Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a), bear  interest for one 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  EBITDA/Interest Ratio as calculated by the Borrower as of any applicable date was inaccurate  and (ii) a proper calculation of the EBITDA/Interest 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 of  the United States, automatically and without further action by the Administrative Agent, any  Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that  should have been paid for such period over the amount of interest and fees actually paid for such  period.  This paragraph 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(i) or 2.07(b) or under Article IX.   The Borrower’s obligations under this paragraph shall survive the termination of the  Commitments of all of the Lenders and the repayment of all other Obligations hereunder.  2.10 Evidence of Debt.  (a) The Credit Extensions made by each Lender shall be evidenced by one or more  accounts or records maintained by such Lender and by the Administrative Agent in the ordinary  course of business.  The accounts or records maintained by the Administrative Agent and each  Lender shall be conclusive absent manifest error of the amount of the 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 be in the form of  Exhibit B (a “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.  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.  2.11 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.   





 






  53  CHAR1\1799470v5  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 (or, if applicable, with respect  to the reimbursement of drawings under Letters of Credit denominated in Canadian Dollars, in  Canadian Dollars) and in immediately available funds not later than 12:00 noon 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 12:00 noon shall be deemed received on the next succeeding  Business Day and any applicable interest or fee shall continue to accrue.  Subject to the definition  of “Interest Period”, 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 10:00 a.m. 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 any 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 and (B) in the case of a payment to be made by  the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such  Lender shall pay such interest to the Administrative Agent for the same or an overlapping  period, the Administrative Agent shall promptly remit to the Borrower the amount of  such interest paid by the Borrower for such period.  If such Lender pays its share of the  applicable Borrowing to the Administrative Agent, then the amount so paid shall  constitute such Lender’s Loan included in such Borrowing.  Any payment by the  Borrower shall be without prejudice to any claim the Borrower may have against a  Lender that shall have failed to make such payment to the Administrative Agent.  (ii) Payments by Borrower; Presumptions by Administrative Agent.  Unless  the Administrative Agent shall have received notice from the Borrower prior to the date  on which any payment is due to the Administrative Agent for the account of the Lenders  or the L/C Issuer hereunder that the Borrower will not make such payment, the  Administrative Agent may assume that the Borrower has made such payment on such  date in accordance herewith and may, in reliance upon such assumption, distribute to the  Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the  Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer,  as the case may be, severally agrees to repay to the Administrative Agent forthwith on  demand the amount so distributed to such Lender or the L/C Issuer, in immediately  





 






  54  CHAR1\1799470v5  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 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 to make payments pursuant to Section  11.04(c) are several and not joint.  The failure of any Lender to make any Loan, to fund any such  participation or to make any payment under Section 11.04(c) on any date required hereunder shall  not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender  shall be responsible for the failure of any other Lender to so make its Loan, to purchase its  participation or to make its payment under Section 11.04(c).  (e) Funding Source.  Nothing herein shall be deemed to obligate any Lender to  obtain the funds for any Loan in any particular place or manner or to constitute a representation  by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or  manner.  (f) Insufficient Funds. If at any time insufficient funds are received by and available  to the Administrative Agent to pay fully all amounts of principal, 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 then due  hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal  then due to such parties.  (g) Pro Rata Treatment. Except to the extent otherwise provided herein: (i) each  Borrowing shall be made from the Lenders, each payment of fees under Section 2.08 shall be  made for account of the Lenders, and each termination or reduction of the amounts of the  Commitments shall be applied to the respective Commitments of the Lenders, pro rata according  to the amounts of their respective Commitments; (ii) each Borrowing shall be allocated pro rata  among the Lenders according to the amounts of their respective Commitments or their respective  Loans that are to be included in such Borrowing (in the case of conversions and continuations of  Loans); (iii) each payment or prepayment of principal of Loans by the Borrower shall be made for  account of the Lenders pro rata in accordance with the respective unpaid principal amounts of the  Loans held by them; and (iv) each payment of interest on Loans by the Borrower shall be made  for account of the Lenders pro rata in accordance with the amounts of interest on such Loans then  due and payable to the respective Lenders.  





 






  55  CHAR1\1799470v5  2.12 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 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 of the other Lenders, or make such other adjustments as shall be  equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance  with the aggregate amount of principal of and accrued interest on their respective Loans and other  amounts owing them, provided that:  (i) if any such participations or subparticipations are purchased and all or  any portion of the payment giving rise thereto is recovered, such participations or  subparticipations shall be rescinded and the purchase price restored to the extent of such  recovery, without interest; and  (ii) the provisions of this Section shall not be construed to apply to (x) any  payment made by or on behalf of the Borrower pursuant to and in accordance with the  express terms of this Agreement (including the application of funds arising from the  existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in  Section 2.13 or (z) any payment obtained by a Lender as consideration for the assignment  of or sale of a participation in any of its Loans or subparticipations in L/C Obligations to  any assignee or participant, other than an assignment to the Borrower or any Subsidiary  thereof (as to which the provisions of this Section shall apply).  Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under  applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may  exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as  fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.  2.13 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  provided pursuant to clause (iv) above, after giving effect to Section 2.14(a)(iv) 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 to this Section  2.13, and in all proceeds of the foregoing, all as security for the obligations to which such Cash  





 






  56  CHAR1\1799470v5  Collateral may be applied pursuant to Section 2.13(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 Permitted Liens in favor of  the depository bank), or that the total amount of such Cash Collateral is less than the Minimum  Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay  or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to  eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds  subject to deposit) shall be maintained in blocked, interest bearing deposit accounts at a financial  institution selected by the Administrative Agent. The Borrower 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  Agreement, Cash Collateral provided under any of this Section 2.13 or Sections 2.03, 2.04, 2.14  or 9.02 in respect of Letters of Credit shall be held and applied in 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)), (ii) the determination by the  Administrative Agent and the L/C Issuer that there exists excess Cash Collateral or (iii) the  Borrower’s request, to the extent the Cash Collateral is greater than the Minimum Collateral  Amount or the Cash Collateral was provided voluntarily by the Borrower and was not required to  be provided pursuant to the terms hereof; provided, however, any such release shall be without  prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain  subject to, any other Lien conferred under the Loan Documents and the other applicable  provisions of the Loan Documents.    2.14 Defaulting Lenders  (a) Adjustments.  Notwithstanding anything to the contrary contained in this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no  longer a Defaulting Lender, to the extent permitted by applicable Law:  (i) Waivers and Amendment.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be  restricted as set forth in the definition of “Required Lenders” and Section 11.01.  (ii) Defaulting Lender Waterfall.  Any payment of principal, interest, fees or  other amount 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  





 






  57  CHAR1\1799470v5  hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to  such Defaulting Lender in accordance with Section 2.13; fourth, as the Borrower may  request (so long as no Default or Event of Default exists), to the funding of any Loan in  respect of which such Defaulting Lender has failed to fund its portion thereof as required  by this Agreement, as determined by the Administrative Agent; fifth, if so determined by  the Administrative Agent and the Borrower, to be held in a deposit account and released  pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding  obligations with respect to Loans under this Agreement and (y) Cash Collateralize the  L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with  respect to future Letters of Credit issued under this Agreement, in accordance with  Section 2.13; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer  as a result of any judgment of a court of competent jurisdiction obtained by any Lender,  the L/C Issuer against such Defaulting Lender as a result of such Defaulting Lender’s  breach of its obligations under this Agreement; seventh, so long as no Default or Event of  Default exists, to the payment of any amounts owing to the Borrower as a result of any  judgment of a court of competent jurisdiction obtained by the Borrower against that  Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under  this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court  of competent jurisdiction; provided, that, if (x) such payment is a payment of the  principal amount of any Loans or 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 are held by the Lenders pro rata in accordance with the Commitments  hereunder without giving effect to Section 2.14(a)(iv).  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  2.14(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 2.08(a) for any period during which that Lender is a Defaulting  Lender (and the Borrower shall not be required to pay any such fee that otherwise  would have been required to have been paid to that Defaulting Lender).  (B) Each Defaulting Lender shall be entitled to receive Letter of  Credit Fees 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  2.13.  (C) With respect to any fee payable under Section 2.08(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 that has  





 






  58  CHAR1\1799470v5  been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below,  (y) pay to the L/C Issuer the amount of any such fee otherwise payable to such  Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure  to such Defaulting Lender, and (z) not be required to pay the remaining amount  of any such fee.  (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.   All or any part of such Defaulting Lender’s participation in L/C Obligations 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 (x) the conditions set forth in Section 5.02 are  satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise  notified the Administrative Agent at such time, the Borrower shall be deemed to have  represented and warranted that such conditions are satisfied at such time), and (y) such  reallocation does not cause the aggregate Credit Exposure of any Non-Defaulting Lender  to exceed such Non-Defaulting Lender’s 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.  (v) Cash Collateral.  If the reallocation described in clause (a)(iv) above  cannot, or can only partially, be effected, the Borrower shall, without prejudice to any  right or remedy available to it hereunder or under applicable Law, Cash Collateralize the  L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section  2.13.  (b) Defaulting Lender Cure.  If the Borrower, the Administrative Agent and the L/C  Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent  will so notify the parties hereto, whereupon as of the effective date specified in such notice and  subject to any conditions set forth therein (which may include arrangements with respect to any  Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of  outstanding Loans of the other Lenders or take such other actions as the Administrative Agent  may determine to be necessary to cause the Loans and funded and unfunded participations in  Letters of Credit be held on a pro rata basis by the Lenders in accordance with their Applicable  Percentages (without giving effect to Section 2.14(a)(iv)), whereupon such Lender will cease to  be a Defaulting Lender; provided, that, no adjustments will be made retroactively with respect to  fees accrued or payments made by or on behalf of the Borrower while that Lender was a  Defaulting Lender; provided, further, that, except to the extent otherwise expressly agreed by the  affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver  or release of any claim of any party hereunder arising from that Lender having been a Defaulting  Lender.   2.15 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/or  Commitments to the extended maturity date specified in such request.  Such notice shall set forth  (i) the amount of the Commitments to be extended (which shall be in a minimum amount of  $25,000,000), 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  





 






  59  CHAR1\1799470v5  requested Extension (or such longer or shorter periods as the Administrative Agent shall agree)).  Each Lender 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 Commitments (calculated on  the face amount thereof) in respect of which Lenders shall have accepted the relevant Extension  Offer shall exceed the maximum aggregate principal amount of Commitments requested to be  extended by the Borrower pursuant to such Extension Offer, then the Commitments of Lenders  shall be extended ratably up to such maximum amount based on the respective principal amounts  (but not to exceed actual holdings of record) with respect to which such Lenders have accepted  such Extension Offer.  (b) It shall be a condition precedent to the effectiveness of any Extension that (i) no  Default shall have occurred and be continuing immediately prior to and immediately after giving  effect to such Extension, (ii) the representations and warranties of the Borrower and each other  Loan Party contained in Article VI or any other Loan Document, or which are contained in any  document furnished at any time under or in connection herewith or therewith (other than the  Specified Representations following the Collateral Release, if such event occurs, and prior to the  Collateral Reinstatement Date, if such event occurs), shall be true and correct in all material  respects on and as of the date of such Extension, except to the extent that such representations and  warranties specifically refer to an earlier date, in which case they shall be true and correct in all  material respects as of such earlier date, (iii) the L/C Issuer shall have consented to any Extension  of the Commitments to the extent that such Extension provides for the issuance of Letters of  Credit at any time during the extended period and (iv) the terms of such Extended Commitments  shall comply with Section 2.15(c).  (c) The terms of each Extension shall be determined by the Borrower and the  applicable extending Lenders and be set forth in an Extension Amendment; provided, that, (i) the  final maturity date of any Extended Commitment shall be later than the Maturity Date of the  Commitments subject to such Extension Offer, as applicable, (ii) there shall be no scheduled  amortization or scheduled reductions of the Extended Commitments, (iii) any Extended Loans  shall (A) rank pari passu in right of payment with the Loans being extended, as applicable, (B) be  Guaranteed by the same Guarantors that guarantee the Loans being extended and (C) be secured  by the Collateral on an equal and ratable basis with the Loans being extended and (iv) to the  extent the terms of the Extended Commitments are inconsistent with the terms set forth herein  (except as set forth in clause (i) through (iii) 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 and such other documentation as the Administrative Agent shall  reasonably specify to evidence the Extension.  The Administrative Agent shall promptly notify  each Lender as to the effectiveness of each Extension.  Notwithstanding anything herein to the  contrary, any Extension Amendment may, without the consent of any other Lender, effect such  amendments to this Agreement and the other Loan Documents as may be necessary or  appropriate (but only to such extent), in the reasonable opinion of the Administrative Agent and  the Borrower, to implement the terms of any such Extension Offer, including any amendments  necessary to establish Extended Commitments as a new tranche of Commitments, and such other  technical amendments as may be necessary or appropriate in the reasonable opinion of the  Administrative Agent and the Borrower in connection with the establishment of such new tranche  





 






  60  CHAR1\1799470v5  (including to preserve the pro rata treatment of the extended and non-extended tranches and to  provide for the reallocation of any L/C Obligations upon the expiration or termination of the  commitments under any tranche), in each case on terms consistent with this Section 2.15).  ARTICLE III    TAXES, YIELD PROTECTION AND ILLEGALITY  3.01 Taxes.  (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of  Taxes.  (i) Any and all payments by or on account of any obligation of any Loan  Party under any Loan Document shall be made without deduction or withholding for any  Taxes, except as required by applicable Laws.  If any applicable Laws (as determined in  the good faith discretion of the Administrative Agent) require the deduction or  withholding of any Tax from any such payment by the Administrative Agent or a Loan  Party, then the Administrative Agent or such Loan Party shall be entitled to make such  deduction or withholding, upon the basis of the information and documentation to be  delivered pursuant to clause (e) below.  (ii) If any Loan 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 Loan Party  shall be increased as necessary so that after any required withholding or the making of all  required deductions (including deductions applicable to additional sums payable under  this Section 3.01) the applicable Recipient receives an amount equal to the sum it would  have received had no such withholding or deduction been made.  (iii) If any Loan 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 Loan Party or the Administrative Agent, as required by  such Laws, shall withhold or make such deductions as are determined by it to be required  based upon the information and documentation it has received pursuant to clause (e)  below, (B) such Loan Party or the Administrative Agent, to the extent required by such  Laws, shall timely pay the full amount withheld or deducted to the relevant  Governmental Authority in accordance with such Laws, and (C) to the extent that the  withholding or deduction is made on account of Indemnified Taxes, the sum payable by  the applicable Loan Party shall be increased as necessary so that after any required  withholding or the making of all required deductions (including deductions applicable to  additional sums payable under this Section 3.01) the applicable Recipient receives an  amount equal to the sum it would have received had no such withholding or deduction  been made.  





 






  61  CHAR1\1799470v5  (b) Payment of Other Taxes by the Loan Parties.  Without limiting the provisions of  clause (a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in  accordance with applicable law, or at the option of the Administrative Agent timely reimburse it  for the payment of, any Other Taxes.  (c) Tax Indemnifications.    (i) Each of the Loan Parties shall, and does hereby, jointly and severally  indemnify each Recipient, and shall make payment in respect thereof within 10 days after  demand therefor, for the full amount of any Indemnified Taxes (including Indemnified  Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01)  payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient, and any penalties, interest and reasonable expenses arising therefrom  or with respect thereto, whether or not such Indemnified Taxes were correctly or legally  imposed or asserted by the relevant Governmental Authority.  A certificate as to the  amount of such payment or liability delivered to the Borrower by a Lender 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.   (ii) Each Lender and the L/C Issuer shall, and does hereby, severally  indemnify, and shall make payment in respect thereof within 10 days after demand  therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such  Lender or the L/C Issuer (but only to the extent that any Loan Party has not already  indemnified the Administrative Agent for such Indemnified Taxes and without limiting  the obligation of the Loan Parties to do so), (y) the Administrative Agent and the Loan  Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply  with the provisions of Section 11.06(d) relating to the maintenance of a Participant  Register and (z) the Administrative Agent and the Loan Parties, as applicable, against any  Excluded Taxes attributable to such Lender or the L/C Issuer, in each case, that are  payable or paid by the Administrative Agent or a Loan Party in connection with any Loan  Document, and any reasonable expenses arising therefrom or with respect thereto,  whether or not such Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  A certificate as to the amount of such payment or liability  delivered to any Lender by the Administrative Agent shall be conclusive absent manifest  error.  Each Lender 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 Agreement or any other Loan Document against any amount  due to the Administrative Agent under this clause (ii).  (d) Evidence of Payments.  Upon request by any Loan Party or the Administrative  Agent, as the case may be, after any payment of Taxes by any Loan Party or by the  Administrative Agent to a Governmental Authority as provided in this Section 3.01, each Loan  Party 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.    





 






  62  CHAR1\1799470v5  (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document shall deliver  to the Borrower and the Administrative Agent, at the time or times reasonably requested  by the Borrower or the Administrative Agent, such properly completed and executed  documentation reasonably requested by the Borrower or the Administrative Agent as will  permit such payments to be made without withholding or at a reduced rate of  withholding.  In addition, any Lender, if reasonably requested by the Borrower or the  Administrative Agent, shall deliver such other documentation prescribed by applicable  law or reasonably requested by the Borrower or the Administrative Agent as will enable  the Borrower or the Administrative Agent to determine whether or not such Lender is  subject to backup withholding or information reporting requirements.  Notwithstanding  anything to the contrary in the preceding two sentences, the completion, execution and  submission of such documentation (other than such documentation set forth in Section  3.01(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 Agreement (and from time to time thereafter upon  the reasonable request of the Borrower or the Administrative Agent), executed  originals of IRS Form W-9 certifying that such Lender is exempt from U.S.  federal backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number of  copies as shall be requested by the recipient) on or prior to the date on which  such Foreign Lender becomes a Lender under this Agreement (and from time to  time thereafter upon the reasonable request of the Borrower or the Administrative  Agent), whichever of the following is applicable:  (I) in the case of a Foreign Lender claiming the benefits of  an income tax treaty to which the United States is a party (x) with respect  to payments of interest under any Loan Document, executed originals of  IRS Form W-8BENE (or W-8BEN, as applicable) establishing an  exemption from, or reduction of, U.S. federal withholding Tax pursuant  to the “interest” article of such tax treaty and (y) with respect to any  other applicable payments under any Loan Document, IRS Form W- 8BENE (or W-8BEN, as applicable) establishing an exemption from, or  reduction of, U.S. federal withholding Tax pursuant to the “business  profits” or “other income” article of such tax treaty;  (II) executed originals of Internal Revenue Service Form W- 8ECI,  (III) in the case of a Foreign Lender claiming the benefits of  the exemption for portfolio interest under Section 881(c) of the Internal  





 






  63  CHAR1\1799470v5  Revenue Code, (x) a certificate substantially in the form of Exhibit F-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 originals of IRS Form W- 8BENE (or W-8BEN, as applicable); or  (IV) to the extent a Foreign Lender is not the beneficial  owner, executed originals of IRS Form W-8IMY, accompanied by IRS  Form W-8ECI, IRS Form W-8BENE (or W-8BEN, as applicable), a U.S.  Tax Compliance Certificate substantially in the form of Exhibit F-2 or  Exhibit F-3, IRS Form W-9, and/or other certification documents from  each beneficial owner, as applicable; provided that if the Foreign Lender  is a partnership and one or more direct or indirect partners of such  Foreign Lender are claiming the portfolio interest exemption, such  Foreign Lender may provide a U.S. Tax Compliance Certificate  substantially in the form of Exhibit F-4 on behalf of each such direct and  indirect partner;  (C) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number of  copies as shall be requested by the recipient) on or prior to the date on which  such Foreign Lender becomes a Lender under this Agreement (and from time to  time thereafter upon the reasonable request of the Borrower or the Administrative  Agent), executed originals of any other form prescribed by applicable law as a  basis for claiming exemption from or a reduction in U.S. federal withholding  Tax, duly completed, together with such supplementary documentation as may be  prescribed by applicable law to permit the Borrower or the Administrative Agent  to determine the withholding or deduction required to be made; and  (D) if a payment made to a Lender under any Loan Document would  be subject to U.S. federal withholding Tax imposed by FATCA if such Lender  were to fail to comply with the applicable reporting requirements of FATCA  (including those contained in Section 1471(b) or 1472(b) of the 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 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  





 






  64  CHAR1\1799470v5  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 of any Taxes as to which it has been indemnified by any Loan  Party or with respect to which any Loan Party has paid additional amounts pursuant to this  Section 3.01, it shall pay to the Loan Party an amount equal to such refund (but only to the extent  of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01  with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including  Taxes) incurred by such Recipient, and without interest (other than any interest paid by the  relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon  the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any  penalties, interest or other charges imposed by the relevant Governmental Authority) to the  Recipient in the event the Recipient is required to repay such refund to such Governmental  Authority.  Notwithstanding anything to the contrary in this clause, in no event will the applicable  Recipient be required to pay any amount to the Loan Party pursuant to this clause 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 shall not be construed to  require any Recipient to make available its tax returns (or any other information relating to its  taxes that it deems confidential) to any Loan Party or any other Person.  (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 Commitments and the  repayment, satisfaction or discharge of all other Obligations.  3.02 Illegality.  If any Lender determines after the date hereof that any Law has made it unlawful, or that any  Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to 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 Adjusted 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 Adjusted Base Rate, in  each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances  giving rise to such determination no longer exist.  Upon receipt of such notice, (x) the Borrower shall,  upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable,  convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base  Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the  





 






  65  CHAR1\1799470v5  Administrative Agent without reference to the Eurodollar Rate component of the Adjusted 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 Adjusted Base Rate applicable to such Lender without  reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing  by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon  the Eurodollar Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued  interest on the amount so prepaid or converted.    3.03 Inability to Determine Rates; Yield Protection.  (a) Inability to Ascertain, Unreliability or Inadequacy of LIBOR. If in connection  with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof, (i) the  Administrative Agent determines that (A) Dollar deposits are not being offered to banks in the  London interbank eurodollar market for the applicable amount and Interest Period of such  Eurodollar Rate Loan or (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 (in each case with respect to  clause (i), “Impacted Loans”), (ii) the Required Lenders determine that for any reason 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 the Lenders of funding such Loan or (iii) a  Benchmark Transition Event or Early Opt-in Election has occurred, the Administrative Agent  will promptly notify the Borrower and all Lenders.  Thereafter, (x) the obligation of the Lenders  to make or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected  Eurodollar Rate Loans or Interest Periods) and (y) in the event of a determination described in the  preceding sentence with respect to the Eurodollar Rate component of the Adjusted Base Rate, the  utilization of the Eurodollar Rate component in determining the Adjusted Base Rate shall be  suspended, in each case until the Administrative Agent revokes such notice.  Upon receipt of such  notice, the Borrower may revoke any pending request for a Borrowing, conversion or  continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or  Interest Periods) or, failing that, and subject to clause (c) of this Section, will be deemed to have  converted such request into a request for a Borrowing of Base Rate Loans in the amount specified  therein.  (b) Notwithstanding the foregoing, if the Administrative Agent has made the  determination described in clause (a)(i) of this Section, the Administrative Agent in consultation  with the Borrower and the Required Lenders, may establish an alternative interest rate for the  Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the  Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to  the Impacted Loans under clause (a)(i) of this Section, (2) the Administrative Agent or the  Required Lenders notify the Administrative Agents and the Borrower that such alternative  interest rate does not adequately and fairly reflect the costs to such Lenders of funding the  Impacted Loans, or (3) any Lender reasonably determines that any law has made it unlawful, or  that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable  Lending Office to make, maintain or fund Loans whose interest is determined by reference to  such alternative rate of interest or to determine or charge interest rates based upon such rate or  any Governmental Authority has imposed material restrictions on the authority of such Lender to  do any of the foregoing and provides the Administrative Agent and the borrower written notice  thereof.  





 






  66  CHAR1\1799470v5  (c) Benchmark Replacement Setting. Notwithstanding anything to the contrary  herein or in any other Loan Document (and any Swap Obligation shall be deemed not to be a  “Loan Document” for purposes of this Section 3.03(c)).  (i) Replacing LIBOR. On March 5, 2021 FCA, the regulatory supervisor of  IBA, announced in a public statement the future cessation or loss of representativeness of  1-month, 3-month, 6-month and 12-month Interest Periods for LIBOR. On the earlier of  (A) the date that all Available Tenors of LIBOR have either permanently or indefinitely  ceased to be provided by IBA or have been announced by the FCA pursuant to public  statement or publication of information to be no longer representative and (B) the Early  Opt-in Effective Date, if the then-current Benchmark is LIBOR, the Benchmark  Replacement will replace such Benchmark for all purposes hereunder and under any  Loan Document in respect of any setting of such Benchmark on such day and all  subsequent settings without any amendment to, or further action or consent of any other  party to this Agreement or any other Loan Document. If the Benchmark Replacement is  Daily Simple SOFR, all interest payments will be payable on a quarterly basis.  (ii) Replacing Future Benchmarks. Upon the occurrence of a Benchmark  Transition Event, the Benchmark Replacement will replace the then-current Benchmark  for all purposes hereunder and under any Loan Document in respect of any Benchmark  setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such  Benchmark Replacement is provided to the Lenders without any amendment to, or  further action or consent of any other party to, this Agreement or any other Loan  Document so long as the Administrative Agent has not received, by such time, written  notice of objection to such Benchmark Replacement from Lenders comprising the  Required Lenders or from the Borrower. At any time that the administrator of the then- current Benchmark has permanently or indefinitely ceased to provide such Benchmark or  such Benchmark has been announced by the regulatory supervisor for the administrator  of such Benchmark pursuant to public statement or publication of information to be no  longer representative of the underlying market and economic reality that such Benchmark  is intended to measure and that representativeness will not be restored, the Borrower may  revoke any request for a borrowing of, conversion to or continuation of Loans to be  made, converted or continued that would bear interest by reference to such Benchmark  until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark  Replacement has replaced such Benchmark, and, failing that, the Borrower will be  deemed to have converted any such request into a request for a borrowing of or  conversion to Base Rate Loans. During the period referenced in the foregoing sentence,  the component of Adjusted Base Rate based upon the Benchmark will not be used in any  determination of Adjusted Base Rate.  (iii) Benchmark Replacement Conforming Changes. In connection with the  implementation and administration of a Benchmark Replacement, the Administrative  Agent will have the right to make Benchmark Replacement Conforming Changes from  time to time and, notwithstanding anything to the contrary herein or in any other Loan  Document, any amendments implementing such Benchmark Replacement Conforming  Changes will become effective without any further action or consent of any other party to  this Agreement.  (iv) Notices; Standards for Decisions and Determinations. The  Administrative Agent will promptly notify the Borrower and the Lenders of (A) the  implementation of any Benchmark Replacement and (B) the effectiveness of any  





 






  67  CHAR1\1799470v5  Benchmark Replacement Conforming Changes. Any determination, decision or election  that may be made by the Administrative Agent or, if applicable, any Lender (or group of  Lenders) pursuant to this Section 3.03(c), including any determination with respect to a  tenor, rate or adjustment or of the occurrence or non-occurrence of an event,  circumstance or date and any decision to take or refrain from taking any action, will be  conclusive and binding absent manifest error and may be made in its or their sole  discretion and without consent from any other party hereto, except, in each case, as  expressly required pursuant to this Section 3.03(c).  (v) Unavailability of Tenor of Benchmark. At any time (including in  connection with the implementation of a Benchmark Replacement), (A) if the then- current Benchmark is a term rate (including Term SOFR or LIBOR), then the  Administrative Agent may remove any tenor of such Benchmark that is unavailable or  non-representative for Benchmark (including Benchmark Replacement) settings and (B)  the Administrative Agent may reinstate any such previously removed tenor for  Benchmark (including Benchmark Replacement) settings.   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 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, 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 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 reducing the rate of return on such Lender’s or the  





 






  68  CHAR1\1799470v5  L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if  any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made  by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by  the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the  L/C Issuer’s holding company could have achieved but for such Change in Law (taking into  consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the  L/C Issuer’s holding company with respect to capital adequacy), 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 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 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 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 for any increased costs incurred or reductions suffered more  than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies  the Borrower of the Change in Law giving rise to such increased costs or reductions and of such  Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change  in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period  referred to above shall be extended to include the period of retroactive effect thereof).  (e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, (i)  as long as such Lender shall be required to maintain reserves with respect to liabilities or assets  consisting of or including eurocurrency funds or deposits (currently known as “Eurocurrency  liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan  equal to the actual costs of such reserves allocated to such Loan by such Lender (as reasonably  determined by such Lender in good faith), and (ii) as long as such Lender shall be required to  comply with any reserve ratio requirement or analogous requirement of any central banking or  financial regulatory authority imposed in respect of the maintenance of the Commitments or the  funding of the Loans, such additional costs (expressed as a percentage per annum and rounded  upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to  such Commitment or Loan by such Lender (as reasonably determined by such Lender in good  faith), which in each case shall be due and payable on each date on which interest is payable on  such Loan, provided the Borrower shall have received at least ten (10) days’ prior notice (with a  copy to the Administrative Agent) of such additional interest or costs from such Lender.  If a  Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such  additional interest shall be due and payable ten (10) days from receipt of such notice.  3.05 Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the  Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost  or expense incurred by it as a result of:  





 






  69  CHAR1\1799470v5  (a) any continuation, conversion, payment or prepayment of any Loan other than a  Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether  voluntary, mandatory, automatic, by reason of acceleration, or otherwise);  (b) any failure by the Borrower (for a reason other than the failure of such Lender to  make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on  the date or in the amount notified by the Borrower; or  (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;  including any loss of anticipated profits and any loss or expense arising from the liquidation or  reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the  deposits from which such funds were obtained.  The Borrower shall also pay any customary  administrative fees charged by such Lender in connection with the foregoing.  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 any Lender requests compensation  under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts  to any Lender, the L/C Issuer or any Governmental Authority for the account of any Lender or the  L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then  at the request of the Borrower such Lender or the L/C Issuer shall, as applicable, use reasonable  efforts to designate a different Lending Office for funding or booking its Loans hereunder or to  assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the  judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or  reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or  eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case,  would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or  expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the  case may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by  any Lender or the L/C Issuer in connection with any such designation or assignment.  (b) Replacement of Lenders.  If any Lender requests compensation under Section  3.04, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any  Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 or  if a Lender gives a notice pursuant to Section 3.02 and, in each case, such Lender has declined or  is unable to designate a different lending office in accordance with Section 3.06(a), the Borrower  may replace such Lender in accordance with Section 11.13.  3.07 Survival.  All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate  Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent;  provided, that all such obligations under this Article III shall terminate at the end of the applicable statute  





 






  70  CHAR1\1799470v5  of limitation time period.  ARTICLE IV    GUARANTY  4.01 The Guaranty.  Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Swap Bank,  each Treasury Management Bank, and the Administrative Agent as hereinafter provided, as primary  obligor and not as surety, the prompt payment of all 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 Loan  Documents, Secured Swap Agreements or Secured Treasury Management Agreements, (i) the obligations  of each Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate  amount equal to the largest amount that would not render such obligations subject to avoidance under the  Debtor Relief Laws or any comparable provisions of any applicable state law and (ii) the Obligation of a  Guarantor that are guaranteed under this Guaranty shall exclude any Excluded Swap Obligations with  respect to such Guarantor.  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  Loan Documents, Secured Swap Agreements or Secured Treasury Management Agreements, or any other  agreement or instrument referred to therein, 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  law, irrespective of any law or regulation or other circumstance whatsoever which might otherwise  constitute a legal or equitable discharge or defense of a surety or guarantor, 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 (other than contingent indemnity 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 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;  





 






  71  CHAR1\1799470v5  (b) any of the acts mentioned in any of the provisions of any of the Loan Documents,  any Secured Swap Agreement, or any Secured Treasury Management Agreement, or any other  agreement or instrument referred to in the Loan Documents, such Secured Swap Agreements or  such Secured 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 Loan Documents, any Secured Swap Agreement or any Secured Treasury Management  Agreement, or any other agreement or instrument referred to in the Loan Documents, such  Secured Swap Agreements or such Secured 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 Lender or  Lenders 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 Lender exhaust any right, power or remedy or proceed against any Person  under any of the Loan Documents, any Secured Swap Agreement or any Secured Treasury Management  Agreement, or any other agreement or instrument referred to in the Loan Documents, such Secured Swap  Agreements or such Secured Treasury Management Agreements, or against any other Person under any  other guarantee of, or security for, any of the Obligations.  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 proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will  indemnify the Administrative Agent and each Lender on demand for all reasonable costs and expenses  (including, without limitation, the reasonable fees, charges and disbursements of counsel) incurred by the  Administrative Agent or such Lender 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 bankruptcy, insolvency or similar law.  4.04 Certain Additional Waivers.  Each Guarantor 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 Lenders, on the other hand, the Obligations may be  declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have  





 






  72  CHAR1\1799470v5  become automatically due and payable in the circumstances provided in said 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 Collateral  Documents and that the Lenders may exercise their remedies thereunder in accordance with the terms  thereof.  4.06 Rights of Contribution.  The Guarantors agree among themselves that, in connection with payments made hereunder, each  Guarantor shall have contribution rights against the other Guarantors as permitted under applicable law.   Such contribution rights shall be subordinate and subject in right of payment to the obligations of such  Guarantors under the Loan Documents and no Guarantor shall exercise such rights of contribution until  all Obligations have been paid in full and the Commitments have terminated.  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 Loan Party that is a Qualified ECP Guarantor at the time the Guaranty in this Article IV by  any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (a  “Specified Loan Party”) or the grant of a security interest under the Loan Documents by any such  Specified Loan Party, in either case, becomes effective with respect to any Swap Obligation, hereby  jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or  other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by  such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in  respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that  can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings  under this Article IV voidable under applicable Debtor Relief Laws, and not for any greater amount). The  obligations and undertakings of each applicable Loan Party under this Section shall remain in full force  and effect until such time as the Obligations (other than contingent indemnification obligations that  survive the termination of this Agreement) have been paid in full and the Commitments have expired or  terminated. Each Loan Party intends this Section to constitute, and this Section shall be deemed to  constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit  of, each Specified Loan Party for all purposes of the Commodity Exchange Act.    ARTICLE V    CONDITIONS PRECEDENT TO CREDIT EXTENSIONS  5.01 Conditions of Initial Credit Extension.  





 






  73  CHAR1\1799470v5  This Agreement shall become effective upon, and, subject to Section 5.02(b), the obligation of the  L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to, satisfaction or  waiver in accordance with Section 11.01 of the following conditions precedent:  (a) Loan Documents.  Receipt by the Administrative Agent of executed counterparts  of this Agreement and the other Loan Documents, each properly executed by a Responsible  Officer of the signing Loan Party and, in the case of this Agreement, by each Lender.  (b) Opinions of Counsel. Receipt by the Administrative Agent of favorable opinions  of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender,  dated as of the Closing Date, and in form and substance reasonably satisfactory to the  Administrative Agent.  (c) Financial Statements.  The Administrative Agent shall have received:  (i) the Audited Financial Statements;   (ii) financial projections prepared by the Borrower for the period from  January 1, 2019 through December 31, 2023; and  (iii) an updated timber harvesting report prepared by the Borrower in form  and substance satisfactory to the Administrative Agent.  (d) No Material Adverse Change.  There shall not have occurred a material adverse  change since December 31, 2018 in the business, assets, income, properties, liabilities (actual or  contingent), operations or financial condition of the Borrower and its Subsidiaries, taken as a  whole.  (e) Litigation.  There shall not exist any action, suit, investigation or proceeding  pending or threatened in any court or before an arbitrator or Governmental Authority that could  reasonably be expected to have a Material Adverse Effect.  (f) Organization Documents, Resolutions, Etc.  Receipt by the Administrative Agent  of the following, each of which shall be originals or facsimiles (followed promptly by originals),  in form and substance satisfactory to the Administrative Agent and its legal counsel:  (i) copies of the Organization Documents of each Loan Party certified to be  true and complete as of a recent date by the appropriate Governmental Authority of the  state or other jurisdiction of its incorporation or organization, where applicable, and  certified by a secretary or assistant secretary of such Loan Party to be true and correct as  of the Closing Date;  (ii) such certificates of resolutions or other action, incumbency certificates  and/or other certificates of Responsible Officers of each Loan Party as the Administrative  Agent may reasonably require evidencing the identity, authority and capacity of each  Responsible Officer thereof authorized to act as a Responsible Officer in connection with  this Agreement and the other Loan Documents to which such Loan Party is a party; and  (iii) such documents and certifications as the Administrative Agent may  reasonably require to evidence that each Loan Party is duly organized or formed, and is  





 






  74  CHAR1\1799470v5  validly existing, in good standing and qualified to engage in business in its state of  organization or formation.  (g) Perfection and Priority of Liens.  Receipt by the Administrative Agent of the  following:  (i) searches of Uniform Commercial Code filings in the jurisdiction of  formation of each Loan Party or where a filing would need to be made in order to perfect  the Administrative Agent’s security interest in the Collateral, copies of the financing  statements on file in such jurisdictions and evidence that no Liens exist other than  Permitted Liens;  (ii) UCC financing statements for each appropriate jurisdiction as is  necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative  Agent’s security interest in the Collateral;  (h) Evidence of Insurance.  Receipt by the Administrative Agent of copies of  insurance policies or certificates of insurance of the Loan Parties evidencing liability and casualty  insurance meeting the requirements set forth in the Loan Documents and naming the  Administrative Agent as additional insured (in the case of liability insurance) or lender’s loss  payee (in the case of hazard insurance) on behalf of the Lenders.  (i) Farm Credit Equities.  The Borrower shall have purchased the Farm Credit  Equities as set forth on Schedule 4.01(h), consistent with Section 7.15, pursuant to the agreements  identified in Schedule 4.01(h) (substantially in the form agreed by the applicable Farm Credit  Lender and the Borrower).  (j) Closing Certificate.  Receipt by the Administrative Agent of a certificate signed  by a Responsible Officer of the Borrower certifying that (i) the conditions specified in Sections  5.01(d) and (e) and Section 5.02(a) has been satisfied, (ii) the Borrower and its Subsidiaries are  Solvent on a consolidated basis and (iii) that all material governmental and third-party consents,  subordinations and waivers have been obtained and are in full force and effect.  (k) [Reserved].  (l) Fees.  Receipt by the Administrative Agent, the Arranger and the Lenders of all  fees contemplated Fee Letter to be paid on or before the Closing Date and all costs and expenses  required to be paid hereunder or pursuant to the Fee Letter to the extent invoiced prior to the  Closing Date.  (m) PATRIOT Act.  At least five (5) days prior to the Closing Date, the Borrower  and the Guarantors shall have provided to the Administrative Agent the documentation and other  information requested by the Lender in order to comply with requirements of applicable “know- your-customer” and anti-money laundering rules and regulations, including, without limitation,  the PATRIOT Act.  (n) Attorney Costs.  Unless waived by the Administrative Agent, the Borrower shall  have paid all reasonable out-of-pocket fees, charges and disbursements of outside counsel to the  Administrative Agent to the extent invoiced prior to the Closing Date, plus such additional  amounts of such reasonable out-of-pocket fees, charges and disbursements as shall constitute its  reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it  





 






  75  CHAR1\1799470v5  through the closing proceedings (provided that such estimate shall not thereafter preclude a final  settling of accounts between the Borrower and the Administrative Agent).  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, the Administrative  Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved or  accepted or to be satisfied with, each document or other matter required thereunder to be consented to or  approved by or acceptable or satisfactory to the Administrative Agent or such Lender unless, in the case  of a Lender, the Administrative Agent shall have received notice from such Lender prior to the proposed  Closing Date specifying its objection thereto.  The Lenders’ making of the Loans to the Borrower on the Closing Date shall constitute an  acknowledgment that all of the conditions set forth in this Section 5.01 requiring the consent, approval,  acceptance or satisfaction of the Lenders have been satisfied or waived.  5.02 Conditions to all Credit Extensions.  Subject to Section 5.02(b), the obligation of each Lender to honor any Request for Credit  Extension is subject to the following conditions precedent (unless waived):  (a) The representations and warranties of the Borrower and each other Loan Party  contained in Article VI or any other Loan Document, shall be true and correct in all material  respects on and as of the date of such Credit Extension, except to the extent that such  representations and warranties specifically refer to an earlier date, in which case they shall be true  and correct in all material respects as of such earlier date, and except that for purposes of this  Section 5.02, (i) the representations and warranties contained in subsections (a) and (b) of Section  6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and  (b), respectively, of Section 7.01, and (ii) the Specified Representations shall not apply following  the Collateral Release (if such event occurs) and prior to the Collateral Reinstatement date (if  such date occurs).  (b) No Default shall exist, or would result from such proposed Credit Extension or  from the application of the proceeds thereof.  (c) The Administrative Agent and, if applicable, the L/C Issuer shall have received a  Request for Credit Extension in accordance with the requirements hereof.  Each Request for Credit Extension submitted by the Borrower shall be deemed to be a  representation and warranty that the conditions specified in Sections 5.02(a) and (b) have been  satisfied on and as of the date of the applicable Credit Extension.  ARTICLE VI    REPRESENTATIONS AND WARRANTIES  The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:  6.01 Existence, Qualification and Power.  Each Loan Party (a) is duly organized or formed, validly existing and in good standing under the  Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and  





 






  76  CHAR1\1799470v5  all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets  and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents  to which it is a party, and (c) is duly qualified and is licensed and in good standing under the Laws of  each jurisdiction where its ownership, lease or operation of properties or the conduct of its business  requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent  that failure to do so could not reasonably be expected to have a Material Adverse Effect.  6.02 Authorization; No Contravention.  The execution, delivery and performance by each Loan Party of each Loan Document to which  such Person is party have been duly authorized by all necessary corporate or other organizational action  by such Loan Party, and do not (a) contravene the terms of any of such Person’s Organization  Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien  under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a  party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order,  injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or  its property is subject; or (c) violate any Law (including, without limitation, Regulation U or Regulation  X issued by the FRB); except in each case referred in clauses (b) or (c), to the extent that conflict or  violation could not reasonably be expected to have a Material Adverse Effect.  6.03 Governmental Authorization; Other Consents.  No material approval, consent, exemption, authorization, or other action by, or notice to, or filing  with, any Governmental Authority or any other Person is necessary or required in connection with the  execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any  other Loan Document other than (a) those that have already been obtained and are in full force and effect  and (b) filings to perfect the Liens created by the Collateral Documents.  6.04 Binding Effect.  Each Loan Document has been duly executed and delivered by each Loan Party that is party  thereto.  Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party that is  party thereto, enforceable against each such Loan Party in accordance with its terms, except as  enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws  affecting the enforcement of creditors’ rights generally.  6.05 Financial Statements; No Material Adverse Effect.  (a) The Audited Financial Statements (i) were prepared substantially in accordance  with GAAP consistently applied throughout the period covered thereby, except as otherwise  expressly noted therein; and (ii) fairly present in all material respects the financial condition of  the Borrower as of the date thereof and its results of operations for the period covered thereby in  accordance with GAAP consistently applied throughout the period covered thereby, except as  otherwise expressly noted therein.  (b) The financial statements delivered pursuant to Section 7.01(a) and (b) have been  prepared substantially in accordance with GAAP consistently applied throughout the period  covered thereby, except as otherwise expressly noted therein, and present fairly in all material  respects the consolidated financial condition, results of operations and cash flows of the Borrower  and its Subsidiaries as of the dates thereof and for the periods covered thereby, subject, in the  





 






  77  CHAR1\1799470v5  case of financial statements delivered pursuant to Section 7.01(b), to the absence of footnotes and  to normal year-end audit adjustments.  (c) Since the date of the Audited Financial Statements, there has been no event or  circumstance, that has had or could reasonably be expected to have a Material Adverse Effect;  provided, that, the impacts of the ongoing COVID-19 pandemic on the business, assets, income,  properties, liabilities (actual or contingent), operations or financial condition of the Borrower and  its Subsidiaries, taken as a whole, that have been disclosed to the Administrative Agent and  Lenders prior to the Third Amendment Effective Date, or otherwise publicly available in filings  with the Securities and Exchange Commission made prior to the Third Amendment Effective  Date, shall be disregarded, in each case to the extent so disclosed.  6.06 Litigation.  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the  Loan Parties, threatened or contemplated, at law, in equity, in arbitration or before any Governmental  Authority, by or against any Loan Party or any of its Subsidiaries or against any of their properties or  revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the  transactions contemplated hereby or (b) could reasonably be expected to have a Material Adverse Effect.  6.07 No Default.  (a) Neither any Loan Party nor any Subsidiary is in default under or with respect to  any Contractual Obligation that could reasonably be expected to have a Material Adverse Effect.  (b) No Default has occurred and is continuing.  6.08 Ownership of Property; Liens.  Each Loan Party and its Subsidiaries has good record and marketable title in fee simple to, or  valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business,  except for such defects in title as could not, individually or in the aggregate, reasonably be expected to  have a Material Adverse Effect.  The property of each Loan Party and its Subsidiaries is subject to no  Liens, other than Permitted Liens.  6.09 Environmental Compliance.  Except as could not reasonably be expected to have a Material Adverse Effect:  (a) Each of the Facilities and all operations at the Facilities are in compliance with  all applicable Environmental Laws, and there is no violation of any Environmental Law with  respect to the Facilities or the Businesses, and there are no conditions relating to the Facilities or  the Businesses that could give rise to liability under any applicable Environmental Laws.  (b) None of the Facilities contains, or to the knowledge of any Responsible Officer  of the Borrower, has previously contained, any Hazardous Materials at, on or under the Facilities  in amounts or concentrations that constitute a violation of, or could give rise to liability under,  Environmental Laws.  (c) Neither any Loan Party nor any Subsidiary has received any written or verbal  notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation,  





 






  78  CHAR1\1799470v5  non-compliance, liability or potential liability regarding environmental matters or compliance  with Environmental Laws with regard to any of the Facilities or the Businesses.  (d) Hazardous Materials have not been transported or disposed of from the Facilities,  or generated, treated, stored or disposed of at, on or under any of the Facilities or any other  location, in each case by or on behalf of any Loan Party or any Subsidiary in violation of, or in a  manner that would be reasonably likely to give rise to liability under, any applicable  Environmental Law.  (e) No judicial proceeding or governmental or administrative action is pending or, to  the knowledge of the Loan Parties, threatened, under any Environmental Law to which any Loan  Party or any Subsidiary is or will be named as a party, nor are there any consent decrees or other  decrees, consent orders, administrative orders or other orders, or other administrative or judicial  requirements outstanding under any Environmental Law with respect to any Loan Party, any  Subsidiary, the Facilities or the Businesses.  (f) There has been no release or threat of release of Hazardous Materials at or from  the Facilities, or arising from or related to the operations (including, without limitation, disposal)  of any Loan Party or any Subsidiary in connection with the Facilities or otherwise in connection  with the Businesses, in violation of or in amounts or in a manner that could give rise to liability  under Environmental Laws.  6.10 Insurance.  The properties of the Loan Parties and their Subsidiaries are insured with financially sound and  reputable insurance companies not Affiliates of such Persons, in such amounts, with such deductibles and  covering such risks as are customarily carried by companies engaged in similar businesses and owning  similar properties in localities where the applicable Loan Party or the applicable Subsidiary operates.  The  insurance coverage of the Loan Parties and their Subsidiaries as of the Closing Date is outlined as to  carrier, policy number, expiration date, type, amount and deductibles on Schedule 6.10.  6.11 Taxes.  The Loan Parties and their Subsidiaries have filed all U.S. federal and other material tax returns  and reports required to be filed, and have paid all U.S. federal and other material taxes, assessments, fees  and other governmental charges levied or imposed upon them or their properties, income or assets  otherwise due and payable, except those which are being contested in good faith by appropriate  proceedings diligently conducted and for which adequate reserves have been provided in accordance with  GAAP.  There is no proposed tax assessment against any Loan Party or any Subsidiary that could  reasonably be expected to have a Material Adverse Effect.  Neither any Loan Party nor any Subsidiary  thereof is party to any material tax sharing agreements (other than tax sharing arrangements between or  among the Borrower and/or its Subsidiaries).   6.12 ERISA Compliance.  (a) Each Plan is in compliance in all material respects with the applicable provisions  of ERISA, the Internal Revenue Code and other federal or state laws.  Each Pension Plan that is  intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a  favorable determination letter from the Internal Revenue Service to the effect that the form of  such Plan is qualified under Section 401(a) of the Internal Revenue Code and the trust related  thereto has been determined by the Internal Revenue Service to be exempt from federal income  





 






  79  CHAR1\1799470v5  tax under Section 501(a) of the Internal Revenue Code or an application for such a letter is  currently being processed by the Internal Revenue Service.  To the knowledge of the Loan  Parties, nothing has occurred that would prevent, or cause the loss of, such tax-qualified status.  (b) There are no pending or, to the knowledge of the Loan Parties, threatened claims,  actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could  reasonably be expected to have a Material Adverse Effect.  There has been no prohibited  transaction or violation of the fiduciary responsibility rules with respect to any Plan that has  resulted or could reasonably be expected to result in a Material Adverse Effect.  (c) (i) No ERISA Event has occurred and neither the Borrower nor any ERISA  Affiliate is aware of any fact, event or circumstance that could reasonably be expected to  constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the Borrower and  each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in  respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension  Funding Rules has been applied for or obtained; (iii) 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 and neither the Borrower nor any ERISA  Affiliate knows of any facts or circumstances that could reasonably be expected to cause the  funding target attainment percentage for any such plan to drop below sixty percent (60%) as of  the most recent valuation date; (iv) neither the Borrower 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; (v) neither the Borrower nor any ERISA  Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of  ERISA; and (vi) no event or circumstance has occurred or exists that could reasonably be  expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any  Pension Plan.  (d) Each Canadian Pension Plan and each Canadian Benefit Plan is in compliance  with its applicable terms, any funding agreements and all applicable statutes, orders, rules and  regulations (including any funding, investment and administration obligations), except where the  failure to comply with such applicable terms, funding agreements or applicable statutes, orders,  rules and regulations would not, individually or in the aggregate, have a Material Adverse Effect.  The Canadian Pension Plans that require registration are duly registered under the Income Tax  Act (Canada) and any other applicable laws. Except as could not reasonably be expected to have  a Material Adverse Effect, all employer and employee payments, contributions or premiums to be  remitted, paid to or in respect of each Canadian Pension Plan or Canadian Benefit Plan or  Canadian Union Plan have been paid in a timely fashion in accordance with the terms thereof,  any funding agreement and all applicable laws. As of the date hereof, there are no outstanding  disputes concerning the Canadian Pension Plans, the Canadian Benefit Plans or the Canadian  Union Plans or the assets thereof that could reasonably be expected to have a Material Adverse  Effect.  (e) Except as would not individually or in the aggregate, reasonably be expected to  give rise to a Material Adverse Effect, the Borrower and each of its Subsidiaries, to the extent  applicable, has remitted all Canada Pension Plan contributions, provincial pension plan  contributions, workers compensation assessments, employment insurance premiums, and  employer health taxes (the “Statutory Lien Payments”) to the proper Governmental Authority  within the time required under the applicable law. Except as would not individually or in the  aggregate, reasonably be expected to give rise to a Material Adverse Effect, the Borrower and  each of its Subsidiaries, to the extent applicable, has discharged all obligations (including interest  





 






  80  CHAR1\1799470v5  and penalties, but other than current obligations for which the time for remittance has not expired)  in respect of the Statutory Lien Payments which, if unpaid, might become a Lien on any of its  respective assets.  6.13  Subsidiaries.  Set forth on Schedule 6.13 is a complete and accurate list as of the Third Amendment Effective  Date of each Subsidiary of any Loan Party, together with (i) jurisdiction of formation, (ii) number of  shares of each class of Equity Interests outstanding, (iii) number and percentage of outstanding shares of  each class owned (directly or indirectly) by any Loan Party or any Subsidiary and (iv) number and effect,  if exercised, of all outstanding options, warrants, rights of conversion or purchase and all other similar  rights with respect thereto.  The outstanding Equity Interests of each Subsidiary of any Loan Party are  validly issued, fully paid and, to the extent applicable, non-assessable.  6.14 Margin Regulations; Investment Company Act.  (a) The Borrower is not engaged and will not engage, principally or as one of its  important activities, in the business of purchasing or carrying margin stock (within the meaning  of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying  margin stock.  Following the application of the proceeds of each Borrowing or drawing under  each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or  of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section  8.01 or Section 8.05 or subject to any restriction contained in any agreement or instrument  between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and  within the scope of Section 9.01(e) will be margin stock.  (b) None of any Loan Party, any Person Controlling any Loan Party, or any  Subsidiary is or is required to be registered as an “investment company” under the Investment  Company Act of 1940.  6.15 Disclosure.  No report, financial statement, certificate or other information furnished (whether in writing or  orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with  the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or  under any other Loan Document (in each case, as modified or supplemented by other information so  furnished) contains any material misstatement of fact or omits to state any material fact necessary to make  the statements therein, in the light of the circumstances under which they were made, not materially  misleading; provided that, with respect to projected financial information, the Loan Parties represent only  that such information was prepared in good faith based upon assumptions believed to be reasonable at the  time in light of the circumstances at such time, it being understood that projections are subject to  significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties, no  assurance can be given that such projections will be realized and although based on the Loan Parties’  good faith estimate, projections are not to be viewed as facts and the actual results during the period or  periods covered by the projections may differ materially from the projected or estimated result. The  information included in the Beneficial Ownership Certification, if applicable, is true and correct in all  material respects as of the Third Amendment Effective Date.  





 






  81  CHAR1\1799470v5  6.16 Compliance with Laws.  Each Loan Party and each Subsidiary is in compliance with the requirements of all Laws and all  orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which  (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by  appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably  be expected to have a Material Adverse Effect.  6.17 Intellectual Property; Licenses, Etc.  Each Loan Party and its Subsidiaries own, or possess the legal right to use, all of the trademarks,  service marks, trade names, copyrights, patents, patent rights, intellectual property licenses and other  intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of  their respective businesses.  Set forth on Schedule 6.17 is a list of all IP Rights registered or pending  registration with the United States Copyright Office or the United States Patent and Trademark Office and  owned by each Loan Party as of the Closing Date.  Except for such claims and infringements that could not  reasonably be expected to have a Material Adverse Effect, no claim has been asserted and is pending by any  Person challenging or questioning the use of any IP Rights or the validity or effectiveness of any IP Rights,  nor does any Loan Party know of any such claim, and, to the knowledge of the Loan Parties, the use of any IP  Rights by any Loan Party or any of its Subsidiaries or the granting of a right or a license in respect of any IP  Rights from any Loan Party or any of its Subsidiaries does not infringe on the rights of any Person.  As of the  Closing Date, none of the IP Rights owned by any of the Loan Parties or any of its Subsidiaries is subject  to any licensing agreement or similar arrangement except as set forth on Schedule 6.17.  6.18 Solvency.  The Loan Parties are Solvent on a consolidated basis.  6.19 Perfection of Security Interests in the Collateral.  The Collateral Documents create valid security interests in, and Liens on, the Collateral purported  to be covered thereby, which security interests and Liens are, if required by the Collateral Documents,  currently perfected security interests and Liens, prior to all other Liens other than Permitted Liens.  6.20 Business Locations.  Set forth on Schedule 6.20(a) is a list of all real property with an estimated value greater than  $200,000 located in the United States that is owned or leased by the Loan Parties as of the Third  Amendment Effective Date.  Set forth on Schedule 6.20(b) is the tax payer identification number and  organizational identification number of each Loan Party as of the Closing Date.  The exact legal name and  state of organization of (a) the Borrower is as set forth on the signature pages hereto and (b) each  Guarantor is (i) as set forth on the signature pages hereto, (ii) as set forth on the signature pages to the  Joinder Agreement pursuant to which such Guarantor became a party hereto or (iii) as may be otherwise  disclosed by the Loan Parties to the Administrative Agent in accordance with Section 8.12(c).  Except as  set forth on Schedule 6.20(c), no Loan Party has during the five years preceding the Closing Date (i)  changed its legal name, (ii) changed its state of formation, or (iii) been party to a merger, consolidation or  other similar change in structure.  





 






  82  CHAR1\1799470v5  6.21 Labor Matters.  There are no collective bargaining agreements or Multiemployer Plans covering the employees of  any Loan Party or any Subsidiary as of the Closing Date.  There are no strikes, walkouts, work stoppages  or other material labor difficulty against or involving any Loan Party or any Subsidiary of any Loan Party,  except for those that could not reasonably be expected to have a Material Adverse Effect.  6.22 Sanctions Concerns and Anti-Corruption Laws.  (a) Sanction Concerns. No Loan Party, nor any Subsidiary, nor, to the knowledge of  the Loan Parties and their Subsidiaries, any director, officer, employee, agent, affiliate or  representative thereof, is an individual or entity that is, or is owned or controlled by any  individual or entity that is (i) currently the subject or target 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 list enforced by any other relevant sanctions  authority or (iii) located, organized or resident in a Designated Jurisdiction.  (b) Anti-Corruption Laws.  The Loan Parties and their Subsidiaries have conducted  their business in compliance with the United States Foreign Corrupt Practices Act of 1977, the  UK Bribery Act 2010 and other similar anti-corruption legislation in other jurisdictions, and have  instituted and maintained policies and procedures designed to promote and achieve compliance  with such laws.  ARTICLE VII    AFFIRMATIVE COVENANTS  So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation  hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (other than  contingent indemnity Obligations, Obligations in respect of Secured Treasury Management Agreements  and Letters of Credit that are Cash Collateralized), the Loan Parties shall:  7.01 Financial Statements.  Deliver to the Administrative Agent (which shall further distribute to each Lender):  (a) within ninety (90) days after the end of each fiscal year of the Borrower, a  consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year,  and the related consolidated statements of income or operations, retained earnings, and cash  flows, with all notes and schedules relating thereto, for such fiscal year, setting forth in each case  in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared  in accordance with GAAP, audited and accompanied by a report and opinion of an independent  certified public accountant of nationally recognized standing reasonably acceptable to the  Administrative Agent (it being understood that Deloitte LLP is acceptable to the Administrative  Agent) that such statements present fairly, in all material respects, the financial condition of the  companies being reported upon, which report and opinion shall be prepared in accordance with  generally accepted auditing standards and shall not be subject to any “going concern” or like  qualification or exception or any qualification or exception as to the scope of such audit; and   (b) within forty-five (45) days after the end of each of the first three fiscal quarters of  each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its  





 






  83  CHAR1\1799470v5  Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income  or operations, retained earnings and cash flows, with any notes and schedules relating thereto, for  such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in  each case in comparative form the figures for the corresponding fiscal quarter of the previous  fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and  certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the  financial condition, results of operations, shareholders’ equity and cash flows of the Borrower  and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments  and the absence of footnotes.  7.02 Certificates; Other Information.  Deliver to the Administrative Agent (which shall further distribute to each Lender), in form and  detail reasonably satisfactory to the Administrative Agent:  (a) concurrently with the delivery of the financial statements referred to in Sections  7.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the  Borrower;  (b) no later than 45 days after the end of each fiscal year of the Borrower, beginning  with the fiscal year ending December 31, 2019, a quarterly budget of the Borrower and its  Subsidiaries for the current fiscal year;  (c) promptly after any request by the Administrative Agent or any Lender, copies of  any detailed audit reports, management letters or recommendations submitted to the board of  directors (or the audit committee of the board of directors) of the Borrower by independent  accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any  audit of any of them;  (d) [reserved];  (e) promptly, such additional information regarding the business, financial or  corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan  Documents, as the Administrative Agent or any Lender may from time to time reasonably  request.  Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02 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 (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: (i) the Borrower shall deliver paper copies of such documents  to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies  until a written request to cease delivering paper copies is given by the Administrative Agent or such  Lender and (ii) the Borrower shall notify the Administrative Agent of the posting of any such documents  and, if requested, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft  copies) of such documents.  The Administrative Agent shall have no obligation to request the delivery of  or to maintain paper copies of the documents referred to above, and in any event shall have no  responsibility to monitor compliance by the Borrower with any such request for delivery by a Lender, and  





 






  84  CHAR1\1799470v5  each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such  documents.  The Borrower hereby acknowledges that (a) the Administrative Agent 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, the “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  material non-public information with respect to the Borrower or its Affiliates, or the respective securities  of any of the foregoing, and who may be engaged in investment and other market-related activities with  respect to such Person’s securities.  The Borrower hereby agrees that (w) all Borrower Materials that are  to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a  minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by  marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the  Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material  non-public information 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 as “Public  Side Information;” and (z) the Administrative Agent 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 that is not  designated as “Public Side Information.”  Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender  to at all times have selected the “Private Side Information” or similar designation on the content  declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance  with such Public Lender’s compliance procedures and applicable law, including United States federal and  state securities laws, to make reference to communications that are not made available through the  “Public Side Information” portion of the Platform and that may contain material non-public information  with respect to the Borrower or its securities for purposes of United States federal or state securities laws  and to enable Borrower to comply with its obligations to provide certain information to the Lenders.  7.03 Notices.  (a) Promptly (and in any event, within three Business Days) notify the  Administrative Agent and each Lender of the occurrence of any Default.  (b) Promptly (and in any event, within five Business Days) notify the Administrative  Agent and each Lender of any matter that has resulted or could reasonably be expected to result  in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a  Contractual Obligation of any Loan Party or any Subsidiary; (ii) any dispute, litigation,  investigation, proceeding or suspension between any Loan Party or any Subsidiary and any  Governmental Authority; or (iii) the commencement of, or any material development in, any  litigation or proceeding affecting any Loan Party or any Subsidiary, including pursuant to any  applicable Environmental Laws.  (c) Promptly (and in any event, within five Business Days) notify the Administrative  Agent and each Lender of the occurrence of any ERISA Event.  (d) Promptly (and in any event, within five Business Days) notify the Administrative  Agent and each Lender of any material change in accounting policies or financial reporting  





 






  85  CHAR1\1799470v5  practices by the Borrower or any Subsidiary, including any determination by the Borrower  referred to in Section 2.09(b).  Each notice pursuant to Sections 7.03(a) through (d) 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 applicable Loan Party has taken and proposes to take with respect thereto.  Each notice  pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and  any other Loan Document that have been breached.  7.04 Payment of Obligations.  Pay and discharge, and cause its Subsidiaries to pay and discharge, as the same shall become due  and payable, all its obligations and liabilities, except to the extent the failure to do so could not reasonably  be expected to have a Material Adverse Effect.  7.05 Preservation of Existence, Etc.    Each Loan Party shall, and shall cause its Subsidiaries to:    (a) Preserve, renew and maintain in full force and effect its legal existence under the  Laws of the jurisdiction of its organization except in a transaction permitted by Section 8.04 or  8.05.  (b) Preserve, renew and maintain in full force and effect its good standing under the  Laws of the jurisdiction of its organization, except to the extent the failure to do so could not  reasonably be expected to have a Material Adverse Effect.  (c) Take all reasonable action to maintain all rights, privileges, permits, licenses and  franchises necessary or desirable in the normal conduct of its business, except to the extent that  the failure to do so could not reasonably be expected to have a Material Adverse Effect.  (d) Preserve or renew all of its material registered patents, copyrights, trademarks,  trade names and service marks, the non-preservation or non-renewal of which could reasonably  be expected to have a Material Adverse Effect.  7.06 Maintenance of Properties.    Each Loan Party shall, and shall cause its Subsidiaries to:    (a) Maintain, preserve and protect all of its material properties and equipment  necessary in the operation of its business in good working order and condition, ordinary wear and  tear excepted.  (b) Make all necessary repairs thereto and renewals and replacements thereof, except  where the failure to do so could not reasonably be expected to have a Material Adverse Effect.  (c) Use the standard of care typical in the industry in the operation and maintenance  of its facilities.  





 






  86  CHAR1\1799470v5  7.07 Maintenance of Insurance.  Maintain, and cause its Subsidiaries to maintain, in full force and effect insurance (including  worker’s compensation insurance, liability insurance, casualty insurance and business interruption insurance)  with financially sound and reputable insurance companies not Affiliates of any Loan Party, in such  amounts, with such deductibles and covering such risks as are believed by the Borrower in good faith to  be customarily carried by companies engaged in similar businesses and owning similar properties in  localities where the applicable Loan Party or the applicable Subsidiary operates.  The Administrative  Agent shall be named as lender’s loss payee or mortgagee, as its interest may appear, and/or additional  insured with respect to any such insurance providing coverage in respect of any Collateral, and each  provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by  independent instruments furnished to the Administrative Agent, that it will give the Administrative Agent  ten (10) days prior written notice before any such policy or policies shall be altered or canceled.  7.08 Compliance with Laws.  Comply, and cause its Subsidiaries to comply, with the requirements of all Laws and all orders,  writs, injunctions and decrees applicable to it or to its business or property, except in such instances in  which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by  appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably  be expected to have a Material Adverse Effect.  7.09 Books and Records.  Maintain, and cause its Subsidiaries to maintain, proper books of record and account, in which  materially true and correct entries in conformity with GAAP consistently applied shall be made of all  financial transactions and matters involving the assets and business of such Loan Party or such  Subsidiary, as the case may be.  7.10 Inspection Rights.  Permit representatives and independent contractors of the Administrative Agent to visit and  inspect any of its properties, to examine its corporate, financial and operating records, and make copies  thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers,  and independent public accountants, all at the expense of the Borrower and at such reasonable times  during normal business hours and as often as may be desired, upon reasonable advance notice to the  Borrower; provided, however, that when an Event of Default exists the Administrative Agent or any  Lender (or any of their respective representatives or independent contractors) may do any of the foregoing  at the expense of the Borrower at any time during normal business hours and without advance notice.   Notwithstanding anything contained in this Agreement to the contrary, so long as no Event of Default  exists, the Loan Parties shall only be required to reimburse the Administrative Agent for one such visit,  audit or inspection in any 12-month period.  7.11 Use of Proceeds.  Use the proceeds of the Credit Extensions to finance working capital and capital expenditures and  for other general corporate purposes, provided that in no event shall the proceeds of the Credit Extensions  be used in contravention of any Law or of any Loan Document.  





 






  87  CHAR1\1799470v5  7.12 Additional Subsidiaries.  Within thirty (30) days after the acquisition or formation of any Domestic Subsidiary (or, in the  case of clause (b) below, any existing Domestic Subsidiary becoming a Material Subsidiary):  (a) notify the Administrative Agent thereof in writing, together with the (i)  jurisdiction of formation, (ii) number of shares of each class of Equity Interests outstanding, (iii)  number and percentage of outstanding shares of each class owned (directly or indirectly) by the  Borrower or any Subsidiary and (iv) number and effect, if exercised, of all outstanding options,  warrants, rights of conversion or purchase and all other similar rights with respect thereto; and  (b) if such Subsidiary is a Domestic Subsidiary and a Material Subsidiary, cause  such Person to (i) become a Guarantor by executing and delivering to the Administrative Agent a  Joinder Agreement or such other documents as the Administrative Agent shall deem appropriate  for such purpose, and (ii) deliver to the Administrative Agent documents of the types referred to  in Sections 5.01(f) and (g) for such Subsidiary and, if requested by Administrative Agent,  favorable opinions of counsel to such Subsidiary (which shall cover, among other things, the  legality, validity, binding effect and enforceability of the documentation referred to in clause (i)),  all in form, content and scope reasonably satisfactory to the Administrative Agent; provided,  however, that this clause (b) shall not apply to the following Subsidiaries, so long as such  Subsidiary has not provided a Guarantee of any other Indebtedness of the Borrower or another  Guarantor: Subsidiaries that are prohibited by Law from guaranteeing the Obligations or that  would experience adverse regulatory consequences as a result of providing such Guarantee.  7.13 ERISA Compliance.  Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each Plan in  compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code  and other federal or state law; (b) cause each Plan that is qualified under Section 401(a) of the Internal  Revenue Code to maintain such qualification; and (c) make all required contributions to any Plan subject  to Section 412, Section 430 or Section 431 of the Internal Revenue Code.  7.14 Pledged Assets.    (a) Subject to the provisions of Sections 7.12 and 7.14(b), each Loan Party will  cause all of its owned personal property other than Excluded Property to be subject at all times to  perfected Liens in favor of the Administrative Agent, for the benefit of the holders of the  Obligations, to secure the Obligations pursuant to the terms and conditions of the Collateral  Documents or, with respect to any such property acquired subsequent to the Closing Date, such  other additional security documents as the Administrative Agent shall reasonably request, subject  only to Permitted Liens and in the case of any Subsidiary that becomes a Loan Party after the date  hereof, deliver such documentation as the Administrative Agent may reasonably request in  connection with the foregoing, including, without limitation, appropriate UCC-1 financing  statements, documents of the types referred to in Sections 5.01(f) and (g) for such Subsidiary and,  if requested by Administrative Agent, favorable opinions of counsel to such Person (which shall  cover, among other things, the legality, validity, binding effect and enforceability of the  documentation referred to above and the perfection of the Administrative Agent’s Liens  thereunder), all in form, content and scope reasonably satisfactory to the Administrative Agent.   Notwithstanding anything to the contrary contained herein or in the other Loan Documents, the  Lenders and the Administrative Agent agree that, unless an Event of Default has occurred and is  continuing, the Borrower and the other Loan Parties will not be required to take any action to  





 






  88  CHAR1\1799470v5  perfect Liens on the Collateral to secure the Obligations other than the filing of UCC-1 financing  statements naming each Loan Party as debtor and the Administrative Agent as secured party.  (b) Notwithstanding anything in the Loan Documents to the contrary, upon notice  from the Borrower, on the first date (the “Release Date”) on which one of the following three  conditions are met: (i) any credit rating of the Borrower is BBB- or higher by S&P, (ii) any credit  rating of the Borrower is Baa3 or higher by Moody’s or (iii) any credit rating of the Borrower is  BBB- or higher by Fitch (each such rating described in clauses (i), (ii) and (iii), an “Investment  Grade Rating”), and so long as no Default or Event of Default exists on such date or immediately  after giving effect to the release of Liens contemplated hereby, all Collateral shall automatically  and immediately be released from the Liens created by the Security Agreement and any other  Collateral Document, other than those statutory Liens on the Farm Credit Equities permitted  under Section 7.15, all without delivery of any agreement or instrument or performance of any act  by any party, and all rights to the Collateral shall revert to the Loan Parties (the “Collateral  Release”); provided, that if the rating system of any credit rating agency described above shall  change, or if any such credit rating agency shall cease to be in the business of rating issuers or  corporate debt obligations, the Borrower and the Administrative Agent may amend, and shall  negotiate in good faith to amend, this clause (b) to reflect such changed rating system or the  unavailability of ratings from such credit rating agencies or shall select a replacement credit  rating agency and, pending the effectiveness of any such amendment or replacement, for purposes  of determining whether a Collateral Release has occurred, the credit rating of the affected credit  rating agency shall be deemed to be the credit rating of such credit rating agency, if any, as most  recently in effect prior to such change or cessation.  At the request and sole expense of any Loan  Party following any such release, the Administrative Agent shall deliver to such Loan Party any  Collateral held by the Administrative Agent under any Collateral Document, and execute and  deliver to such Loan Party such documents (if required, in proper form for filing or recording, as  applicable) as such Loan Party shall reasonably request to evidence such release.  Promptly, and  in any event within sixty (60) days (or such longer period as is reasonably acceptable to the  Administrative Agent) after notice to the Borrower from the Administrative Agent following the  first date after the Release Date on which the Borrower fails to maintain an Investment Grade  Rating from at least one of S&P, Moody’s or Fitch, the Borrower shall (i) execute and deliver,  and cause each Guarantor to execute and deliver, to the Administrative Agent security  documents, in form and substance reasonably satisfactory to the Administrative Agent, pursuant  to which the Borrower and each Guarantor shall grant to the Administrative Agent, for the benefit  of the holders of the Obligations, a security interest in all personal property then owned or held by  such Person, other than Excluded Property, that constituted Collateral under the Security  Agreement and any other Collateral Documents as in effect immediately prior to the Release Date  and (ii) take, and cause the relevant Guarantors to take, such actions as shall be necessary or  reasonably requested by the Administrative Agent to grant and perfect such Liens all at the  expense of the Loan Parties (a “Collateral Reinstatement”).  Without limiting the generality of the  foregoing, at all times after any Release Date and prior to consummation of a Collateral  Reinstatement, the Specified Representations shall be deemed to have been deleted and this  Section 7.14(b) shall govern and control to the extent of any conflict between the other provisions  of the Loan Documents and this Section 7.14(b).  7.15 Farm Credit Equity.  (a) So long as (i) a Farm Credit Lender is a Lender or Voting Participant hereunder and  (ii) such Farm Credit Lender has notified the Borrower that it is eligible to receive patronage  distributions directly from such Farm Credit Lender or one of its Affiliates on account of the  Loans made (or participated in) by such Farm Credit Lender hereunder, the Borrower will, as a  





 






  89  CHAR1\1799470v5  condition to receiving such patronage distributions, acquire equity in such Farm Credit Lender or  one of its Affiliate in such amounts and at such times as such Farm Credit Lender may require in  accordance with such Farm Credit Lender’s or its Affiliate’s bylaws and capital plan or similar  documents (as each may be amended from time to time), provided, however, that,  notwithstanding anything to the contrary contained herein, the maximum amount of equity that  the Borrower may be required to purchase in such Farm Credit Lender or one of its Affiliates in  connection with the Loans made by such Farm Credit Lender hereunder shall not exceed the  maximum amount required by the applicable bylaws, capital plan and related documents, in each  case, (x) as in effect (and in the form provided to the Borrower) on the Closing Date or (y) in the  case of a Farm Credit Lender that becomes a Lender or Voting Participant as a result of an  assignment or sale of a participation, as in effect (and in the form provided to the Borrower) at the  time of the closing of the related assignment or sale of participation.  The Borrower  acknowledges receipt of the documents from the respective Farm Credit Lenders that are listed on  Schedule 4.01(h) (together with any similar documents delivered to the Borrower in connection  with a Farm Credit Lender that becomes a Lender or Voting Participant as a result of an  assignment or sale of a participation after the Closing Date, the “Farm Credit Equity  Documents”), which describe the nature of the stock and/or other equities in such Farm Credit  Lenders or its Affiliate required to be acquired by the Borrower in connection with the Loans  made (or participated in) by such Farm Credit Lender (the “Farm Credit Equities”), as well as  applicable capitalization requirements, and the Borrower agrees to be bound by the terms thereof.    (b) Each party hereto acknowledges that (i) the Farm Credit Equity Documents (as  each may be amended from time to time) shall govern (x) the rights and obligations of the parties  with respect to the Farm Credit Equities and any patronage refunds or other distributions made on  account thereof or on account of the Borrower’s patronage with the respective Farm Credit  Lenders, (y) the Borrower’s eligibility for patronage distributions from the respective Farm Credit  Lenders or their Affiliates (in the form of Farm Credit Equities and/or cash) and (z) patronage  distributions, if any, in the event of a sale by a Farm Credit Lender of participations in the  Commitment of and the portion of the Loans made (or participated in) by such Farm Credit  Lender, (ii) patronage refunds or other distributions by each Farm Credit Lender or one of its  Affiliates are subject to various conditions, including approval by the applicable board of  directors of such Farm Credit Lender or Affiliate with respect to each such refund or other  distribution and (iii) the Borrower (and not an Affiliate of the Borrower) will be the owner of the  Farm Credit Equities issued by the applicable Farm Credit Lender or an Affiliate thereof.  Each  Farm Credit Lender reserves the right to assign or sell participations in all or any part of its  Commitments or outstanding Borrowings hereunder on a non-patronage basis (and/or to a Lender  that pays no patronage or pays patronage that is lower than the patronage paid by the transferring  Farm Credit Lender) in accordance with Section 11.06; provided, that if Borrower’s consent to  such assignment or sale of a participation by such Farm Credit Lender is required pursuant to  Section 11.06(b) or Section 11.06(e), as applicable, the parties hereto agree that, solely with  respect to Borrower’s ability to reasonably withhold consent to such transfer because of an  expected reduction in patronage distributions to the Borrower (it being understood and agreed  that the Borrower may have another basis for reasonably withholding consent to such transfer),  (A) if the transferring Farm Credit Lender has not delivered a Farm Credit Lender Transfer  Certificate (as defined below) to the Borrower, then the Borrower may withhold its consent to  such assignment or sale in its sole discretion (and in such case, the Borrower shall be deemed to  have acted reasonably), and (B) if the transferring Farm Credit Lender has delivered a Farm  Credit Lender Transfer Certificate to the Borrower, then the Borrower may not withhold its  consent to such assignment or sale (and any such withholding of consent shall be deemed  unreasonable).  For purposes hereof, “Farm Credit Lender Transfer Certificate” means a  certificate executed by an officer of the transferring Farm Credit Lender and certifying to the  





 






  90  CHAR1\1799470v5  Borrower that such transferring Farm Credit Lender has used commercially reasonable efforts to  consummate the relevant assignment or sale or a participation with another entity that would be  expected to make patronage distributions to the Borrower on a going forward basis that are  consistent with (or better than) those that the Borrower could reasonably have expected to have  received from such transferring Farm Credit Lender.  (c) Each party hereto acknowledges that each Farm Credit Lender has a statutory  first lien pursuant to the Farm Credit Act of 1971 (as amended from time to time) on all Farm  Credit Equities of such Farm Credit Lender that the Borrower may now own or hereafter acquire,  which statutory lien shall be for such Farm Credit Lender’s sole and exclusive benefit.  The Farm  Credit Equities of a particular Farm Credit Lender shall not constitute security for the obligations  arising under the Loan Documents due to any other Lender. To the extent that any of the Loan  Documents create a Lien on the Farm Credit Equities of a Farm Credit Lender or on patronage  accrued by such Farm Credit Lender for the account of the Borrower (including, in each case,  proceeds thereof), such Lien shall be for such Farm Credit Lender’s sole and exclusive benefit  and shall not be subject to pro rata sharing hereunder. Neither the Farm Credit Equities nor any  accrued patronage shall be offset against the obligations arising under the Loan Documents  except that, in the event of an Event of Default, a Farm Credit Lender may elect, solely at its  discretion, to apply the cash portion of any patronage distribution or retirement of equity to  amounts due under this Agreement. The Borrower acknowledges that any corresponding tax  liability associated with such application is the sole responsibility of the Borrower. No Farm  Credit Lender shall have an obligation to retire the Farm Credit Equities of such Farm Credit  Lender upon any Event of Default, Default or any other default by the Borrower, or at any other  time, either for application to the obligations arising under the Loan Documents or otherwise.  ARTICLE VIII    NEGATIVE COVENANTS  So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation  hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (other than  contingent indemnity Obligations, Obligations in respect of Secured Treasury Management Agreements  and Letters of Credit that are Cash Collateralized), no Loan Party shall, nor shall it permit any Subsidiary  to, directly or indirectly:  8.01 Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues,  whether now owned or hereafter acquired, other than the following:  (a) Liens pursuant to any Loan Document;  (b) Liens existing on the Third Amendment Effective Date and listed on Schedule  8.01 and Liens securing any renewals, extensions or refinancing of the Indebtedness secured  thereby, provided that (i) the Liens are not extended to any other property, (ii) the principal  amount secured or benefited thereby is not increased (except to the extent of any reasonable  premiums paid and reasonable transaction costs incurred in connection with such renewal,  extension or refinancing), (iii) there are no direct or contingent obligors that were not obligors in  respect of the Indebtedness being renewed, extended or refinanced, and (iv) any renewal or  extension of the obligations secured or benefited thereby is permitted by Section 8.03(b);  





 






  91  CHAR1\1799470v5  (c) Liens (other than Liens imposed under ERISA) for taxes, assessments or  governmental charges or levies not yet due or which are being contested in good faith and by  appropriate proceedings diligently conducted, if adequate reserves with respect thereto are  maintained on the books of the applicable Person in accordance with GAAP;  (d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,  materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations  or retentions of title arising in the ordinary course of business, provided that such Liens secure  only amounts which are not yet overdue by more than 60 days or, if so overdue, are unfiled and  no other action has been taken to enforce the same or are being contested in good faith by  appropriate proceedings for which adequate reserves determined in accordance with GAAP have  been established;  (e) pledges or deposits in the ordinary course of business in connection with  workers’ compensation, unemployment insurance and other social security legislation, other than  any Lien imposed by ERISA;  (f) deposits to secure the performance of bids, tenders, trade contracts and leases  (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and  other obligations of a like nature incurred in the ordinary course of business;  (g) easements, rights-of-way, restrictions and other similar encumbrances affecting  real property which do not materially detract from the value of the property subject thereto or  materially interfere with the ordinary conduct of the business of the applicable Person;  (h) Liens securing judgments for the payment of money (or appeal or other surety  bonds relating to such judgments) not constituting an Event of Default under Section 9.01(h);  (i) Liens securing Indebtedness permitted under Section 8.03(e); provided that (i)  such Liens do not at any time encumber any property other than the property financed by such  Indebtedness and property affixed and appurtenant thereto, (ii) the Indebtedness secured thereby  does not exceed the cost (negotiated on an arm’s length basis) of the property secured by such  Lien and (iii) such Liens attach to such property concurrently with or within one hundred eighty  days after the acquisition, construction, repair, replacement or improvement thereof;  (j) leases, licenses, subleases and sublicenses granted to others not interfering in any  material respect with the business of any Loan Party or any of its Subsidiaries;  (k) any interest of title of a lessor under, and Liens arising from UCC financing  statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to,  leases permitted by this Agreement;  (l) normal and customary rights of setoff upon deposits of cash and bankers’ Liens  and other similar Liens in favor of banks or other depository institutions;  (m) Liens of a collection bank arising under Article IV of the Uniform Commercial  Code on items in the course of collection;  (n) Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under  Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the ordinary  





 






  92  CHAR1\1799470v5  course of business, covering only the goods sold and securing only the unpaid purchase price for  such goods and related expenses;   (o) Liens, if any, in favor of the Administrative Agent on Cash Collateral delivered  pursuant to Section 2.13(a) or otherwise to secure Letters of Credit issued under this Agreement;  (p) Liens granted in the ordinary course of business on the unearned portion of  insurance premiums securing the financing of insurance premiums to the extent the financing is  permitted under Section 8.03; and    (q) Liens on the assets of Foreign Subsidiaries securing Indebtedness permitted  pursuant to Section 8.03(g);    (r) [Reserved];    (s) Liens consisting of cash collateral in the aggregate amount not to exceed  $60,000,000 at any one time outstanding pledged to (i) an institution that is not a Treasury  Management Bank or a Swap Bank to secure obligations under Treasury Management  Agreements and Swap Contracts and (ii) an institution providing letters of credit to the Borrower  or any Subsidiary outside of this Agreement to secure obligations under such letters of credit  (inclusive of any such Liens consisting of cash collateral set forth on Schedule 8.01);     (t) Liens in favor of customs or revenue authorities arising as a matter of law to  secure payment of custom duties in connection with the importation of goods incurred in the  ordinary course of business;     (u) Liens on property or assets of a Person existing at the time (i) such Person is  merged with or into or consolidated with the Borrower or any of its Subsidiaries, or becomes a  Subsidiary or (ii) such property or assets are acquired by the Borrower or any of its Subsidiaries  (and, in each case, not created or incurred in anticipation of such transaction) pursuant to a  transaction not prohibited by this Agreement, provided that such Liens are not extended to the  property and assets of the Borrower or any Subsidiary other than the property or assets acquired,  including the liens securing;     (v) [reserved]; and    (w) other Liens securing Indebtedness permitted hereunder in an aggregate amount  outstanding not exceeding $100,000,000 at any time.    8.02 Investments.  Make any Investments, except:  (a) Investments held by the Borrower or such Subsidiary in the form of cash or Cash  Equivalents;  (b) Investments existing as of the Third Amendment Effective Date and set forth in  Schedule 8.02;  (c) Investments in any Person that is a Loan Party;  





 






  93  CHAR1\1799470v5  (d) Investments by any Subsidiary of the Borrower that is not a Loan Party in any  other Subsidiary of the Borrower that is not a Loan Party;  (e) Investments consisting of extensions of credit in the nature of accounts  receivable or notes receivable arising from the grant of trade credit in the ordinary course of  business, and Investments received in satisfaction or partial satisfaction thereof from financially  troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;  (f) Guarantees of Indebtedness permitted by Section 8.03;   (g) Permitted Acquisitions;  (h) Investments made by Persons who become Subsidiaries or are merged or  consolidated with Borrower or any of its Subsidiaries in connection with a Permitted Acquisition  so long as such Investments were not made in contemplation of or in connection with such  Permitted Acquisition and were in existence on the date of the Permitted Acquisition;  (i) Advances to an officer, director or employee for salary, travel expenses,  commissions and similar items in the ordinary course of business;  (j) prepaid expenses made in the ordinary course of business;   (k) deposits with financial institutions expressly permitted hereunder;  (l) Investments made pursuant to Section 7.15;  (m) Investments consisting of the non-cash portion of consideration received in  connection with transactions permitted pursuant to Section 8.05;  (n) [reserved]; and  (o) other Investments not constituting Acquisitions so long as (i) no Default or Event  of Default exists or would result therefrom and (ii) after giving effect to such Investment, and any  Indebtedness incurred in connection therewith, on a Pro Forma Basis, the Borrower and its  Subsidiaries would be in compliance with the financial covenants set forth in Section 8.11 as of  the most recent fiscal quarter end for which the Borrower was required to deliver financial  statements pursuant to Section 7.01(a) or (b).  8.03 Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness, except:  (a) Indebtedness under the Loan Documents;  (b) Indebtedness of the Borrower and its Subsidiaries set forth in Schedule 8.03 and  any renewal, extension or refinancing thereof; provided that (i) the principal amount of such  Indebtedness is not increased (except to the extent of any reasonable premiums paid and  reasonable transaction costs incurred in connection with such renewal, extension or refinancing)  and (ii) there are no direct or contingent obligors that were not obligors in respect of the  Indebtedness being renewed, extended or refinanced;  (c) intercompany Indebtedness permitted under Section 8.02;  





 






  94  CHAR1\1799470v5  (d) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing  or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into  by such Person in the ordinary course of business for the purpose of directly mitigating risks  associated with liabilities, commitments, investments, assets, or property held or reasonably  anticipated by such Person, or changes in the value of securities issued by such Person, and not  for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not  contain any provision exonerating the non-defaulting party from its obligation to make payments  on outstanding transactions to the defaulting party;   (e) purchase money Indebtedness (including obligations in respect of Capital Leases  or Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to finance the  acquisition, construction, repair, replacement or improvement of fixed assets, and renewals,  refinancings and extensions thereof, provided that (i) the total of all such Indebtedness for all  such Persons taken together (other than Indebtedness in respect of Capital Leases that were  operating leases in effect on the date hereof and have become Capital Leases as a result of  changes in GAAP) shall not exceed an aggregate principal amount of $100,000,000 at any one  time outstanding; (ii) such Indebtedness when incurred shall not exceed the cost of the asset(s)  financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of  the principal balance outstanding thereon at the time of such refinancing;   (f) Indebtedness incurred in the ordinary course of business in connection with the  financing of insurance premiums;  (g) Indebtedness incurred by one or more Foreign Subsidiaries, provided that (i) the  aggregate principal amount of such Indebtedness does not exceed the Dollar Equivalent of  $300,000,000 at any one time outstanding and (ii) such Indebtedness is guaranteed only by  Foreign Subsidiaries and is secured only by assets owned by Foreign Subsidiaries;   (h) [reserved];  (i) [reserved];   (j) (x) Indebtedness assumed in connection with any Permitted Acquisition;  provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition  and (y) any Permitted Refinancing thereof;   (k) Guarantees of Indebtedness of Entekra Holdings, LLC in an aggregate principal  amount not to exceed $25,000,000 at any one time outstanding; and  (l) other Indebtedness in an aggregate principal amount not to exceed  $1,000,000,000, so long as after giving effect to such Indebtedness, on a Pro Forma Basis, the  Borrower and its Subsidiaries would be in compliance with the financial covenants set forth in  Section 8.11 as of the most recent fiscal quarter end for which the Borrower was required to  deliver financial statements pursuant to Section 7.01(a) or (b).  8.04 Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or into another Person; provided that, notwithstanding  the foregoing provisions of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) the  Borrower may merge or consolidate with any of its Subsidiaries provided that the Borrower shall be the  continuing or surviving entity and any Subsidiary may merge or consolidate with the Borrower provided that  





 






  95  CHAR1\1799470v5  the Borrower shall be the continuing or surviving entity, (b) any Loan Party other than the Borrower may  merge or consolidate with any other Loan Party other than the Borrower, (c) any Subsidiary that is not a Loan  Party may be merged or consolidated with or into any Loan Party provided that such Loan Party shall be the  continuing or surviving corporation, (d) any Domestic Subsidiary that is not a Loan Party may merge or  consolidate with any other Domestic Subsidiary that is not a Loan Party, (e) any Foreign Subsidiary may be  merged or consolidated with or into any other Foreign Subsidiary, and (f) any Subsidiary may dissolve or  liquidate so long as (i) its assets are distributed to one or more Persons each of which it would be permitted to  merge or consolidate with pursuant to this Section 8.04 or (ii) it no longer conducts any active trade or  business and its assets are sold or disposed of and such sale or disposition is not prohibited by this  Agreement, including Section 8.05 hereof.  8.05 Dispositions.  Make any Disposition with a net book value greater than $15,000,000 unless (a) such Disposition  is of the engineered wood products division of the Business or (b) (i) at least 75% of the consideration  received in connection therewith shall be cash or Cash Equivalents received contemporaneous with  consummation of the transaction, (ii) the total consideration received in connection with such Disposition  shall be in an amount not less than the fair market value, as reasonably determined by Borrower, of the  property disposed of, (iii) such transaction does not involve the sale or other disposition of a minority  equity interest in any Subsidiary, (iv) no Default or Event of Default has occurred and is continuing both  immediately prior to and after giving effect to such Disposition, (v) such transaction does not involve a  sale or other disposition of receivables other than receivables owned by a Person or attributable to other  property concurrently being disposed of in a transaction otherwise permitted under this Section 8.05, and  (vi) the aggregate net book value of all of the assets sold or otherwise disposed of by the Borrower and its  Subsidiaries in all such Dispositions occurring during any fiscal year shall not exceed $150,000,000.  8.06 Restricted Payments.  Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation  (contingent or otherwise) to do so, except that:  (a) each Subsidiary that is a Loan Party may make Restricted Payments to the  Borrower or any other Loan Party, each Wholly Owned Subsidiary that is not a Loan Party may  make Restricted Payment to any other Wholly Owned Subsidiary, and any Subsidiary that is not a  Wholly Owned Subsidiary may make Restricted Payments to the holders of its Equity Interests to  the extent made to all such holders ratably according to their ownership interests in such Equity  Interests;   (b) the Borrower and each Subsidiary may declare and make dividend payments or  other distributions payable solely in the Equity Interests of such Person;   (c) the Borrower may repurchase Equity Interests if such repurchase is deemed to  occur upon exercise of stock options or warrants and such Equity Interests represent a portion of  the exercise price or applicable withholding taxes;  (d) the Borrower may make cash payments in lieu of fractional shares in connection  with the exercise of warrants, options or other securities convertible into or exchangeable for  Equity Interests;   





 






  96  CHAR1\1799470v5  (e) any share repurchase plan or program authorized by the Borrower’s board of  directors and publicly announced by the Borrower in filings with the Securities and Exchange  Commission; and  (f) the Borrower and each Subsidiary may declare and make additional Restricted  Payments, so long as (i) no Default or Event of Default exists or would result therefrom and (ii)  after giving effect to such Restricted Payment, and any Indebtedness incurred in connection  therewith, on a Pro Forma Basis, the Borrower and its Subsidiaries would be in compliance with  the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter end for which  the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b).  8.07 Change in Nature of Business.  Engage in any material line of business substantially, as mutually determined by the Borrower  and the Administrative Agent, different from those lines of business conducted by the Borrower and its  Subsidiaries on the Closing Date or any business reasonably related or incidental thereto.  8.08 Transactions with Affiliates and Insiders.  Enter into or permit to exist any transaction or series of transactions with any officer, director or  Affiliate of such Person other than (a) (i) transactions among two or more Loan Parties, (ii) transactions  among two or more of the Loan Parties and Domestic Subsidiaries or (iii) transactions among two or  more Foreign Subsidiaries, so long as, in each case, such transactions are not expressly prohibited by this  Agreement, (b) transactions expressly permitted by Section 8.02, Section 8.03, Section 8.04, Section 8.05  or Section 8.06, (c) customary and reasonable compensation, indemnitees, and reimbursement of  expenses of employees, officers and directors in the ordinary course of business, (d) employment,  incentive, benefit and severance arrangements for employees and officers in the ordinary course of  business, and (e) except as otherwise specifically limited in this Agreement, other transactions which are  entered into in the ordinary course of such Person’s business on terms and conditions not materially less  favorable to such Person as would be obtainable by it in a comparable arms-length transaction with a  Person other than an officer, director or Affiliate.  8.09 Burdensome Agreements.  Enter into, or permit to exist, any Contractual Obligation that (a) encumbers or restricts the ability  of any such Person to (i) pay dividends or make any other distributions to any Loan Party on its Equity  Interests or with respect to any other interest or participation in, or measured by, its profits, (ii) pay any  Indebtedness or other obligation owed to any Loan Party, (iii) make loans or advances to any Loan Party,  (iv) sell, lease or transfer any of its property to any Loan Party, (v) in the case of any Loan Party, pledge  its property pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or  extension thereof, or (vi) in the case of any Loan Party, act as a Loan Party pursuant to the Loan  Documents or any renewals, refinancings, exchanges, refundings or extension thereof, or (b) prohibits or  otherwise restricts the existence of any Lien upon any of its property in favor of the Administrative Agent  (for the benefit of the holders of the Obligations) required under the Loan Documents for the purpose of  securing the Obligations, whether now owned or hereafter acquired, or requiring the grant of any security  for any obligation if such property is given as security for the Obligations, except (in respect of any of the  matters referred to in clauses (a)(i)-(v) and (b) above) for (1) this Agreement and the other Loan  Documents, (2) any document or instrument governing Indebtedness incurred pursuant to Section 8.03(e),  provided that any such restriction contained therein relates only to the asset or assets constructed or  acquired in connection therewith, (3) 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  





 






  97  CHAR1\1799470v5  subject to such Permitted Lien, (4) customary restrictions and conditions contained in any agreement  relating to the sale of any property permitted under Section 8.05 pending the consummation of such sale,  (5) Contractual Obligations of Foreign Subsidiaries related to Indebtedness permitted pursuant to Section  8.03 so long as such restrictions and encumbrances apply only to Foreign Subsidiaries, (6) Contractual  Obligations existing on the date hereof or that are set forth in any agreement evidencing any amendment,  renewal, extension or refinancing of any such Contractual Obligation so long as the encumbrances and  restrictions governed by this Section 8.09 that are provided by the terms of such agreement, as so  amended, renewed, extended or refinanced, are not materially more restrictive, taken as a whole, than  those terms included in such agreement immediately prior to giving effect to such amendment, renewal,  extension or refinancing, (7) Contractual Obligations of the Borrower and Domestic Subsidiaries  evidencing or related to Indebtedness permitted by Section 8.03(l) so long as the encumbrances and  restrictions governed by this Section 8.09 that are provided by the terms of such Contractual Obligations  are not materially more restrictive, taken as a whole, than the terms included in the indenture governing  the Borrower’s 3.625% senior notes due 2029, (8) Contractual Obligations evidencing or related to  Indebtedness permitted by Section 8.03(j) so long as the encumbrances and restrictions only apply to the  Subsidiary or assets acquired, (9) customary provisions restricting subletting or assignment of any lease  governing a leasehold, (10) customary provisions in joint venture agreements and other similar  agreements applicable to joint ventures not prohibited hereby, in each case applicable solely to such joint  venture, and (11) Contractual Obligations incurred by a Person prior to the date on which such Person  became a Subsidiary or was merged or consolidated with the Borrower or a Subsidiary (and not in  contemplation thereof).    8.10 Use of Proceeds.  Use the proceeds of any Credit Extension, whether directly or indirectly, and whether  immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of  Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin  stock or to refund indebtedness originally incurred for such purpose.  8.11 Financial Covenants.  (a) Permit the Capitalization Ratio as of the end of any fiscal quarter of the  Borrower, beginning with the fiscal quarter ending March 31, 2020, to be greater than 57.5%.  (b) Permit the Consolidated Net Worth as of the end of any fiscal quarter of the  Borrower, beginning with the fiscal quarter ending March 31, 2020, to be less than $475,000,000  plus 70% of Net Income after December 31, 2019; provided, that there shall be no deduction for  any Net Loss.  8.12 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of  Entity.  (a) Amend, modify or change its Organization Documents in a manner materially  adverse to the Lenders.  (b) Change its fiscal year.  (c) In the case of any Loan Party, without providing ten (10) days prior written  notice to the Administrative Agent, change its name, state of formation or form of organization.  





 






  98  CHAR1\1799470v5  8.13 Sanctions.  Directly or indirectly, use the proceeds or any Loan, or lend, contribute or otherwise make  available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any  activities or business with any individual or entity, or in any Designated Jurisdiction that, at the time of  such funding, is the subject of any Sanctions, or in any other manner that will result in a violation by any  individual or entity (including any individual or entity participating in the transaction, whether as Lender,  Arranger, Administrative Agent, L/C Issuer or otherwise) of Sanctions.    8.14 Anti-Corruption Laws.  Directly or indirectly, use any the proceeds or any Loan for any purpose which would breach the  United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti- corruption legislation in other jurisdictions.     ARTICLE IX    EVENTS OF DEFAULT AND REMEDIES  9.01 Events of Default.  Any of the following shall constitute an Event of Default:  (a) Non-Payment.  The Borrower or any other Loan Party fails to pay (i) when and as  required to be paid herein, any amount of principal of any Loan or the reimbursement obligations in  respect of any L/C Obligation, (ii) within three Business Days after the same becomes due, any interest on  any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five Business Days after the  same becomes due, any other amount payable hereunder or under any other Loan Document; or  (b) Specific Covenants.  Any Loan Party fails to perform or observe any term,  covenant or agreement contained in (a) any of Section 7.03(a), 7.05(a), 7.10, 7.11, 7.12 or 7.14,  or Article VIII or (b) any of Section 7.01, 7.02, 7.03 (other than Section 7.03(a)) and such failure  continues for five or more Business Days,  (c) Other Defaults.  Any Loan Party fails to perform or observe any other covenant  or agreement (not specified in clause (a) or (b) above) contained in any Loan Document on its  part to be performed or observed and such failure continues for thirty days after the earlier of  receipt by such Loan Party of written notice thereof from Administrative Agent or Required  Lenders or after any Responsible Officer of the Borrower or any Loan Party obtains knowledge  thereof; or  (d) Representations and Warranties.  Any representation, warranty, certification or  statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party  herein, in any other Loan Document, or in any document delivered in connection herewith or  therewith shall be incorrect in any material respect when made or deemed made; or  (e) Cross-Default.  (i) Any Loan Party or any Subsidiary (A) fails to make any  payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,  or otherwise) in respect of any Indebtedness or Guarantee (other than any Indebtedness hereunder  and any Indebtedness under any Swap Contract) having an aggregate principal amount (including  





 






  99  CHAR1\1799470v5  undrawn committed or available amounts and including amounts owing to all creditors under any  combined or syndicated credit arrangement) of more than the Threshold Amount (and such  failure continues after any applicable grace or notice period specified in the agreement related  thereto), or (B) fails to observe or perform any other agreement or condition relating to any such  Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or  relating thereto, or any other event occurs, the effect of which default or other event is to cause,  or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such  Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or  beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or  to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise),  or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its  stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be  demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in  such Swap Contract) resulting from (A) any event of default under such Swap Contract as to  which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract)  or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower  or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination  Value owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold  Amount; or  (f) Insolvency Proceedings, Etc.  Any Loan Party or any Material Subsidiary (or any  two or more Subsidiaries that would be a Material Subsidiary if merged or consolidated with each  other)  institutes or consents to the institution of any proceeding under any Debtor Relief Law, or  makes an assignment for the benefit of creditors; or applies for or consents to the appointment of  any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for  all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator,  rehabilitator or similar officer is appointed without the application or consent of such Person and  the appointment continues undischarged or unstayed for sixty calendar days; or any proceeding  under any Debtor Relief Law relating to any such Person or to all or any material part of its  property is instituted without the consent of such Person and continues undismissed or unstayed  for sixty calendar days, or an order for relief is entered in any such proceeding; or  (g) Inability to Pay Debts; Attachment.  (i) Any Loan Party or any Material  Subsidiary (or any two or more Subsidiaries that would be a Material Subsidiary if merged or  consolidated with each other) becomes unable or admits in writing its inability or fails generally  to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or  similar process is issued or levied against all or any material part of the property of any such  Person and is not released, vacated or fully bonded within sixty days after its issue or levy; or  (h) Judgments.  There is entered against any Loan Party or any Subsidiary (i) one or  more final judgments or orders for the payment of money in an aggregate amount exceeding the  Threshold Amount (to the extent not covered by independent third-party insurance as to which  the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that  have, or could reasonably be expected to have, individually or in the aggregate, a Material  Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor  upon such judgment or order, or (B) there is a period of thirty consecutive days during which a  stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in  effect; or  (i) ERISA.  (i) An ERISA Event occurs with respect to a Pension Plan or  Multiemployer Plan which has resulted or could reasonably be expected to result in liability of  





 






  100  CHAR1\1799470v5  any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in  an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA  Affiliate fails to pay when due, after the expiration of any applicable grace period, any  installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a  Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or  (j) Invalidity of Loan Documents.  Any Loan Document, at any time after its  execution and delivery and for any reason other than as expressly permitted hereunder or  thereunder or satisfaction in full of all the Obligations (other than contingent indemnity  obligations and Obligations in respect of Secured Swap Agreements and Secured Treasury  Management Agreements), ceases to be in full force and effect; or any Loan Party or any other  Person contests in any manner the validity or enforceability of any Loan Document; or any Loan  Party denies that it has any or further liability or obligation under any Loan Document, or  purports to revoke, terminate or rescind any Loan Document; or  (k) Change of Control.  There occurs any Change of Control; or  (l) Impairment of Property.  Any loss, theft, damage or destruction, or taking or  forfeiture of any item or items of Collateral or other property of any Borrower occurs that is not  adequately covered by covered by insurance and could reasonably be expected to result in a  Material Adverse Effect, provided that any event or condition described in this clause (l) shall  cease to constitute an Event of Default upon the occurrence of a Collateral Release (if such event  occurs) and until the Collateral Reinstatement Date (if such event occurs).  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 Loan  Document to be immediately due and payable, without presentment, demand, protest or other  notice of any kind, all of which are hereby expressly waived by the Borrower;  (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount  equal to the Minimum Collateral Amount with respect thereto); and  (d) exercise on behalf of itself and the Lenders all rights and remedies available to it  and the Lenders under the Loan Documents;  provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with  respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to  make Loans 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.  





 






  101  CHAR1\1799470v5  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 reasonable fees, charges and disbursements of counsel to  the Administrative Agent and amounts payable under Article III) payable to the Administrative  Agent in its capacity as such;  Second, to payment of that portion of the 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 reasonable fees, charges and disbursements of counsel to the respective  Lenders and the L/C Issuer) arising under the Loan Documents and amounts payable under  Article III, ratably among them in proportion to the respective amounts described in this clause  Second payable to them;  Third, to payment of that portion of the 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 Secured Swap  Agreement, ratably among the Lenders, the Swap Banks 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 Secured Swap Agreement, (c)  payments of amounts due under any Secured Treasury Management Agreement and (d) Cash  Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of  Letters of Credit, ratably among the Lenders, Swap Banks, Treasury Management Banks and the  L/C Issuer in proportion to the respective amounts described in this clause Fourth held by them;  and  Last, the balance, if any, after all of the Obligations have been paid in full, to the  Borrower or as otherwise required by Law.  Subject to Sections 2.03(c) and 2.13, 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.  Excluded Swap Obligations with respect to any  Guarantor shall not be paid with amounts received from such Guarantor, but appropriate adjustments shall  be made with respect to payments from other Loan Parties to preserve the allocation to Obligations  otherwise set forth above in this Section.  Notwithstanding the foregoing, Obligations arising under Secured Treasury Management  Agreements and Secured Swap Agreements shall be excluded from the application described above if the  Administrative Agent has not received a Secured Party Designation Notice, together with such supporting  documentation as the Administrative Agent may request, from the applicable Treasury Management Bank  or Swap Bank, as the case may be.  Each Treasury Management Bank or Swap Bank not a party to this  





 






  102  CHAR1\1799470v5  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  10.01 Appointment and Authority.  (a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints American  AgCredit to act on its behalf as the Administrative Agent hereunder and under the other Loan  Documents and authorizes the Administrative Agent to take such actions on its behalf and to  exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,  together with such actions and powers as are incidental thereto.  The provisions of this Article are  solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the  Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such  provisions.  It is understood and agreed that the use of the term “agent” herein or in any other  Loan Documents (or any other similar term) with reference to the Administrative Agent is not  intended to connote any fiduciary or other implied (or express) obligations arising under agency  doctrine of any applicable Law.  Instead such term is used as a matter of market custom, and is  intended to create or reflect only an administrative relationship between contracting parties.  (b) The Administrative Agent shall also act as the “collateral agent” under the Loan  Documents, and each of the Lenders and the L/C Issuer hereby irrevocably appoints and  authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for  purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of  the Loan Parties to secure any of the Obligations, together with such powers and discretion as are  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 Collateral 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 Loan 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 Loan Party or any Subsidiary or other Affiliate thereof as if such Person were  not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.  





 






  103  CHAR1\1799470v5  10.03 Exculpatory Provisions.  The Administrative Agent shall not have any duties or obligations except those expressly set forth  herein and in the other Loan Documents, 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;  (b) shall not have any duty to take any discretionary action or exercise any  discretionary powers, except discretionary rights and powers expressly contemplated hereby or by  the other Loan Documents that the Administrative Agent is required to exercise as directed in  writing by the Required Lenders (or such other number or percentage of the Lenders as shall be  expressly provided for herein or in the other Loan Documents), provided, that the Administrative  Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,  may expose the Administrative Agent to liability or that is contrary to any Loan Document or  applicable law, including for the avoidance of doubt any action that may be in violation of the  automatic stay under any Debtor Relief Law or that may affect a forfeiture, modification or  termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and  (c) shall not, except as expressly set forth herein and in the other Loan Documents,  have any duty to disclose, and shall not be liable for the failure to disclose, any information  relating to any Loan 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 in writing 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 Agreement or any  other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or  thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the  covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any  Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan  Document or any other agreement, instrument or document or (v) the satisfaction of any condition set  forth in Article 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  





 






  104  CHAR1\1799470v5  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, extension,  renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender  or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such  Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from  such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.   The Administrative Agent may consult with legal counsel (who may be counsel for the Loan Parties),  independent accountants and other experts selected by it, and shall not be liable for any action taken or  not taken by it in accordance with the advice of any such counsel, accountants or experts.   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 Loan Document by or through any one or more sub-agents appointed by the  Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its  duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory  provisions of this Article shall apply to any such sub-agent and to the Related Parties of the  Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection  with the syndication of the credit facilities provided for herein as well as activities as Administrative  Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any sub- agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable  judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection  of such sub-agents.  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 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; provided  that so long as no Event of Default has occurred and is continuing, no such successor agent will  be appointed without the consent of the Borrower (not to be unreasonably withheld, conditioned  or delayed).  If no such successor shall have been 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 the  Administrative Agent and appoint a successor; provided that so long as no Event of Default has  occurred and is continuing, no such successor agent will be appointed without the consent of the  Borrower (not to be unreasonably withheld, conditioned or delayed).  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.  





 






  105  CHAR1\1799470v5  (c) With effect from the Resignation Effective Date or the Removal Effective Date  (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its  duties and obligations hereunder and under the other Loan Documents (except that in the case of  any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C  Issuer under any of the Loan Documents, the retiring or removed Administrative Agent shall  continue to hold such collateral security until such time as a successor Administrative Agent is  appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring  or removed Administrative Agent, all payments, communications and determinations provided to  be made by, to or through the Administrative Agent shall instead be made by or to each Lender  and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor  Administrative Agent as provided for above.  Upon the acceptance of a successor’s appointment  as Administrative Agent hereunder, such successor shall succeed to and become vested with all of  the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other  than as provided in Section 3.01(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 Loan  Documents (if not already discharged therefrom as provided above in this Section).  The fees  payable by the Borrower to a successor Administrative Agent shall be the same as those payable  to its predecessor unless otherwise agreed between the Borrower and such successor.  After the  retiring or removed Administrative Agent’s resignation or removal hereunder and under the other  Loan Documents, the provisions of this Article 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 Administrative Agent was acting as Administrative Agent.  Any resignation by or removal of American AgCredit as Administrative Agent pursuant to this  Section shall also constitute its resignation or removal as L/C Issuer.  If American AgCredit 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).  Upon the appointment  by the Borrower of a successor L/C Issuer 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 (b) the retiring L/C Issuer shall be discharged from  all of their respective duties and obligations hereunder or under the other Loan 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 American AgCredit  to effectively assume the obligations of American AgCredit 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 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 Agreement, any other Loan  Document or any related agreement or any document furnished hereunder or thereunder.  





 






  106  CHAR1\1799470v5  10.08 No Other Duties; Etc.  Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication  agents, documentation agents or co-agents shall have any powers, duties or responsibilities under this  Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the  Administrative Agent, a Lender or the L/C Issuer hereunder.  10.09 Administrative Agent May File Proofs of Claim.  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,  arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the  Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be  due and payable as herein expressed or by declaration or otherwise and irrespective of whether the  Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by  intervention in such proceeding or otherwise:  (a) to file and prove a claim for the whole amount of the principal and interest owing  and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than  obligations under Swap Contracts or Treasury Management Agreements to which the  Administrative Agent is not a party) 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), 2.08 and 11.04) allowed in such judicial  proceeding; and  (b) to collect and receive any monies or other property payable or deliverable on any  such claims and to distribute the same;  and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such  judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the  Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such  payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due  for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and  its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.08 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 to  authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.  10.10 Collateral and Guaranty Matters.  The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and  in its discretion,  (a) to release any Lien on any Collateral granted to or held by the Administrative  Agent under any Loan Document (i) upon termination of the Aggregate Commitments and  payment in full of all Obligations (other than contingent indemnity obligations, L/C Obligations  





 






  107  CHAR1\1799470v5  that are Cash Collateralized and Obligations in respect of Secured Treasury Management  Agreements) and the expiration or termination of all Letters of Credit, (ii) that is sold or otherwise  disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or  other disposition not prohibited hereunder or under any other Loan Document or any Involuntary  Disposition, (iii) as approved in accordance with Section 11.01 or (iv) pursuant to the procedures  set forth in Section 7.14(b);  (b) to subordinate any Lien on any property granted to or held by the Administrative  Agent under any Loan Document to the holder of any Lien on such property that is permitted by  Section 8.01(i); and  (c) to release any Guarantor from its obligations under the Guaranty if such Person  ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.  Upon request by the Administrative Agent at any time, the Required Lenders will confirm in  writing the Administrative Agent’s authority to release or subordinate its interest in particular  types or items of property, or to release any Guarantor from its obligations under the Guaranty,  pursuant to this Section 10.10.  The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into  any representation or warranty regarding the existence, value or collectability of the Collateral,  the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate  prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be  responsible or liable to the Lenders for any failure to monitor or maintain any portion of the  Collateral.  10.11 Treasury Management Banks and Swap Banks.  No Treasury Management Bank or Swap Bank that obtains the benefit of Section 9.03, the  Guaranty or any Collateral by virtue of the provisions hereof or any Collateral Document shall have any  right to notice of any action or to consent to, direct or object to any action hereunder or under any other  Loan Document or otherwise in respect of the Collateral (including the release or impairment of any  Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions  hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such  case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision  of this Article 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 Secured  Treasury Management Agreements and Secured Swap Agreements except to the extent expressly  provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of  such Obligations, together with such supporting documentation as the Administrative Agent may request,  from the applicable Treasury Management Bank or Swap Bank, as the case may be.  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 Secured Treasury Management Agreements and Secured  Swap Agreements in the case of a Maturity Date.  





 






  108  CHAR1\1799470v5  ARTICLE XI    MISCELLANEOUS  11.01 Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Loan Document, and  no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless  in writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the  consent of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and  each such waiver or consent shall be effective only in the specific instance and for the specific purpose for  which given; provided, further, 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 Agreement or any other Loan Document  for any payment of principal (excluding mandatory prepayments), interest, fees or other  amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of  the Commitments hereunder or under any other Loan 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 Loan Document without  the written consent of each Lender entitled to receive such payment of principal, interest,  fees or other amounts (it being understood that an amendment to the definition of  EBITDA/Interest Ratio or any components thereof shall not constitute a reduction of any  interest rate or fees hereunder); provided, however, that only the consent of the Required  Lenders shall be necessary to amend the definition of “Default Rate” or to waive any  obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;  (iv) change Section 2.12 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 affected thereby;  (v) 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;  (vi) except in connection with a Disposition permitted under Section 8.05 or  a Collateral Release pursuant to Section 7.14(b), release all or substantially all of the  Collateral without the written consent of each Lender directly affected thereby; or  





 






  109  CHAR1\1799470v5  (vii) release the Borrower from its Obligations or, except in connection with a  merger or consolidation permitted under Section 8.04 or a Disposition permitted under  Section 8.05, all or substantially all of the Guarantors from their obligations herein  without the written consent of each Lender directly affected thereby, except to the extent  the release of any Guarantor is permitted pursuant to Section 10.10 (in which case such  release may be made by the Administrative Agent acting alone);  (b) unless also signed by the L/C Issuer, no amendment, waiver or consent shall  affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating  to any Letter of Credit issued or to be issued by it; and  (c) unless also signed by the Administrative Agent, no amendment, waiver or  consent shall affect the rights or duties of the Administrative Agent under this Agreement or any  other Loan Document;  provided, however, that notwithstanding anything to the contrary herein, (i) the Fee  Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by  the parties thereto, (ii) 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 disproportionately  adversely relative to other affected Lenders shall require the consent of such Defaulting Lender,  (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan  that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the  Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein  and (iv) the Required Lenders shall determine whether or not to allow a Loan Party to use cash  collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be  binding on all of the Lenders.  (d) Notwithstanding the foregoing, this Agreement may be amended (or amended  and restated) with the written consent of the Required Lenders, the Administrative Agent, the  Borrower and the other Loan Parties (i) to add one or more additional credit facilities to this  Agreement, to permit the extensions of credit from time to time outstanding hereunder and the  accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and  the other Loan Documents with Loans and the accrued interest and fees in respect thereof and to  include appropriately the Lenders holding such credit facilities in any determination of the  Required Lenders and (ii) to change, modify or alter Section 2.11 or Section 9.03 or any other  provision hereof relating to the pro rata sharing of payments among the Lenders to the extent  necessary to effectuate any of the amendments (or amendments and restatements enumerated in  clause (e)).  (e) Notwithstanding anything to the contrary herein, if following the Closing Date, the  Administrative Agent and the Borrower shall have jointly identified an inconsistency, obvious error  or omission of a technical or immaterial nature, in each case, in any provision of the Loan  Documents, then the Administrative Agent and the Loan Parties shall be permitted to amend such  provision and such amendment shall become effective without any further action or consent of any  other party to any Loan Documents if the same is not objected to in writing by the Required Lenders  within ten (10) Business Days following receipt of notice thereof.  





 






  110  CHAR1\1799470v5  11.02 Notices and Other Communications; Facsimile Copies.  (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 facsimile as  follows, and all notices and other communications expressly permitted hereunder to be given by  telephone shall be made to the applicable telephone number, as follows:  (i) if to the Borrower or any other Loan Party, the Administrative Agent or  the L/C Issuer, to the address, facsimile 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, facsimile 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  material non-public information relating to the Borrower).  Notices and other communications sent by hand or overnight courier service, or mailed  by certified or registered mail, shall be deemed to have been given when received; notices and  other communications sent by facsimile shall be deemed to have been given when sent (except  that, if not given during normal business hours for the recipient, shall be deemed to have been  given at the opening of business on the next Business Day for the recipient).  Notices and other  communications delivered through electronic communications to the extent provided in 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, the L/C Issuer or the Borrower may each, in its  discretion, agree to accept notices and other communications to it hereunder by electronic  communications pursuant to procedures approved by it, provided that approval of such  procedures may be limited to particular notices or communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s receipt of  an acknowledgement from the intended recipient (such as by the “return receipt requested”  function, as available, return e-mail or other written acknowledgement), 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; provided that, for both clauses (i) and (ii), if such notice, email or other  communication is not sent during the normal business hours of the recipient, such notice, email or  communication shall be deemed to have been sent at the opening of business on the next business  day for the recipient.  





 






  111  CHAR1\1799470v5  (c) The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS  AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE  ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY  OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY  OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER  CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE  BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent  or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower,  any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses  of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan  Party’s or the Administrative Agent’s transmission of Borrower Materials through the Internet.  (d) Change of Address, Etc.  Each of the Borrower, the Administrative Agent and the  L/C Issuer may change its address, facsimile or telephone number for notices and other  communications hereunder by notice to the other parties hereto.  Each other Lender may change  its address, facsimile or telephone number for notices and other communications hereunder by  notice to the Borrower, the Administrative Agent and the L/C Issuer.  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, facsimile 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 individual at or on behalf of such Public Lender to at all times have selected the “Private  Side Information” or similar designation on the content declaration screen of the Platform in  order to enable such Public Lender or its delegate, in accordance with such Public Lender’s  compliance procedures and applicable Law, including United States Federal and state securities  Laws, to make reference to Borrower Materials that are not made available through the “Public  Side Information” portion of the Platform and that may contain material non-public information  with respect to the Borrower or its securities for purposes of United States Federal or state  securities laws.  (e) Reliance by Administrative Agent, L/C Issuer and Lenders.  The Administrative  Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including  telephonic or electronic Loan Notices and Letter of Credit Applications) purportedly given by or  on behalf of any Loan Party even if (i) such notices were not made in a manner specified herein,  were incomplete or were not preceded or followed by any other form of notice specified herein,  or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.   The Loan Parties shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the  Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the  reliance by such Person on each notice purportedly given by or on behalf of a Loan Party.  All  telephonic notices to and other telephonic communications with the Administrative Agent may be  recorded by the Administrative Agent, and each of the parties hereto hereby consents to such  recording.  11.03 No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by  any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan  Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,  





 






  112  CHAR1\1799470v5  power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other  right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and  provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies,  powers and privileges provided by law.  Notwithstanding anything to the contrary contained herein or in any other Loan Document, the  authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan  Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection  with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in  accordance with Section 10.01 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 Loan Documents, (b) the L/C Issuer from exercising the rights and remedies that inure to  its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents, (c) any  Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section  2.12), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf  during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and  provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and  under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to  the Administrative Agent pursuant to Section 10.01 and (ii) in addition to the matters set forth in clauses  (b), (c) and (d) of the preceding proviso and subject to Section 2.12, 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 Loan Parties shall pay (i) all reasonable out-of-pocket  expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,  charges and disbursements of counsel for the Administrative Agent), in connection with the  syndication of the credit facilities provided for herein, the preparation, negotiation, execution,  delivery and administration of this Agreement and the other Loan Documents or any  amendments, modifications or waivers of the provisions hereof or thereof (whether or not the  transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable 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 out-of- pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including  the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or  the L/C Issuer), in connection with the enforcement or protection of its rights (A) in connection  with this Agreement and the other Loan Documents, including its rights under this Section, or (B)  in connection with the Loans made or Letters of Credit issued hereunder, including all such out- of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such  Loans or Letters of Credit.  (b) Indemnification by the Loan Parties.  The Loan Parties shall indemnify the  Administrative Agent (and any sub-agent thereof), 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 fees, charges and disbursements of any counsel for any  Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person  (including the Borrower or any other Loan Party) other than the Indemnitee and its Related  Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this  





 






  113  CHAR1\1799470v5  Agreement, any other Loan Document or any agreement or instrument contemplated hereby or  thereby, the performance by the parties hereto of their respective obligations hereunder or  thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the  case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the  administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit  or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to  honor a demand for payment under a Letter of Credit if the documents presented in connection  with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual  or alleged presence or release of Hazardous Materials on or from any property owned or operated  by a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a  Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,  investigation or proceeding relating to any of the foregoing, whether based on contract, tort or  any other theory, whether brought by a third party or by the Borrower or any other Loan Party,  and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by  or arising, in whole or in part, out of the comparative, contributory or sole negligence of the  Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the  extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a  court of competent jurisdiction by final and nonappealable judgment to have resulted from the  gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by  any Borrower or any Loan Party against an Indemnitee for intentional breach of such  Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such  Loan Party has obtained a final and nonappealable judgment in its favor on such claim as  determined by a court of competent jurisdiction.  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 claim.  (c) Reimbursement by Lenders.  To the extent that the Loan Parties for any reason  fail to indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by  them to the Administrative Agent (or 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 (or any  such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s pro rata  share (determined as of the time that the applicable unreimbursed expense or indemnity payment  is sought based on each Lender’s share of the Credit Exposure at such time) of such unpaid  amount (including any such unpaid amount in respect of a claim asserted by such Lender), such  payment to be made severally among them based on such Lenders’ Applicable Percentages  (determined as of the time that the applicable unreimbursed expense or indemnity payment is  sought), provided, that, the unreimbursed expense or indemnified loss, claim, damage, liability or  related expense, as the case may be, was incurred by or asserted against the Administrative Agent  (or any such sub-agent), the L/C Issuer in its capacity as such, or against any Related Party of any  of the foregoing acting for the Administrative Agent (or any such sub-agent), the L/C Issuer in  connection with such capacity.  The obligations of the Lenders under this clause (c) are subject to  the provisions of Section 2.13(d).  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by  applicable law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges  that no other Person shall have, any claim against any other party hereto, on any theory of  liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual  damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan  Document or any agreement or instrument contemplated hereby, the transactions contemplated  hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee  referred to in clause (b) above shall be liable for any damages arising from the use by unintended  





 






  114  CHAR1\1799470v5  recipients of any information or other materials distributed by it through telecommunications,  electronic or other information transmission systems in connection with this Agreement or the  other Loan Documents or the transactions contemplated hereby or thereby, except for damages (i)  resulting from a breach of Section 11.07 or (ii) such damages as are determined by a court of  competent jurisdiction by final and nonappealable judgment to have resulted from the gross  negligence or willful misconduct of such Indemnitee, if the Borrower or such Loan Party has  obtained a final and nonappealable judgment in its favor on such claim as determined by a court  of competent jurisdiction.  (e) Payments.  All amounts due under this Section shall be payable not later than ten  Business Days after demand therefor.  (f) Survival.  The agreements in this Section and the indemnity provisions of Section  11.02(e) shall survive the resignation of the Administrative Agent and the L/C Issuer, 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 Loan 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  to be satisfied shall be revived and continued in full force and effect as if such payment had not been  made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to  the Administrative Agent upon demand its applicable share (without duplication) of any amount so  recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand  to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in  effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall  survive the payment in full of the Obligations and the termination of this Agreement.  11.06 Successors and Assigns.  (a) Successors and Assigns Generally.  The provisions of this Agreement and the  other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and  thereto and their respective successors and assigns permitted hereby, except 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, (ii) by way of  participation in accordance with the provisions of clause (d) of this Section or (iii) by way of  pledge or assignment of a security interest subject to the restrictions of clause (e) of this Section  (and any other attempted assignment or transfer by any party hereto shall be null and void).   Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person  (other than the parties hereto, their respective successors and assigns permitted hereby,  Participants to the extent provided in clause (d) of this Section and, to the extent expressly  contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and  the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.  





 






  115  CHAR1\1799470v5  (b) Assignments by Lenders.  Any Lender may at any time assign to one or more  assignees all or a portion of its rights and obligations under this Agreement and the other Loan  Documents (including all or a portion of its Commitment and the Loans (including for purposes  of this clause (b), participations in L/C Obligations) at the time owing to it); provided that any  such assignment shall be subject to the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount of  the assigning Lender’s Commitment and/or the Loans at the time owing to it or  contemporaneous assignments to related Approved Funds that equal at least the  amount specified in clause (b)(i)(B) of this Section in the aggregate or in the case  of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no  minimum amount need be assigned;   (B) in any case not described in clause (b)(i)(A) of this Section, the  aggregate amount of the Commitment (which for this purpose includes Loans  outstanding thereunder) or, if the Commitment is not then in effect, the principal  outstanding balance of the Loans of the assigning Lender subject to each such  assignment, determined as of the date the Assignment and Assumption with  respect to such assignment is delivered to the Administrative Agent or, if “Trade  Date” is specified in the Assignment and Assumption, as of the Trade Date, shall  not be less than $5,000,000 unless each of the Administrative Agent and, so long  as no Event of Default has occurred and is continuing, the Borrower otherwise  consents (each such consent not to be unreasonably withheld or delayed);  (ii) Proportionate Amounts.  Each partial assignment shall be made as an  assignment of a proportionate part of all the assigning Lender’s rights and obligations  under this Agreement with respect to the Loans or the Commitment assigned;  (iii) Required Consents.  No consent shall be required for any assignment  except to the extent required by clause (b)(i)(B) of this Section and, in addition:  (A) the consent of the Borrower (such consent not to be  unreasonably withheld or delayed) shall be required unless (1) an Event of  Default has occurred and is continuing at the time of such assignment or (2) such  assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;  provided, that, the Borrower shall be deemed to have consented to any such  assignment unless it shall object thereto by written notice to the Administrative  Agent within five (5) Business Days after having received notice thereof; and  provided further, that the Borrower’s consent shall not be required during the  primary syndication of the credit facility provided herein;  (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required for assignments in respect of  Commitment if such assignment is to a Person that is not a Lender, an Affiliate of  such Lender or an Approved Fund with respect to such Lender;  (C) the consent of the L/C Issuer shall be required for any  assignment in respect of the Commitment.  





 






  116  CHAR1\1799470v5  (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 is not a Lender, shall  deliver to the Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons.  No such assignment shall be made  (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any  Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender  hereunder, would constitute any of the foregoing Persons described in this clause (B) or  (C) to a natural Person.  (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 in accordance with its Applicable Percentage.  Notwithstanding the  foregoing, in the event that any assignment of rights and obligations of any Defaulting  Lender hereunder shall become effective under applicable Law without compliance with  the provisions of this paragraph, then the assignee of such interest shall be deemed to be a  Defaulting Lender for all purposes of this Agreement until such compliance occurs.  Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of  this Section, from and after the effective date specified in each Assignment and Assumption, the  assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned  by such Assignment and Assumption, have the rights and obligations of a Lender under this  Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by  such Assignment and Assumption, be released from its obligations under this Agreement (and, in  the case of an Assignment and Assumption covering all of the assigning Lender’s rights and  obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue  to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and  circumstances occurring prior to the effective date of such assignment; provided, that except to  the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting  Lender will constitute a waiver or release of any claim of any party hereunder arising from that  Lender’s having been a Defaulting Lender.  Upon request, the Borrower (at its expense) shall  execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of  rights or obligations under this Agreement that does not comply with this clause shall be treated  for purposes of this Agreement as a sale by such Lender of a participation in such rights and  obligations in accordance with clause (d) of this Section.  





 






  117  CHAR1\1799470v5  (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 shall treat each Person whose name is  recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of  this Agreement.  The Register shall be available for inspection by the Borrower and any Lender,  at any reasonable time and from time to time upon reasonable prior notice.  (d) Participations.  Any Lender may at any time, without the consent of, or notice to,  the Borrower or the Administrative Agent, sell participations to any Person (other than a natural  Person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)  (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this  Agreement (including all or a portion of its Commitment and/or the Loans (including such  Lender’s participations in L/C Obligations) owing to it); provided that (i) such Lender’s  obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely  responsible to the other parties hereto for the performance of such obligations and (iii) the  Borrower, the Administrative Agent, the 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 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 Agreement and to approve any  amendment, modification or waiver of any provision of this Agreement; provided that such  agreement or instrument may provide that such Lender will not, without the consent of the  Participant, agree to any amendment, waiver or other modification described in clauses (i)  through (vii) of Section 11.01(a) that affects such Participant.  The Borrower agrees that each  Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if  it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section  (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; 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 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 2.12 as though it were a Lender.   Each Lender that sells a participation shall, acting solely for this purpose as an agent of the  Borrower, maintain a register on which it enters the name and address of each Participant and the  principal amounts (and stated interest) of each Participant’s interest in the Loans or other  obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall  have any obligation to disclose all or any portion of the Participant Register (including the  





 






  118  CHAR1\1799470v5  identity of any Participant or any information relating to a Participant’s interest in any  commitments, loans, letters of credit or its other obligations under any Loan Document) to any  Person except to the extent that such disclosure is necessary to establish that such commitment,  loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the  United States Treasury Regulations.  The entries in the Participant Register shall be conclusive  absent manifest error, and such Lender shall treat each Person whose name is recorded in the  Participant Register as the owner of such participation for all purposes of this Agreement  notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent  (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant  Register.  (e) Voting Participants.  Notwithstanding anything in Section 11.06 to the contrary,  any bank that is a member of the Farm Credit System that (a) has purchased a participation or  sub-participation in the minimum amount of $5,000,000 on or after the Closing Date, (b) is, by  written notice to the Borrower and the Administrative Agent in substantially the form of Exhibit  H (“Voting Participant Notification”), designated by the selling Lender as being entitled to be  accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm  Credit System so designated being called a “Voting Participant”) and (c) receives the prior  written consent of the Borrower and the Administrative Agent to become a Voting Participant (to  the extent such consent would be required pursuant to Section 11.06(b) if such transfer were an  assignment rather than a sale of a participation or sub-participation), shall be entitled to vote (and  the voting rights of the selling Lender shall be correspondingly reduced), on a Dollar for Dollar  basis, as if such Voting Participant were a Lender, on any matter requiring or allowing a Lender  to provide or withhold its consent, or to otherwise vote on any proposed action.  To be effective,  each Voting Participant Notification shall, with respect to any Voting Participant, (i) state the full  name, as well as all contact information required of an assignee as set forth in Exhibit H hereto  and (ii) state the Dollar amount of the participation or sub-participation purchased.  The Borrower  and the Administrative Agent shall be entitled to conclusively rely on information contained in  notices delivered pursuant to this paragraph.  Notwithstanding the foregoing, each bank or other  lending institution that is a member of the Farm Credit System designated as a Voting Participant  in Schedule 11.06(e) hereto shall be a Voting Participant without delivery of a Voting Participant  Notification and without the prior written consent of the Borrower and the Administrative Agent.  (f) Certain Pledges.  Any Lender may at any time pledge or assign a security interest  in all or any portion of its rights under this Agreement (including under its Note, if any) to secure  obligations of such Lender, including any pledge or assignment to secure obligations to a Federal  Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of  its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party  hereto.  (g) Resignation as L/C Issuer after Assignment.  Notwithstanding anything to the  contrary contained herein, if at any time CoBank assigns all of its Commitment and Loans  pursuant to clause (b) above, CoBank may, upon thirty days’ notice to the Borrower and the  Lenders, resign as L/C Issuer.  In the event of any such resignation as L/C Issuer, the Borrower  shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder; provided,  however, that no failure by the Borrower to appoint any such successor shall affect the  resignation of CoBank as L/C Issuer, as the case may be.  If CoBank 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)).  Upon  





 






  119  CHAR1\1799470v5  the appointment of a successor L/C Issuer, (1) such successor shall succeed to and become vested  with all of the rights, powers, privileges and duties of the retiring L/C Issuer 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 CoBank to effectively  assume the obligations of CoBank with respect to such Letters of Credit.  11.07 Treatment of Certain Information; 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 Related Parties (it being understood that the Persons to whom such disclosure is made  will be informed of the confidential nature of such Information and instructed to keep such Information  confidential), (b) to the extent required or requested by any regulatory authority purporting to have  jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the  National Association of Insurance Commissioners), (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 remedies hereunder or under any other Loan Document or any action or  proceeding relating to this Agreement or any other Loan Document or the enforcement of rights  hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those  of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in,  any of its rights and obligations under this Agreement or (ii) any actual or prospective party (or its  Related Parties) to any swap, derivative or other transaction under which payments are to be made by  reference to a Loan Party and its obligations, this Agreement or payments hereunder, (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 or (y) becomes available  to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a  nonconfidential basis from a source other than the Borrower.  For purposes of this Section, “Information” means all information received from a Loan Party or  any Subsidiary relating to any Loan Party or any Subsidiary or any of their respective businesses, other  than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a  nonconfidential basis prior to disclosure by such Loan Party or any Subsidiary.  Any Person required to  maintain the confidentiality of Information as provided in this Section shall be considered to have  complied with its obligation to do so if such Person has exercised the same degree of care to maintain the  confidentiality of such Information as such Person would accord to its own confidential information.  Each of the Administrative Agent, the Lenders and the L/C Issuer (a) acknowledges that the  Information may include material non-public information concerning the Borrower or a Subsidiary, as the  case may be, (b) represents and warrants that it has developed compliance procedures regarding the use of  material non-public information and (c) agrees that it will handle such material non-public information in  accordance with applicable Law, including United States Federal and state securities Laws.  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, after obtaining  the prior written consent of the Administrative Agent, to the fullest extent permitted by applicable law, to  set off and apply any and all deposits (general or special, time or demand, provisional or final, in  





 






  120  CHAR1\1799470v5  whatever currency) at any time held and other obligations (in whatever currency) at any time owing by  such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or any  other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or  hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or  their respective Affiliates, irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have  made any demand under this Agreement or any other Loan Document and although such obligations of  the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch office or  Affiliate of such Lender or the L/C Issuer different from the branch office or Affiliate holding such  deposit or obligated on such indebtedness; provided, that, in the event that any Defaulting Lender shall  exercise any such right of setoff, (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 2.14 and,  pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed  held in trust for the benefit of the Administrative Agent, the L/C Issuer and the Lenders and (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 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 Loan Document, the interest paid or  agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest  permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall  receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the  principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining  whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds  the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any  payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary  prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal  parts the total amount of interest throughout the contemplated term of the Obligations hereunder.  11.10 Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different  counterparts), each of which shall constitute an original, but all of which when taken together shall  constitute a single contract.  This Agreement, the other Loan Documents, the Farm Credit Equity  Documents and any separate letter agreements with respect to fees payable to the Administrative Agent or  the L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and  supersede any and all previous agreements and understandings, oral or written, relating to the subject  matter hereof.  Except as provided in Section 5.01, this Agreement shall become effective when it shall  have been executed by the Administrative Agent and when the Administrative Agent shall have received  counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.   Delivery of an executed counterpart of a signature page of this 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 Agreement.  





 






  121  CHAR1\1799470v5  11.11 Survival of Representations and Warranties.  All representations and warranties made hereunder and in any other Loan Document or other  document delivered pursuant hereto or thereto or in connection herewith or therewith (other than the  Specified Representations following the Collateral Release, if such event occurs, and prior to the  Collateral Reinstatement Date, if such event occurs) 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, except, in the case of the Specified Representations, following  the Collateral Release, if such event occurs, and prior to the Collateral Reinstatement Date, if such event  occurs.  11.12 Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or  unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement  and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor  in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions  the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable  provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render  unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of this  Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to  Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the  Administrative Agent or the L/C Issuer, 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 the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any  Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense  and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and  delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents  required by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant  to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an  Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender  accepts such assignment), provided, that:  (a) the Borrower shall have paid to the Administrative Agent the assignment fee (if  any) specified in Section 11.06(b);  (b) such Lender shall have received payment of an amount equal to one hundred  percent (100%) of the outstanding principal of its Loans and L/C Advances, accrued interest  thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan  Documents (including any amounts under Section 3.05) from the assignee (to the extent of such  outstanding principal and accrued interest and fees) or the Borrower (in the case of all other  amounts);  





 






  122  CHAR1\1799470v5  (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  Loan Document, the applicable assignee 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 pursuant to this Section 11.13 shall  nevertheless be effective without the execution 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 AGREEMENT AND THE OTHER LOAN  DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION  (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT  OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH  THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK.  (b) SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH OTHER  LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL  NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR  DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN  TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE  L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING  TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS  RELATING HERETO OR THERETO, IN ANY OTHER FORUM OTHER THAN THE  COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF  THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW  YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE  PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE  JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF  ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND  DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE  PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR  PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER  JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER  PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN  





 






  123  CHAR1\1799470v5  DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY  LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR  PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN  THE COURTS OF ANY JURISDICTION.  (c) WAIVER OF VENUE.  THE BORROWER AND EACH OTHER LOAN  PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST  EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW  OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR  PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY  OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (B) OF THIS  SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO  THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN  INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR  PROCEEDING IN ANY SUCH COURT.  (d) SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY  PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY  APPLICABLE LAW.  11.15 Waiver of Right to Trial by Jury.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN  ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO  THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS  CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY  OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,  AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR  OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,  SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND  THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT  AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL  WAIVERS AND CERTIFICATIONS IN THIS SECTION.  11.16 Electronic Execution of Assignments and Certain Other Documents.  The words “execute,” “execution,” “signed,” “signature” and words of like import in any  Assignment and Assumption or in any amendment or other modification hereof (including waivers and  consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms  and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of  records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a  manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the  extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global  and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other  similar state laws based on the Uniform Electronic Transactions Act.  





 






  124  CHAR1\1799470v5  11.17 USA PATRIOT Act.  Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for  itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of  the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is  required to obtain, verify and record information that identifies the Borrower, which information includes  the name and address of the Borrower and other information that will allow such Lender or the  Administrative Agent, as applicable, to identify the Borrower in accordance with the Act. The Borrower  shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation  and other information that the Administrative Agent or such Lender requests in order to comply with its  ongoing obligations under applicable “know your customer” and anti-money laundering rules and  regulations, including the Act.  11.18 No Advisory or Fiduciary Relationship.  In connection with all aspects of each transaction contemplated hereby (including in connection  with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower  acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a)(i) the arranging and  other services regarding this Agreement provided by the Administrative Agent, each Arranger and the  Lenders are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one  hand, and the Administrative Agent, each Arranger and the Lenders on the other hand, (ii) the Borrower  has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed  appropriate, and (iii) the Borrower is capable of evaluating, and understands and accepts, the terms, risks  and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the  Administrative Agent, each Arranger and each Lender is and has been acting solely as a principal and,  except as expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as  an advisor, agent or fiduciary, for the Borrower or any of Affiliates or any other Person and (ii) neither  the Administrative Agent, an Arranger nor any Lender has any obligation to the Borrower or any of its  Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth  herein and in the other Loan Documents; and (c) the Administrative Agent, each Arranger 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 Borrower and its Affiliates, and neither the Administrative Agent, an  Arranger nor any Lender has any obligation to disclose any of such interests to the Borrower or its  Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and releases, any claims  that it may have against the Administrative Agent, each Arranger or any Lender with respect to any  breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction  contemplated hereby.  11.19 Judgment Currency.  If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due  hereunder or any other Loan Document in one currency into another currency, the rate of exchange used  shall be that at which in accordance with normal banking procedures the Administrative Agent or the L/C  Issuer could purchase the first currency with such other currency on the Business Day preceding that on  which final judgment is given.  The obligation of the Borrower in respect of any such sum due from it to  the Administrative Agent, the L/C Issuer or any Lender hereunder or under the other Loan Documents  shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which  such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement  Currency”), be discharged only to the extent that on the Business Day following receipt by the  Administrative Agent, the L/C Issuer or such Lender, as the case may be, of any sum adjudged to be so  due in the Judgment Currency, the Administrative Agent, the L/C Issuer or such Lender, as the case may  





 






  125  CHAR1\1799470v5  be, may in accordance with normal banking procedures purchase the Agreement Currency with the  Judgment Currency.  If the amount of the Agreement Currency so purchased is less than the sum  originally due to the Administrative Agent, the L/C Issuer or any Lender from the Borrower in the  Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such  judgment, to indemnify the Administrative Agent, the L/C Issuer or such Lender, as the case may be,  against such loss.  If the amount of the Agreement Currency so purchased is greater than the sum  originally due to the Administrative Agent, the L/C Issuer or any Lender in such currency, the  Administrative Agent, the L/C Issuer or such Lender, as the case may be, agrees to return the amount of  any excess to the Borrower (or to any other Person who may be entitled thereto under applicable Law).    11.20 Amendment and Restatement.   The parties hereto agree that, on the Closing Date, the following transactions shall be deemed to  occur automatically, without further action by any party hereto: (a) the Existing Credit Agreement shall  be deemed to be amended and restated in its entirety pursuant to this Agreement; (b) the Collateral  Documents and the Liens created thereunder in favor of American AgCredit, PCA, as administrative  agent for the benefit of the holders of the Obligations (as defined in the Existing Credit Agreement) shall  remain in full force and effect with respect to the Obligations (as defined in this Agreement) and are  hereby reaffirmed; and (c) all references in the other Loan Documents to the Existing Credit Agreement  shall be deemed to refer without further amendment to this Agreement.  The parties hereto further  acknowledge and agree that this Agreement constitutes an amendment to the Existing Credit Agreement  made under and in accordance with the terms of Section 11.01 of the Existing Credit Agreement.      [SIGNATURE PAGES INTENTIONALLY OMITTED]