bofathirdamend






Execution Version 1 162363368_5 THIRD AMENDMENT AND LIMITED WAIVER TO LOAN, GUARANTY AND SECURITYAGREEMENT THIS THIRD AMENDMENT AND LIMITED WAIVER TO LOAN, GUARANTY AND  SECURITY AGREEMENT (this “Amendment”), dated as of August 26, 2022 is by and among KEY  TRONIC CORPORATION, a Washington corporation (“Key Tronic”), CDR MANUFACTURING,  LLC, a Kentucky limited liability company (“CDR”), AYRSHIRE ELECTRONICS OF ARKANSAS  LLC, a Kentucky limited liability company  (“Ayrshire Arkansas”), and AYRSHIRE ELECTRONICS  OF MISSISSIPPI, LLC, a Kentucky limited liability company (“Ayrshire Mississippi”; and together with  Key Tronic, CDR, Ayrshire Arkansas, each, a “Borrower” and collectively, the “Borrowers”), K T  SERVICES, INC., a Washington corporation (“KT”), and KEY TRONIC CHINA LTD., a Washington  corporation (“KTC” together with KT, each, a “Guarantor” and collectively, the “Guarantors”; and together  with the Borrowers, each, an “Obligor” and collectively, the “Obligors”), the financial institutions party to  the Loan Agreement (as defined below) from time to time as lenders (collectively, the “Lenders”), and  BANK OF AMERICA, N.A., a national banking association, as agent for the Lenders (in such capacity,  the “Agent”). RECITALS WHEREAS, the Borrowers, Guarantors, Agent and the Lenders are parties to that certain Loan,  Guaranty and Security Agreement, dated as of August 14, 2020 (as amended, restated, amended and  restated, modified, or supplemented from time to time, including pursuant to this Amendment, the “Loan  Agreement”), pursuant to which the Agent and the Lenders provide Borrowers with certain financial  accommodations. WHEREAS, the Obligors have requested that Agent and Lenders agree to waive the Existing  Defaults (as defined below) and amend the Loan Agreement as set forth herein, which Agent and Lenders  are willing to do, but solely on the terms and conditions hereafter set forth. AGREEMENT NOW, THEREFORE, in consideration of any loan or advance or grant of credit heretofore or  hereafter made to or for the account of Borrowers by Agent and Lenders, and for other good and valuable  consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby  agree as follows: ARTICLE I DEFINITIONS; RECITALS Section 1.01 Defined Terms.  Capitalized terms used but not defined herein shall have the  respective meanings ascribed to such terms in the Loan Agreement. Section 1.02 Recitals.  The Recitals above are incorporated herein as though set forth in full  and Borrower stipulates to the accuracy of each of the Recitals. ARTICLE II AMENDMENTS TO LOAN AND SECURITY AGREEMENT Section 2.01 New Definition.  The following definition is added to Section 1.1 of the Loan  Agreement in alphabetical order as follows: 





 






2 162363368_5 Third Amendment Effective Date:  August 26, 2022. Section 2.02 Amended Definitions. The following definitions in Section 1.1 of the Loan  Agreement are hereby amended and restated in their entirety to read as follows:  Applicable Margin:  the margin set forth below, as determined by the average daily  Availability for the last Fiscal Quarter: Level Average Daily Availability Base Rate Loans LIBOR Loans I < $17,500,000 2.00% 3.00% II > $17,500,000 <  $35,000,000 1.75% 2.75% III > $35,000,000 1.50% 2.50% Margins shall be subject to increase or decrease by Agent on the first day of the  calendar month following each Fiscal Quarter end.  If Agent is unable to calculate  average daily Availability for a Fiscal Quarter due to Borrowers’ failure to deliver  any Borrowing Base Report when required hereunder, then, at the option of Agent  or Required Lenders, margins shall be determined as if Level I were applicable until  the first day of the calendar month following its receipt.  Notwithstanding the above,  all margins with respect to Loans which are FILO Loans shall be determined based  on the margins set forth in the appropriate level above plus 1.00%.   EBITDA:  determined on a consolidated basis for Borrowers and Subsidiaries, net  income calculated before (i) interest expense, (ii) provision for income taxes, (iii)  depreciation and amortization expense, (iv) gains or losses arising from the sale of  capital assets, (v) gains arising from the write-up of assets, (vi) non-cash gains or  losses arising from the write-down of assets, (vii) any extraordinary gains, and  (viii) any other items expressly approved by Agent in writing (in each case, to the  extent included in determining net income).  For the avoidance of doubt, Agent  has not approved any addbacks which require the approval of Agent prior to the  Third Amendment Effective Date. Investment Grade Accounts Formula Amount: 90% of the Value of Investment  Grade Eligible Accounts. Long-Dated Account Debtors: each of the following Account Debtors, so long as  such Account Debtor maintains a credit rating of at least BBB- or higher by S&P  or Baa3 or higher by Moody’s: (i) Honeywell International Inc. and its wholly  owned subsidiaries, (ii) Amphenol Corporation, (iii) Baker Hughes Company, (iv)  Trane Technologies PLC, (v) Nidec Corporation, and (vi) other Persons approved  by Agent in its Permitted Discretion. Section 2.03 Amended Definition of “Eligible Accounts”. Clause (a) of the definition of  “Eligible Accounts” in Section 1.1 of the Loan Agreement is hereby amended and restated in its entirety to  read as follows:  (a) (i) with respect to Eligible Long-Dated Accounts, it is unpaid  for more than 60  days after the original due date, or more than 120 days after the original invoice  





 






3 162363368_5 date, and (ii) with respect to all other Accounts, it is unpaid for more than 60 days  after the original due date, or more than 90 days after the original invoice date; Section 2.04 Amendment to Section 10.3.2 of the Loan Agreement.  Section 10.3.2 of the  Loan Agreement is hereby amended and restated in its entirety to read as follows:  10.3.2 [Reserved] Section 2.05 Agreement Regarding Interest Rate.  Notwithstanding any provision of any  Loan Document to the contrary, the parties agree that the terms set forth on Appendix A shall apply to the  credit facility contemplated by the Credit Agreement.  For the avoidance of doubt, to the extent provisions  in the Loan Agreement apply to Loans and other extensions of credit under the credit facility, and such  provisions are not specifically addressed by Appendix A, the Loan Agreement provisions shall continue to  apply. ARTICLE III REPRESENTATIONS AND WARRANTIES Section 3.01   Representations and Warranties.  To induce Agent and the Lenders to execute  this Amendment, each Obligor hereby represents and warrants to Agent and the Lenders as follows: (a) the execution, delivery and performance of this Amendment by the Obligors has  been duly authorized, and this Amendment constitutes the legal, valid and binding obligation of each  Obligor enforceable against such Obligor in accordance with its terms, except as the enforceability may be  limited by bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally  and to general principles of equity; (b) the execution, delivery and performance of this Amendment by each Obligor does  not require any consent or approval of any governmental agency or authority (other than any consent or  approval which has been obtained and is in full force and effect); (c) after giving effect to this Amendment, each of the representations and warranties  of each Obligor in the Loan Agreement and the other Loan Documents, are true and correct in all respects  (or, in the case of any representation and warranty qualified by materiality, Material Adverse Effect or any  similar concept, are true and correct in all respects) with the same effect as though made on and as of the  date hereof (except to the extent such representations and warranties expressly relate to a specific earlier  date, in which case such representations and warranties shall be true and correct in all respects (or, in the  case of any representation and warranty qualified by materiality, Material Adverse Effect or any similar  concept, are true and correct in all respects) as of such earlier date); and (d) after giving effect to this Amendment, no Event of Default or Default exists. ARTICLE IV EXISTING EVENTS OF DEFAULT/LIMITED WAIVER As of the Third Amendment Effective Date, certain Events of Default have occurred and  are continuing as a result of Borrowers’ failure to maintain a Cash Flow Leverage Ratio of no greater than  6.00:1.00 as required under Section 10.3.2 of the Loan Agreement, resulting in Events of Default under  Section 11.1(c) of the Loan Agreement (the “Existing Defaults”).  Subject to the satisfaction of the  conditions to effectiveness set forth in Article V below, the Agent and Lenders hereby waive the Existing  Defaults. The foregoing waiver is a one-time waiver and applies only to the specified circumstance and  





 






4 162363368_5 does not modify or otherwise affect the Borrowers’ obligations to comply with such provision of the Loan  Agreement or any other provision of the Loan Documents in any other instance.  For the avoidance of  doubt, Agent and Lenders waive only the Existing Defaults that have occurred as of the Third Amendment  Effective Date. The foregoing limited waiver shall not be deemed or otherwise construed to constitute a  waiver of any other provision or to prejudice any right, power or remedy which the Agent may now have  or may have in the future under or in connection with the Loan Agreement or any other Loan Document,  all of which rights, powers and remedies are hereby expressly reserved by the Agent. By virtue of the waiver  in the immediately preceding sentence, the Borrowers hereby affirm and agree that no other Event of  Default has occurred as a result of the Existing Defaults. The agreements and consents set forth in this  Article IV are limited to the extent specifically set forth above and no other terms, covenants or provisions  of the Loan Documents are intended to be affected hereby. For the avoidance of doubt, the effectiveness of  Article IV of this Amendment is subject to Article V of this Amendment. ARTICLE V CONDITIONS TO EFFECTIVENESS Section 5.01   Conditions Precedent to Effectiveness of Amendment. The obligation of the  Agent and Lenders to enter into this Amendment is subject to the following conditions precedents: (a) This Amendment shall have been duly executed and delivered to Agent by each of  the signatories thereto, and each Obligor shall be in compliance with all terms thereof. (b) Agent shall have received, all in form and substance satisfactory to Agent in its  discretion, such other agreements, instruments, documents, certificates and opinions as Agent may  reasonably request. ARTICLE VI ADDITIONAL COVENANTS AND MISCELLANEOUS Section 6.01   Acknowledgment by Obligors.  Each Obligor hereby represents and warrants that  the execution and delivery of this Amendment and compliance by each Obligor with all of the provisions  of this Amendment: (a) are within the powers and purposes of each Obligor; (b) have been duly authorized  or approved by the board of directors or managers of each Obligor; and (c) when executed and delivered  by or on behalf of each Obligor, will constitute valid and binding obligations of each Obligor, enforceable  in accordance with their terms.  Each Obligor reaffirms its obligation to pay all amounts due to Agent and  Lenders under the Loan Documents in accordance with the terms thereof, as modified hereby. Section 6.02    Release. (a) In consideration of the agreements of Agent and the Lenders contained herein and for other  good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each  Obligor, on behalf of itself and its successors, assigns, and other legal representatives (collectively, the  “Releasors” and each, a “Releasee”), hereby absolutely, unconditionally and irrevocably releases, remises  and forever discharges Agent and each Lender, and their successors and assigns, and their respective present  and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys,  employees, agents and other representatives (collectively, Agent, each Lender, and all such other Persons,  the “Releasees”, and each, a “Releasee”), of and from all demands, actions, causes of action, suits, damages  and any and all other claims, counterclaims, and rights of set off whatsoever (individually, a “Claim” and  collectively, “Claims”) of every name and nature, known or that reasonably should be known, suspected or  that reasonably should be suspected, both at law and in equity (and all defenses that may arise out of the  foregoing), which such Obligor or any of its successors, assigns, or other legal representatives may now or  





 






5 162363368_5 hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of  any circumstance, action, cause or thing whatsoever which has arisen at any time on or prior to the date of  this Amendment for or on account of, or relating to the Loan Agreement or any of the other Loan Documents  or transactions thereunder. (b) Each Obligor understands, acknowledges and agrees that the release set forth above may  be pleaded as a full and complete defense in respect of the matter covered thereby and may be used as a  basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or  attempted in breach of the provisions of such release. (c) Each Obligor agrees that no fact, event, circumstance, evidence or transaction which could  now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and  unconditional nature of the release set forth above. (d) Each Obligor, on behalf of itself and each Releasor, hereby absolutely, unconditionally,  and irrevocably, covenants and agrees with and in favor of each Releasee that it will not sue (at law, in  equity, in any regulatory proceeding, or otherwise) any Releasee on the basis of any Claim released,  remised, and discharged by such Obligor pursuant to this Section 5.02. Each Borrower, for itself and each  other Releasor, agrees and acknowledges that all applicable attorneys’ fees and costs incurred by any  Releasee as a result of any violation of the foregoing covenant shall constitute Extraordinary Expenses  under the Loan Agreement. Section 6.03    Effect of Amendment. The parties hereto agree and acknowledge that: (i) nothing  contained in this Amendment in any manner or respect limits or terminates any of the provisions of the  Loan Agreement or any of the other Loan Documents other than as expressly set forth herein and further  agree and acknowledge that the Loan Agreement (as modified hereby) and each of the other Loan  Documents remain and continue in full force and effect and are hereby ratified and confirmed; (ii) nothing  contained in this Amendment in any manner or respect requires Agent or any Lender to refund, disgorge or  otherwise return any cash payments of principal, interest, fees or other amounts made by any Obligor prior  to the date hereof and (iii) other than as expressly set forth herein, the obligations under the Loan Agreement  and the guarantees, pledges and grants of security interests created under or pursuant to the Loan Agreement  and the other Loan Documents continue in full force and effect in accordance with their respective terms  and the Collateral secures and shall continue to secure the Obligors’ obligations under the Loan Agreement  as amended by this Amendment and any other obligations and liabilities provided for under the Loan  Documents. Except to the extent expressly set forth herein, the execution, delivery and effectiveness of this  Amendment shall not operate as a consent or waiver of any rights, power or remedy of the Lenders or Agent  under the Loan Agreement or any other Loan Document, nor constitute a consent or waiver of any provision  of the Loan Agreement or any other Loan Document. No delay on the part of any Lender or Agent in  exercising any of their respective rights, remedies, powers and privileges under the Loan Agreement or any  of the Loan Documents or partial or single exercise thereof, shall constitute a consent to or waiver thereof.  None of the terms and conditions of this Amendment may be changed, consented to, waived, modified or  varied in any manner, whatsoever, except in accordance with Section 14.1 of the Loan Agreement. Upon  the effectiveness hereof, each reference in the Loan Agreement to “this Agreement,” “hereunder,” “hereof,”  “herein” or words of like import shall mean and be a reference to the Loan Agreement as amended hereby. Section 6.04    Counterparts. This Amendment may be executed in any number of counterparts  and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an  original, but all such counterparts shall together constitute but one and the same instrument. Delivery of the  executed counterpart of this Amendment by telecopy or electronic mail (including electronically in “.pdf”  format) shall be as effective as delivery of a manually executed counterpart to this Amendment. 





 






6 162363368_5 Section 6.05    Severability. The illegality or unenforceability of any provision of this Amendment  or any instrument or agreement required hereunder shall not in any way affect or impair the legality or  enforceability of the remaining provisions of this Amendment or any instrument or agreement required  hereunder. Section 6.06    Captions. Section captions used in this Amendment are for convenience only, and  shall not affect the construction of this Amendment. Section 6.07 Entire Agreement. This Amendment embodies the entire agreement and  understanding among the parties hereto and supersedes all prior or contemporaneous agreements and  understandings of such Persons, verbal or written, relating to the subject matter hereof. Section 6.08    References. Any reference to the Loan Agreement contained in any notice, request,  certificate, or other document executed concurrently with or after the execution and delivery of this  Amendment shall be deemed to include this Amendment unless the context shall otherwise require.  Reference in any of this Amendment, the Loan Agreement or any other Loan Document to the Loan  Agreement shall be a reference to the Loan Agreement as amended hereby and as may be further amended,  modified, restated, supplemented or extended from time to time. Section 6.09 Governing Law. THIS AMENDMENT AND ALL CLAIMS SHALL BE  GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO  ANY CONFLICT OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF LAWS  OF ANOTHER JURISDICTION. Section 6.10    Electronic Signatures.  This Amendment may be in the form of an Electronic  Record and may be executed using Electronic Signatures (including, without limitation, facsimile and .pdf)  and shall be considered an original, and shall have the same legal effect, validity and enforceability as a  paper record. This Amendment may be executed in as many counterparts as necessary or convenient,  including both paper and electronic counterparts, but all such counterparts are one and the same  Amendment.   For the avoidance of doubt, the authorization under this paragraph may include, without  limitation, use or acceptance by the Agent of a manually signed paper Communication which has been  converted into electronic form (such as scanned into PDF format), or an electronically signed  Communication converted into another format, for transmission, delivery and/or retention.  “Electronic  Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC  §7006, as it may be amended from time to time.  [Signature Pages Follow] 





 






 





 






 





 






 





 






162363368_5 APPENDIX A Terms Applicable to Term SOFR Loans 1. Defined Terms.  The following definitions are added to the Credit Agreement and, to the  extent the terms are already defined in the Credit Agreement, the following supersede such existing terms:  Base Rate: for any day, a per annum rate equal to the greater of (a) the Prime Rate for such  day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) Term SOFR for a one month  interest period as of such day, plus 1.00%; provided, that in no event shall the Base Rate be less  than 0%. CME: CME Group Benchmark Administration Limited. Conforming Changes: with respect to use, administration of or conventions associated with  SOFR, Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the  definitions of Base Rate, SOFR, Term SOFR and Interest Period, timing and frequency of  determining rates and making payments of interest and other technical, administrative or  operational matters (including, for the avoidance of doubt, the definitions of Business Day or U.S.  Government Securities Business Day, timing of borrowing requests or prepayment, conversion or  continuation notices, and length of lookback periods) as may be appropriate, in Agent's discretion,  to reflect the adoption and implementation of such applicable rate(s), and to permit the  administration thereof by Agent in a manner substantially consistent with market practice (or, if  Agent determines that adoption of any portion of such market practice is not administratively  feasible or that no market practice for the administration of such rate exists, in such other manner  of administration as Agent determines is reasonably necessary in connection with the  administration of any Loan Document). Daily Simple SOFR: with respect to any applicable determination date, the secured  overnight financing rate published on the FRBNY website (or any successor source satisfactory to  Agent). FRBNY: the Federal Reserve Bank of New York. Notice of Borrowing: notice by Borrower Agent of a Borrowing, in form satisfactory to  Agent. Notice of Conversion/Continuation: notice by Borrower Agent for conversion or  continuation of a Loan as a Term SOFR Loan, in form satisfactory to Agent. Relevant Governmental Body: the Federal Reserve Board and/or FRBNY, or a committee  officially endorsed or convened by the Federal Reserve Board and/or FRBNY. Scheduled Unavailability Date: as defined in Section (g) below. SOFR: the secured overnight financing rate as administered by FRBNY (or a successor  administrator). SOFR Adjustment: (a) with respect to Daily Simple SOFR, 0.11448%; and (b) with respect  to Term SOFR, 0.11448% for a one month Interest Period, 0.26161% for a three month Interest  Period and 0.42826% for a six month Interest Period. 





 






162363368_5 Successor Rate: as defined in Section (g) below. Term SOFR: (a) for any Interest Period relating to a Loan (other than a Base Rate Loan),  a per annum rate equal to the Term SOFR Screen Rate two U.S. Government Securities Business  Days prior to such Interest Period, with a term equivalent to such Interest Period (or if such rate is  not published prior to 11:00 a.m. on the determination date, the applicable Term SOFR Screen Rate  on the U.S. Government Securities Business Day immediately prior thereto), plus the SOFR  Adjustment for such Interest Period; and (b) for any interest calculation relating to a Base Rate  Loan on any day, a fluctuating rate of interest equal to the Term SOFR Screen Rate with a term of  one month commencing that day; provided, that in no event shall Term SOFR be less than 0%. Term SOFR Loan: a Loan that bears interest based on clause (a) of the definition of Term  SOFR. Term SOFR Screen Rate: the forward-looking SOFR term rate administered by CME (or  any successor administrator satisfactory to Agent) and published on the applicable Reuters screen  page (or such other commercially available source providing such quotations as may be designated  by Agent from time to time). U.S. Government Securities Business Day: any Business Day, except any day on which  the Securities Industry and Financial Markets Association, New York Stock Exchange or FRBNY  is not open for business because the day is a legal holiday under New York law or U.S. federal law. 2. Terms Applicable to Term SOFR Loans.  Commencing on the Third Amendment Effective  Date, the following provisions shall apply to the Credit Agreement and other Loan Documents: (a) Unavailability of LIBOR Loans.  Any request for a new LIBOR Loan shall be  deemed to be a request for a new Loan bearing interest at Term SOFR; provided, that any LIBOR  Loan outstanding on the Third Amendment Effective Date shall continue to bear interest at LIBOR  until the end of its current Interest Period. (b) References to LIBOR Loans, Etc. in the Loan Documents.   (i) References to LIBOR Loans, LIBOR, any eurocurrency loans or rate, or  the administration or terms thereof, or other matters relating thereto in the Loan Documents  that are not specifically addressed herein shall be deemed to be references to Term SOFR  Loans and Term SOFR, as applicable.  In addition, general references to Loans and interest  rates, their administration or terms, and related matters shall be deemed to include Term  SOFR Loans and Term SOFR, as applicable. (ii) Any requirement for Borrowers to compensate Lenders for losses in the  Credit Agreement resulting from any continuation, conversion, payment or prepayment of  any Loan on a day other than the last day of any Interest Period shall be deemed to include  Term SOFR Loans. (c)  Interest Rates.  Agent does not warrant or accept responsibility, nor shall it have  any liability with respect to, administration, submission or any other matter related to any reference  rate referred to herein or in the Credit Agreement, nor with respect to any rate (including, for the  avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an  alternative, replacement or successor to such rate (including any Successor Rate), or any component  thereof, or the effect of any of the foregoing, or of any Conforming Changes.  The Agent and its  





 






162363368_5 affiliates or other related entities may engage in transactions or other activities that affect any  reference rate referred to herein, or any alternative, successor or replacement rate (including,  without limitation, any Successor Rate) (or any component of any of the foregoing) or any related  spread or other adjustments thereto, in each case, in a manner adverse to the Obligors. Agent may select information source(s) in its discretion to ascertain any reference rate referred to herein or any  alternative, successor or replacement rate (including any Successor Rate), or any component  thereof, in each case pursuant to the terms hereof, and shall have no liability to any Lender, Obligor  or other Person for damages of any kind, including direct or indirect, special, punitive, incidental  or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise, and  whether at law or in equity) for any error or other act or omission related to or affecting the  selection, determination or calculation of any rate (or component thereof) provided by such  information source or service. (d) Borrowings, Conversions, Continuations and Prepayments of Term SOFR  Loans.  In addition to any other borrowing or prepayment requirements set forth in the Credit  Agreement: (i) Notice of Borrowing of Term SOFR Loans. For any Borrowing,  conversion or continuation of a Term SOFR Loan, Borrower Agent shall deliver a Notice  of Borrowing or Notice of Conversion/Continuation, as applicable, to Agent by 11:00 a.m.  at least two Business Days prior to the requested funding date.  Notices received by Agent  after such time shall be deemed received on the next Business Day.  Each such notice shall  be irrevocable and must specify (A) the amount, (B) the requested funding date (which  must be a Business Day), (C) whether such Borrowing, conversion or continuation is to be  made as a Term SOFR Loan, and (D) the applicable Interest Period (which shall be deemed  to be one month if not specified). (ii) Interest Periods.  Borrowers shall select an interest period ("Interest  Period") of one, three or six months (in each case, subject to availability) to apply to each  Term SOFR Loan; provided, that (a) the Interest Period shall begin on the date the Loan is  made or continued as, or converted into, a Term SOFR Loan and shall expire one, three or  six months thereafter, as applicable; (b) if any Interest Period begins on the last day of a  calendar month or on a day for which there is no numerically corresponding day in the  calendar month at its end, or if such corresponding day falls after the last Business Day of  the end month, then the Interest Period shall expire on the end month's last Business Day;  and if any Interest Period would otherwise expire on a day that is not a Business Day, the  period shall expire on the next Business Day; and (c) no Interest Period shall extend beyond  the maturity date of the credit facility. (iii) Voluntary Prepayment of Term SOFR Loans.  Term SOFR Loans may be  prepaid from time to time, without penalty or premium, pursuant to a notice of prepayment  to Agent, delivered at least three Business Days prior to prepayment of the Loan; provided,  that no such notice shall be required for payments effected through sweeps from the  Dominion Account. (iv) Conforming Changes.  Agent may make Conforming Changes from time  to time with respect to SOFR, Term SOFR or any Successor Rate.  Notwithstanding  anything to the contrary in any Loan Document, any amendment implementing such  changes shall be effective without further action or consent of any other party to any Loan  Document.  Agent shall post each amendment to Borrower Agent and Lenders promptly  after it becomes effective.  





 






162363368_5 (v) Deemed Term SOFR Loans.  Notwithstanding the above, unless otherwise  requested in a Notice of Borrowing or Notice of Conversion/Continuation, any request for  a Borrowing shall be a request to fund a Term SOFR Loan with an Interest Period of one  month and the termination of any Interest Period shall be deemed a request by Borrower  of the continuation of such Borrowing as a Term SOFR Loan with an Interest period of  one month. (e) Interest.  Subject to the provisions of the Credit Agreement with respect to default  interest, each Term SOFR Loan shall bear interest at Term SOFR for the applicable Interest Period,  plus the Applicable Margin.  Interest on each Term SOFR Loan shall be due and payable in arrears  on each Interest Payment Date and at such other times and in such manner as specified in the Credit  Agreement. (f) Computations.  Computations of interest for Base Rate Loans (including Base Rate  Loans determined by reference to Term SOFR) shall be computed for actual days elapsed, based  on a year of 365 or 366 days, as applicable.  All other interest, as well as fees and other charges  calculated on a per annum basis, shall be computed for actual days elapsed, based on a year of 360  days.  Each determination by Agent of an interest rate or fee shall be conclusive and binding for all  purposes, absent manifest error. (g) Inability to Determine Rates; Successor Rates.   (i) Inability to Determine Rate.  If in connection with any request for a Term  SOFR Loan or a conversion to or continuation thereof, as applicable, (A) Agent determines  (which determination shall be conclusive absent manifest error) that (I) no Successor Rate  has been determined in accordance with Section 2(g)(ii), and the circumstances under  Section 2(g)(ii)(A) or the Scheduled Unavailability Date has occurred (as applicable), or  (II) adequate and reasonable means do not otherwise exist for determining Term SOFR for  any requested Interest Period with respect to a proposed Term SOFR Loan or in connection  with an existing or proposed Base Rate Loan, or (B) Agent or Required Lenders determine that for any reason Term SOFR for any requested Interest Period with respect to a proposed  Term SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding  such Loan, Agent will promptly so notify Borrowers and Lenders.  Thereafter, (1) the  obligation of Lenders to make, maintain or convert Base Rate Loans to Term SOFR Loans  shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods),  and (2) in the event of a determination described in the preceding sentence with respect to  the Term SOFR component of Base Rate, the utilization of such component in determining  Base Rate shall be suspended, in each case until Agent (or, in the case of a determination  by Required Lenders described above, until Agent upon instruction of Required Lenders)  revokes such notice.  Upon receipt of such notice, (x) Borrowers may revoke any pending  request for a Borrowing, conversion or continuation of Term SOFR Loans (to the extent of  the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemed to have  converted such request into a request for Base Rate Loans, and (y) any outstanding Term  SOFR Loans shall convert to Base Rate Loans at the end of their respective Interest Periods. (ii) Successor Rates.  Notwithstanding anything to the contrary in any Loan  Document, if Agent determines (which determination shall be conclusive absent manifest  error), or Borrower Agent or Required Lenders notify Agent (with, in the case of the  Required Lenders, a copy to Borrower Agent) that Borrowers or Required Lenders (as  applicable) have determined, that: 





 






162363368_5 (A) adequate and reasonable means do not exist for ascertaining one, three and  six month interest periods of Term SOFR, including because the Term SOFR  Screen Rate is not available or published on a current basis, and such  circumstances are unlikely to be temporary; or  (B) CME or any successor administrator of the Term SOFR Screen Rate or a  Governmental Authority having jurisdiction over Agent, CME or such  administrator with respect to its publication of Term SOFR, in each case acting in  such capacity, has made a public statement identifying a specific date after which  one, three and six month interest periods of Term SOFR or the Term SOFR Screen  Rate shall or will no longer be made available, or permitted to be used for  determining the interest rate of U.S. dollar denominated syndicated loans, or shall  or will otherwise cease, provided, that at the time of such statement, there is no  successor administrator satisfactory to Agent that will continue to provide such  interest periods of Term SOFR after such specific date (the latest date on which  one, three and six month interest periods of Term SOFR or the Term SOFR Screen  Rate are no longer available permanently or indefinitely, "Scheduled  Unavailability Date"); then, on a date and time determined by Agent (any such date, "Term SOFR Replacement  Date"), which date shall be at the end of an Interest Period or on the relevant interest  payment date, as applicable, for interest calculated and, solely with respect to clause (b)  above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced  hereunder and under any other applicable Loan Document with Daily Simple SOFR plus  the SOFR Adjustment for any payment period for interest calculated that can be determined  by Agent, in each case, without any amendment to, or further action or consent of any other  party to any Loan Document ("Successor Rate").  If the Successor Rate is Daily Simple  SOFR plus the SOFR Adjustment, all interest will be payable on a monthly basis. Notwithstanding anything to the contrary herein, (1) if Agent determines that  neither of the alternatives in clauses (I) and (II) above is available on or prior to the Term  SOFR Replacement Date or (2) if the events or circumstances of the type described in  Section (g)(ii)(A) or (B) above have occurred with respect to the Successor Rate then in  effect, then in each case, Agent and Borrower Agent may amend the Credit Agreement  solely for the purpose of replacing Term SOFR or any then current Successor Rate in  accordance with this Section at the end of any Interest Period, relevant interest payment  date or payment period for interest calculated, as applicable, with an alternative benchmark  rate giving due consideration to any evolving or then existing convention for similar U.S.  dollar denominated syndicated credit facilities for such alternative benchmarks and, in each  case, including any mathematical or other adjustments to such benchmark giving due  consideration to any evolving or then existing convention for similar U.S. dollar  denominated syndicated credit facilities for such benchmarks, which adjustment or method  for calculating such adjustment shall be published on an information service selected by  Agent from time to time in its discretion and may be periodically updated. For the  avoidance of doubt, any such proposed rate and adjustments shall constitute a Successor  Rate. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day  after Agent posts such proposed amendment to all Lenders and Borrowers unless, prior to  such time, Required Lenders deliver to Agent written notice that Required Lenders object  to the amendment. 





 






162363368_5 Agent will promptly (in one or more notices) notify Borrowers and Lenders of  implementation of any Successor Rate.  A Successor Rate shall be applied in a manner  consistent with market practice; provided, that to the extent market practice is not  administratively feasible for Agent, the Successor Rate shall be applied in a manner as  otherwise reasonably determined by Agent.  Notwithstanding anything else herein, if at  any time any Successor Rate as so determined would otherwise be less than 0%, the  Successor Rate will be deemed to be 0% for all purposes of the Loan Documents.