a101ablthirdamendment






Exhibit 10.1        THIRD AMENDMENT TO ABL CREDIT AGREEMENT  THIS THIRD AMENDMENT TO ABL CREDIT AGREEMENT (this “Amendment”) is  entered into as of November 7, 2022 by Clearwater Paper Corporation, a Delaware corporation (the  “Borrower”), the undersigned Subsidiary Guarantors (the “Guarantors” and, together with the Borrower,  the “Loan Parties”), each of Lenders party to the Existing Credit Agreement (defined below) and  JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders.  R E C I T A L S  A. The Borrower, the Administrative Agent and the Lenders are parties to that certain ABL  Credit Agreement, dated as of July 26, 2019 (as amended, supplemented or otherwise modified prior to  the date hereof, the “Existing Credit Agreement”), pursuant to which the Lenders have made certain  credit available to and on behalf of the Borrower.   B. The Borrower has requested that the Total Commitments be increased from $250,000,000  to $275,000,000 and certain other amendments and modifications be made to the Existing Credit  Agreement and the Agent and the Lenders have agreed to such increase and other amendments and  modifications on the terms and subject to the conditions set forth  herein.  C.  NOW, THEREFORE, to induce the Administrative Agent and the Lenders to enter into  this Amendment and in consideration of the premises and the mutual covenants herein contained, for  good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the  parties hereto agree as follows:  Section 1.  Defined Terms.  Each capitalized term used herein but not otherwise defined  herein has the meaning given such term in the Existing Credit Agreement, as amended by this  Amendment (as so amended and as the same may be further amended, restated, amended and restated,  supplemented or otherwise modified from time to time, the “Credit Agreement”).  Unless otherwise  indicated, all article, exhibit, section and schedule references in this Amendment refer to articles, exhibits,  sections and schedules of the Credit Agreement.  Section 2. Increase of Total Commitments; Assignment and Reallocation of Commitments.   The Lenders have agreed to increase the Total Commitments to $275,000,000 and the parties hereto  hereby agree to the following: (a) the assignment of certain of the Lenders’ respective Commitments,  Revolving Extensions of Credit and Aggregate Exposures and (b) certain of the Lenders acquiring and  assuming an interest in the Commitments, Revolving Extensions of Credit and Aggregate Exposures  assigned by certain of the other Lenders pursuant to Section 2(a) hereof.  Such assignments and  assumptions are made pursuant to the terms, provisions and representations of the Assignment and  Assumption attached as Exhibit E to the Existing Credit Agreement as if each applicable party hereto had  executed and delivered, or consented to, an Assignment and Assumption (with the Effective Date, as  defined therein, being the Third Amendment Effective Date).  On the Third Amendment Effective Date  and after giving effect to such assignments and assumptions, each party hereto agrees that the  Commitment of each Lender shall be as set forth on Schedule 1.1A attached to Annex I hereto, which  schedule supersedes and replaces Schedule 1.1A to the Existing Credit Agreement. In connection with,  and for purposes of, the assignments and assumptions effected by this Agreement only, the Lenders, the  Administrative Agent and the Borrower waive the processing and recordation fee under Section  10.6(b)(ii)(B)(1) of the Existing Credit Agreement.    Section 3. Amendments to Credit Agreement. Each of the parties hereto agrees that,  effective as of the Third Amendment Effective Date:  





 






2    3.1. The Existing Credit Agreement is hereby amended and replaced as set forth in the  restated copy of the Credit Agreement attached as Annex I hereto (it being agreed, for the avoidance of  doubt, that nothing in this Amendment amends or modifies the Exhibits or Schedules to the Credit  Agreement except as set forth in Section 2 and Section 3.2 hereof); provided that, notwithstanding the  foregoing, the parties hereto acknowledge and agree that (a) any Eurodollar Loans (as defined in the  Existing Credit Agreement) outstanding immediately prior to the Third Amendment Effective Date shall  remain outstanding, bearing interest at the Adjusted LIBO Rate (as defined in the Existing Credit  Agreement), until the expiration of the Interest Period (as defined in the Existing Credit Agreement)  applicable thereto, and the related provisions of the Existing Credit Agreement shall continue in effect  solely with respect to such Eurodollar Loans until such time for the limited purposes set forth in this  Section 3.1 and (b) no Loans may be continued as or converted to Eurodollar Loans, and no new  Eurodollar Loans may be requested, after such time.  3.2. The Credit Agreement is hereby further amended by deleting Exhibits A and B thereto  and replacing them with Exhibits A and B hereto, respectively.  Section 4. Conditions Precedent.  This Amendment shall be deemed effective upon the date  on which each of the following conditions is satisfied (or waived in accordance with Section 10.1 of the  Credit Agreement) (such date, the “Third Amendment Effective Date”):  4.1. Execution and Delivery.  The Administrative Agent shall have received from the Loan  Parties and each Lender counterparts (in such number as may be requested by the Administrative Agent)  of this Amendment signed on behalf of such Person.  4.2. Payment of Fees and Expenses.  The Administrative Agent and the Lenders shall have  received all amounts due and payable on or prior to the Third Amendment Effective Date, including, to  the extent invoiced at least one (1) Business Day prior to the Third Amendment Effective Date,  reimbursement or payment of all documented out-of-pocket expenses required to be reimbursed or paid  by the Borrower under the Credit Agreement.  4.3. No Default or Event of Default.  No Default or Event of Default shall have occurred and  be continuing as of the date hereof, after giving effect to the terms of this Amendment.   4.4. Officer’s Certificate; Good Standing Certificates. The Administrative Agent shall have  received (a) a certificate of each Loan Party, dated the Third Amendment Effective Date, attaching (i) the  certificate of incorporation, in the case of a Loan Party that is a corporation, and certificate of formation,  in the case of a Loan Party that is a limited liability company, in each case certified by the relevant  authority of the jurisdiction of organization of such Loan Party as of a recent date, (ii) the bylaws, in the  case of a Loan Party that is a corporation, and limited liability company agreement or operating  agreement, in the case of a Loan Party that is a limited liability company, certified as of the Third  Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full  force and effect without modification or amendment and (iii) resolutions of the governing bodies of each  Loan Party approving and authorizing the execution, delivery and performance of the Amendment and the  Loan Documents as amended thereby, certified as of the Third Amendment Effective Date by its  secretary, an assistant secretary or a Responsible Officer as being in full force and effect without  modification or amendment and (b) a long form good standing certificate for each Loan Party from its  jurisdiction of organization.  4.5. Lien Searches and Release Documentation. The Administrative Agent shall have  received (a) the results of a recent Lien search with respect to each Loan Party, and such search shall  reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3 of the  





 






3    Credit Agreement or discharged on or prior to the Third Amendment Effective Date pursuant to  documentation reasonably satisfactory to the Administrative Agent and (b) in respect of the Term Loans  (as defined in the Credit Agreement immediately prior to giving effect to this Amendment), (i) UCC-3  financing statements in relation to the UCC-1 financing statements of record as of the Third Amendment  Effective Date, (ii) customary notices and releases required to be filed with the United States Patent and  Trademark Office or with the United States Copyright Office to evidence the release of any intellectual  property collateral and (iii) customary mortgage releases (it being understood and agreed that any releases  with respect to the Mortgages (as defined in the Term Loan Credit Agreement) not obtained as of the  Third Amendment Effective Date shall be obtained within 30 days after the Third Amendment Effective  Date (or such longer time as may be agreed by the Administrative Agent in its reasonable discretion).  4.6.  Closing Certificate. The Administrative Agent shall have received a certificate of a  Responsible Officer of the Borrower, dated the Third Amendment Effective Date, certifying as to the  representations and warranties in Section 5.2(e) hereof.  4.7. Solvency Certificate. The Administrative Agent shall have received a solvency certificate  from a Responsible Officer substantially in the form of Exhibit L to the Credit Agreement.  4.8  Insurance.  The Administrative Agent shall have received insurance certificates with  respect to Inventory satisfying the requirements of Section 5.12 of the Guarantee and Collateral  Agreement.  4.9.  Legal Opinions.  The Administrative Agent shall have received the executed legal  opinion of Pillsbury Winthrop Shaw Pittman LLP, counsel to the Borrower and its Restricted  Subsidiaries, in form and substance reasonably acceptable to the Administrative Agent.  The Administrative Agent is hereby authorized and directed to declare this Amendment to be effective  when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent,  compliance with the conditions set forth in this Section 4 or the waiver of such conditions as permitted by  Section 10.1 of the Credit Agreement.  Such declaration shall be final, conclusive and binding upon all  parties to the Credit Agreement for all purposes.   Section 5. Miscellaneous.  5.1. Confirmation.  The provisions of the Credit Agreement, as amended by this Amendment,  shall remain in full force and effect following the effectiveness of this Amendment.  5.2. Ratification and Affirmation; Representations and Warranties.  Each Loan Party hereby  (a) acknowledges the terms of this Amendment; (b) ratifies and affirms (i) its obligations under, and  acknowledges, renews and extends its continued liability under, each Loan Document to which it is a  party and agrees that each Loan Document to which it is a party remains in full force and effect, except as  expressly amended hereby and (ii) that the Liens created by the Loan Documents to which it is a party are  valid and continuing and secure the Obligations in accordance with the terms thereof, in each case,  notwithstanding the amendments contained herein; (c) agrees that its guarantee under the Guarantee and  Collateral Agreement remains in full force and effect with respect to the Obligations as amended hereby;  (d) agrees that from and after the Third Amendment Effective Date (i) each reference to the Credit  Agreement in the other Loan Documents shall be deemed to be a reference to the Credit Agreement, as  amended by this Amendment, and (ii) this Amendment does not constitute a novation of the Credit  Agreement; and (e) represents and warrants to the Lenders that as of the date hereof, after giving effect to  the terms of this Amendment:  (i) all of the representations and warranties contained in each Loan  Document to which it is a party are true and correct in all material respects, except to the extent any such  





 






4    representations and warranties are stated to relate solely to an earlier date, in which case, such  representations and warranties shall have been true and correct in all material respects on and as of such  earlier date (provided that such materiality qualifier shall not be applicable to any representation or  warranty that is already qualified or modified by materiality in the Credit Agreement) and (ii) no Default  or Event of Default has occurred and is continuing.  5.3. No Waiver; Loan Document.  The execution, delivery and effectiveness of this  Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or  remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a  waiver of any provision of any of the Loan Documents.  On and after the Third Amendment Effective  Date, this Amendment shall for all purposes constitute a Loan Document.  5.4. Counterparts.  This Amendment may be executed by one or more of the parties hereto in  any number of separate counterparts, and all of such counterparts taken together shall be deemed to  constitute one and the same instrument.  Delivery of an executed counterpart of a signature page of this  Amendment that is an electronic sound, symbol, or process attached to, or associated with, a contract or  other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record  (an “Electronic Signature”) transmitted by telecopy, emailed pdf or any other electronic means that  reproduces an image of an actual executed signature page shall be effective as delivery of a manually  executed counterpart of this Amendment.  The words “execution,” “signed,” “signature,” “delivery,” and  words of like import in or relating to this Amendment shall be deemed to include Electronic Signatures,  deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf  or any other electronic means that reproduces an image of an actual executed signature page), each of  which shall be of the same legal effect, validity or enforceability as a manually executed signature,  physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided  that, without limiting the foregoing, upon the request of the Administrative Agent, any electronic  signature shall be promptly followed by such manually executed counterpart (in such number as may be  reasonably requested by the Administrative Agent).  5.5. NO ORAL AGREEMENT.  THIS AMENDMENT, THE CREDIT AGREEMENT AND  THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND  THEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT  BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN  ORAL AGREEMENTS OF THE PARTIES.  AS OF THE DATE OF THIS AMENDMENT, THERE  ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.  5.6. GOVERNING LAW.  THIS AMENDMENT AND THE RIGHTS AND  OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY,  AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE  OF NEW YORK.  [SIGNATURES BEGIN NEXT PAGE]    





 






  Signature Page to Third Amendment to  ABL Credit Agreement      IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as  of the date first written above.  BORROWER: CLEARWATER PAPER CORPORATION         By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer      GUARANTORS: CLEARWATER FIBER, LLC         By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer        CLEARWATER PAPER TISSUE, LLC         By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer        CELLU TISSUE HOLDINGS, INC.         By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer         CELLU TISSUE CORPORATION-NEENAH          By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer  





 






Signature Page to Third Amendment to  ABL Credit Agreement       CELLU TISSUE CORPORATION –  OKLAHOMA CITY         By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer      CLEARWATER PAPER SHELBY, LLC         By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer         CLEARWATER PAPER LAS VEGAS, LLC         By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer         CLEARWATER PAPER ELWOOD, LLC         By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer         MANCHESTER INDUSTRIES INC. OF  VIRGINIA         By: /s/ Michael J. Murphy    Name: Michael J. Murphy    Title: Senior Vice President and Chief Financial  Officer  





 






Signature Page to Third Amendment to  ABL Credit Agreement        ADMINISTRATIVE AGENT, ISSUING  LENDER AND LENDER:  JPMORGAN CHASE BANK, N.A.         By: /s/ Lynn Braun    Name: Lynn Braun   Title: Executive Director      





 






Signature Page to Third Amendment to  ABL Credit Agreement        ISSUING LENDER AND LENDER: WELLS FARGO BANK, NATIONAL  ASSOCIATION         By: /s/ Peter Aziz    Name: Peter Aziz   Title: Director    





 






Signature Page to Third Amendment to  ABL Credit Agreement        ISSUING LENDER AND LENDER: BANK OF AMERICA, N.A.         By: /s/ Brett German    Name: Brett German   Title: Senior Vice President  





 






Signature Page to Third Amendment to  ABL Credit Agreement        LENDER: KEYBANK NATIONAL ASSOCIATION         By: /s/ Paul A. Taubeneck    Name: Paul A. Taubeneck   Title: Senior Vice President     





 






Signature Page to Third Amendment to  ABL Credit Agreement        LENDER: TD BANK N.A.         By: /s/ Dean Whalen    Name: Dean Whalen   Title: Vice President       





 






Signature Page to Third Amendment to  ABL Credit Agreement         U.S. BANK NATIONAL ASSOCIATION         By: /s/ Nicole Manies    Name: Nicole Manies   Title: Vice President     





 






     ANNEX I    Amended Credit Agreement    [See attached] 





 






Annex I to Third Amendment               ABL CREDIT AGREEMENT  among  CLEARWATER PAPER CORPORATION  as Borrower,  The Several Lenders from Time to Time Parties Hereto,  and  JPMORGAN CHASE BANK, N.A.,  as Administrative Agent,  Dated as of July 26, 2019,  JPMORGAN CHASE BANK, N.A. and WELLS FARGO BANK, NATIONAL  ASSOCIATION  as Joint Lead Arrangers and Joint Bookrunners    





 






  i    TABLE OF CONTENTS  Page  SECTION 1.   DEFINITIONS .........................................................................................................1  1.1 Defined Terms .........................................................................................................1  1.2 Classification of Loans and Borrowings ................................................................54  1.3 Other Definitional Provisions ................................................................................54   1.5 Letter of Credit Amounts .......................................................................................56   1.6 Limited Condition Transactions ............................................................................56  1.7 Divisions ................................................................................................................57  SECTION 2.   AMOUNT AND TERMS OF COMMITMENTS .................................................57  2.1 Commitments .........................................................................................................57   2.2 Procedure for Revolving Loan Borrowing ............................................................58  2.3 Protective Advances...............................................................................................58  2.4 [Reserved] ..............................................................................................................59  2.5 [Reserved] ..............................................................................................................59  2.6 [Reserved] ..............................................................................................................59  2.7 Repayment of Revolving Loans .............................................................................59  2.8 Fees, etc..................................................................................................................59   2.9 Termination or Reduction of Commitments ..........................................................60  2.10 Optional Prepayments ............................................................................................60  2.11 Prepayment of Loans .............................................................................................60  2.12 Conversion and Continuation Options ...................................................................61  2.13 Limitations on Term SOFR Borrowings ...............................................................62  2.14 Interest Rates and Payment Dates ..........................................................................62  2.15 Computation of Interest and Fees ..........................................................................62  2.16 Alternate Rate of Interest .......................................................................................63  2.17 Pro Rata Treatment and Payments .........................................................................65  2.18 Requirements of Law .............................................................................................67  2.19 Taxes ......................................................................................................................69   2.20 Indemnity ...............................................................................................................73  2.21 Change of Lending Office .....................................................................................74  2.22 Replacement of Lenders ........................................................................................74  2.23 Defaulting Lenders.................................................................................................74  2.24 Incremental Facilities .............................................................................................76  2.25 Loan Modification Offers ......................................................................................77  SECTION 3.   LETTERS OF CREDIT .........................................................................................78   3.1 L/C Commitment ...................................................................................................78  3.2 Procedure for Issuance of Letter of Credit .............................................................79  3.3 Fees and Other Charges .........................................................................................79  3.4 L/C Participations ..................................................................................................80  3.5 Reimbursement Obligation of the Borrower..........................................................81  3.6 Obligations Absolute .............................................................................................81   3.7 Letter of Credit Payments ......................................................................................82  





 






  ii    3.8 Applications ...........................................................................................................82  3.9 Replacement of an Issuing Lender .........................................................................82  SECTION 4.   REPRESENTATIONS AND WARRANTIES ......................................................83  4.1 Financial Condition ................................................................................................83  4.2 No Change .............................................................................................................83  4.3 Existence; Compliance with Law ..........................................................................83  4.4 Power; Authorization; Enforceable Obligations ....................................................84  4.5 No Legal Bar ..........................................................................................................84  4.6 Litigation ................................................................................................................84  4.7 No Default ..............................................................................................................84  4.8 Ownership of Property; Liens ................................................................................84  4.9 Intellectual Property ...............................................................................................84  4.10 Taxes ......................................................................................................................85   4.11 Federal Regulations ...............................................................................................85  4.12 Labor Matters .........................................................................................................85  4.13 ERISA ....................................................................................................................85  4.14 Investment Company Act; Other Regulations .......................................................86  4.15 Subsidiaries; Capital Stock ....................................................................................86  4.16 Use of Proceeds......................................................................................................87  4.17 Environmental Matters...........................................................................................87   4.18 Accuracy of Information, etc. ................................................................................87  4.19 Security Documents ...............................................................................................88  4.20 Solvency .................................................................................................................88  4.21 Anti-Corruption Laws, Anti-Money Laundering and Sanctions ...........................88  4.22 Plan Assets; Prohibited Transactions .....................................................................88  SECTION 5.   CONDITIONS PRECEDENT ...............................................................................89   5.1 [Reserved] ..............................................................................................................89  5.2 Conditions to Each Extension of Credit.................................................................89  SECTION 6.   AFFIRMATIVE COVENANTS ...........................................................................89  6.1 Financial Statements ..............................................................................................89  6.2 Certificates; Borrowing Base; Other Information..................................................91  6.3 Payment of Obligations..........................................................................................93   6.4 Maintenance of Existence; Compliance .................................................................93  6.5 Maintenance of Property; Insurance ......................................................................93  6.6 Inspection of Property; Books and Records; Discussions; Appraisals; Field  Examinations..........................................................................................................94   6.7 Notices ...................................................................................................................95  6.8 Environmental Laws ..............................................................................................96  6.9 [Reserved] ..............................................................................................................96  6.10 Additional Collateral, etc. ......................................................................................96  6.11 Designation of Subsidiaries ...................................................................................98  6.12 Deposit Account Control Agreements ...................................................................98  





 






  iii    SECTION 7.   NEGATIVE COVENANTS ..................................................................................99   7.1 Consolidated Fixed Charge Coverage Ratio ..........................................................99  7.2 Indebtedness ...........................................................................................................99   7.3 Liens .....................................................................................................................103  7.4 Fundamental Changes ..........................................................................................106  7.5 Disposition of Property ........................................................................................107  7.6 Restricted Payments .............................................................................................109  7.7 Investments ..........................................................................................................110   7.8 Optional Payments of Certain Debt Instruments .................................................113  7.9 Transactions with Affiliates .................................................................................113  7.10 Sales and Leasebacks ...........................................................................................114  7.11 Swap Agreements ................................................................................................114  7.12 Changes in Fiscal Periods ....................................................................................114  7.13 Negative Pledge Clauses ......................................................................................114   7.14 Clauses Restricting Subsidiary Distributions.......................................................115  7.15 Lines of Business .................................................................................................116  7.16 Use of Proceeds....................................................................................................116  SECTION 8.   EVENTS OF DEFAULT .....................................................................................116  SECTION 9.   THE AGENTS .....................................................................................................120   9.1 Appointment ........................................................................................................120  9.2 Administrative Agent’s Reliance, Indemnification, Etc. .....................................123  9.3 Posting of Communications .................................................................................124  9.4 The Administrative Agent Individually ...............................................................125  9.5 Successor Administrative Agent ..........................................................................125  9.6 Acknowledgments of Lenders and Issuing Lenders ............................................127  9.7 Collateral Matters.................................................................................................127  9.8 Credit Bidding ......................................................................................................128  9.9 Certain ERISA Matters ........................................................................................129  9.10 Flood Insurance Laws ..........................................................................................130  SECTION 10.   MISCELLANEOUS ..........................................................................................131   10.1 Amendments and Waivers ...................................................................................131  10.2 Notices .................................................................................................................133  10.3 No Waiver; Cumulative Remedies ......................................................................134  10.4 Survival of Representations and Warranties ........................................................134  10.5 Limitation of Liability; Payment of Expenses and Taxes ....................................134  10.6 Successors and Assigns; Participations and Assignments ...................................136  10.7 Adjustments; Set-off ............................................................................................140   10.8 Counterparts .........................................................................................................141  10.9 Severability ..........................................................................................................141  10.10 Integration ............................................................................................................141  10.11 GOVERNING LAW ............................................................................................141  10.12 Submission To Jurisdiction; Waivers ..................................................................141  10.13 Acknowledgments................................................................................................142  10.14 Releases of Guarantees and Liens ........................................................................143  





 






  iv    10.15 Confidentiality .....................................................................................................144  10.16 WAIVERS OF JURY TRIAL...........................................................................145  10.17 USA Patriot Act ...................................................................................................145  10.18 Intercreditor Agreement .......................................................................................145  10.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ..........145  10.20 Acknowledgement Regarding Any Supported QFCs ..........................................146  





 






   Signature Page to Third Amendment to  ABL Credit Agreement      SCHEDULES:  1.1A Commitments  3.01 Existing Letters of Credit  4.13 Pension Plans  4.15 Subsidiaries  4.19(a) UCC Filing Jurisdictions  7.2(e) Existing Indebtedness  7.3(f) Existing Liens  7.5(l) Scheduled Dispositions  7.7(k) Existing Investments    EXHIBITS:  A Form of Borrowing Request  B Form of Interest Election Request  C-1 Form of Officer’s Certificate  C-2 New Subsidiary Officer’s Certificate  D Form of Guarantee and Collateral Agreement  E Form of Assignment and Assumption  F Form of Compliance Certificate  G [Reserved]  H-1 U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal  Income Tax Purposes)  H-2 U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal  Income Tax Purposes)  H-3 U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S.  Federal Income Tax Purposes)  H-4 U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal  Income Tax Purposes)  I-1 Form of Increased Facility Activation Notice—Incremental Revolving Commitments  I-2 Form of New Lender Supplement  I-3 Form of Maturity Date Extension Notice  J Form of Borrowing Base Certificate  K Form of Intercreditor Agreement  L Form of Solvency Certificate    





 






    ABL CREDIT AGREEMENT (this “Agreement”), dated as of July 26, 2019  among Clearwater Paper Corporation, a Delaware corporation (the “Borrower”), the several  banks and other financial institutions or entities from time to time parties to this Agreement (the  “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent, and the other agents from  time to time parties hereto.  The parties hereto hereby agree as follows:  SECTION 1.  DEFINITIONS  1.1 Defined Terms.  As used in this Agreement, the terms listed in this  Section 1.1 shall have the respective meanings set forth in this Section 1.1.  “2025 Notes” means the Borrower’s 5.375% senior notes due 2025 issued  pursuant to the 2025 Notes Indenture.  “2025 Notes Indenture” means the Indenture, dated as of July 29, 2014, by and  among the Borrower, as issuer, certain Subsidiaries of the Borrower party thereto as guarantors  and U.S. Bank National Association, as trustee.  “2028 Notes” means the Borrower’s 4.750% senior notes due 2028 issued  pursuant to the 2028 Notes Indenture.  “2028 Notes Indenture” means the Indenture, dated as of August 18, 2020 by and  among the Borrower, as issuer, certain Subsidiaries of the Borrower party thereto as guarantors  and U.S. Bank National Association, as trustee.  “ABL Priority Collateral” means all Collateral other than Term Loan Priority  Collateral.  “ABR” means, when used in reference to any Loan or Borrowing, refers to  whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined  by reference to the Alternate Base Rate.  “Acceptable Field Examination” means a field examination conducted by the  Administrative Agent or its designee of the Accounts, Inventory and related working capital  matters of the Borrower and its Subsidiaries and of the related data processing and other systems  of the Borrower and its Subsidiaries, the results of which shall be satisfactory to the  Administrative Agent in its Permitted Discretion.  “Acceptable Inventory Appraisal” means an appraisal of the Inventory of the  Borrower and its Subsidiaries from a firm (or firms) satisfactory to the Administrative Agent,  which appraisal(s) shall be satisfactory to the Administrative Agent in its Permitted Discretion.  “Accepting Lenders” has the meaning set forth in Section 2.25(a).  “Account” has the meaning set forth in the Guarantee and Collateral Agreement.  





 






  2    “Account Debtor” means any Person obligated on an Account.  “Additional Permitted Amount” has the meaning set forth in the definition of  Permitted Refinancing Indebtedness.  “Adjusted Term SOFR Rate” means, for any Interest Period, an interest rate per  annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that  if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall  be deemed to be equal to the Floor for the purposes of this Agreement.  “Adjustment Date” has the meaning set forth in the Applicable Pricing Grid.  “Administrative Agent” means JPMorgan Chase Bank, N.A., together with its  affiliates as the administrative agent for the Lenders under this Agreement and the other Loan  Documents, together with any of its successors.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b)  any UK Financial Institution.  “Affiliate” means as to any Person, any other Person that, directly or indirectly, is  in control of, is controlled by, or is under common control with, such Person.  For purposes of  this definition, “control” of a Person means the power, directly or indirectly, to direct or cause  the direction of the management and policies of such Person, whether by contract or otherwise.  “Agents” means the collective reference to the Administrative Agent and any  other agent identified on the cover page of this Agreement.  “Aggregate Exposure” means, with respect to any Lender at any time, an amount  equal to  the amount of such Lender’ Commitment then in effect or, if the Commitments have  been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.  “Aggregate Exposure Percentage” means, with respect to any Lender at any time,  the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the  Aggregate Exposure of all Lenders at such time.  “Agreement” has the meaning set forth in the preamble hereto.  “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest  of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1⁄2 of  1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S.  Government Securities Business Days prior to such day (or if such day is not a U.S. Government  Securities Business Day, the immediately preceding U.S. Government Securities Business Day)  plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any  day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time  on such day (or any amended publication time for the Term SOFR Reference Rate, as specified  by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology).  Any  change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the  Adjusted Term SOFR Rate shall be effective from and including the effective date of such  





 






  3    change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively.  If  the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.16 (for  the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to  Section Error! Reference source not found.), then the Alternate Base Rate shall be the greater  of clauses (a) and (b) above and shall be determined without reference to clause (c) above.  For  the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would  be less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement.  “Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction  applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery,  corruption, money-laundering, or any financial record keeping and reporting requirements  related thereto.  “Annual Field Examination” has the meaning set forth in Section 6.6(c).  “Annual Inventory Appraisal” has the meaning set forth in Section 6.6(b).  “Applicable Margin” means, with respect to ABR Loans and Term SOFR Loans,  the applicable rates, subject to adjustment in accordance with the Applicable Pricing Grids (as  defined below).  “Applicable Parties” has the meaning set forth in Section 9.3(c).  “Applicable Pricing Grids” means the table set forth below:  Availability  Applicable Margin for  ABR Loans  Applicable Margin for  Term SOFR Loans   ≥ 66% of the Line Cap  0.25% 1.25%  <66% but ≥ 33% of the  Line Cap 0.50% 1.50%  <33% of the Line Cap 0.75% 1.75%    Average Quarterly  Availability Commitment Fee Rate  <50% 0.25%  ≥50% 0.375%    For the purposes of the Applicable Pricing Grid (a) changes in the Applicable  Margin resulting from changes in the average daily Availability shall (i) become effective on the  third Business Day (the “Adjustment Date”) of each calendar month and shall remain in effect  until the next change to be effected pursuant to this paragraph and (ii) be based on the average  daily Availability for the immediately preceding calendar month and (b) changes to the  Commitment Fee Rate shall become effective on the third Business Day of each fiscal quarter  based upon the Average Quarterly Availability during the most recently ended fiscal quarter and  shall remain in effect until the next change to be effected pursuant to this paragraph. If, as of any  date that a Borrowing Base Certificate is scheduled to be delivered pursuant to Section 6.2(g),  any Borrowing Base Certificate required to be delivered on or prior to such date shall not have  





 






  4    been delivered, then, until the Adjustment Date occurring after the date on which all required  Borrowing Base Certificates are delivered, the Administrative Agent, acting at the direction of  the Required Lenders, shall declare that the highest rate set forth in each column of the  Applicable Pricing Grid shall apply.  Automatically, upon the occurrence and continuance of an  Event of Default pursuant to Section 8(f), the highest rate set forth in each column of the  Applicable Pricing Grid shall apply.  “Applicable Reference Period” means as of any date of determination, the most  recently ended Reference Period for which financial statements with respect to each fiscal  quarter included in such Reference Period have been delivered pursuant to Section 6.1(a) or  6.1(b) (or, prior to the delivery of any such financial statements, the Reference Period ended  March 31, 2019).  “Application” means an application, in such form as the Issuing Lender may  specify from time to time, requesting the Issuing Lender to open a Letter of Credit, specifying  the date of issuance, amendment, renewal or extension (which shall be a Business Day) and the  date on which such Letter of Credit is to expire and such other information as the Issuing Lender  may request.  “Approved Electronic Platform” has the meaning set forth in Section 9.3(a).  “Approved Fund” has the meaning set forth in Section 10.6(b).  “Arranger” means each Joint Lead Arranger and Joint Bookrunner identified on  the cover page of this Agreement.  “Assignee” has the meaning set forth in Section 10.6(b).  “Assignment and Assumption” means an Assignment and Assumption,  substantially in the form of Exhibit E or any other form (including electronic records generated  by the use of an electronic platform) approved by the Administrative Agent.  “Attributable Indebtedness” means in respect of any sale and leaseback  transaction, as at the time of determination, the present value (discounted at the implied interest  rate in such transaction compounded annually) of the total obligations of the lessee for rental  payments during the remaining term of the lease included in such sale and leaseback transaction  (including any period for which such lease has been extended or may, at the option of the lessor,  be extended).  “Availability” means at any time, an amount equal to (a) the Line Cap minus (b)  the Total Revolving Extensions of Credit then outstanding (calculated, with respect to any  Defaulting Lender, as if such Defaulting Lender had funded its Revolving Percentage of all  outstanding Revolving Loans).  “Available Commitment” means as to any Revolving Lender at any time, an  amount equal to the excess, if any, of (a) such Lender’s Commitment then in effect over (b) such  Lender’s Revolving Extensions of Credit then outstanding.  





 






  5    “Available Tenor” means, as of any date of determination and with respect to the  then-current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or  payment period for interest calculated with reference to such Benchmark (or component thereof),  as applicable, that is or may be used for determining the length of an Interest Period for any term  rate or otherwise, for determining any frequency of making payments of interest calculated  pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any  tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant  to clause (e) of Section 2.16.   “Average Quarterly Availability” means, for any fiscal quarter of the Borrower,  an amount equal to the average daily Availability during such fiscal quarter, as determined by the  Administrative Agent’s system of records; provided, that in order to determine Availability on  any day for purposes of this definition, the Borrower’s Borrowing Base for such day shall be  determined by reference to the most recent Borrowing Base Certificate delivered pursuant to  Section 6.2(g) to the Administrative Agent as of such day.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers  by the applicable Resolution Authority in respect of any liability of an Affected Financial  Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country  implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council  of the European Union, the implementing law, regulation rule or requirement for such EEA  Member Country from time to time which is described in the EU Bail-In Legislation Schedule  and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as  amended from time to time) and any other law, regulation or rule applicable in the United  Kingdom relating to the resolution of unsound or failing banks, investment firms or other  financial institutions or their affiliates (other than through liquidation, administration or other  insolvency proceedings).  “Bank Products” means any of the following bank: (a) commercial credit cards,  (b) stored value cards, (c) purchasing cards and (d) treasury, depositary or cash management  services (including controlled disbursement, automated clearinghouse transactions, return items,  overdrafts, supply chain finance services related to accounts payable and interstate depository  network services) or any similar transaction.  “Banking Services” means Bank Products provided to any Group Member by any  Lender or any of its Affiliates.    “Banking Services Obligations” means with respect to the Group Members, any  and all obligations of the Group Members, whether absolute or contingent and howsoever and  whensoever created, arising, evidenced or acquired (including all renewals, extensions and  modifications thereof and substitutions therefor) in connection with Banking Services.   “Banking Services Reserves” means all Reserves that the Administrative Agent  from time to time establishes in its Permitted Discretion for Banking Services then provided or  outstanding.  





 






  6    “Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et  seq.), as now and hereafter in effect, or any successor statute.   “Bankruptcy Event” means with respect to any Person, such Person becomes the  subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,  administrator, custodian, assignee for the benefit of creditors or similar Person charged with the  reorganization or liquidation of its business appointed for it, or, in the good faith determination  of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,  approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy  Event shall not result solely by virtue of any ownership interest, or the acquisition of any  ownership interest, in such Person by a Governmental Authority or instrumentality thereof,  provided, further, that such ownership interest does not result in or provide such Person 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 Person (or such Governmental  Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or  agreements made by such Person.  “Benchmark” means, initially, with respect to any Term Benchmark Loan, the  Term SOFR Rate; provided that if a Benchmark Transition Event, and the related Benchmark  Replacement Date have occurred with respect to the Term SOFR Rate, as applicable, or the then- current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the  extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to  clause (b) of Section 2.16.  “Benchmark Replacement” means, for any Available Tenor:  the sum of: (a) the alternate benchmark rate that has been selected by the  Administrative Agent and the Borrower as the replacement for the then-current Benchmark for  the applicable Corresponding Tenor giving due consideration to (i) any selection or  recommendation of a replacement benchmark rate or the mechanism for determining such a rate  by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention  for determining a benchmark rate as a replacement for the then-current Benchmark for dollar- denominated syndicated credit facilities at such time in the United States and (b) the related  Benchmark Replacement Adjustment;  If the Benchmark Replacement as determined pursuant to the 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.  “Benchmark Replacement Adjustment” means, with respect to any replacement of  the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable  Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement,  the spread adjustment, or method for calculating or determining such spread adjustment, (which  may be a positive or negative value or zero) that has been selected by the Administrative Agent  and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any  selection or recommendation of a spread adjustment, or method for calculating or determining  such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted  





 






  7    Benchmark Replacement by the relevant Governmental Authority on the applicable Benchmark  Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining  a spread adjustment, or method for calculating or determining such spread adjustment, for the  replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for  dollar-denominated syndicated credit facilities at such time.  “Benchmark Replacement Conforming Changes” means, with respect to any  Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or  operational changes (including changes to the definition of “Alternate Base Rate,” the definition  of “Business Day,” the definition of “U.S. Government Securities 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, length of  lookback periods, the applicability of breakage provisions, and other technical, administrative or  operational matters) that the Administrative Agent decides (in consultation with the Borrower)  may be appropriate to reflect the adoption and implementation of such Benchmark 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 exists, in such other manner of  administration as the Administrative Agent decides in consultation with the Borrower is  reasonably necessary in connection with the administration of this Agreement and the other Loan  Documents).  “Benchmark Replacement Date” means, with respect to any Benchmark, the  earliest to occur of the following events with respect to such then-current Benchmark:  (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition  Event,” the later of (a) the date of the public statement or publication of information referenced  therein and (b) the date on which the administrator of such Benchmark (or the published  component used in the calculation thereof) permanently or indefinitely ceases to provide all  Available Tenors of such Benchmark (or such component thereof); or  (2) in the case of clause (3) of the definition of “Benchmark Transition  Event,” the first date on which such Benchmark (or the published component used in the  calculation thereof) has been determined and announced by the regulatory supervisor for the  administrator of such Benchmark (or such component thereof) to be no longer representative;  provided, that such non-representativeness will be determined by reference to the most recent  statement or publication referenced in such clause (c) and even if any Available Tenor of such  Benchmark (or such component thereof) continues to be provided on such date.  For the avoidance of doubt, (i) if the event giving rise to the Benchmark  Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of  any determination, the Benchmark Replacement Date will be deemed to have occurred prior to  the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be  deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the  occurrence of the applicable event or events set forth therein with respect to all then-current  





 






  8    Available Tenors of such Benchmark (or the published component used in the calculation  thereof).  “Benchmark Transition Event” means, with respect to any Benchmark, the  occurrence of one or more of the following events with respect to such then-current Benchmark:  (1) a public statement or publication of information by or on behalf of the  administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that such administrator has ceased or will cease to provide all Available Tenors of  such Benchmark (or such component thereof), 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 such component thereof);  (2) a public statement or publication of information by the regulatory supervisor  for the administrator of such Benchmark (or the published component used in the calculation  thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an  insolvency official with jurisdiction over the administrator for such Benchmark (or such  component), a resolution authority with jurisdiction over the administrator for such Benchmark  (or such component) or a court or an entity with similar insolvency or resolution authority over  the administrator for such Benchmark (or such component), in each case, which states that the  administrator of such Benchmark (or such component) has ceased or will cease to provide all  Available Tenors of such Benchmark (or such component thereof) 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 such component  thereof); or  (3) a public statement or publication of information by the regulatory supervisor  for the administrator of such Benchmark (or the published component used in the calculation  thereof) announcing that all Available Tenors of such Benchmark (or such component thereof)  are no longer, or as of a specified future date will no longer be, representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to  have occurred with respect to any Benchmark if a public statement or publication of information  set forth above has occurred with respect to each then-current Available Tenor of such  Benchmark (or the published component used in the calculation thereof).  “Benchmark Unavailability Period” means, with respect to any Benchmark, the  period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses  (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has  replaced such then-current Benchmark for all purposes hereunder and under any Loan Document  in accordance with Section 2.16 and (y) ending at the time that a Benchmark Replacement has  replaced such then-current Benchmark for all purposes hereunder and under any Loan Document  in accordance with Section 2.16.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section  3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the  Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for  





 






  9    purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section  4975 of the Code) the assets of any such “employee benefit plan” or “plan”. “Benefitted Lender”  has the meaning set forth in Section 10.7(a).  “BHC Act Affiliate” of a party means an “affiliate’ (as such term is defined  under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “Board” means the Board of Governors of the Federal Reserve System of the  United States (or any successor).  “Borrower” has the meaning set forth in the preamble hereto.  “Borrowing” means Revolving Loans of the same Facility and Type, made,  converted or continued on the same date and, in the case of Term SOFR Loans, as to which a  single Interest Period is in effect.  “Borrowing Base” means at any time, the sum of:  (a) (i) 85% of the book value of the Loan Parties’ Non-Investment Grade  Eligible Accounts at such time and (ii) 90% of the book value of the Loan Parties’ Investment  Grade Eligible Accounts, plus   (b) the lesser of (i) the amount equal to 85% multiplied by the Net Orderly  Liquidation Value percentage identified in the most recent Inventory appraisal ordered by the  Administrative Agent multiplied by the book value of the Loan Parties’ Eligible Finished Goods  and (ii) 70% multiplied by the cost of the Loan Parties’ Eligible Finished Goods valued on a  first-in-first-out basis, plus  (c) the lesser of (i) the amount equal to 85% multiplied by the Net Orderly  Liquidation Value percentage identified in the most recent Inventory appraisal ordered by the  Administrative Agent multiplied by the book value of the Loan Parties’ Eligible Raw Materials  and (ii) 60% multiplied by the cost of the Loan Parties’ Eligible Raw Materials valued on a first- in-first-out basis, minus   (d) Reserves;  provided that in determining the Net Orderly Liquidation Value with respect to Inventory, the  Administrative Agent may determine such value on a blended, product-line or other basis as it  determines in its Permitted Discretion.  The Administrative Agent may, in its Permitted Discretion reduce the advance  rates set forth above or (following (to the extent practicable) reasonable prior notice to, and  consultation with, the Borrower) adjust Reserves or reduce one or more of the other elements  used in computing the Borrowing Base, with any such changes to be effective three days after  delivery of notice thereof to the Borrower and the Lenders; provided that if consultation with the  Borrower and/or notice to the Borrower and the Lenders is not practicable or if failure to  implement any such change within a shorter time period would, in the good faith judgment of the  Administrative Agent, reasonably be expected to result in a Material Adverse Effect or  





 






  10    materially and adversely affect the Collateral or the rights of the Lenders under the Loan  Documents, such change may be implemented within a shorter time as determined by the  Administrative Agent in its Permitted Discretion. The Borrowing Base at any time shall be  determined by reference to the most recent Borrowing Base Certificate delivered to the  Administrative Agent pursuant to Section 6.2(g) of this Agreement.  “Borrowing Base Certificate” means a certificate, signed and certified as accurate  and complete by a Responsible Officer of the Borrower, in substantially the form of Exhibit J or  another form which is acceptable to the Administrative Agent in its sole discretion.  “Borrowing Base Eligible Facilities” means warehouses owned or leased by Loan  Parties that are located in the United States; provided that on and after the date that is 60 days  after the Closing Date, no warehouse leased by a Loan Party shall be considered a Borrowing  Base Eligible Facility unless the Administrative Agent has received a Collateral Access  Agreement in respect thereof that continues to be in effect or a Rent Reserve has been taken in  respect thereof.   “Borrowing Date” means any Business Day specified by the Borrower as a date  on which the Borrower requests the relevant Lenders to make Loans hereunder.  “Borrowing Request” means a request by the Borrower for a Revolving  Borrowing in accordance with Section 2.2, which shall be substantially in the form of Exhibit A  or any other form approved by the Administrative Agent.  “Budget” has the meaning set forth in Section 6.2(c).  “Business Day” means, any day (other than a Saturday or a Sunday) on which  banks are open for business in New York City; provided that, in addition to the foregoing, a  Business Day shall be in relation to Loans referencing the Adjusted Term SOFR Rate and any  interest rate settings, fundings, disbursements, settlements or payments of any such Loans  referencing the Adjusted Term SOFR Rate or any other dealings of such Loans referencing the  Adjusted Term SOFR Rate, any such day that is only a U.S. Government Securities Business  Day.  “Capital Expenditures” means for any period, with respect to any Person, the  aggregate of all expenditures by such Person and its Restricted Subsidiaries for the acquisition or  leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including  replacements, capitalized repairs and improvements during such period) that is required to be  capitalized under GAAP on a consolidated balance sheet of such Person and its Restricted  Subsidiaries.  “Capital Lease Obligations” means as to any Person, the obligations of such  Person to pay rent or other amounts under any lease of (or other arrangement conveying the right  to use) real or personal property, or a combination thereof, which obligations are required to be  classified and accounted for as capital leases or financing leases on a balance sheet of such  Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at  any time shall be the capitalized amount thereof at such time determined in accordance with  GAAP; provided, that any lease (or other arrangement) of such Person that is or would have been  





 






  11    treated as an operating lease as determined in accordance with GAAP immediately prior to the  issuance of the Accounting Standards Update 2016-02, Leases (Topic 842) by the Financial  Accounting Standards Board shall not be treated as a Capital Lease Obligation under this  Agreement and the other Loan Documents, whether or not such obligations were in effect as of  the date such update was issued and regardless of whether GAAP requires such obligations to be  treated as capitalized lease obligations in the financial statements of such Person.  “Capital Stock” means any and all shares, interests, participations or other  equivalents (however designated) of capital stock of a corporation, any and all equivalent  ownership interests in a Person (other than a corporation) and any and all warrants, rights or  options to purchase any of the foregoing, but excluding any debt securities convertible into any  of the foregoing.  “Cash Equivalents” means (a) marketable direct obligations issued by, or  unconditionally guaranteed by, the United States Government or issued by any agency thereof  and backed by the full faith and credit of the United States, in each case maturing within two  years from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time  deposits or overnight bank deposits having maturities of six months or less from the date of  acquisition issued by any Lender or by any commercial bank organized under the laws of the  United States or any state thereof having combined capital and surplus of not less than  $250,000,000; (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s,  or carrying an equivalent rating by a nationally recognized rating agency, if both of the two  named rating agencies cease publishing ratings of commercial paper issuers generally, and  maturing within nine months from the date of acquisition; (d) repurchase obligations of any  Lender or of any commercial bank satisfying the requirements of clause (b) of this definition,  having a term of not more than 30 days, with respect to securities issued or fully guaranteed or  insured by the United States government; (e) securities with maturities of two years or less from  the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the  United States, by any political subdivision or taxing authority of any such state, commonwealth  or territory or by any foreign government, the securities of which state, commonwealth, territory,  political subdivision, taxing authority or foreign government (as the case may be) are rated at  least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the  date of acquisition backed by standby letters of credit issued by any Lender or any commercial  bank satisfying the requirements of clause (b) of this definition; (g) money market mutual or  similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through  (f) of this definition; or (h) money market funds that (i) comply with the criteria set forth in SEC  Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P  and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.  “CFC” means (a) each Person that is a “controlled foreign corporation” for  purposes of the Code and (b) each Subsidiary of any such Person.  “CFC Holding Company” means each Domestic Subsidiary substantially all of  the assets of which consist of Capital Stock of one or more (a) CFCs or (b) Persons described in  this definition.  





 






  12    “Change of Control” means (a) any “person” or “group” (as such terms are used  in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of  such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or  other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in  Rules 13d-3 and 13d-5 under the Exchange Act, except that a “person” or “group” shall be  deemed to have “beneficial ownership” of all Capital Stock that such “person” or “group” has  the right to acquire, whether such right is exercisable immediately or only after the passage of  time (such right, an “option right”)), directly or indirectly, of more than 40% of the Capital Stock  of the Borrower entitled to vote in the election of members of the board of directors (or  equivalent governing body) of the Borrower or (b) the occurrence of any “change in control” (or  similar event, however denominated) with respect to the Borrower under and as defined in any  indenture or other agreement or instrument evidencing or governing the rights of the holders of  any Material Indebtedness of the Borrower or any of its Restricted Subsidiaries.  “Closing Date” means July 26, 2019.  “CME Term SOFR Administrator” means CME Group Benchmark  Administration Limited as administrator of the forward-looking term Secured Overnight  Financing Rate (SOFR) (or a successor administrator).  “Code” means the Internal Revenue Code of 1986, as amended.  “Collateral” means all property of the Loan Parties, now owned or hereafter  acquired, upon which a Lien is purported to be created by any Security Document.  “Collateral Access Agreement” means any landlord waiver or other agreement, in  form and substance reasonably satisfactory to the Administrative Agent, between the  Administrative Agent and any third party (including any bailee, consignee, customs broker, or  other similar Person) in possession of any Collateral or any landlord of any real property where  any Collateral is located, as such landlord waiver or other agreement may be amended, restated,  or otherwise modified from time to time.  “Collection Account” means individually and collectively, each “Collection  Account” referred to in the Guarantee and Collateral Agreement.  “Commitment” means as to any Lender, the obligation of such Lender, if any, to  make Revolving Loans and participate in Letters of Credit and Protective Advances in an  aggregate principal and/or face amount not to exceed the amount set forth under the heading  “Commitment” opposite such Lender’s name on Schedule 1.1A or in the Assignment and  Assumption or Increased Facility Activation Notice pursuant to which such Lender became a  party hereto, as the same may be changed from time to time pursuant to the terms hereof.    “Commitment Fee Rate” means, initially 0.375% per annum and, thereafter,  subject to adjustment based on Average Quarterly Availability in accordance with the Applicable  Pricing Grids.  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1  et seq.), as amended from time to time, and any successor statute.  





 






  13    “Communications” means, collectively, any notice, demand, communication,  information, document or other material provided by or on behalf of any Loan Party pursuant to  any Loan Document or the transactions contemplated therein which is distributed by the  Administrative Agent, any Lender or any Issuing Lender by means of electronic communications  pursuant to this Section, including through an Approved Electronic Platform.  “Compliance Certificate” means a certificate duly executed by a Responsible  Officer substantially in the form of Exhibit F.  “Connection Income Taxes” means Other Connection Taxes that are imposed on  or measured by net income (however denominated) or that are franchise Taxes or branch profits  Taxes.  “Consolidated EBITDA” means for any period, Consolidated Net Income for  such period plus, without duplication and to the extent reflected as a charge in the statement of  such Consolidated Net Income for such period, the sum of:  (a) income and franchise tax expense,  (b) interest expense (including interest expense attributable to Capital Lease  Obligations and all net payment obligations pursuant to Swap Agreements), amortization or  writeoff of debt discount and debt issuance costs and commissions, discounts and other fees and  charges associated with all Indebtedness permitted hereunder,  (c) depreciation and amortization expense,  (d) non-cash charges, losses, expenses, accruals and provisions, including  stock-based compensation or awards and sale of assets not in the ordinary course of business (but  excluding any such non-cash charge to the extent that it represents an accrual or reserve for cash  expenses in any future period),  (e) amortization of intangibles (including, but not limited to, impairment of  goodwill) and organization costs,  (f) any extraordinary, unusual or non-recurring expenses or losses,  (g) any fees and expenses incurred during such period in connection with any  Investment (including any Permitted Acquisition), Disposition, issuance of all Indebtedness or  Capital Stock, or amendment or modification of any debt instrument, in each case permitted  under this Agreement, including (i) any such transactions undertaken but not completed and any  transactions consummated prior to the Closing Date and (ii) any financial advisory fees,  accounting fees, legal fees and other similar advisory and consulting fees, in each case paid in  cash during such period (collectively, “Advisory Fees”),  (h) any fees and expenses incurred in connection with the Transactions,  including Advisory Fees and (solely for purposes of this clause (h)) cash charges in respect of  strategic market reviews, stay or sign-on bonuses, integration-related bonuses, restructuring,  





 






  14    consolidation, severance or discontinuance of any portion of operations, employees and/or  management,  (i) the amount of “run-rate” cost savings, operating expense reductions,  operating improvements and synergies that are reasonably identifiable, factually supportable and  projected by the Borrower in good faith to be realized as a result of mergers and other business  combinations, Permitted Acquisitions, divestitures, insourcing initiatives, cost savings initiatives,  plant consolidations, openings and closings, product rationalization and other similar initiatives  taken or initiated before, on or after the Closing Date, in each case to the extent not prohibited by  this Agreement (collectively, “Initiatives”) (calculated on a pro forma basis as though such cost  savings, operating expense reductions, operating improvements and synergies had been realized  on the first day of the relevant Reference Period), net of the amount of actual benefits realized in  respect thereof; provided that (i) actions in respect of such cost-savings, operating expense  reductions, operating improvements and synergies have been, or will be, taken within 24 months  of the applicable Initiative, (ii) no cost savings, operating expense reductions, operating  improvements or synergies shall be added pursuant to this clause (i) to the extent duplicative of  any expenses or charges otherwise added to (or excluded from) Consolidated EBITDA, whether  through a pro forma adjustment or otherwise, for such period, (iii) projected amounts (and not  yet realized) may no longer be added in calculating Consolidated EBITDA pursuant to this  clause (i) to the extent occurring more than eight full fiscal quarters after the applicable  Initiative, (iv) the Borrower must deliver to the Administrative Agent (A) a certificate of a  Responsible Officer setting forth such estimated cost-savings, operating expense reductions,  operating improvements and synergies and (B) information and calculations supporting in  reasonable detail such estimated cost savings, operating expense reductions, operating  improvements and synergies and (v) with respect to any Reference Period, the aggregate amount  added back in the calculation of Consolidated EBITDA for such Reference Period pursuant to  this clause (i) and clause (k) below shall not exceed 25% of Consolidated EBITDA (calculated  prior to giving effect to any add-backs pursuant to this clause (i) and clause (k) below),   (j) non-recurring cash expenses recognized for restructuring costs, integration  costs and business optimization expenses in connection with any Initiative,  (k) recurring cash charges from discontinued operations; provided that, with  respect to any Reference Period, the aggregate amount added back in the calculation of  Consolidated EBITDA for such Reference Period pursuant to this clause (k) and clause (i) above  shall not exceed 25% of Consolidated EBITDA (calculated prior to giving effect to any add- backs pursuant to this clause (k) above and clause (i) above),  (l) any one-time charges related to a Material Pension Event (including for  the avoidance of doubt any such charges in the nature of a true-up taken in a subsequent quarter),  minus,  (x) to the extent included in the statement of such Consolidated Net Income  for such period, the sum of (i) interest income, (ii) any extraordinary, unusual or non-recurring  income or gains (including, whether or not otherwise includable as a separate item in the  statement of such Consolidated Net Income for such period, gains on the sales of assets outside  





 






  15    of the ordinary course of business), (iii) income tax credits (to the extent not netted from income  tax expense), (iv) any other non-cash income (other than normal accruals in the ordinary course  of business for non-cash income that represents an accrual for cash income in a future period)  and (v) all net gains pursuant to Swap Agreements; and  (y) any cash payments made during such period in respect of items described  in clause (d) above subsequent to the fiscal quarter in which the relevant non-cash expenses or  losses were reflected as a charge in the statement of Consolidated Net Income, all as determined  on a consolidated basis.  For the purposes of calculating Consolidated EBITDA for any  Reference Period pursuant to any determination of the Consolidated First Lien Leverage Ratio,  Consolidated Secured Leverage Ratio or Consolidated Leverage Ratio, (i) if at any time during  such Reference Period the Borrower or any Restricted Subsidiary shall have made any Material  Disposition, the Consolidated EBITDA for such Reference Period shall be reduced by an amount  equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of  such Material Disposition for such Reference Period or increased by an amount equal to the  Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if  during such Reference Period the Borrower or any Restricted Subsidiary shall have made a  Permitted Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after  giving pro forma effect thereto as if such Permitted Acquisition occurred on the first day of such  Reference Period.  “Consolidated First Lien Debt” means at any date, Consolidated Total Debt at  such date that is secured by Liens on the Collateral that do not rank junior to the Liens on the  Collateral securing the Revolving Loans (it being understood that any Consolidated Total Debt  that is secured by Liens on all or a portion of the Collateral that are senior to, or pari passu with,  the Liens on such Collateral securing the Revolving Loans shall be considered Consolidated First  Lien Debt).   “Consolidated First Lien Leverage Ratio” means as at the last day of any  Reference Period, the ratio of (a)(i) Consolidated First Lien Debt on such day less (ii) the  aggregate Unrestricted Cash of the Group Members on such day to (b) Consolidated EBITDA  for such period.  “Consolidated Fixed Charge Coverage Ratio” means for any period, the ratio of  (a) Consolidated EBITDA for such period less the aggregate amount actually paid by the  Borrower and its Restricted Subsidiaries during such period on account of Capital Expenditures  (excluding the principal amount of Indebtedness (other than Revolving Loans) incurred in  connection with such expenditures) to (b) Consolidated Fixed Charges for such period.  “Consolidated Fixed Charges” means for any period, the sum (without  duplication) of (a) Consolidated Interest Expense for such period, (b) scheduled principal  payments made during such period on account of principal of Indebtedness of the Borrower or  any Restricted Subsidiary (excluding, for the avoidance of doubt, (i) mandatory prepayments of  any kind on account thereof and (ii) the payment in full of any remaining outstanding principal  amount of such Indebtedness on the scheduled maturity date thereof to the extent refinanced with  the proceeds of Indebtedness on such scheduled maturity date), (c) payments for taxes made in  cash during such period, (d) Restricted Payments made in cash during such period, (e) Capital  





 






  16    Lease Obligation payments and (f) cash contributions to any Plan, all calculated for the Borrower  and its Restricted Subsidiaries on a consolidated basis and, to the extent applicable, in  accordance with GAAP.  “Consolidated Interest Expense” means for any period, total cash interest expense  (including imputed interest expense attributable to Capital Lease Obligations) of the Borrower  and its Restricted Subsidiaries for such period with respect to all outstanding Indebtedness of the  Borrower and its Restricted Subsidiaries (including all commissions, discounts and other fees  and charges owed with respect to letters of credit and bankers’ acceptance financing and net  costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable  to such period in accordance with GAAP).  “Consolidated Leverage Ratio” means as at the last day of any Reference Period,  the ratio of (a)(i) Consolidated Total Debt on such day less (ii) the aggregate Unrestricted Cash  of the Group Members on such day to (b) Consolidated EBITDA for such period.   “Consolidated Net Income” means for any period, the consolidated net income (or  loss) of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in  accordance with GAAP; provided that there shall be excluded:  (a) the income (or deficit) of any Person accrued prior to the date it becomes a  Restricted Subsidiary of the Borrower or is merged into or consolidated with the  Borrower or any of its Restricted Subsidiaries, except to the extent calculated on a Pro  Forma Basis;  (b) the income (or deficit) of any Person (other than a Restricted Subsidiary of  the Borrower) in which the Borrower or any of its Restricted Subsidiaries has an ownership  interest, except to the extent that any such income is actually received by the Borrower or such  Restricted Subsidiary in the form of dividends or similar distributions;  (c) the undistributed earnings of any Restricted Subsidiary of the Borrower to  the extent that the declaration or payment of dividends or similar distributions by such Restricted  Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than  under any Loan Document) or Requirement of Law applicable to such Restricted Subsidiary;  (d) any income (or loss) for such period attributable to the early  extinguishment of Indebtedness or Swap Obligations;  (e) the cumulative effect of a change in accounting principles and changes as  a result of the adoption or modification of accounting policies during such period; and  (f) all net after-tax gains, losses, expenses and charges attributable to business  dispositions and asset dispositions, including the sale or other disposition of any Capital Stock of  any Person, other than in the ordinary course of business.  “Consolidated Net Tangible Assets” means, with respect to any specified Person  as of any date of determination, the sum of the amounts that would appear on a consolidated  balance sheet of such Person and its consolidated Restricted Subsidiaries as the total assets (less  





 






  17    accumulated depreciation and amortization, allowances for doubtful receivables, other applicable  reserves and other properly deductible items) of such Person and its Restricted Subsidiaries, after  giving effect to purchase accounting and after deducting therefrom Consolidated Current  Liabilities and, to the extent otherwise included, the amounts of (without duplication):  (a) the excess of cost over fair market value of assets or businesses acquired;  (b) any revaluation or other write-up in book value of assets subsequent to the  last day of the fiscal quarter of such Person immediately preceding the Closing Date as a result  of a change in the method of valuation in accordance with GAAP;  (c) unamortized debt discount and expenses and other unamortized deferred  charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses,  organization or developmental expenses and other intangible items;  (d) minority interests in consolidated Subsidiaries held by Persons other than  the specified Person or any Restricted Subsidiary;  (e) treasury stock;  (f) cash or securities set aside and held in a sinking or other analogous fund  established for the purpose of redemption or other retirement of Capital Stock to the extent such  obligation is not reflected in Consolidated Current Liabilities; and  (g) Investments in and assets of Unrestricted Subsidiaries.  “Consolidated Secured Debt” means at any date, Consolidated Total Debt at such  date that is secured by a Lien on any property of any Group Member.  “Consolidated Secured Leverage Ratio” means as at the last day of any Reference  Period, the ratio of (a)(i) Consolidated Secured Debt on such day less (ii) the aggregate  Unrestricted Cash of the Group Members on such day to (b) Consolidated EBITDA for such  period.  “Consolidated Total Assets” means at any date of determination, the total assets,  in each case reflected on the consolidated balance sheet of the Borrower and its Restricted  Subsidiaries as at the end of the most recently ended fiscal quarter of the Borrower for which a  balance sheet is available, determined in accordance with GAAP (and, in the case of any  determination related to the incurrence of Indebtedness or Liens or any Investment, on a pro  forma basis including any property or assets being acquired in connection therewith).  “Consolidated Total Debt” means at any date (without duplication), all Capital  Lease Obligations, purchase money Indebtedness, Indebtedness for borrowed money and letters  of credit (but only to the extent drawn and not reimbursed), in each case of the Borrower and its  Restricted Subsidiaries at such date, determined on a consolidated basis in accordance with  GAAP.  





 






  18    “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.  “Corresponding Tenor” with respect to any Available Tenor means, as applicable,  either a tenor (including overnight) or an interest payment period having approximately the same  length (disregarding business day adjustment) as such Available Tenor.  “Covered Entity” means any of the following:  (a) a “covered entity” as that term is defined in, and interpreted in accordance  with, 12 C.F.R. § 252.82(b);  (b) a “covered bank” as that term is defined in, and interpreted in accordance  with, 12 C.F.R. § 47.3(b); or  (c) a “covered FSI” as that term is defined in, and interpreted in accordance  with, 12 C.F.R. § 382.2(b).  “Covered Party” has the meaning set forth in Section 10.20.  “Credit Party” means the Administrative Agent, the Issuing Lender or any other  Lender and, for the purposes of Section 10.13 only, any other Agent and any Arranger.  “Default” means any of the events specified in Section 8, whether or not any  requirement for the giving of notice, the lapse of time, or both, has been satisfied.  “Default Right” has the meaning assigned to that term in, and shall be interpreted  in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “Defaulting Lender” means any Lender that (a) has failed, within two Business  Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any  portion of its participations in Letters of Credit or Protective Advances or (iii) pay over to any  Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i)  above, such Lender notifies the Administrative Agent in writing that such failure is the result of  such Lender’s good faith determination that a condition precedent to funding (specifically  identified and including the particular default, if any) has not been satisfied, (b) has notified the  Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does  not intend or expect to comply with any of its funding obligations under this Agreement (unless  such writing or public statement indicates that such position is based on such Lender’s good faith  determination that a condition precedent (specifically identified and including the particular  default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under  other agreements in which it commits to extend credit, (c) has failed, within three Business Days  after request by a Credit Party, acting in good faith, to provide a certification in writing from an  authorized officer of such Lender that it will comply with its obligations (and is financially able  to meet such obligations as of the date of certification) to fund prospective Loans and  participations in then outstanding Letters of Credit and Protective Advances under this  Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this  





 






  19    clause (c) upon such Credit Party’s receipt of such written certification in form and substance  satisfactory to it and the Administrative Agent, or (d) has a direct or indirect parent company that  has become the subject of (i) a Bankruptcy Event or (ii) a Bail-In Action.  “Deposit Account Control Agreement” means individually and collectively, each  “Deposit Account Control Agreement” referred to in the Guarantee and Collateral Agreement.  “Designated Non-Cash Consideration” means the fair market value of non-cash  consideration received by the Borrower or one of its Restricted Subsidiaries in connection with a  Disposition that is so designated as Designated Non-Cash Consideration pursuant to a certificate  of a Responsible Officer, setting forth the basis of such valuation, less the amount of cash and  Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash  Consideration within 180 days of receipt thereof.  “Disposition” means with respect to any property, any sale, lease, sale and  leaseback, assignment, conveyance, transfer or other disposition (in one transaction or in a series  of transactions) of any property by any Person (including any sale and leaseback transaction and  any issuance of Capital Stock by a Subsidiary of such 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.  The terms “Dispose” and “Disposed of” shall have  correlative meanings.  “Disqualified Capital Stock” means with respect to any Person, any Capital Stock  of such Person that by its terms (or by the terms of any security into which it is convertible or for  which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the  happening of any event or condition:  (a) matures or is mandatorily redeemable (other than solely for Capital Stock  of such Person that does not constitute Disqualified Capital Stock and cash in lieu of  fractional shares of such Capital Stock) whether pursuant to a sinking fund obligation or  otherwise;   (b) is convertible or exchangeable, either mandatorily or at the option of the  holder thereof, for Indebtedness or Capital Stock (other than solely for Capital Stock of  such Person that does not constitute Disqualified Capital Stock and cash in lieu of  fractional shares of such Capital Stock); or  (c) is redeemable (other than solely for Capital Stock of such Person that does  not constitute Disqualified Capital Stock and cash in lieu of fractional shares of such  Capital Stock) or is required to be repurchased by the Borrower or any Restricted  Subsidiary, in whole or in part, at the option of the holder thereof;  in each case, on or prior to the date that is 91 days after the Latest Maturity Date (determined as  of the date of issuance thereof or, in the case of any such Capital Stock outstanding on the  Closing Date, the Closing Date); provided, however, that (i) Capital Stock of any Person that  would not constitute Disqualified Capital Stock but for terms thereof giving holders thereof the  right to require such Person to redeem or purchase such Capital Stock upon the occurrence of an  “asset sale” or a “change of control” (or similar event, however denominated) shall not constitute  





 






  20    Disqualified Capital Stock if any such requirement becomes operative only after repayment in  full of all the Loans and all other Obligations that are accrued and payable and (ii) Capital Stock  of any Person that is issued to any employee or to any plan for the benefit of employees or by  any such plan to such employees shall not constitute Disqualified Capital Stock solely because it  may be required to be repurchased by such Person or any of its subsidiaries in order to satisfy  applicable statutory or regulatory obligations or as a result of such employee’s termination, death  or disability.  “Disqualified Lenders” means (a) certain banks, financial institutions, other  institutional lenders and other Persons that have been specified in writing to the Administrative  Agent by the Borrower prior to the Closing Date, (b) competitors of the Borrower and its  Restricted Subsidiaries and any affiliate of such competitor, in each case, that is identified in  writing to the Administrative Agent by the Borrower from time to time and (c) any affiliates of  the entities described in the foregoing clauses (a) or (b) that are clearly identifiable as affiliates of  such entities solely on the basis of the similarity of their names (other than affiliates that  constitute bona fide debt funds primarily investing in loans).  In no event shall the designation of  any Person as a Disqualified Lender apply (x) to disqualify any Person until three (3) Business  Days after such Person shall have been identified in writing to the Administrative Agent via  electronic mail submitted to JPMDQ_Contact@jpmorgan.com (or to such other address as the  Administrative Agent may designate to the Borrower from time to time).  For the avoidance of  doubt, with respect to any assignee that becomes a Disqualified Lender after the applicable Trade  Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the  notice period referred to in, this definition)  or is otherwise party to a pending trade as of the date  of such notice, (x) such assignee shall not retroactively be disqualified from becoming a Lender  and (y) the execution by the Borrower of an Assignment and Assumption with respect to such  assignee will not by itself result in such assignee no longer being considered a Disqualified  Lender.   “Documents” has the meaning set forth in the Guarantee and Collateral  Agreement.  “Dollars” and “$” means dollars in lawful currency of the United States.  “Domestic Subsidiary” means any Restricted Subsidiary of the Borrower  organized under the laws of any jurisdiction within the United States.  “EEA Financial Institution” means (a) any institution established in any EEA  Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any  entity established in an EEA Member Country which is a parent of an institution described in  clause (a) of this definition, or (c) any institution established in an EEA Member Country which  is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to  consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European Union,  Iceland, Liechtenstein and Norway.  





 






  21    “EEA Resolution Authority” means any public administrative authority or any  Person entrusted with public administrative authority of any EEA Member Country (including  any delegee) having responsibility for the resolution of any EEA Financial Institution.  “Eligible Accounts” means at any time, the Accounts of the Loan Parties which  the Administrative Agent determines in its Permitted Discretion (following (to the extent  practicable) reasonable prior notice to, and consultation with, the Borrower) are eligible as the  basis for the extension of Revolving Loans and the issuance of Letters of Credit.  Without  limiting the Administrative Agent’s Permitted Discretion provided herein, Eligible Accounts  shall not include any Account:  (a) which is not subject to a first priority perfected security interest in favor of  the Administrative Agent;  (b) which is subject to any Lien other than (i) a Lien in favor of the  Administrative Agent, (ii) Permitted Term Liens which do not have priority over the Lien  in favor of the Administrative Agent and (iii) a Permitted Encumbrance which does not  have priority over the Lien in favor of the Administrative Agent;  (c) (i) which is unpaid more than 90 days after the date of the original invoice  therefor or more than 60 days after the original due date therefor or (ii) which has been  written off the books of the Loan Parties or otherwise designated as uncollectible (in  determining the aggregate amount from the same Account Debtor that is unpaid  hereunder there shall be excluded the amount of any net credit balances relating to  Accounts due from such Account Debtor which are unpaid more than 90 days from the  date of the original invoice therefor or more than 60 days from the original due date);   (d) which is owing by an Account Debtor for which more than 50% of the  Accounts owing from such Account Debtor and its Affiliates are ineligible pursuant to  clause (c) above;  (e) which is owing by an Account Debtor to the extent the aggregate amount  of Accounts owing from such Account Debtor and its Affiliates to the Loan Parties  exceeds 25% of the aggregate Eligible Accounts, but only to the extent of such excess;    (f) with respect to which any covenant, representation or warranty contained  in this Agreement or in the Guarantee and Collateral Agreement has been breached or is  not true in any material respect;  (g) which (i) does not arise from the sale of goods or performance of services  in the ordinary course of business, (ii) is not evidenced by an invoice or other  documentation satisfactory to the Administrative Agent (utilizing its Permitted Discretion  (following (to the extent practicable) reasonable prior notice to, and consultation with, the  Borrower)) which has been sent to the Account Debtor, (iii) represents a progress billing,  (iv) is contingent upon a Loan Party’s completion of any further performance, (v)  represents a sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval,  consignment, cash-on-delivery or any other repurchase or return basis or (vi) relates to  payments of interest;  





 






  22    (h) (i) for which the goods giving rise to such Account have not been shipped  to the Account Debtor or for which the services giving rise to such Account have not  been performed by a Loan Party or if such Account was invoiced more than once or (ii)  for which the goods giving rise to such Account have been shipped to the Account  Debtor by FOB destination and such goods have not yet been received by the Account  Debtor;  (i) (i) with respect to which any check or other instrument of payment  has been returned uncollected for any reason;  (j) which is owed by an Account Debtor which has (i) applied for, suffered,  or consented to the appointment of any receiver, custodian, trustee, or liquidator of its  assets, (ii) had possession of all or substantially all of its property taken by any receiver,  custodian, trustee or liquidator, (iii) filed, or had filed against it, any request or petition  for liquidation, reorganization, arrangement, adjustment of debts, adjudication as  bankrupt, winding-up, or voluntary or involuntary case under any state or federal  bankruptcy laws (other than post-petition accounts payable of an Account Debtor that is a  debtor-in-possession under the Bankruptcy Code and reasonably acceptable to the  Administrative Agent), (iv) admitted in writing its inability, or is generally unable to, pay  its debts as they become due, (v) become insolvent, or (vi) ceased operation of its  business;  (k) which is owed by any Account Debtor which has sold all or a substantially  all of its assets;  (l) which is owed in any currency other than Dollars;  (m) which is owed by (i) the government (or any department, agency, public  corporation, or instrumentality thereof) of any country other than the U.S. unless such  Account is backed by a letter of credit acceptable to the Administrative Agent which is in  the possession of, and is directly drawable by, the Administrative Agent, or (ii) the  government of the U.S., or any department, agency, public corporation, or instrumentality  thereof, unless the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. §  3727 et seq. and 41 U.S.C. § 15 et seq.), and any other steps necessary to perfect the Lien  of the Administrative Agent in such Account have been complied with to the  Administrative Agent’s satisfaction;  (n) which is owed by any Affiliate of any Loan Party or any employee,  officer, director, agent or stockholder of any Loan Party or any of its Affiliates;  (o) which is owed by an Account Debtor or any Affiliate of such Account  Debtor to which any Loan Party is indebted, but only to the extent of such indebtedness,  or is subject to any security, deposit, progress payment, retainage or other similar  advance made by or for the benefit of an Account Debtor, in each case to the extent  thereof;  (p) which is subject to any counterclaim, deduction, defense, setoff or dispute  but only to the extent of any such counterclaim, deduction, defense, setoff or dispute;  





 






  23    (q) which is evidenced by any promissory note, chattel paper or instrument;  (r) which is owed by an Account Debtor (i) located in any jurisdiction which  requires filing of a “Notice of Business Activities Report” or other similar report in order  to permit the applicable Loan Party to seek judicial enforcement in such jurisdiction of  payment of such Account, unless the applicable Loan Party has filed such report or  qualified to do business in such jurisdiction or (ii) which is a Sanctioned Person;  (s) with respect to which any Loan Party has made any agreement with the  Account Debtor for any reduction thereof, other than discounts and adjustments given in  the ordinary course of business, or any Account which was partially paid and the  applicable Loan Party created a new receivable for the unpaid portion of such Account;   (t) which does not comply in all material respects with the requirements of all  applicable laws and regulations, whether Federal, state or local, including the Federal  Consumer Credit Protection Act, the Federal Truth in Lending Act and Regulation Z of  the Board;   (u) which is for goods that have been sold under a purchase order or pursuant  to the terms of a contract or other agreement or understanding (written or oral) that  indicates that any Person other than a Loan Party has or has had an ownership interest in  such goods, or which indicates any party other than a Loan Party as payee or remittance  party;   (v) which was created on cash on delivery terms;   (w) which is a Foreign Account unless such Account is backed by (i) a Letter  of Credit acceptable to the Administrative Agent in its Permitted Discretion and which is,  if requested by the Administrative Agent, in the possession of, and is directly drawable  by, the Administrative Agent or (ii) other credit support acceptable to the Administrative  Agent in its sole discretion;  (x) which the Administrative Agent determines in its Permitted Discretion  (following (to the extent practicable) reasonable prior notice to, and consultation with, the  Borrower) may not be paid by reason of the Account Debtor’s inability to pay; or  (y) which is owed by an Account Debtor for which any accounts receivable,  instruments, chattel paper, obligations, general intangibles and other similar assets, in  each case relating to receivables owing by such Account Debtor or its Affiliates is subject  to a Permitted A/R Finance Transaction.  In determining the amount of an Eligible Account, the face amount of an Account  may, in the Administrative Agent’s Permitted Discretion (following (to the extent practicable)  reasonable prior notice to, and consultation with, the Borrower), be reduced by, without  duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and  actual discounts, claims, credits or credits pending, promotional program allowances, price  adjustments, finance charges or other allowances (including any amount that any Loan Party may  be obligated to rebate to an Account Debtor pursuant to the terms of any agreement or  





 






  24    understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of  such Account but not yet applied by the applicable Loan Party to reduce the amount of such  Account. Standards of eligibility may be made more restrictive from time to time by the  Administrative Agent in its Permitted Discretion, following (to the extent practicable) reasonable  prior notice to, and consultation with, the Borrower, with any such changes to be effective four  Business Days after delivery of notice thereof to the Borrower and the Lenders; provided that if  consultation with the Borrower and/or notice to the Borrower and the Lenders is not practicable  or if failure to implement any such change within a shorter time period would, in the good faith  judgment of the Administrative Agent, reasonably be expected to result in a Material Adverse  Effect or materially and adversely affect the Collateral or the rights of the Lenders under the  Loan Documents, such change may be implemented within a shorter time as determined by the  Administrative Agent in its Permitted Discretion; provided, further, that any Borrowing Base  Certificate delivered during such four Business Day period will reflect any such changes.  “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an  Approved Fund, (d) any commercial bank and (e) any other financial institution or investment  fund engaged as a primary activity in the ordinary course of its business in making or investing  in commercial loans or debt securities, other than, in each case, (i) a natural person, (ii) the  Borrower, any Subsidiary or any other Affiliate of the Borrower, (iii) a Defaulting Lender or (iv)  a Disqualified Lender.  “Eligible Finished Goods” means, Eligible Inventory that (a) is located in the  United States and (b) constitutes finished goods to be sold by the Borrower in the ordinary  course of business of the Borrower, excluding Eligible Raw Materials and Eligible Inventory  constituting work-in-process.  “Eligible Inventory” means at any time, the Inventory of the Loan Parties which  the Administrative Agent determines in its Permitted Discretion (following (to the extent  practicable) reasonable prior notice to, and consultation with, the Borrower) is eligible as the  basis for the extension of Revolving Loans and the issuance of Letters of Credit.  Without  limiting the Administrative Agent’s Permitted Discretion provided herein, Eligible Inventory  shall not include any Inventory:  (a) which is not subject to a first priority perfected Lien in favor of the  Administrative Agent;  (b) which is subject to any Lien other than (i) a Lien in favor of the  Administrative Agent, (ii) Permitted Tem Liens which do not have priority over the Lien in favor  of the Administrative Agent and (iii) a Permitted Encumbrance which does not have priority over  the Lien in favor of the Administrative Agent;  (c) which is, in the Administrative Agent’s Permitted Discretion (following  (to the extent practicable) reasonable prior notice to, and consultation with, the Borrower), slow  moving, obsolete, unmerchantable, defective, used, unfit for sale, not salable at prices  approximating at least the cost of such Inventory in the ordinary course of business or  unacceptable due to age, type, category and/or quantity;  





 






  25    (d) with respect to which any covenant, representation or warranty contained  in this Agreement or in the Guarantee and Collateral Agreement has been breached or is not true  and which does not conform to all standards imposed by any Governmental Authority;  (e) in which any Person other than a Loan Party shall (i) have any direct or  indirect ownership, interest or title to such Inventory or (ii) be indicated on any purchase order or  invoice with respect to such Inventory as having an interest therein;  (f) which is not raw materials or finished goods;  (g) which constitutes work-in-process, spare or replacement parts,  subassemblies, packaging and shipping material, manufacturing supplies, samples, prototypes,  displays or display items, bill-and-hold or ship-in-place goods, goods that are returned or marked  for return, repossessed goods, defective or damaged goods, goods held on consignment, or goods  which are not of a type held for sale in the ordinary course of business;  (h) which is in transit with a common carrier from vendors and suppliers;   (i) [reserved];  (j) which is located in any third party warehouse or is in the possession of a  bailee (other than a third party processor) and is not evidenced by a Document, unless (i) such  warehouseman or bailee has delivered to the Administrative Agent a Collateral Access  Agreement and such other documentation as the Administrative Agent may require or (ii) an  appropriate Reserve has been established by the Administrative Agent in its Permitted Discretion  (following (to the extent practicable) reasonable prior notice to, and consultation with, the  Borrower);  (k) which is being processed offsite at a third party location or outside  processor, or is in-transit to or from such third party location or outside processor;   (l) which is a discontinued product or component thereof;   (m) which is the subject of a consignment by the applicable Loan Party as  consignor;  (n) which is perishable;  (o) which contains or bears any intellectual property rights licensed to the  applicable Loan Party unless the Administrative Agent is reasonably satisfied that it may sell or  otherwise dispose of such Inventory without (i) infringing the rights of such licensor, (ii)  violating any contract with such licensor, or (iii) incurring any liability with respect to payment  of royalties other than royalties incurred pursuant to sale of such Inventory under the current  licensing agreement;   (p) which is not reflected in a current perpetual inventory report or on the  general ledger of the Loan Parties (unless such Inventory is reflected in a report to the  Administrative Agent as “in transit” Inventory);  





 






  26    (q) for which reclamation rights have been asserted by the seller;   (r) which has been acquired from a Sanctioned Person;  (s) which the Administrative Agent in its Permitted Discretion (following (to  the extent practicable) reasonable prior notice to, and consultation with, the Borrower)  determines is unacceptable; or   (t) Inventory constituting work-in-process.  Standards of eligibility may be made more restrictive from time to time by the  Administrative Agent in its Permitted Discretion, after consultation (to the extent practicable)  with the Borrower, with any such changes to be effective four Business Days after delivery of  notice thereof to the Borrower and the Lenders; provided that if consultation with the Borrower  and/or notice to the Borrower and the Lenders is not practicable or if failure to implement any  such change within a shorter time period would, in the good faith judgment of the Administrative  Agent, reasonably be expected to result in a Material Adverse Effect or materially and adversely  affect the Collateral or the rights of the Lenders under the Loan Documents, such change may be  implemented within a shorter time as determined by the Administrative Agent in its Permitted  Discretion; provided, further, that any Borrowing Base Certificate delivered during such four  Business Day period will reflect any such changes.  “Eligible Raw Materials” means, Eligible Inventory that is (a) located in the  United States and (b) constitutes raw materials used or consumed by the Borrower in the  ordinary course of business in the manufacture or production of other inventory, excluding  Eligible Finished Goods and Eligible Inventory constituting work-in-process.  “Environmental Laws” means any and all foreign, Federal, state, local or  municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of  any Governmental Authority or other Requirements of Law (including common law) regulating,  relating to or imposing liability or standards of conduct concerning protection of human health or  the environment, as now or may at any time hereafter be in effect.  “Environmental Permits” means any and all permits, licenses, approvals,  registrations, notifications, exemptions and any other authorization required under any  Environmental Law.  “ERISA” means the Employee Retirement Income Security Act of 1974, as  amended from time to time, and the rules and regulations promulgated thereunder.  “ERISA Affiliate” means any trade or business (whether or not incorporated) that,  together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the  Code or Section 4001(a)(14) of ERISA or, solely for purposes of Section 302 of ERISA and  Section 412 of the Code, is treated as a single employer under Section 414(m) or (o) of the Code.  “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of  ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which  the 30 day notice period is waived); (b) the failure to satisfy the “minimum funding standard” (as  





 






  27    defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the  filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a  waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the  Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to  the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the  PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or  Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of  its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the  Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt  by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan  from the Borrower or any ERISA Affiliate of any notice, concerning the imposition upon the  Borrower or any of its ERISA Affiliates of Withdrawal Liability or a determination that a  Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule  published by the Loan Market Association (or any successor Person), as in effect from time to  time.   “Event of Default” means any of the events specified in Section 8, provided that  any requirement for the giving of notice, the lapse of time, or both, has been satisfied.  “Exchange Act” means the Securities Exchange Act of 1934, as amended.  “Excluded Account” has the meaning set forth in the Guarantee and Collateral  Agreement.  “Excluded Swap Obligation” means with respect to any Loan Party (a) any Swap  Obligation if, and to the extent that, and only for so long as, all or a portion of the guarantee of  such Loan Party of, or the grant by such Loan Party of a security interest to secure, as applicable,  such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity  Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission  (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure  to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and  the regulations thereunder, at the time the guarantee of (or grant of such security interest by, as  applicable) such Loan Party becomes or would become effective with respect to such Swap  Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of  such Loan Party as specified in any agreement between the relevant Loan Parties and  counterparty applicable to such Swap Obligations, and agreed by the Administrative Agent.  If a  Swap Obligation arises under a master agreement governing more than one Swap, such exclusion  shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which  such guarantee or security interest is or becomes illegal.  “Excluded Subsidiary” means (a) any Unrestricted Subsidiary, (b) Immaterial  Subsidiary, (c) any non-Wholly Owned Subsidiary to the extent the organizational documents  thereof prohibit it from guaranteeing the Obligations, (d) any Subsidiary that is prohibited or  restricted by applicable law, rule or regulation or by any contractual obligation existing on the  Closing Date or on the date such Subsidiary was acquired (so long as such contractual obligation  





 






  28    was not entered into in contemplation of such acquisition) from guaranteeing the Obligations or  which would require a non-ministerial governmental (including regulatory) consent, approval,  license or authorization to provide a guarantee unless such consent, approval, licensor  authorization has been received (the Loan Parties being under no obligation to obtain such  consent, approval or licensor authorization), (e) any CFC or CFC Holding Company, (f) any  Domestic Subsidiary of a Foreign Subsidiary, (g) not-for-profit Subsidiaries and captive  insurance companies, (h) any Subsidiary whose provision of a guarantee would have a cost  (including tax cost), burden, difficulty or consequence that is excessive in relation to the value  afforded thereby as agreed between the Borrower and Administrative Agent, and (i) any  Restricted Subsidiary acquired pursuant to a Permitted Acquisition with Indebtedness permitted  to be incurred pursuant to the Loan Documents as assumed Indebtedness and any Restricted  Subsidiary thereof that guarantees such assumed Indebtedness, in each case to the extent such  secured Indebtedness prohibits such Subsidiary from becoming a Guarantor.  Each Excluded  Subsidiary as of the Closing Date is set forth on Schedule 4.15.  “Excluded Taxes” means any of the following Taxes imposed on or with respect  to a Credit Party or required to be withheld or deducted from a payment to a Credit Party, (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 a Credit Party being organized under  the laws of, or having its principal office or, in the case of any Lender, its applicable 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 such 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) a Lender  acquires such interest in the Loan or Commitment (other than pursuant to an assignment request  by the Borrower under Section 2.22) or (ii) a Lender changes its lending office, except in each  case to the extent that, pursuant to Section 2.19, amounts with respect to such Taxes were  payable either to such Lender’s assignor immediately before such Lender acquired the applicable  interest in a Loan or Commitment or to such Lender immediately before it changed its lending  office, (c) Taxes attributable to a Credit Party’s failure to comply with Section 2.19(f) and (d)  any U.S. Federal withholding Taxes imposed under FATCA.  “Existing Letters of Credit” means the letters of credit existing on the Closing  Date and identified on Schedule 3.01.   “Facility” means each the Commitments and the Revolving Loans made  thereunder. Additional Facilities may be established pursuant to Section 2.25.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this  Agreement (or any amended or successor version that is substantively comparable and not  materially more onerous to comply with), any current or future regulations or official  interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code  and any fiscal or regulatory legislation, rules or practices adopted pursuant to any  intergovernmental agreement, treaty or convention among Governmental Authorities and  implementing such Sections of the Code.    





 






  29    “Federal Funds Effective Rate” means, for any day, the rate calculated by the  NYFRB based on such day’s federal funds transactions by depositary institutions, as determined  in such manner as the NYFRB shall set forth on its public website from time to time, and  published on the next succeeding Business Day by the NYFRB as the effective federal funds  rate; provided that if the Federal Funds Effective Rate as so determined would be less than zero,  such rate shall be deemed to be zero for the purposes of this Agreement.  “Federal Reserve Board” means the Board of Governors of the Federal Reserve  System of the United States of America.  “Fee Payment Date” means (a) the last Business Day of each March, June,  September and December and (b) the last day of the Revolving Commitment Period.  “Flood Insurance Laws” means, collectively, (i) the National Flood Insurance  Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968  and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor  statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any  successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as  now or hereafter in effect or any successor statute 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 Adjusted Term SOFR Rate. For the avoidance of  doubt the initial Floor for each of Adjusted Term SOFR Rate shall be 0%.  “Foreign Account” means an Account that is owed by an Account Debtor which  (i) does not maintain its chief executive office in the U.S. (including any territory thereof) or (ii)  is not organized under applicable law of the U.S., any state of the U.S., or the District of  Columbia.  “Foreign Subsidiary” means any Restricted Subsidiary of the Borrower that is not  a Domestic Subsidiary.  “Foreign Benefit Arrangement” means any employee benefit arrangement  mandated by non-U.S. law that is maintained or contributed to by any Group Member, any  ERISA Affiliate or any other entity related to a Group Member on a controlled group basis.   “Foreign Plan” means each employee benefit plan (within the meaning of Section  3(3) of ERISA, whether or not such plan is subject to ERISA) that is not subject to US law and is  maintained or contributed to by any Group Member, or ERISA Affiliate or any other entity  related to a Group Member on a controlled group basis.  “Foreign Plan Event” means with respect to any Foreign Benefit Arrangement or  Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with normal  accounting practices, any employer or employee contributions required by applicable law or by  the terms of such Foreign Benefit Arrangement or Foreign Plan; (b) the failure to register or loss  of good standing with applicable regulatory authorities of any such Foreign Benefit Arrangement  or Foreign Plan required to be registered; or (c) the failure of any Foreign Benefit Arrangement  





 






  30    or Foreign Plan to comply with any material provisions of applicable law and regulations or with  the material terms of such Foreign Benefit Arrangement or Foreign Plan.  “Full Cash Dominion Period” means (a) each period when an Event of Default  shall have occurred and be continuing and (b) each period beginning on the second consecutive  Business Day on which Availability is less than or equal to the greater of (x) 12.5% of the Line  Cap and (y) $23.5 million; provided that any such Full Cash Dominion Period commencing  pursuant to clause (b) shall end when and if Availability shall have been not less than such  specified level for 30 consecutive days.  “Funding Office” means the office of the Administrative Agent specified in  Section 10.2 or such other office as may be specified from time to time by the Administrative  Agent as its funding office by written notice to the Borrower and the Lenders.  “GAAP” means generally accepted accounting principles in the United States as  in effect from time to time.  In the event that any “Accounting Change” (as defined below) shall  occur and such change results in a change in the method of calculation of financial covenants,  standards or terms in this Agreement, then the Borrower and the Administrative Agent agree to  enter into negotiations to promptly amend such provisions of this Agreement so as to reflect  equitably such Accounting Changes with the desired result that the criteria for evaluating the  Borrower’s results of operations and/or financial condition shall be the same after such  Accounting Changes as if such Accounting Changes had not been made.  Until such time as such  an amendment shall have been executed and delivered by the Borrower, the Administrative  Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement  shall continue to be calculated or construed as if such Accounting Changes had not occurred.   “Accounting Changes” refers to changes in accounting principles required by the promulgation  of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board  of the American Institute of Certified Public Accountants or, if applicable, the SEC.  “Governmental Authority”  means the government of the United States of  America, any other nation or 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, any securities exchange and any self-regulatory organization  (including the National Association of Insurance Commissioners).   “Group Members” means the collective reference to the Borrower and its  Restricted Subsidiaries.  “Guarantee and Collateral Agreement” means the ABL Guarantee and Collateral  Agreement, dated as of the Closing Date, executed and delivered by the Borrower and each  Subsidiary Guarantor, substantially in the form of Exhibit D.  “Guarantee Obligation” means as to any Person (the “guaranteeing person”), any  obligation, including a reimbursement, counterindemnity or similar obligation, of the  guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the  creation of a separate obligation by another Person (including any bank under any letter of  





 






  31    credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other  obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any  manner, whether directly or indirectly, including any obligation of the guaranteeing person,  whether or not contingent, (i) to purchase any such primary obligation or any property  constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the  purchase or payment of any such primary obligation or (2) to maintain working capital or equity  capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary  obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the  owner of any such primary obligation of the ability of the primary obligor to make payment of  such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such  primary obligation against loss in respect thereof; provided, however, that the term Guarantee  Obligation shall not include endorsements of instruments for deposit or collection in the ordinary  course of business.  The amount of any Guarantee Obligation of any guaranteeing person shall be  deemed to be the lower of (a) an amount equal to the stated or determinable amount of the  primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum  amount for which such guaranteeing person may be liable pursuant to the terms of the instrument  embodying such Guarantee Obligation, unless such primary obligation and the maximum amount  for which such guaranteeing person may be liable are not stated or determinable, in which case  the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum  reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.  “Immaterial Subsidiary” means any Restricted Subsidiary that is not a Material  Subsidiary and that is designated by the Borrower in writing to the Administrative Agent as an  “Immaterial Subsidiary”; provided that if (i) as of the last day of the most recently ended fiscal  quarter of the Borrower for which financial statements have been delivered pursuant to Section  6.1(a) or (b), the aggregate Consolidated Net Tangible Assets of all Immaterial Subsidiaries, as  of the last day of such fiscal quarter, exceeds 5% of Consolidated Net Tangible Assets of the  Borrower and its Restricted Subsidiaries or (ii) the aggregate contribution of Consolidated  EBITDA of all Immaterial Subsidiaries to Consolidated EBITDA for the Applicable Reference  Period exceeds 7.5% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries  for such Applicable Reference Period, then one or more Restricted Subsidiaries that are not  Material Subsidiaries shall promptly be designated by the Borrower in writing to the  Administrative Agent as a “Material Subsidiary” until such excess has been eliminated. Each  Immaterial Subsidiary as of the Closing Date is set forth on Schedule 4.15.  “Increased Facility Activation Notice” means a notice substantially in the form of  Exhibit I-1 or in such other form as is reasonably acceptable to the Administrative Agent.  “Increased Facility Closing Date” means any Business Day designated as such in  an Increased Facility Activation Notice.  “Incremental Commitments” has the meaning set forth in Section 2.24(a).  “Indebtedness” means of any Person at any date, without duplication, (a) all  indebtedness of such Person for borrowed money, (b) all obligations of such Person for the  deferred purchase price of property or services (other than (i) trade payables incurred in the  ordinary course of such Person’s business or consistent with industry or past practice, (ii)  





 






  32    deferred compensation payable to directors, officers or employees of any Group Member, (iii)  any purchase price adjustment or earnout obligation until such adjustment or obligation becomes  a liability on the balance sheet of such Person in accordance with GAAP, (iv) accrued expenses  and liabilities and intercompany liabilities arising in the ordinary course of such Person’s  business, and (v) prepaid or deferred revenue arising in the ordinary course of business), (c) all  obligations of such Person evidenced by notes, bonds, debentures or other similar instruments,  (d) all indebtedness created or arising under any conditional sale or other title retention  agreement with respect to property acquired by such Person (even though the rights and remedies  of the seller or lender under such agreement in the event of default are limited to repossession or  sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such  Person, contingent or otherwise, as an account party or applicant under or in respect of  acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of  all redeemable preferred Disqualified Capital Stock of such Person, (h) all Guarantee Obligations  of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above,  (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which  the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any  Lien on property (including accounts and contract rights) owned by such Person, whether or not  such Person has assumed or become liable for the payment of such obligation (but only to the  extent of the lesser of (i) the amount of such Indebtedness and (ii) the fair market value of such  property), and (j) for the purposes of Section 8(e) only, after taking into account the effect of any  legally enforceable netting agreement relating to Swap Agreements, (i) for any date on or after  the date such Swap Agreements have been closed out and termination value(s) determined in  accordance therewith, such termination value(s), and (ii) for any date prior to the date referenced  in the immediately preceding clause (i), the amount(s) determined as the mark-to-market value(s)  for such Swap Agreements, 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).  The Indebtedness of any Person shall include the  Indebtedness of any other entity (including any partnership in which such Person is a general  partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest  in or other relationship with such entity, except to the extent the terms of such Indebtedness  expressly provide that such Person is not liable therefor.  “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) above, Other  Taxes.  “Insolvent” means with respect to any Multiemployer Plan, the condition that  such plan is insolvent within the meaning of Section 4245 of ERISA.  “Intellectual Property” means the collective reference to all rights, priorities and  privileges relating to intellectual property, whether arising under United States, multinational or  foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses,  trademarks, trademark licenses, technology, know-how and processes, all registrations and  applications therefor, and all rights to sue at law or in equity for any infringement or other  impairment thereof, including the right to receive all proceeds and damages therefrom.  





 






  33    “Intercreditor Agreement” means an intercreditor agreement governing the  relationship between the Administrative Agent and the Term Loan Representative that is (a)  acceptable to the Required Lenders or (b) substantially in the form of Exhibit K and satisfactory  to the Administrative Agent.   “Interest Election Request” means a request by the Borrower to convert or  continue a Revolving Borrowing in accordance with Section 2.12 and the definition of “Interest  Period”, which shall be substantially in the form of Exhibit B or any other form approved by the  Administrative Agent.  “Interest Payment Date” means (a) as to any ABR Loan, the first day of each  January, April, July and October to occur while such Loan is outstanding and the final maturity  date of such Loan, (b) as to any Term SOFR Loan having an Interest Period of three months or  less, the last day of such Interest Period, (c) as to any Term SOFR Loan having an Interest Period  longer than three months, each day that is three months, or a whole multiple thereof, after the  first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan,  the date of any repayment or prepayment made in respect thereof.  “Interest Period” means with respect to any Term Benchmark Borrowing, the  period commencing on the date of such Borrowing and ending on the numerically corresponding  day in the calendar month that is one, three or six months thereafter (in each case, subject to the  availability for the Benchmark applicable to the relevant Loan or Commitment), as the Borrower  may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day,  such Interest Period shall be extended to the next succeeding Business Day unless such next  succeeding Business Day would fall in the next calendar month, in which case such Interest  Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on  the last Business Day of a calendar month (or on a day for which there is no numerically  corresponding day in the last calendar month of such Interest Period) shall end on the last  Business Day of the last calendar month of such Interest Period and (iii) no tenor that has been  removed from this definition pursuant to Section 2.16(e) shall be available for specification in  such Borrowing Request or Interest Election Request.  For purposes hereof, the date of a  Borrowing initially shall be the date on which such Borrowing is made and, in the case of a  Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or  continuation of such Borrowing.  “Inventory” has the meaning set forth in the Guarantee and Collateral Agreement.  “Investment Grade Eligible Accounts” means Eligible Accounts owing by an  Account Debtor (a) whose securities are rated BBB- or better by S&P or Baa3 or better by  Moody’s at such time or (b) is a wholly-owned subsidiary of a Person whose securities are rated  BBB- or better by S&P or Baa3 or better by Moody’s at such time.  “Investments” has the meaning set forth in Section 7.7.  “IRS” means the United States Internal Revenue Service.   





 






  34    “Issuer Document” means, with respect to any Letter of Credit, the Application, a  letter of credit agreement, or any other document, agreement or instrument entered into (or to be  entered into) by a Borrower in favor of the Issuing Lender and relating to such Letter of Credit.  “Issuing Lender” means, subject to Section 3.9, each of JPMCB, Wells Fargo  Bank, National Association and any other Revolving Lender reasonably approved by the  Administrative Agent and the Borrower that has agreed in its sole discretion to act as an “Issuing  Lender” hereunder, or any of their respective affiliates, in each case in its capacity as issuer of  any Letter of Credit.  Each reference herein to “the Issuing Lender” shall be deemed to be a  reference to the relevant Issuing Lender.  “Joint Venture” means a joint venture, partnership or other similar arrangement  entered into by the Borrower or any Restricted Subsidiary, whether in corporate, partnership or  other legal form; provided that in no event shall any Subsidiary be considered to be a Joint  Venture.  “JPMCB” means JPMorgan Chase Bank, N.A., a national banking association, in  its individual capacity, and its successors.  “Junior Indebtedness” means (a) the Permitted Notes, (b) any Material  Subordinated Indebtedness, (c) any Indebtedness (other than Permitted Term Loans and any  Permitted Refinancing Indebtedness in respect thereof) of any Group Member that is secured by  a Lien on the Collateral that is junior to the Lien on the Collateral securing the Obligations and  (d) any Material Unsecured Indebtedness of any Group Member.  “Latest Maturity Date” means at any date of determination, the latest scheduled  maturity date applicable to any Loan hereunder at such time.  “L/C Commitment” means $15,000,000, as such amount may be reduced from  time to time by the mutual agreement of the Administrative Agent and the Borrower.  “L/C Disbursement” means a payment made by an Issuing Lender pursuant to a  Letter of Credit, including in respect of a time draft presented thereunder.    “L/C Exposure” means at any time, the total L/C Obligations.  The L/C Exposure  of any Revolving Lender at any time shall be its Revolving Percentage of the total L/C Exposure  at such time.  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 Article 29(a) of the Uniform Customs and Practice for Documentary Credits,  International Chamber of Commerce Publication No. 600 (or such later version thereof as may  be in effect at the applicable time) or Rule 3.13 or Rule 3.14 of the International Standby  Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof  as may be in effect at the applicable time) or similar terms of the Letter of Credit itself, or if  compliant documents have been presented but not yet honored, such Letter of Credit shall be  deemed to be “outstanding” and “undrawn” in the amount so remaining available to be paid, and  the obligations of the Borrower and each Lender shall remain in full force and effect until the  Issuing Lender and the Lenders shall have no further obligations to make any payments or  disbursements under any circumstances with respect to any Letter of Credit.  





 






  35    “L/C Obligations” means at any time, an amount equal to the sum of (a) the  aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b)  the aggregate amount of drawings under Letters of Credit that have not then been reimbursed  pursuant to Section 3.5.  “L/C Participants” means the collective reference to all the Revolving Lenders  other than the Issuing Lender.  “LCT Election” has the meaning set forth in Section 1.6.  “LCT Test Date” has the meaning set forth in Section 1.6.  “Lender Parent” means with respect to any Lender, any Person as to which such  Lender is, directly or indirectly, a Subsidiary.  “Lenders” means the Persons listed on Schedule 1.1A and any other Person that  shall have become a party hereto pursuant to an Assignment and Assumption or otherwise, other  than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption  or otherwise. Unless the context otherwise requires, the term “Lenders” includes the Issuing  Lenders.  “Letters of Credit” has the meaning set forth in Section 3.1(a).  “Lien” means, any mortgage, pledge, hypothecation, assignment, deposit  arrangement, encumbrance, lien (statutory or other), charge or other security interest or any  preference, priority or other security agreement or preferential arrangement of any kind or nature  whatsoever (including any conditional sale or other title retention agreement and any capital  lease having substantially the same economic effect as any of the foregoing).  “Limited Condition Transaction” means any Investment that the Borrower or a  Restricted Subsidiary is contractually committed to consummate (it being understood that such  commitment may be subject to conditions precedent, which conditions precedent may be  amended, satisfied or waived in accordance with the applicable agreement) within 120 days and  whose consummation is not conditioned on the availability or, or on obtaining, third party  financing.   “Line Cap” means at any time, an amount equal to the lesser of (a) the Total  Commitments and (b) the Borrowing Base.  “Loan” means the loans made by the Lenders to the Borrower pursuant to this  Agreement, including Protective Advances.  “Loan Documents” means this Agreement, including schedules and exhibits  hereto, the Security Documents, the Intercreditor Agreement, the Notes, the Letters of Credit,  any Applications, any Issuer Documents and any amendment, waiver, supplement or other  modification to any of the foregoing.  





 






  36    “Loan Modification Agreement” means a Loan Modification Agreement, in form  and substance reasonably satisfactory to the Administrative Agent and the Borrower, among the  Borrower, the Administrative Agent and one or more Accepting Lenders, effecting one or more  Permitted Amendments and such other amendments hereto and to the other Loan Documents as  are contemplated by Section 2.25.  “Loan Modification Offer” has the meaning set forth in Section 2.25(a).  “Loan Parties” means the Borrower and the Subsidiary Guarantors.  “Margin Stock” means margin stock within the meaning of Regulations T, U  and X, as applicable.  “Material Adverse Effect” means a material adverse change in, or a material  adverse effect on, (a) the business, property, assets, liabilities (actual or contingent), operations  or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the  ability of the Loan Parties (taken as a whole) to perform the obligations under the Loan  Documents to which they are a party or (c) the validity or enforceability of this Agreement or  any of the other Loan Documents or the rights or remedies of the Administrative Agent or the  Lenders hereunder or thereunder.  “Material Disposition” means any Disposition of property or series of related  Dispositions (other than Dispositions permitted pursuant to Section 7.5(m)) of property that  yields gross proceeds to the Group Members in excess of $65,000,000.  “Material Indebtedness” means Indebtedness (other than the Loans) of any one or  more of the Borrower and the Restricted Subsidiaries in an aggregate principal amount of  $75,000,000 or more; provided that any Permitted Term Loans shall be deemed to be Material  Indebtedness.  For purposes of determining Material Indebtedness, the “principal amount” of any  Swap Obligation at any time shall be the maximum aggregate amount (giving effect to any  netting agreements) that the Borrower and/or any applicable Restricted Subsidiary would be  required to pay if the applicable Swap Agreement were terminated at such time.  “Material Pension Event” means a withdrawal during the term of this Agreement  by the Borrower from a single Multiemployer Plan requiring cash payments by the Borrower or  its Subsidiaries which Multiemployer Plan is identified in writing to the Administrative Agent in  the Compliance Certificate required to be delivered for the fiscal quarter ending after the  occurrence thereof.  “Material Subordinated Indebtedness” means any Subordinated Indebtedness in  an aggregate principal amount of $5,000,000 or more.  “Material Subsidiary” means, as of any date of determination, each Restricted  Subsidiary (a) with tangible assets (including the value of Capital Stock of its subsidiaries) on  such date of determination equal to or greater than 5.0% of Consolidated Net Tangible Assets,  (b) whose contribution to Consolidated EBITDA for the Applicable Reference Period exceeds  7.5% of Consolidated EBITDA for the Applicable Reference Period or (c) that is designated as a  “Material Subsidiary” pursuant to the definition of Immaterial Subsidiary.  





 






  37    “Material Unsecured Indebtedness” means any Indebtedness in an aggregate  principal amount of $30,000,000 or more that is not secured by a Lien on any property of any  Group Member.  “Materials of Environmental Concern” means any gasoline or petroleum  (including crude oil or any fraction thereof) or petroleum products, asbestos, polychlorinated  biphenyls, urea-formaldehyde insulation, radioactivity, and any other substances, materials or  wastes, that are regulated pursuant to or that could give rise to liability under any Environmental  Law.  “Maturity Date Extension Notice” means a notice substantially in the form of  Exhibit I-3 or in such other form as is reasonably acceptable to the Administrative Agent.  “Minimum Extension Condition” has the meaning set forth in Section 2.25(a).  “Moody’s” means Moody’s Investors Service, Inc.  “Multiemployer Plan” means a multiemployer plan as defined in Section  4001(a)(3) of ERISA to which any Group Member or any ERISA Affiliate (i) makes or is  obligated to make contributions, (ii) during the preceding five plan years, has made or been  obligated to make contributions or (iii) has any actual or contingent liability.  “Multiple Employer Plan” means a Plan which has two or more contributing  sponsors (including any Group Member 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 Cash Proceeds” means (a) in connection with any Disposition or any  Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any  such proceeds received by way of deferred payment of principal pursuant to a note or installment  receivable or purchase price adjustment receivable or otherwise, but only as and when received),  net of the direct costs relating to such Disposition or Recovery Event including attorneys’ fees,  accountants’ fees, investment banking fees, sales commissions, amounts required to be applied to  the repayment of Indebtedness (other than the Loans, any Pari Passu Secured Indebtedness or  any Junior Indebtedness) secured by a Lien expressly permitted hereunder on any asset that is the  subject of such Disposition or Recovery Event and other customary fees and expenses actually  incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a  result thereof (after taking into account any available tax credits or deductions and any tax  sharing arrangements) and any (i) reasonable reserve for adjustment in respect of the sale price  of such asset or assets established in accordance with GAAP; provided that upon release of any  such reserve, the amount released shall be considered Net Cash Proceed and (ii) any reasonable  reserve or payment with respect to any liabilities associated with such asset or assets and retained  by the Borrower after such sale or other disposition thereof, including, severance costs, pension  and other post-employment benefit liabilities and liabilities related to environmental matters or  against any indemnification obligations associated with such transaction; provided that upon  release of any such reserve, the amount released shall be considered Net Cash Proceeds and (b)  in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness, the  cash proceeds received from such issuance or incurrence, net of all taxes paid or reasonably  





 






  38    estimated to be payable as a result thereof and fees, including attorneys’ fees, investment  banking fees and discounts, accountants’ fees, underwriting discounts and commissions and  other customary fees and expenses actually incurred in connection therewith.  “Net Orderly Liquidation Value” means with respect to Inventory of any Person,  the net orderly liquidation value expected to be realized at an orderly, negotiated sale held within  reasonable time period from the most recent Inventory appraisal ordered by the Administrative  Agent.  “New Lender” has the meaning set forth in Section 2.24(b).  “New Lender Supplement” has the meaning set forth in Section 2.24(b).  “Non-Guarantor Debt Limit” means an amount equal to the greater of  $100,000,000 and 7.5% of Consolidated Net Tangible Assets.   “Non-Investment Grade Eligible Accounts” means Eligible Accounts that are not  Investment Grade Eligible Accounts.  “Non-U.S. Lender” means (a) if the Borrower is a U.S. Person, a Lender, with  respect to the Borrower, that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a  Lender, with respect to the Borrower, that is resident or organized under the laws of a  jurisdiction other than that in which the Borrower is resident for tax purposes.  “Not Otherwise Applied” means in respect of any amount, such amount has not  previously been (and is not currently being) applied to any other use or transaction.   “Notes” means the collective reference to any promissory note evidencing Loans.  “NYFRB” means the Federal Reserve Bank of New York.  “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective  Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for  any day that is not a Business Day, for the immediately preceding Business Day); provided that  if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate”  means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the  Administrative Agent from a federal funds broker of recognized standing selected by it;  provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate  shall be deemed to be zero for purposes of this Agreement.  “Obligations” means collectively, (a) the unpaid principal of and interest on  (including interest accruing after the maturity of the Loans and Reimbursement Obligations and  interest accruing after the filing of any petition in bankruptcy, or the commencement of any  insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim  for post-filing or post-petition interest is allowed in such proceeding) the Loans and  Reimbursement Obligations, all other obligations and liabilities of the Borrower to the  Administrative Agent or to any Lender, whether direct or indirect, absolute or contingent, due or  to become due, or now existing or hereafter incurred, which arise under, out of, or in connection  





 






  39    with, this Agreement, any other Loan Document, the Letters of Credit or any other document  made, delivered or given in connection herewith or therewith, whether on account of principal,  interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees,  charges and disbursements of counsel to the Administrative Agent or to any Lender that are  required to be paid by the Borrower pursuant hereto including with respect to Letters of Credit)  or otherwise, (b) all Banking Services Obligations and (c) all Secured Swap Obligations.  “Other Connection Taxes” means with respect to any Credit Party, Taxes imposed  as a result of a present or former connection between such Credit Party and the jurisdiction  imposing such Tax (other than connections arising from such Credit Party 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, Letter of Credit 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 2.22).  “Overnight Bank Funding Rate” means, for any day, the rate comprised of both  overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.- managed banking offices of depository institutions, as such composite rate shall be determined  by the NYFRB as set forth on the NYFRB’s website from time to time, and published on the  next succeeding Business Day by the NYFRB as an overnight bank funding rate.  “Participant” has the meaning set forth in Section 10.6(c).  “Participant Register” has the meaning set forth in Section 10.6(c).  “Patriot Act” has the meaning set forth in Section 10.17.  “Payment Conditions” means (a) no Event of Default has occurred and is  continuing and (b) at all times during the Pro Forma Period (i) after giving effect to the proposed  event as if it occurred on the first day of the Pro Forma Period, a daily average pro forma  Availability is greater than the greater of (x) 17.5% of the Line Cap and (y) $33.0 million, or (ii)  after giving effect to the proposed event on a Pro Forma Basis as if it occurred on the first day of  the Pro Forma Period, (A) a daily average pro forma Availability during the Pro Forma Period  greater than the greater of (x) 15% of the Line Cap and (y) $28.0 million and (B) a Consolidated  Fixed Charge Coverage Ratio for the most recently ended Reference Period greater than  1.10:1.0.  “PBGC” means the Pension Benefit Guaranty Corporation established under  Section 4002 of ERISA and any successor entity performing similar functions.  





 






  40    “Pension Plan” means any employee benefit plan (including a Multiple Employer  Plan, but not including a Multiemployer Plan) that is subject to Title IV of ERISA, Section 412  of the Code or Section 302 of ERISA (i) which is or was sponsored, maintained or contributed to  by, or required to be contributed to by, any Group Member or any ERISA Affiliate or (ii) with  respect to which any Group Member or any ERISA Affiliate has any actual or contingent  liability.  “Permitted A/R Finance Transaction” means the bona fide sale for cash by the  Borrower or its Subsidiaries to an unaffiliated third party on an arm’s length and non-recourse  basis (except for customary representations, warranties, commercial disputes and other standard  recourse or repurchase obligations in customary transactions of this type) of Receivables Related  Assets pursuant to (i) the Supplier Agreement, (ii) the Purchase Agreement and (iii) such other  agreements which meet the foregoing criteria in an aggregate amount not to exceed $30,000,000  in face value per fiscal quarter.  “Permitted Acquisition” means the purchase or other acquisition by the Borrower  or any Restricted Subsidiary of all or a majority of the Capital Stock of, or all or substantially all  of the property of, any Person, or of any business or division of any Person; provided that with  respect to each purchase or other acquisition (i) after giving effect thereto, the Borrower and its  Restricted Subsidiaries are in compliance with Section 7.15, (ii) immediately before and  immediately after giving effect on a pro forma basis to any such purchase or other acquisition, no  Event of Default shall have occurred and be continuing and (iii) any such newly created or  acquired Subsidiary shall, to the extent required by Section 6.10, comply with the requirements  of Section 6.10.  “Permitted Amendment” means an amendment to this Agreement and/or the other  Loan Documents, effected in connection with a Loan Modification Offer pursuant to Section  2.25, providing for an extension of the commitments and scheduled maturity date applicable to  the Loans of the Accepting Lenders of a relevant Facility and, in connection therewith, which  may also provide for (a)(i) a change in the Applicable Margin with respect to the Loans of the  Accepting Lenders subject to such Permitted Amendment and/or (ii) a change in the fees payable  to, or the inclusion of new fees to be payable to, the Accepting Lenders in respect of such Loans,  (b) such amendments to this Agreement and the other Loan Documents as shall be appropriate,  in the reasonable judgment of the Administrative Agent, to provide the rights and benefits of this  Agreement and other Loan Documents to each new Facility of Loans and/or commitments  resulting therefrom and (c) additional amendments to the terms of this Agreement and/or the  other Loan Documents applicable to the applicable Loans of the Accepting Lenders that are less  favorable to such Accepting Lenders than the terms of this Agreement and/or the other Loan  Documents, as applicable, prior to giving effect to such Permitted Amendments and that are  reasonably acceptable to the Administrative Agent.  “Permitted Amount” means, as of any date, (a)(i) $60,000,000 so long as the  Payment Conditions are met as of such date and (ii) $5,000,000 if the Payment Conditions are  not met as of such date, in either case, less (b) the sum of, without duplication, (i) the aggregate  outstanding amount of Indebtedness of Restricted Subsidiaries that are not Loan Parties subject  to Guarantee Obligations of Loan Parties under Section 7.7(c) as of such date, (ii) the aggregate  outstanding amount of loans or advances made by Loan Parties to Restricted Subsidiaries that are  





 






  41    not Loan Parties under Section 7.7(e) as of such date (iii) the aggregate amount of Investments  by Loan Parties in Restricted Subsidiaries that are not Loan Parties outstanding under Section  7.7(g) as of such date, and (iv) the aggregate amount of (A) Investments in Joint Ventures and  Unrestricted Subsidiaries and (B) Permitted Acquisitions of Persons that do not, upon acquisition  thereof, become Subsidiary Guarantors, and property that is not, upon acquisition thereof, owned  by Loan Parties outstanding under Section 7.7(u)  “Permitted Discretion” means in respect of the adjustment of eligibility criteria  and (without duplication) reserves with respect to the Borrowing Base collateral, a determination  made in good faith and in the exercise of reasonable (from the perspective of a secured asset- based lender) business judgment following (to the extent practicable) reasonable prior notice to,  and consultation with, the Borrower and in accordance with customary business practices for  asset-based transactions.  “Permitted Encumbrances” means Liens permitted pursuant to Section 7.3(a), (b),  (c), (d), (e) or (n); provided that the term “Permitted Encumbrances” shall not include any Lien  securing Indebtedness (other than with respect to Section 7.3(n)).   “Permitted Liens” means Liens permitted pursuant to Section 7.3.  “Permitted Notes” means any Permitted Unsecured Indebtedness, the 2028 Notes  and the 2025 Notes and any Permitted Refinancing Indebtedness in respect of the foregoing.   “Permitted Refinancing Indebtedness” means with respect to any Indebtedness of  any Person (the “Original Indebtedness”), any modification, refinancing, refunding, replacement,  renewal or extension of such Indebtedness, in whole or in part; provided, that (i) no Person that  is not an obligor with respect to the Original Indebtedness shall be an obligor with respect to  such Permitted Refinancing Indebtedness, (ii) the final maturity of such Indebtedness is no  sooner and weighted average life to maturity of such Indebtedness is no shorter than such  Original Indebtedness, (iii) in the case of any modification, refinancing, refunding, replacement,  renewal or extension of Indebtedness incurred pursuant Section 7.2(b), the other material terms  and conditions of such Indebtedness after giving effect to such modification, refinancing,  refunding, replacement, renewal or extension, taken as a whole (other than interest rates, rate  floors, fees and optional prepayment or redemption terms), either (x) reflect market terms at the  time of issuance thereof, as reasonably determined by the Borrower in good faith, or (y) shall,  taken as a whole, not be more favorable to the lenders providing such Indebtedness than the  terms and conditions applicable to the Original Indebtedness, (iv) (x) in the case of any Original  Indebtedness consisting of a revolving credit facility, the committed amount in respect of the  Permitted Refinancing Indebtedness does not exceed the committed amount in respect of the  Original Indebtedness and (y) otherwise, the principal amount (or accreted value, if applicable)  thereof does not exceed the principal amount (or accreted value, if applicable) of the Original  Indebtedness, except in each case by an amount (such amount, the “Additional Permitted  Amount”) equal to unpaid accrued interest and premium thereon at such time plus reasonable  fees and expenses incurred in connection with such modification, refinancing, refunding,  replacement, renewal or extension, (v) for the avoidance of doubt, the Original Indebtedness is  paid down (or, with respect to revolving credit facilities, commitments in respect thereof are  reduced (together with, if applicable, payments of principal)) on a dollar-for-dollar basis by such  





 






  42    Permitted Refinancing Indebtedness (other than by the Additional Permitted Amount), (vi) if the  Original Indebtedness shall have been subordinated to the Obligations, such Permitted  Refinancing Indebtedness shall also be subordinated to the Obligations on terms not less  favorable in any material respect to the Lenders and (vii) such Permitted Refinancing  Indebtedness shall not be secured by any Lien on any asset other than the assets that secured  such Original Indebtedness (or would have been required to secure such Original Indebtedness  pursuant to the terms thereof) or, in the event Liens securing such Original Indebtedness shall  have been contractually subordinated to any Lien securing the Obligations, by any Lien that shall  not have been contractually subordinated to at least the same extent.   “Permitted Supply Chain Financing” means transactions related to accounts  payable of the Loan Parties with respect to their supply chain (a)(i) in the ordinary course of  business of the Loan Parties or (ii) consistent with past practices of the Loan Parties on the  Closing Date and (b) that do not constitute or would not have constituted Indebtedness as of the  Closing Date.   “Permitted Term Liens” means Liens permitted by Section 7.3(h)(iii).  “Permitted Term Loan Documents” means any document or instrument executed  or delivered at any time in connection with any and all Permitted Term Loans, to the extent such  are effective at the relevant time, as each may be amended, restated, amended and restated,  replaced, renewed, extended, supplemented or otherwise modified from time to time in  accordance with this Agreement.  “Permitted Term Loans” means Indebtedness of the Borrower in the form of  (a) one or more broadly syndicated “term loan B” facilities or (b) with the consent of the  Required Lenders, other secured Indebtedness, in each case of clauses (a) and (b), (i) in an  aggregate principal amount that would not, immediately after the incurrence and after giving  effect thereto, result in the Consolidated Fixed Charge Coverage Ratio, calculated on a Pro  Forma Basis, exceeding 1.10:1.00, (ii) that is incurred when Availability, calculated on a pro  forma basis after giving effect to any use of proceeds thereof, is at least $50,000,000, (iii) that  does not mature earlier than the date that is 91 days after the Latest Maturity Date then in effect  at the time of incurrence thereof, (iv) that does not provide for any regularly scheduled  amortization in excess of amortization customary for Indebtedness of such type in light of then- prevailing market conditions (as certified to by the Borrower pursuant to the following proviso),  (v) that is not guaranteed by any Person other than a Loan Party or secured by (and any  Guarantees thereof by any Group Member are not secured by) assets other than Collateral and  (vi) that contains covenants, events of default, guarantees and other terms that are customary for  similar Indebtedness in light of then-prevailing market conditions (as certified to by the  Borrower pursuant to the following proviso); provided that the (A) the liens securing such  Indebtedness shall be junior, with respect to the ABL Priority Collateral, to the Liens on the  Collateral securing the Obligations and (B) a representative, trustee, collateral agent, security  agent or similar Person acting on behalf of the holders of such Indebtedness shall have become  party to the Intercreditor Agreement; provided, further, that a certificate of a Responsible Officer  delivered to the Administrative Agent at least five Business Days prior to the incurrence of such  Indebtedness or the modification, refinancing, refunding, renewal or extension thereof (or such  shorter period of time as may reasonably be agreed by the Administrative Agent), together with a  





 






  43    reasonably detailed description of the material terms and conditions of such resulting  Indebtedness or drafts of the material definitive documentation relating thereto, stating that the  Borrower has determined in good faith that such terms and conditions satisfy subclauses (v) and  (vi) shall be conclusive, provided, the Borrower shall have delivered an officer’s certificate  including a reasonably detailed calculation demonstrating compliance with subclauses (i) and (ii)  hereof, certifying compliance with the remainder of the conditions in this definition and  specifying that the Indebtedness is being incurred in reliance on Section 7.2(b) prior to the  incurrence of such Indebtedness.  “Permitted Unsecured Indebtedness” means Indebtedness of the Borrower or any  of its Subsidiaries (a) that is not (and any Guarantees thereof by any Group Member are not)  secured by any collateral (including the Collateral), (b) that does not mature earlier than the date  that is 91 days after the Latest Maturity Date then in effect at the time of incurrence thereof and  has a weighted average life to maturity no shorter than the latest maturity of any Permitted Term  Loan outstanding at the time of incurrence of such Indebtedness, (c) that does not provide for  any regularly scheduled amortization in excess of 1% per annum, mandatory prepayment,  redemption or repurchase (other than upon a change of control, fundamental change, customary  asset sale or event of loss mandatory offers to purchase and customary acceleration rights after  an event of default and, for the avoidance of doubt, rights to convert or exchange into Capital  Stock of the Borrower in the case of convertible or exchangeable Indebtedness) prior to the date  that is 91 days after the Latest Maturity Date then in effect at the time of incurrence thereof, (d)  that contains covenants, events of default, guarantees and other terms that are customary for  similar Indebtedness in light of then-prevailing market conditions; provided that a certificate of a  Responsible Officer delivered to the Administrative Agent at least five Business Days prior to  the incurrence of such Indebtedness or the modification, refinancing, refunding, renewal or  extension thereof (or such shorter period of time as may reasonably be agreed by the  Administrative Agent), together with a reasonably detailed description of the material terms and  conditions of such resulting Indebtedness or drafts of the material definitive documentation  relating thereto, stating that the Borrower has determined in good faith that such terms and  conditions satisfy the foregoing requirements shall be conclusive, and (e) that is not guaranteed  by any Person other than on an unsecured basis by Group Members.  “Person” means an individual, 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 pension benefit plan (other than a Multiemployer  Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302  of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were  terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in  Section 3(5) of ERISA..  “Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by  Section 3(42) of ERISA, as amended from time to time.  “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as  the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest  





 






  44    per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical  Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no  longer quoted therein, any similar rate quoted therein (as determined by the Administrative  Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative  Agent). Each change in the Prime Rate shall be effective from and including the date such  change is publicly announced or quoted as being effective.  “Pro Forma Basis” means with respect to the calculation of any test or covenant  hereunder, such test or covenant being calculated after giving effect to (a) any designation of a  Restricted Subsidiary as an Unrestricted Subsidiary, (b) any designation of an Unrestricted  Subsidiary as a Restricted Subsidiary, (c) any Permitted Acquisition, (d) any Material  Disposition, and (e) any assumption, incurrence, repayment or other Disposition of Indebtedness  (all of the foregoing, “Applicable Transactions”) using, for purposes of determining such  compliance, the historical financial statements of all entities or assets so designated, acquired or  sold (to the extent available) and the consolidated financial statements of the Borrower and its  Restricted Subsidiaries, which shall be reformulated as if all Applicable Transactions during the  Applicable Reference Period, or subsequent to the Applicable Reference Period and on or prior  to the date of such calculation, had been consummated at the beginning of such period (and shall  include, with respect to any Permitted Acquisition or Material Disposition, any adjustments  calculated in accordance with (and subject to the requirements and limitations of) clause (i) of  the definition of “Consolidated EBITDA”); provided that with respect to any assumption,  incurrence, repayment or other Disposition of Indebtedness (i) if such Indebtedness has a floating  rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect  on the date of calculation had been the applicable rate for the entire period (taking into account  any Swap Obligations applicable to such Indebtedness if such Swap Obligation has a remaining  term as at the date of calculation in excess of 12 months), (ii) interest on Capital Lease  Obligations shall be deemed to accrue at an interest rate reasonably determined by a Responsible  Officer to be the rate of interest implicit in such Capital Lease Obligation in accordance with  GAAP, (iii) interest on any Indebtedness under a revolving credit facility shall be based upon the  average daily balance of such Indebtedness during the applicable period and (iv) interest on  Indebtedness that may be optionally determined at an interest rate based upon a factor of a prime  or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been  based upon the rate actually chosen, or, if none, then based upon such optional rate as the  Borrower may designate. For the avoidance of doubt, in calculating Fixed Charges, (x) the Fixed  Charges attributable to any Indebtedness assumed or incurred in connection with a Permitted  Acquisition consummated during the Applicable Reference Period or subsequent to the  Applicable Reference Period and on or prior to the date of such calculation shall be included and  (y) the Fixed Charges attributable to any Indebtedness repaid or otherwise Disposed of pursuant  to a Material Disposition consummated during the Applicable Reference Period or subsequent to  the Applicable Reference Period and on or prior to the date of such calculation shall be excluded.  “Pro Forma Period” means with respect to any Restricted Payment, Investment or  prepayment of Indebtedness (any of the foregoing, a “Specified Event”), the period (a)  commencing 30 days prior to the date such Specified Event is proposed by the Borrower to occur  and (b) ending on the date such Specified Event is proposed by the Borrower to occur.   





 






  45    “Prohibited Transaction” has the meaning set forth in Section 406 of ERISA and  Section 4975(c) of the Code.  “Protective Advance Exposure” means at any time, the sum of the aggregate  amount of all outstanding Protective Advances at such time.  The Protective Advance Exposure  of any Revolving Lender at any time shall be its Revolving Percentage of the total Protective  Advance Exposure at such time.  “Protective Advances” has the meaning set forth in Section 2.3.   “PTE” means a prohibited transaction class exemption issued by the U.S.  Department of Labor, as any such exemption may be amended from time to time.  “Purchase Agreement” means that certain Account Purchase Agreement dated as  of June 28, 2018, between the Borrower and Wells Fargo Bank, National Association, as the  same is in effect with respect to the “Maximum Amount” (as defined therein) on the Closing  Date.   “Purchasing Borrower Party” means any of the Borrower or any Restricted  Subsidiary.  “Quarterly Borrowing Base Period” means each period beginning on any day the  Administrative Agent receives written notice that the Borrower is electing a Quarterly Borrowing  Base Period so long as during the prior 90 consecutive calendar days the aggregate Revolving  Extensions of Credit shall not have exceeded 15% of the Line Cap, and ending on the first date  thereafter on which the aggregate Revolving Extensions of Credit exceed 15% of the Line Cap.  “QFC” means a “qualified financial contract” has the meaning set forth in, and  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).   “QFC Credit Support” has the meaning set forth in Section 10.20.  “Qualified Capital Stock” means Capital Stock of the Borrower other than  Disqualified Capital Stock.  “Receivables Related Assets” means (a) accounts receivable (including all rights  to payment created by or arising from the sales of goods, leases of goods or the rendition of  services, no matter how evidenced (including in the form of chattel paper) and whether or not  earned by performance), (b) any interest in such accounts receivable and all collateral securing  such accounts receivable, all contracts and contract rights, purchase orders, security interests,  financing statements or other documentation in respect of such accounts receivable, any  guarantees, indemnities, warranties or other obligations in respect of such accounts receivable,  any other assets that are customarily transferred or in respect of which security interests are  customarily granted in connection with receivable purchase arrangements involving receivables  similar to such accounts receivable and any collections or proceeds of any of the foregoing, and  (c) any bank account or lock box maintained primarily for the purpose of receiving collections of  accounts receivables subject to a Permitted A/R Finance Transaction.  





 






  46    “Recovery Event” means any settlement of or payment in respect of any property  or casualty insurance claim or any condemnation proceeding relating to any asset of any Group  Member (other than, while Permitted Term Loans are outstanding, assets that constitute Term  Loan Priority Collateral).  “Reference Period” means each period of four consecutive fiscal quarters of the  Borrower.  “Reference Time” with respect to any setting of the then-current Benchmark  means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that  is two U.S. Government Securities Business Days preceding the date of such setting or (2) if  such Benchmark is not the Term SOFR Rate, the time determined by the Administrative Agent  in its reasonable discretion.  “Register” has the meaning set forth in Section 10.6(b).  “Regulation D” means Regulation D of the Federal Reserve Board, as in effect  from time to time and all official rulings and interpretations thereunder or thereof.  “Regulation T” means Regulation T of the Federal Reserve Board, as in effect  from time to time and all official rulings and interpretations thereunder or thereof.  “Regulation U” means Regulation U of the Board, as in effect from time to time  and all official rulings and interpretations thereunder or thereof.  “Regulation X” means Regulation X of the Federal Reserve Board, as in effect  from time to time and all official rulings and interpretations thereunder or thereof.  “Reimbursement Obligation” means the obligation of the Borrower to reimburse  the Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.  “Related Indebtedness” means with respect to the 2025 Notes, any Indebtedness  that refinances the 2025 Notes in whole or in part.   “Related Parties” with respect to any specified Person, such Person’s Affiliates  and the respective directors, officers, employees, agents and advisors of such Person and such  Person’s Affiliates.  “Relevant Governmental Body” means the Federal Reserve Board and/or the  NYFRB or a committee officially endorsed or convened by the Federal Reserve Board and/or the  NYFRB or, in each case, any successor thereto.  “Relevant Rate” means with respect to any Term Benchmark Borrowing, the  Adjusted Term SOFR Rate.  “Rent Reserve” means with respect to any store, warehouse distribution center,  regional distribution center or depot where any Inventory subject to Liens arising by operation of  





 






  47    law is located, a reserve equal to three months’ rent at such store, warehouse distribution center,  regional distribution center or depot.  “Report” means reports prepared by the Administrative Agent or another Person  showing the results of appraisals, field examinations or audits pertaining to the assets of the Loan  Parties from information furnished by or on behalf of the Borrower, after the Administrative  Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be  distributed to the Lenders by the Administrative Agent.  “Reportable Event” means any of the events set forth in Section 4043(c) of  ERISA or the regulations issued thereunder, with respect to a Pension Plan, other than those  events as to which notice is waived pursuant to DOL Reg. Section 4043 as in effect on the  Closing Date (no matter how such notice requirement may be changed in the future).  “Reported Banking Services Obligations” means Banking Services Obligations of  any Group Member owing to one or more Lenders or their respective Affiliates; provided that, as  of any date of determination, such obligations shall constitute Reported Banking Services  Obligations solely to the extent that the Lender party thereto or its Affiliate (other than JPMCB)  shall have reported the amount of such outstanding obligations to the Administrative Agent as of  the last day of the previous fiscal quarter on or prior to the date that is 15 days following the end  of such fiscal quarter (or (x) prior to the date that is 15 days following the end of the first fiscal  quarter following the Closing Date, within 15 days of the Closing Date such Lender or Affiliate  shall have reported the amount of such outstanding obligations as of the Closing Date, and (y)  within 10 days of any request therefor by the Administrative Agent, such Lender or Affiliate  shall have reported the amount of such outstanding obligations as of any other date reasonably  requested by the Administrative Agent).   “Reported Secured Swap Obligations” means Secured Swap Obligations of any  Group Member owing to one or more Lenders or their respective Affiliates; provided that, as of  any date of determination, such obligations shall constitute Reported Secured Swap Obligations  solely to the extent that as of any date of determination, such Lender party thereto or its Affiliate  (other than JPMCB) shall have reported the amount of such outstanding Swap Obligations to the  Administrative Agent as of the last day of the previous fiscal quarter on or prior to the date that  is 15 days following the end of such fiscal quarter (or (x) prior to the date that is 15 days  following the end of the first fiscal quarter following the Closing Date, within 30 days of the  Closing Date such Lender or Affiliate shall have reported the amount of such outstanding  obligations as of the Closing Date and (y) within 10 days of any request therefor by the  Administrative Agent, such Lender or Affiliate shall have reported the amount of such  outstanding Swap Obligations as of any other date reasonably requested by the Administrative  Agent).   “Required Lenders” means Lenders having more than 50% of the Total  Commitments then in effect or, if the Commitments have been terminated, the Total Revolving  Extensions of Credit then outstanding; provided that, the Required Lenders must include (a) at  any time there are two (2) or fewer un-affiliated Lenders, all of the Lenders and (b) at any time  there are more than two (2) un-affiliated Lenders, two (2) or more un-affiliated Lenders.  





 






  48    “Requirement of Law” means as to any Person, the Certificate of Incorporation  and By-Laws or other organizational or governing documents of such Person, and any law,  treaty, rule or regulation or determination of an arbitrator or a court or other Governmental  Authority, in each case applicable to or binding upon such Person or any of its property or to  which such Person or any of its property is subject.  “Reserves” means any and all reserves which the Administrative Agent deems  necessary, in its Permitted Discretion (following (to the extent practicable) reasonable prior  notice to, and consultation with, the Borrower), to maintain (including, without limitation, an  availability reserve, reserves for accrued and unpaid interest on the Obligations, Banking  Services Reserves, reserves for loggers’ liens, reserves for variance between perpetual inventory  report and the general ledger of the Loan Parties, volatility reserves, Rent Reserves, reserves for  dilution of Accounts, reserves for Inventory shrinkage, reserves for changes in eligibility criteria,  reserves for customs charges and shipping charges related to any Inventory in transit, reserves  for Swap Obligations, reserves for contingent liabilities of any Loan Party, reserves for  uninsured losses of any Loan Party, reserves for uninsured, underinsured, un-indemnified or  under-indemnified liabilities or potential liabilities with respect to any litigation and reserves for  taxes, fees, assessments, and other governmental charges) with respect to the Collateral or any  Loan Party. Any changes to reserves shall be effective four Business Days after delivery of  notice thereof to the Borrower and the Lenders; provided that if consultation with the Borrower  and/or notice to the Borrower and the Lenders is not practicable or if failure to implement any  such change within a shorter time period would, in the good faith judgment of the Administrative  Agent, reasonably be expected to result in a Material Adverse Effect or materially and adversely  affect the Collateral or the rights of the Lenders under the Loan Documents, such change may be  implemented within a shorter time as determined by the Administrative Agent in its Permitted  Discretion; provided, further, that such changes will become effective immediately prior to any  Borrowing that occurs during such four Business Day period.   “Resolution Authority” means an EEA Resolution Authority or, with respect to  any UK Financial Institution, a UK Resolution Authority.  “Responsible Officer” means the chief executive officer, president or chief  financial officer of the Borrower, but in any event, with respect to financial matters, the chief  financial officer of the Borrower.  “Restricted Debt Payment” has the meaning set forth in Section 7.8(a).  “Restricted Payments” has the meaning set forth in Section 7.6.  “Restricted Subsidiary” means any Subsidiary of the Borrower other than an  Unrestricted Subsidiary.  “Revolving Commitment Period” means (a) the period from and including the  Closing Date to the Revolving Termination Date or (b) with respect to any Lender that has  elected to make revolving credit loans available to the Borrower until an Elected Termination  Date pursuant to Section 2.24(e), the period from and including the Closing Date to the  Revolving Termination Date.  





 






  49    “Revolving Extensions of Credit” means as to any Revolving Lender at any time,  an amount equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by  such Lender then outstanding, (b) such Lender’s Revolving Percentage of the L/C Obligations  then outstanding and (c) such Lender’s Revolving Percentage of the Protective Advances then  outstanding.  “Revolving Lender” means each Lender that has a Commitment or that holds  Revolving Loans.  “Revolving Loans” has the meaning set forth in Section 2.1(a).  “Revolving Percentage” means as to any Revolving Lender at any time, the  percentage which such Lender’s Commitment then constitutes of the Total Commitments or, at  any time after the Commitments shall have expired or terminated, the percentage which the  aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the  aggregate principal amount of the Revolving Loans then outstanding, provided, that, in the event  that the Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving  Extensions of Credit, the Revolving Percentages shall be determined in a manner designed to  ensure that the other outstanding Revolving Extensions of Credit shall be held by the Revolving  Lenders on a comparable basis.  Notwithstanding the foregoing, in the case of Section 2.23 when  a Defaulting Lender shall exist, Revolving Percentages shall be determined without regard to any  Defaulting Lender’s Commitment.  “Revolving Termination Date” means the earlier of (a) the Scheduled Maturity  Date and (b) the date that is 91 days prior to the final scheduled maturity of the 2025 Notes  unless as of such 91st day and at all times thereafter (i)(A) the sum of Availability and  Unrestricted Cash exceeds (B) the sum of $50 million and the outstanding principal amount of  2025 Notes (or any Related Indebtedness with a maturity that is earlier than 91 days after the  Scheduled Termination Date) or (ii) the Borrower has received a binding commitment to  refinance all of the outstanding 2025 Notes on or prior to the maturity date of the 2025 Notes  (subject only to reasonable and customary conditions acceptable to the ABL Administrative  Agent) and such refinancing Indebtedness is permitted by this Agreement and matures no earlier  than 91 days after the Scheduled Maturity Date.  “S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial  Services LLC business.  “Sanctioned Country” means, at any time, a country, region or territory which is  itself the subject or target of any Sanctions (at the time of this Agreement, the so-called Donetsk  People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine,  Cuba, Iran, North Korea and Syria).  “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions- related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S.  Department of the Treasury, the U.S. Department of State, the United Nations Security Council,  the European Union, any European Union member state, His Majesty’s Treasury of the United  Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in  





 






  50    a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons  described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any  Sanctions.  “Sanctions” means all economic or financial sanctions or trade embargoes  imposed, administered or enforced from time to time by (a) the U.S. government, including those  administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or  the U.S. Department of State, or (b) the United Nations Security Council, the European Union,  any European Union member state, His Majesty’s Treasury of the United Kingdom or other  relevant sanctions authority.  “Scheduled Borrowing Base Delivery Date” means any date on which the  Borrower is obligated to deliver a Borrowing Base Certificate pursuant to Section 6.2(g).  “Scheduled Maturity Date” means November 7, 2027.  “SEC” means the Securities and Exchange Commission, any successor thereto  and any analogous Governmental Authority of the United States of America.  “Secured Parties” has the meaning set forth in the Guarantee and Collateral  Agreement.   “Secured Swap Obligations” means Swap Obligations of any Loan Party owing to  one or more Lenders or their respective Affiliates; provided that at or prior to the time that any  transaction relating to such Swap Obligation is executed (or, if later, the Closing Date) the  Borrower (other than for transactions with JPMCB and its Affiliates) and the Lender party  thereto or its Affiliate (other than JPMCB) shall have delivered written notice to the  Administrative Agent that such a transaction has been entered into and that it constitutes a  Secured Swap Obligation entitled to the benefits of the Security Documents.  “Security Documents” means the collective reference to the Guarantee and  Collateral Agreement, any Deposit Account Control Agreements and all other security  documents hereafter delivered to the Administrative Agent granting a Lien on any property of  any Person to secure the obligations and liabilities of any Loan Party under any Loan Document.  “SOFR” means a rate equal to the secured overnight financing rate as  administered by the SOFR Administrator.  “SOFR Administrator” means the NYFRB (or a successor administrator of the  secured overnight financing rate).  “SOFR Administrator’s Website” means the NYFRB’s website, currently at  http://www.newyorkfed.org, or any successor source for the secured overnight financing rate  identified as such by the SOFR Administrator from time to time.  “Solvent” means, when used with respect to any Person, that, as of any date of  determination, (a) the fair value of the assets of such Person, at a fair valuation, will exceed its  debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of  





 






  51    the assets of such Person will be greater than the amount that will be required to pay the probable  liabilities on its debts and other liabilities, subordinated, contingent or otherwise, as such debts  and other liabilities become absolute and matured, (c) such Person will be able to pay its debts  and liabilities, subordinated, continent or otherwise, as such debts and liabilities become absolute  and matured and (d) such Person will not have an unreasonably small capital with which to  conduct the business in which it is engaged as such business is conducted as of such date of  determination and proposed to be conducted following such date. The amount of any contingent  liability at any time shall be computed as the amount that, in light of all of the facts and  circumstances existing at such time, represents the amount that can reasonably be expected to  become an actual or matured liability.  “Specified Event of Default” means the an Event of Default under clauses (a)  or  (f) of Section 8.  “Subsequent Transaction” has the meaning set forth in the definition of “Pro  Forma Basis”.  “Subordinated Indebtedness” means any Indebtedness of any Group Member that  is expressly subordinated in right of payment to the Obligations; provided that, for the avoidance  of doubt, any Permitted Term Loan shall not be considered Subordinated Indebtedness.  “Subsidiary” means as to any Person, a corporation, partnership, limited liability  company or other entity of which shares of stock or other ownership interests having ordinary  voting power (other than stock or such other ownership interests having such power only by  reason of the happening of a contingency) to elect a majority of the board of directors or other  managers of such corporation, partnership or other entity are at the time owned, or the  management of which is otherwise controlled, directly or indirectly through one or more  intermediaries, or both, by such Person.  Unless otherwise qualified, all references to a  “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of  the Borrower.  “Subsidiary Guarantor” means (i) each Restricted Subsidiary of the Borrower that  is a Domestic Subsidiary (other than any Excluded Subsidiary) and (ii) each other Restricted  Subsidiary that is an obligor under or guarantor in respect of Permitted Term Loans or any  Permitted Refinancing in respect thereof.  “Supermajority Lenders” means Lenders having more than 66 2/3% of the Total  Commitments then in effect or, if the Commitments have been terminated, the Total Revolving  Extensions of Credit then outstanding; provided that, the Supermajority Lenders must include (a)  at any time there are two (2) or fewer un-affiliated Lenders, all of the Lenders and (b) at any time  there are more than two (2) un-affiliated Lenders, two or more un-affiliated Lenders.  “Supplier Agreement” means that certain Supplier Agreement dated as of June 11,  2019 between the Borrower and Citibank, N.A and any branch, subsidiary, or affiliate of  Citibank acting as a purchaser thereunder, solely with respect to the Buyer identified on the  pricing schedule thereto on the Closing Date.  “Supported QFC” has the meaning set forth in Section 10.20.  





 






  52    “Swap” means any agreement, contract, or transaction that constitutes a “swap”  within the meaning of section 1a(47) of the Commodity Exchange Act.  “Swap Agreement” means any agreement with respect to any swap, forward,  future or derivative transaction or option or similar agreement involving, or settled by reference  to, one or more rates, currencies, commodities, equity or debt instruments or securities, or  economic, financial or pricing indices or measures of economic, financial or pricing risk or value  or any similar transaction or any combination of these transactions; provided that no phantom  stock or similar plan providing for payments only on account of services provided by current or  former directors, officers, employees or consultants of the Borrower or any of its Subsidiaries  shall be a “Swap Agreement”.  “Swap Obligation” means with respect to any Person, any and all obligations of  such Person, whether absolute or contingent and howsoever and whensoever created, arising,  evidenced or acquired (including all renewals, extensions and modifications thereof and  substitutions therefor), under (a) any and all Swap Agreements, and (b) any and all cancellations,  buy backs, reversals, terminations or assignments of any Swap Agreement transaction.  “Syndication Agent” means the Syndication Agent identified on the cover page of  this Agreement.  “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 Loan Priority Collateral” has the meaning set forth in Exhibit K.  “Term Loan Representative” means, subject to the Intercreditor Agreement, the  agent, trustee or other representative in respect of Permitted Term Loans.  “Term SOFR Determination Day” has the meaning assigned to it under the  definition of Term SOFR Reference Rate.   “Term SOFR Rate” means, with respect to any Term Benchmark Borrowing and  for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at  approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to  the commencement of such tenor comparable to the applicable Interest Period, as such rate is  published by the CME Term SOFR Administrator.  “Term SOFR Reference Rate” means, for any day and time (such day, the “Term  SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in  Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum  published by the CME Term SOFR Administrator and identified by the Administrative Agent as  the forward-looking term rate based on SOFR.  If by 5:00 pm (New York City time) on  such  Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has  not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date  with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a  U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR  





 






  53    Determination Day will be the Term SOFR Reference Rate as published in respect of the first  preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate  was published by the CME Term SOFR Administrator, so long as such first preceding U.S.  Government Securities Business Day is not more than five (5) U.S. Government Securities  Business Days prior to such Term SOFR Determination Day.    “Third Amendment” means the Third Amendment to ABL Credit Agreement,  dated as of November 7, 2022, among the Borrower, the Subsidiary Guarantors party thereto, the  Administrative Agent and the Lenders party thereto.  “Third Amendment Effective Date” means the “Third Amendment Effective  Date” as defined in the Third Amendment.  “Total Commitments” means at any time, the aggregate amount of the  Commitments then in effect. The original amount of the Total Commitments on the Third  Amendment Effective Date is $275,000,000.  “Total Revolving Extensions of Credit” means at any time, the aggregate amount  of the Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.  “Transactions” means the execution, delivery and performance by the Borrower  and the other Loan Parties of this Agreement, the borrowing of Loans hereunder and the use of  proceeds thereof.  “Transferee” means any Assignee or Participant.  “Type” means, when used in reference to any Loan or Borrowing, refers to  whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is  determined by reference to the Adjusted Term SOFR Rate or the Alternate Base Rate.  “UK Financial Institutions” means any BRRD Undertaking (as such term is  defined under the PRA Rulebook (as amended form time to time) promulgated by the United  Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA  Handbook (as amended from time to time) promulgated by the United Kingdom Financial  Conduct Authority, which includes certain credit institutions and investment firms, and certain  affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public  administrative authority having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark  Replacement excluding the related Benchmark Replacement Adjustment.  “United States” means the United States of America.  “Unrestricted Cash” means unrestricted cash and Cash Equivalents owned by any  Group Member and not controlled by or subject to any Lien or other preferential arrangement in  





 






  54    favor of any creditor (other than Liens created under the Security Documents or permitted by  Section 7.3(h)(iii) and Liens of the type referred to in Section 7.3(u) or Section 7.3(z)).  “Unrestricted Subsidiary” means (a) any Subsidiary of the Borrower that is  designated as an Unrestricted Subsidiary by the Borrower pursuant to Section 6.11 subsequent to  the Closing Date and (b) any Subsidiary of an Unrestricted Subsidiary.  “U.S. Government Securities Business Day” means any day except for (i) a  Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets  Association recommends that the fixed income departments of its members be closed for the  entire day for purposes of trading in United States government securities.  “U.S. Person” means a “United States person” within the meaning of Section  7701(a)(30) of the Code.   “U.S. Special Resolution Regime” has the meaning set forth in Section 10.20.  “U.S. Tax Compliance Certificate” has the meaning set forth in Section  2.19(f)(ii)(B)(3).  “Wholly Owned Subsidiary” means as to any Person, any other Person all of the  Capital Stock of which (other than directors’ qualifying shares required by law) is owned by  such Person directly and/or through other Wholly Owned Subsidiaries.  “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a  complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I  of Subtitle E of Title IV of ERISA.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA  Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority  from time to time under the Bail-In Legislation for the applicable EEA Member Country, which  write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b)  with respect to the United Kingdom, any powers of the applicable Resolution Authority under  the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK  Financial Institution or any contract or instrument under which that liability arises, to convert all  or part of that liability into shares, securities or obligations of that person or any other person, to  provide that any such contract or instrument is to have effect as if a right had been exercised  under it or to suspend any obligation in respect of that liability or any of the powers under that  Bail-In Legislation that are related to or ancillary to any of those powers.  1.2 Classification of Loans and Borrowings.  For purposes of this Agreement,  Loans may be classified and referred to by Type (e.g., a “Term SOFR Loan”).  Borrowings also  may be classified and referred to by Type (e.g., a “Term SOFR Borrowing”).  1.3 Other Definitional Provisions.  (a)  Unless otherwise specified therein, all  terms defined in this Agreement shall have the defined meanings when used in the other Loan  Documents or any certificate or other document made or delivered pursuant hereto or thereto.  





 






  55    (b) As used herein and in the other Loan Documents, and any certificate or  other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any  Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to  the extent not defined, shall have the respective meanings given to them under GAAP (provided  that all terms of an accounting or financial nature used herein shall be construed, and all  computations of amounts and ratios referred to herein shall be made, without giving effect to (x)  any election under Accounting Standards Codification 825-10-25 (previously referred to as  Statement of Financial Accounting Standards 159) (or any other Accounting Standards  Codification or Financial Accounting Standard having a similar result or effect) to value any  Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined  therein and (y) any treatment of Indebtedness in respect of convertible debt instruments under  Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or  Financial Accounting Standard having a similar result or effect) to value any such Indebtedness  in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times  be valued at the full stated principal amount thereof, (ii) the words “include”, “includes” and  “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word  “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or  suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv)  the words “asset” and “property” shall be construed to have the same meaning and effect and to  refer to any and all tangible and intangible assets and properties, including cash, Capital Stock,  securities, revenues, accounts, leasehold interests and contract rights, (v) references to  agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer  to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise  modified from time to time and (vi) the concept of “letters of credit” shall be construed to  include banker’s acceptances.    (c) The words “hereof”, “herein” and “hereunder” and words of similar  import, when used in this Agreement, shall refer to this Agreement as a whole and not to any  particular provision of this Agreement, and Section, Schedule and Exhibit references are to this  Agreement unless otherwise specified.  (d) The meanings given to terms defined herein shall be equally applicable to  both the singular and plural forms of such terms.  (e) Unless otherwise defined herein or the context otherwise requires, terms  for which meanings are provided in the UCC are used in this Agreement, including its preamble  and recitals, with such meanings.  1.4 Interest Rates; Benchmark Notification.  The interest rate on a Loan  denominated in dollars may be derived from an interest rate benchmark that may be discontinued  or is, or may in the future become, the subject of regulatory reform.  Upon the occurrence of a  Benchmark Transition Event, Section 2.16(b) provides a mechanism for determining an  alternative rate of interest.  The Administrative Agent does not warrant or accept any  responsibility for, and shall not have any liability with respect to, the administration, submission,  performance or any other matter related to any interest rate used in this Agreement, or with  respect to any alternative or successor rate thereto, or replacement rate thereof, including without  limitation, whether the composition or characteristics of any such alternative, successor or  





 






  56    replacement reference rate will be similar to, or produce the same value or economic equivalence  of, the existing interest rate being replaced or have the same volume or liquidity as did any  existing interest rate prior to its discontinuance or unavailability.  The Administrative Agent and  its affiliates and/or other related entities may engage in transactions that affect the calculation of  any  interest rate used in this Agreement or any alternative, successor or alternative rate  (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case,  in a manner adverse to the Borrower.  The Administrative Agent may select information sources  or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any  component thereof, or rates referenced in the definition thereof, in each case pursuant to the  terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other  person or entity 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 calculation of any such rate (or component thereof)  provided by any such information source or service.  1.5 Letter of Credit Amounts.  Unless otherwise specified herein, the amount  of a Letter of Credit at any time shall be deemed to be the amount of such Letter of Credit  available to be drawn (without regard to any conditions contained in such Letter of Credit);  provided that with respect to any Letter of Credit that, by its terms provides for one or more  automatic increases in the available amount thereof, the amount of such Letter of Credit shall be  deemed to be the maximum amount of such Letter of Credit after giving effect to all such  increases, whether or not such maximum amount is available to be drawn at such time. For  clarity, the calculation of the amount of such Letter of Credit shall take into account any  reduction on account of (a) any permanent reduction of such Letter of Credit or (b) any amount  that is drawn, reimbursed and no longer available under such Letter of Credit.  1.6 Limited Condition Transactions.  Notwithstanding anything in this  Agreement or any Loan Document to the contrary when (i) calculating any applicable ratio or  financial test or determining whether any Default or Event of Default has occurred, is continuing  or would result from any action, in each case, pursuant to Section 7.2, Section 7.3, Section 7.5,  Section 7.6 or Section 7.7 in connection with the incurrence of Indebtedness, the creation of  Liens, the making of any Disposition, the making of an Investment, the making of a Restricted  Payment, the designation of a Subsidiary as restricted or unrestricted or the repayment of  Indebtedness (each, a “Specified Transaction”) or (ii) determining the accuracy of any  representation or warranty, in each case of clauses (i) and (ii) in connection with a Limited  Condition Transaction, the date of determination of such ratio or financial test, the accuracy of  such representation or warranty (but taking into account any earlier date specified therein) or  whether any Default or Event of Default has occurred, is continuing or would result therefrom  shall, at the option of the Borrower (the Borrower’s election to exercise such option in  connection with any Limited Condition Acquisition, an “LCT Election”), be deemed to be the  date the definitive agreements for such Limited Condition Transaction are entered into (the  “LCT Test Date”).  If on a Pro Forma Basis after giving effect to such Limited Condition  Transaction and the other transactions to be entered into in connection therewith (including any  incurrence of Indebtedness and the use of proceeds thereof) such ratios, financial tests,  representations and warranties and absence of defaults are calculated as if such Limited  Condition Transaction or other transactions had occurred at the beginning of the most recent  Reference Period ending prior to the LCT Test Date for which financial statements are available,  





 






  57    the Borrower could have taken such action on the relevant LCT Test Date in compliance with the  applicable ratios or other provisions, such provisions shall be deemed to have been complied  with.  For the avoidance of doubt, (i) if any of such ratios, financial tests, representations and  warranties or absence of defaults are exceeded or breached as a result of fluctuations in such  ratio (including due to fluctuations in Consolidated EBITDA), a change in facts and  circumstances or other provisions at or prior to the consummation of the relevant Limited  Condition Transaction, such ratios, representations and warranties and absence of defaults will  not be deemed to have been exceeded, breached, or otherwise failed as a result of such  fluctuations or changed circumstances solely for purposes of determining whether the Limited  Condition Transaction and any related transactions is permitted hereunder and (ii) such ratios  and compliance with such conditions shall not be tested at the time of consummation of such  Limited Condition Transaction or related Specified Transactions.  If the Borrower has made an  LCT Election for any Limited Condition Transaction, then in connection with any subsequent  calculation of any ratio or basket availability with respect to any subsequent acquisition or  Investment that the Borrower or a Restricted Subsidiary is contractually committed to  consummate on or following the relevant LCT Test Date and prior to the earlier of the date on  which such Limited Condition Transaction is consummated or the date that the definitive  agreement for such Limited Condition Transaction is terminated or expires without  consummation of such Limited Condition Transaction, any such ratio or basket shall be  calculated on a Pro Forma Basis both (i) assuming such Limited Condition Transaction and other  transactions in connection therewith (including any incurrence of Indebtedness and the use of  proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction  and other transactions in connection therewith (including any incurrence of Indebtedness and the  use of proceeds thereof) have not been consummated .  1.7 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): (a) if any asset, right, obligation or liability of any Person becomes  the asset, right, obligation or liability of a different Person, then it shall be deemed to have been  transferred from the original Person to the subsequent Person, and (b) if any new Person comes  into existence, such new Person shall be deemed to have been organized and acquired on the first  date of its existence by the holders of its Capital Stock at such time.  SECTION 2.  AMOUNT AND TERMS OF COMMITMENTS  2.1 Commitments.  (a)   Subject to the terms and conditions hereof, each  Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the  Borrower from time to time during the Revolving Commitment Period in an aggregate principal  amount at any one time outstanding which would not result in either (i) the Revolving Loans of  such Lender when added to the sum of (x) such Lender’s Revolving Percentage of the L/C  Obligations then outstanding, (y) [reserved] and (z) such Lender’s Protective Advance Exposure  then outstanding, exceeding the amount of such Lender’s Commitment or (ii) the Total  Revolving Extensions of Credit exceeding the Line Cap, subject to the authority of the  Administrative Agent, in its sole discretion, to make Protective Advances pursuant to the terms  of Section 2.3.  During the Revolving Commitment Period the Borrower may use the  Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and  reborrowing, all in accordance with the terms and conditions hereof.  The Revolving Loans may  





 






  58    from time to time be Term SOFR Loans or ABR Loans, as determined by the Borrower and  notified to the Administrative Agent in accordance with Sections 2.2 and 2.12.  (b) The Borrower shall repay all outstanding Revolving Loans on the  Revolving Termination Date.  2.2 Procedure for Revolving Loan Borrowing.  The Borrower may borrow  under the Commitments during the Revolving Commitment Period on any U.S. Government  Securities Business Day, provided that the Borrower shall give the Administrative Agent a  Borrowing Request substantially in the form of Exhibit A attached hereto (which notice must be  received by the Administrative Agent prior to (a) 12:00 Noon, New York City time three U.S.  Government Securities Business Days prior to the requested Borrowing Date, in the case of  Term SOFR Loans, or (b) 12:00 Noon, New York City time, the date of the requested Borrowing  Date, in the case of ABR Loans) (provided that any such notice of a borrowing of Revolving  Loans that are ABR Loans to finance payments required by Section 3.5 must be given not later  than 12:00 Noon, New York City time, on the date of the proposed borrowing), specifying (i) the  amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing Date (which  may be the same day as the day of the Borrowing Request in the case of ABR Loans) and (iii) in  the case of Term SOFR Loans, the respective amounts of each such Type of Loan and the  respective lengths of the initial Interest Period therefor.  Each borrowing under the Commitments  shall be in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple  thereof (or, if the then aggregate Available Commitments are less than $1,000,000, such lesser  amount) and (y) in the case of Term SOFR Loans, $5,000,000 or a whole multiple of $1,000,000  in excess thereof.  Upon receipt of any such notice from the Borrower, the Administrative Agent  shall promptly notify each Revolving Lender thereof.  Each Revolving Lender will make the  amount of its pro rata share of each borrowing available to the Administrative Agent for the  account of the Borrower at the Funding Office prior to 2:00 P.M., New York City time, on the  Borrowing Date requested by the Borrower in funds immediately available to the Administrative  Agent.  Such borrowing will then be made available to the Borrower by the Administrative  Agent crediting the account of the Borrower on the books of such office with the aggregate of  the amounts made available to the Administrative Agent by the Revolving Lenders and in like  funds as received by the Administrative Agent.  2.3 Protective Advances.  (a)  Subject to the limitations set forth below, the  Administrative Agent is authorized by the Borrower and the Lenders, from time to time in the  Administrative Agent’s Permitted Discretion (but shall have absolutely no obligation to), to  make Loans to the Borrower, on behalf of all Lenders, which the Administrative Agent, in its  Permitted Discretion, deems necessary or desirable (i) to preserve or protect the Collateral, or  any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of  the Loans and other Obligations, or (iii) to pay any other amount chargeable to or required to be  paid by the Borrower pursuant to the terms of this Agreement, including payments of  reimbursable expenses (including costs, fees, and expenses as described in Section 10.5) and  other sums payable under the Loan Documents (any of such Loans are herein referred to as  “Protective Advances”); provided that, as of the date of the making of any Protective Advance,  the aggregate amount of outstanding Protective Advances shall not exceed 10% of the  Commitments outstanding as of such date; provided further that the Total Revolving Extensions  of Credit outstanding any time shall not exceed the Total Commitments.  Protective Advances  





 






  59    may be made even if the conditions precedent set forth in Section 5.2 have not been satisfied.   The Protective Advances shall be secured by the Liens in favor of the Administrative Agent in  and to the Collateral and shall constitute Obligations hereunder.  All Protective Advances shall  be ABR Loans.  The Administrative Agent’s authorization to make Protective Advances may be  revoked at any time by the Required Lenders.  Any such revocation must be in writing and shall  become effective prospectively upon the Administrative Agent’s receipt thereof.  At any time (a)  the amount equal to (i) the Line Cap minus (ii) the Total Revolving Extensions of Credit then  outstanding (calculated, with respect to any Defaulting Lender, as if such Defaulting Lender had  funded its Revolving Percentage of all outstanding Revolving Loans) exceeds the amount of any  Protective Advance and (b) the conditions precedent set forth in Section 5.2 have been satisfied,  the Administrative Agent may request the Revolving Lenders to make a Revolving Loan to repay  a Protective Advance.  At any other time the Administrative Agent may require the Lenders to  fund their risk participations described in Section 2.3(b).  (b) Upon the making of a Protective Advance by the Administrative Agent  (whether before or after the occurrence of a Default), each Lender shall be deemed, without  further action by any party hereto, to have unconditionally and irrevocably purchased from the  Administrative Agent, without recourse or warranty, an undivided interest and participation in  such Protective Advance in proportion to its Revolving Percentage.  From and after the date, if  any, on which any Lender is required to fund its participation in any Protective Advance  purchased hereunder, the Administrative Agent shall promptly distribute to such Lender such  Lender’s Revolving Percentage of all payments of principal and interest and all proceeds of  Collateral received by the Administrative Agent in respect of such Protective Advance  (appropriately adjusted, in the case of interest payments, to reflect the period of time during  which such Lender’s participating interest was outstanding and funded and, in the case of  principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such  payment is not sufficient to pay the principal of and interest on all Protective Advances then  due).  2.4 [Reserved].    2.5 [Reserved].    2.6 [Reserved].    2.7 Repayment of Revolving Loans.  The Borrower hereby unconditionally  promises to pay to the Administrative Agent for the account of and ratable benefit of each  Lender the aggregate outstanding principal amount of the Revolving Loans on the Revolving  Termination Date”.   2.8 Fees, etc.  (a)  The Borrower agrees to pay to the Administrative Agent for  the account of each Revolving Lender a commitment fee for the period from and including the  Closing Date to the last day of the Revolving Commitment Period, equal to the Commitment Fee  Rate multiplied by the average daily amount of unused Total Commitments during the period for  which payment is made, payable quarterly in arrears on each Fee Payment Date, commencing on  the first such date to occur after the Closing Date.   





 






  60    (b) The Borrower agrees to pay to the Administrative Agent the fees in the  amounts and on the dates as set forth in any fee agreements with the Administrative Agent and to  perform any other obligations contained therein.  2.9 Termination or Reduction of Commitments.  The Borrower shall have the  right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate  the Commitments or, from time to time, to reduce the amount of the Commitments; provided that  no such termination or reduction of Commitments shall be permitted if, after giving effect  thereto and to any prepayments of the Revolving Loans made on the effective date thereof, the  Total Revolving Extensions of Credit would exceed the Line Cap.  Any such reduction shall be  in an amount equal to $3,000,000, or a whole multiple thereof, and shall reduce permanently the  Commitments then in effect.  2.10 Optional Prepayments.  The Borrower may at any time and from time to  time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice  delivered to the Administrative Agent no later than 2:00 PM, New York City time, three  Business Days prior thereto, in the case of Term SOFR Loans, and no later than 1:00 PM, New  York City time, one Business Day prior thereto, in the case of ABR Loans, which notice shall  specify the date and amount of prepayment and whether the prepayment is of Term SOFR Loans  or ABR Loans; provided, that if a Term SOFR Loan is prepaid on any day other than the last day  of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing  pursuant to Section 2.20.  Upon receipt of any such notice the Administrative Agent shall  promptly notify each relevant Lender thereof.  If any such notice is given, the amount specified  in such notice shall be due and payable on the date specified therein, together with (except in the  case of Revolving Loans that are ABR Loans) accrued interest to such date on the amount  prepaid.  Partial prepayments of Revolving Loans shall be in an aggregate principal amount of  $1,000,000 or a whole multiple of $100,000 in excess thereof. The application of any  prepayment pursuant to this Section 2.10 shall be made first, to ABR Loans and second, to Term  SOFR Loans.  2.11 Prepayment of Loans.  (a)  In the event and on such occasion that (i) the  Total Revolving Extensions of Credit exceed the Total Commitments or (ii) the Total Revolving  Extensions of Credit (excluding for such purposes Protective Advances) exceed the Borrowing  Base, the Borrower shall promptly (and in any event within two Business Days) prepay (or in the  case of L/C Exposure, cash collateralize) the Revolving Loans, L/C Exposure and/or (in the case  of clause (i) above) the Protective Advances in an aggregate amount equal to such excess (it  being understood that the Borrower shall prepay Revolving Loans and/or Protective Advances  prior to cash collateralization of L/C Exposure).  (b) In the event and on each occasion that any Net Cash Proceeds are  received by or on behalf of the Borrower or any Loan Party in respect of any Disposition (other  than a Disposition pursuant to Section 7.5(b)) of assets included in the Borrowing Base, the  Borrower shall, immediately after such Net Cash Proceeds are received by the Borrower or any  Loan Party, prepay the Revolving Loans and cash collateralize the L/C Obligations as set forth in  Section 2.11(c) below in an aggregate amount equal to 100% of such Net Cash Proceeds,  provided that, for so long as Full Cash Dominion is not in effect, the Borrower shall have 90   days after receipt of such Net Cash Proceeds to apply the Net Cash Proceeds from such event (or  





 






  61    a portion thereof) to acquire (or replace or rebuild) real property, equipment or other tangible  assets (including inventory) to be used in the business of the Loan Parties and no prepayment  shall be required pursuant to this paragraph in respect of the portion of such Net Cash Proceeds  so applied; provided further that (i) to the extent of any such Net Cash Proceeds therefrom that  have not been so applied by the end of such 90 day period, a prepayment shall be required at  such time in an amount equal to such Net Cash Proceeds that have not been so applied (ii) to the  extent Full Cash Dominion is in effect at any time during such 90 day period, a prepayment shall  immediately be required at such time in amount equal to such Net Cash Proceeds that have not  been so applied.  (c) The application of any prepayment pursuant to this Section 2.11  shall be applied first, to ABR Loans, second, to Term SOFR Loans and third, to cash  collateralize L/C Obligations.  (d) On each Business Day during any Full Cash Dominion Period, the  Administrative Agent shall apply, subject to Section 2.17(b), all funds credited to any applicable  Collection Account as of 10:00 A.M., New York City time, on such Business Day (whether or  not immediately available) and first to prepay any Protective Advances that may be outstanding,  second to prepay other Revolving Loans (without a corresponding reduction in Commitments).    2.12 Conversion and Continuation Options.  (a)  The Borrower may elect from  time to time to convert Term SOFR Loans to ABR Loans by giving the Administrative Agent  prior irrevocable notice of such election substantially in the form of Exhibit B attached hereto  (an “Interest Election Request”) no later than 2:00 PM, New York City time, on the Business  Day preceding the proposed conversion date, provided that any such conversion of Term SOFR  Loans may only be made on the last day of an Interest Period with respect thereto.  The  Borrower may elect from time to time to convert ABR Loans to Term SOFR Loans by giving the  Administrative Agent prior irrevocable notice of such election no later than 1:00 PM, New York  City time, on the third U.S. Government Securities Business Day preceding the proposed  conversion date (which Interest Election Request shall specify the length of the initial Interest  Period therefor), provided that no ABR Loan under a particular facility may be converted into a  Term SOFR Loan when any Event of Default has occurred and is continuing and the  Administrative Agent or the Majority Facility Lenders in respect of such Facility have  determined in its or their sole discretion not to permit such conversions.  Upon receipt of any  such Interest Election Request the Administrative Agent shall promptly notify each relevant  Lender thereof.  (b) Any Term SOFR Loan may be continued as such upon the expiration of  the then current Interest Period with respect thereto by the Borrower giving irrevocable notice by  submitting an Interest Election Request to the Administrative Agent, in accordance with the  applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the  next Interest Period to be applicable to such Loans, provided that no Term SOFR Loan under a  particular Facility may be continued as such (i) when any Event of Default has occurred and is  continuing and the Administrative Agent has or the Majority Facility Lenders in respect of such  Facility have determined in its or their sole discretion not to permit such continuations or (ii) if a  Specified Event of Default is in existence, and provided, further, that if the Borrower shall fail to  give any required Interest Election Request as described above in this paragraph or if such  





 






  62    continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically  converted to ABR Loans on the last day of such then expiring Interest Period.  Upon receipt of  any such Interest Election Request the Administrative Agent shall promptly notify each relevant  Lender thereof.  2.13 Limitations on Term SOFR Borrowings.  Notwithstanding anything to the  contrary in this Agreement, all borrowings, conversions and continuations of Term SOFR Loans  and all selections of Interest Periods shall be in such amounts and be made pursuant to such  elections so that, (a) after giving effect thereto, the aggregate principal amount of the Term  SOFR Loans comprising each Term SOFR Borrowing shall be equal to $5,000,000 or a whole  multiple of $1,000,000 in excess thereof and (b) no more than 10 Term SOFR Borrowings shall  be outstanding at any one time.  2.14 Interest Rates and Payment Dates.  Subject to Section 2.16, (a)  Each Term  SOFR Loan shall bear interest for each day during each Interest Period with respect thereto at a  rate per annum equal to Adjusted Term SOFR determined for such day plus the Applicable  Margin.  (b) Each ABR Loan shall bear interest at a rate per annum equal to the  Alternate Base Rate plus the Applicable Margin.  (c) (i) If all or a portion of the principal amount of any Loan or  Reimbursement Obligation shall not be paid when due (whether at the stated maturity, by  acceleration or otherwise) upon the election of the Required Lenders, such overdue amount shall  bear interest at a rate per annum equal to (x) in the case of the Loans, the rate that would  otherwise be applicable thereto pursuant to the foregoing provisions of this Section 2.14 plus 2%  or (y) in the case of Reimbursement Obligations, the rate applicable to Revolving Loans that are  ABR Loans plus 2%, and (ii) if all or a portion of any interest payable on any Loan or  Reimbursement Obligation or any commitment fee or other amount payable hereunder shall not  be paid when due (whether at the stated maturity, by acceleration or otherwise) upon election of  the Required Lenders, such overdue amount shall bear interest at a rate per annum equal to the  rate then applicable to Revolving Loans that are ABR Loans plus 2%, in each case, with respect  to clauses (i) and (ii) above, from the date of such non-payment until such amount is paid in full  (as well after as before judgment).  (d) Interest shall be payable in arrears on each Interest Payment Date,  provided that interest accruing pursuant to paragraph (c) of this Section 2.14 shall be payable  from time to time on demand.  2.15 Computation of Interest and Fees.  (a)  Interest and fees payable pursuant  hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that,  with respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime  Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)  day year for the actual days elapsed (including the first day, but excluding the last day; provided  that if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on  such Loan).   





 






  63    (b) Each determination of an interest rate by the Administrative Agent  pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower  and the Lenders in the absence of manifest error.  The Administrative Agent shall, at the request  of the Borrower, deliver to the Borrower a statement showing the quotations used by the  Administrative Agent in determining any interest rate pursuant to Section 2.14(a).  2.16 Alternate Rate of Interest.  (a)   If prior to the commencement of any  Interest Period for a Term SOFR Borrowing:  (i) the Administrative Agent determines (which determination shall be  conclusive absent manifest error) prior to the commencement of any Interest Period for a  Term Benchmark Borrowing, that adequate and reasonable means do not exist for  ascertaining the Adjusted Term SOFR Rate (including because the Term SOFR  Reference Rate is not available or published on a current basis), for such Interest Period;  or  (ii) the Administrative Agent is advised by the Required Lenders that  prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the  Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect  the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan)  included in such Borrowing for such Interest Period;  then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by  telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the  Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to  such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers  a new Interest Election Request in accordance with the terms of Section 2.12 or a new  Borrowing Request in accordance with the terms of Section 2.2, any Interest Election Request  that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving  Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term  Benchmark Revolving Borrowing shall instead be deemed to be an Interest Election Request or a  Borrowing Request, as applicable, for an ABR Borrowing; provided that if the circumstances  giving rise to such notice affect only one Type of Borrowings, then all other Types of  Borrowings shall be permitted.  Furthermore, if any Term Benchmark Loan is outstanding on the  date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this  Section 2.16(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then  until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances  giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the  Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.12  or a new Borrowing Request in accordance with the terms of Section 2.2, any Term Benchmark  Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the  Administrative Agent to, and shall constitute, an ABR Loan.    (b) Notwithstanding anything to the contrary herein or in any other Loan  Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for  purposes of this Section 2.16), if a Benchmark Transition Event and its related Benchmark  Replacement Date have occurred prior to the Reference Time in respect of any setting of the  





 






  64    then-current Benchmark, then the Benchmark Replacement will replace the Benchmark for all  purposes hereunder and under any Loan Document in respect of any Benchmark setting at or  after 5:00 p.m. (New York City time) 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.  (c) Notwithstanding anything to the contrary herein or in any other Loan  Document, the Administrative Agent will have the right to make Benchmark Replacement  Conforming Changes in consultation with the Borrower 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 or any other Loan Document.    (d) The Administrative Agent will promptly notify the Borrower and the  Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any  Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming  Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f)  below and (v) the commencement or conclusion of any Benchmark Unavailability Period.  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 2.16, 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 or  any selection, 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 to this Agreement or any other  Loan Document, except, in each case, as expressly required pursuant to this Section 2.16.    (e) Notwithstanding anything to the contrary herein or in any other Loan  Document, at any time (including in connection with the implementation of a Benchmark  Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate)  and either (A) any tenor for such Benchmark is not displayed on a screen or other information  service that publishes such rate from time to time as selected by the Administrative Agent in its  reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark  has provided a public statement or publication of information announcing that any tenor for such  Benchmark is or will be no longer representative, then the Administrative Agent may modify the  definition of “Interest Period” for any Benchmark settings at or after such time to remove such  unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i)  above either (A) is subsequently displayed on a screen or information service for a Benchmark  (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement  that it is or will no longer be representative for a Benchmark (including a Benchmark  Replacement), then the Administrative Agent may modify the definition of “Interest Period” for  all Benchmark settings at or after such time to reinstate such previously removed tenor.    (f) Upon the Borrower’s receipt of notice of the commencement of a  Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark  Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or  





 






  65    continued during any Benchmark Unavailability Period and, failing that, the Borrower will be  deemed to have converted any request for a Term Benchmark Borrowing into a request for a  Borrowing of or conversion to an ABR Borrowing.  During any Benchmark Unavailability  Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the  component of ABR based upon the then-current Benchmark or such tenor for such Benchmark,  as applicable, will not be used in any determination of ABR.  Furthermore, if any Term  Benchmark Loan is outstanding on the date of the Borrower’s receipt of notice of the  commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable  to such Term Benchmark Loan, then until such time as a Benchmark Replacement is  implemented pursuant to this Section 2.16, any Term Benchmark Loan shall on the last day of  the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and  shall constitute an ABR Loan.    2.17 Pro Rata Treatment and Payments.  (a)  Each borrowing by the Borrower  from the Revolving Lenders hereunder, each payment by the Borrower on account of any  commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata  according to the Revolving Percentages of the Lenders, in each case unless otherwise provided in  this Agreement.   (b) Any proceeds of Collateral of any Loan Party received by the  Administrative Agent (i) after an Event of Default has occurred and is continuing and the  Administrative Agent so elects or the Required Lenders so direct or (ii) at any other time, not  constituting (A) a specific payment of principal, interest, fees or other sum payable under the  Loan Documents (which shall be applied as specified by the Borrower), (B) a mandatory  prepayment (which shall be applied in accordance with Section 2.11(a)) or (C) amounts to be  applied from the Collection Account (which shall be applied in accordance with Section  2.11(d)), shall be applied, subject to the Intercreditor Agreement, ratably first, to pay any fees,  indemnities, or expense reimbursements then owing to the Administrative Agent and any Issuing  Lender from, or guaranteed by, such Loan Party under the Loan Documents (other than in  connection with Banking Services Obligations or Swap Obligations), second, to pay any fees or  expense reimbursements then owing to the Lenders from, or guaranteed by, such Loan Party  under the Loan Documents (other than in connection with Banking Services or Swap  Obligations), third, to pay interest due in respect of the Protective Advances owing by or  guaranteed by such Loan Party, fourth, to pay the principal of the Protective Advances owing by  or guaranteed by such Loan Party, fifth, to pay interest then due and payable on the Loans (other  than the Protective Advances) and unreimbursed L/C Disbursements, in each case owing or  guaranteed by such Loan Party, ratably, sixth, to prepay principal on the Loans (other than the  Protective Advances) and unreimbursed L/C Disbursements owing or guaranteed by such Loan  Party, to the payment of any amounts owing with respect to Reported Banking Services  Obligations and Reported Secured Swap Obligations owing or guaranteed by such Loan Party  and to pay an amount to the Administrative Agent equal to 103% of the aggregate undrawn face  amount of all outstanding Letters of Credit issued on behalf of, or guaranteed by, such Loan  Party, to be held as cash collateral for such Obligations, ratably, seventh, [Reserved], eighth, to  the payment of any amounts owing with respect to Banking Services Obligations (other than  Reported Banking Services Obligations) and Secured Swap Obligations (other than Reported  Secured Swap Obligations) owing or guaranteed by such Loan Party, ratably, ninth, to the  payment of any other Obligations owing to the Administrative Agent or any Lender by, or  





 






  66    guaranteed by, such Loan Party, ratably, and tenth, any balance remaining after the Obligations  shall have been paid in full and no Letters of Credit shall be outstanding (other than Letters of  Credit which have been cash collateralized in accordance with the foregoing) shall be paid over  to the applicable Loan Party at its account designated for such purpose by written notice by such  Loan Party to the Administrative Agent or to whomsoever else may be lawfully entitled to  receive the same.  The application of any payment pursuant to this Section 2.17(b) shall be made  first, to ABR Loans and second, to Term SOFR Loans.  Each of the Administrative Agent and  the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any  and all such proceeds and payments to any portion of the Obligations to maximize realization of  the Collateral (it being understood that, notwithstanding the foregoing, in no event shall be  payments be made pursuant to levels “eighth” or “ninth” above prior to the payment in full of all  obligations described in levels “first” through “seventh” above).  Notwithstanding the foregoing,  no amount received from any Loan Party shall be applied to any Excluded Swap Obligation of  such Loan Party.  (c) Each payment (including each prepayment) by the Borrower on account of  principal of and interest on the Revolving Loans shall be made pro rata according to the  respective outstanding principal amounts of the Revolving Loans then held by the Revolving  Lenders, unless otherwise provided by this Agreement.  (d) All payments (including prepayments) to be made by the Borrower  hereunder, whether on account of principal, interest, fees or otherwise, shall be made without  setoff or counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due  date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office,  in Dollars and in immediately available funds.  The Administrative Agent shall distribute such  payments to each relevant Lender promptly upon receipt in like funds as received, net of any  amounts owing by such Lender pursuant to Section 9.7.  If any payment hereunder (other than  payments on the Term SOFR Loans) becomes due and payable on a day other than a Business  Day, such payment shall be extended to the next succeeding Business Day.  If any payment on a  Term SOFR Loan becomes due and payable on a day other than a Business Day, the maturity  thereof shall be extended to the next succeeding Business Day unless the result of such extension  would be to extend such payment into another calendar month, in which event such payment  shall be made on the immediately preceding Business Day.  In the case of any extension of any  payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at  the then applicable rate during such extension. During any Full Cash Dominion Period, solely for  purposes of determining the amount of Loans available for borrowing purposes, checks (in  addition to immediately available funds applied pursuant to Section 2.11(d)) from collections of  items of payment and proceeds of any Collateral shall be applied in whole or in part against the  applicable Obligations as of 10:00 A.M., New York City time, on the Business Day of receipt,  subject to actual collection.  (e) Unless the Administrative Agent shall have been notified in writing by  any Lender prior to a borrowing that such Lender will not make the amount that would constitute  its share of such borrowing available to the Administrative Agent, the Administrative Agent may  assume that such Lender is making such amount available to the Administrative Agent, and the  Administrative Agent may, in reliance upon such assumption, make available to the Borrower a  corresponding amount.  If such amount is not made available to the Administrative Agent by the  





 






  67    required time on the Borrowing Date therefor, such Lender shall pay to the Administrative  Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the  NYFRB Rate and (ii) a rate determined by the Administrative Agent in accordance with banking  industry rules on interbank compensation, for the period until such Lender makes such amount  immediately available to the Administrative Agent.  A certificate of the Administrative Agent  submitted to any Lender with respect to any amounts owing under this paragraph shall be  conclusive in the absence of manifest error.  If such Lender’s share of such borrowing is not  made available to the Administrative Agent by such Lender within three Business Days after  such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount  with interest thereon at the rate per annum applicable to Revolving Loans that are ABR Loans,  on demand, from the Borrower.  (f) Unless the Administrative Agent shall have been notified in writing by the  Borrower prior to the date of any payment due to be made by the Borrower pursuant to the terms  hereof or any other Loan Document (including any date that is fixed for prepayment by notice  from the Borrower to the Administrative Agent pursuant to Section 2.11(d)) that the Borrower  will not make such payment to the Administrative Agent, the Administrative Agent may assume  that the Borrower is making such payment, and the Administrative Agent may, but shall not be  required to, in reliance upon such assumption, make available to the Lenders their respective pro  rata shares of a corresponding amount.  If such payment is not made to the Administrative Agent  by the Borrower within three Business Days after such due date, the Administrative Agent shall  be entitled to recover, on demand, from each Lender to which any amount which was made  available pursuant to the preceding sentence, such amount with interest thereon at the rate per  annum equal to the daily average NYFRB Rate.  Nothing herein shall be deemed to limit the  rights of the Administrative Agent or any Lender against the Borrower.  (g) If any Lender shall fail to make any payment required to be made by it  pursuant to Section 2.17(e), 2.17(f), 2.19(e), 3.4(a) or 9.7, then the Administrative Agent may, in  its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter  received by the Administrative Agent for the account of such Lender for the benefit of the  Administrative Agent or the Issuing Lender to satisfy such Lender’s obligations to it under such  Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in  a segregated account as cash collateral for, and application to, any future funding obligations of  such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order  as determined by the Administrative Agent in its discretion.  2.18 Requirements of Law.  (a)   If the adoption of or any change in any  Requirement of Law or in the interpretation, administration, implementation or application  thereof or compliance by any Lender or other Credit Party with any request or directive (whether  or not having the force of law) from any central bank or other Governmental Authority, in each  case made or occurring subsequent to the Closing Date:  shall subject any Credit Party 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;  





 






  68    shall impose, modify or hold applicable any reserve, special deposit, compulsory loan, insurance  charge or similar requirement against assets held by, deposits or other liabilities in or for the  account of, advances, loans or other extensions of credit (or participations therein) by, or any  other acquisition of funds by, any office of such Lender that is not otherwise included in the  determination of Adjusted Term SOFR; or  shall impose on such Lender any other condition (other than Taxes);  and the result of any of the foregoing is to increase the cost to such Lender or such other Credit  Party, by an amount that such Lender or other Credit Party deems to be material, of making,  converting into, continuing or maintaining Loans or issuing or participating in Letters of Credit,  or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the  Borrower shall promptly pay such Lender or such other Credit Party, upon its demand, any  additional amounts necessary to compensate such Lender or such other Credit Party for such  increased cost or reduced amount receivable.  If any Lender or such other Credit Party becomes  entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the  Borrower (with a copy to the Administrative Agent) of the event by reason of which it has  become so entitled.  (b) If any Lender shall have determined that the adoption of or any change in  any Requirement of Law regarding capital or liquidity requirements or in the interpretation,  administration, implementation or application thereof or compliance by such Lender or any  corporation controlling such Lender with any request or directive regarding capital or liquidity  requirements (whether or not having the force of law) from any Governmental Authority made  subsequent to the Closing Date shall have the effect of reducing the rate of return on such  Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under or  in respect of any Letter of Credit to a level below that which such Lender or such corporation  could have achieved but for such adoption, change or compliance (taking into consideration such  Lender’s or such corporation’s policies with respect to capital adequacy or liquidity) by an  amount deemed by such Lender to be material, then from time to time, after submission by such  Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor,  the Borrower shall pay to such Lender such additional amount or amounts as will compensate  such Lender or such corporation for such reduction.   (c) Notwithstanding anything herein to the contrary, (i) all requests, rules,  guidelines, requirements and directives promulgated by the Bank for International Settlements,  the Basel Committee on Banking Supervision (or any successor or similar authority) or by  United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the  Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,  requirements and directives thereunder or issued in connection therewith or in implementation  thereof, shall in each case be deemed to be a change in law, regardless of the date enacted,  adopted, issued or implemented.  (d) A certificate as to any additional amounts payable pursuant to this Section  submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be  conclusive in the absence of manifest error.  Notwithstanding anything to the contrary in this  Section, the Borrower shall not be required to compensate a Lender pursuant to this Section for  





 






  69    any amounts incurred more than nine months prior to the date that such Lender notifies the  Borrower of such Lender’s intention to claim compensation therefor; provided that, if the  circumstances giving rise to such claim have a retroactive effect, then such nine-month period  shall be extended to include the period of such retroactive effect.  The obligations of the  Borrower pursuant to this Section shall survive the termination of this Agreement and the  payment of the Loans and all other amounts payable hereunder.  (e) Notwithstanding any other provision of this Section 2.18 to the  contrary, no Lender shall be entitled to receive any compensation pursuant to this Section 2.18  unless it shall be the general policy or practice of such Lender to seek compensation from other  similarly situated borrowers in the U.S. syndicated loan market with respect to its similarly  affected loans under agreements with such borrowers having provisions similar to this Section  2.18.  2.19 Taxes.  (a)  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 law.  If any applicable law (as determined in the  good faith discretion of an applicable withholding agent) requires the deduction or withholding  of any Tax from any such payment by a withholding agent, then the applicable withholding agent  shall be entitled to make such deduction or withholding and shall timely pay the full amount  deducted or withheld to the relevant Governmental Authority in accordance with applicable law  and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall  be increased as necessary so that, after such deduction or withholding has been made (including  such deductions and withholdings applicable to additional sums payable under this Section 2.19),  the amounts received with respect to this agreement equal the sum which would have been  received had no such deduction or withholding been made.  (b) 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, Other Taxes.  (c) As soon as practicable after any payment of Taxes by any Loan Party to a  Governmental Authority pursuant to this Section 2.19, such Loan Party shall deliver to the  Administrative Agent the original or a certified copy of a receipt issued by such Governmental  Authority evidencing such payment, a copy of the return reporting such payment or other  evidence of such payment reasonably satisfactory to the Administrative Agent.  (d) Without duplication of payments made pursuant to Section 2.19(a) above,  the Loan Parties shall jointly and severally  indemnify each Credit Party, 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 2.19) payable or  paid by such Credit Party or required to be withheld or deducted from a payment to such Credit  Party and any reasonable expenses arising therefrom or with respect thereto, whether or not such  Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental  Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower  by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its  own behalf or on behalf of a Lender, shall be conclusive absent manifest error.  





 






  70    (e) Each Lender shall severally indemnify the Administrative Agent, within  10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the  extent that any Loan Party has not already indemnified the Administrative Agent for such  Indemnified Taxes and without limiting the obligation of the Loan Parties to do so) and (ii) any  Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(c)  relating to the maintenance of a Participant Register, in either case, that are payable or paid by  the Administrative Agent in connection with any Loan Document, and any reasonable expenses  arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally  imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of  such payment or liability delivered to any Lender by the Administrative Agent shall be  conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set  off and apply any and all amounts at any time owing to such Lender under any Loan Document  or otherwise payable by the Administrative Agent to the Lender from any other source against  any amount due to the Administrative Agent under this paragraph (e).  (f) (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 2.19(f)(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 copies of IRS Form W-9 certifying that  such Lender is exempt from U.S. federal backup  withholding tax;  (B) any Non-U.S. 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  





 






  71    requested by the recipient) on or prior to the date on which  such Non-U.S. Lender becomes a Lender under this  Agreement (and from time to time thereafter upon the  reasonable request of the Borrower or the Administrative  Agent), whichever of the following is applicable:  (1) in the case of a Non-U.S. Lender claiming the  benefits of an income tax treaty to which the United  States is a party (x) with respect to payments of  interest under any Loan Document, executed copies  of IRS Form W-8BEN or IRS Form W-8BEN-E  establishing an exemption from, or reduction of,  U.S. federal withholding Tax pursuant to the  “interest” article of such tax treaty and (y) with  respect to any other applicable payments under any  Loan Document, IRS Form W-8BEN or IRS Form  W-8BEN-E establishing an exemption from, or  reduction of, U.S. federal withholding Tax pursuant  to the “business profits” or “other income” article of  such tax treaty;  (2) executed copies of IRS Form W-8ECI;  (3) in the case of a Non-U.S. Lender claiming the  benefits of the exemption for portfolio interest  under Section 881(c) of the Code, (x) a certificate  substantially in the form of Exhibit H-1 to the effect  that such Non-U.S. Lender is not a “bank” within  the meaning of Section 881(c)(3)(A) of the Code, a  “10 percent shareholder” of the Borrower within the  meaning of Section 881(c)(3)(B) of the Code, or a  “controlled foreign corporation” described in  Section 881(c)(3)(C) of the Code (a “U.S. Tax  Compliance Certificate”) and (y) executed copies of  IRS Form W-8BEN or IRS Form W-8BEN-E; or  (4) to the extent a Non-U.S. Lender is not the beneficial  owner, executed copies of IRS Form W-8IMY,  accompanied by IRS Form W-8ECI, IRS Form W- 8BEN, IRS Form W-8BEN-E, a U.S. Tax  Compliance Certificate substantially in the form of  Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or  other certification documents from each beneficial  owner, as applicable; provided that if the Non-U.S.  Lender is a partnership and one or more direct or  indirect partners of such Non-U.S. Lender are  claiming the portfolio interest exemption, such  





 






  72    Non-U.S. Lender may provide a U.S. Tax  Compliance Certificate substantially in the form of  Exhibit H-4 on behalf of each such direct and  indirect partner;  (C) any Non-U.S. 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 Non-U.S. Lender becomes a Lender under this  Agreement (and from time to time thereafter upon the  reasonable request of the Borrower or the Administrative  Agent), executed copies of any other form prescribed by  applicable law as a basis for claiming exemption from or a  reduction in U.S. Federal withholding Tax, duly completed,  together with such supplementary documentation as may be  prescribed by applicable law to permit the Borrower or the  Administrative Agent to determine the withholding or  deduction required to be made; and  (D) if a payment made to a Lender under any Loan Document  would be subject to U.S. federal withholding Tax imposed  by FATCA if such Lender were to fail to comply with the  applicable reporting requirements of FATCA (including  those contained in Section 1471(b) or 1472(b) of the Code,  as applicable), such Lender shall deliver to the Borrower  and the Administrative Agent at the time or times  prescribed by law and at such time or times reasonably  requested by the Borrower or the Administrative Agent  such documentation prescribed by applicable law  (including as prescribed by Section 1471(b)(3)(C)(i) of the  Code) and such additional documentation reasonably  requested by the Borrower or the Administrative Agent as  may be necessary for the Borrower and the Administrative  Agent to comply with their obligations under FATCA and  to determine that such Lender has complied with such  Lender’s obligations under FATCA or to determine the  amount, if any, to deduct and withhold from such payment.   Solely for purposes of this clause (D), “FATCA” shall  include any amendments made to FATCA after the Closing  Date.  Each Lender agrees that if any form or certification it previously delivered expires  or becomes obsolete or inaccurate in any respect, it shall update such form or certification or  promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do  so.  





 






  73    (g) If any party 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 pursuant to this Section  2.19 (including by the payment of additional amounts pursuant to this Section 2.19), it shall pay  to the indemnifying party an amount equal to such refund (but only to the extent of indemnity  payments made under this Section with respect to the Taxes giving rise to such refund), net of all  out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other  than any interest paid by the relevant Governmental Authority with respect to such refund).   Such indemnifying party, upon the request of such indemnified party, shall repay to such  indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties,  interest or other charges imposed by the relevant Governmental Authority) in the event that such  indemnified party is required to repay such refund to such Governmental Authority.   Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified  party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the  payment of which would place the indemnified party in a less favorable net after-Tax position  than the indemnified party would have been in if the indemnification payments or additional  amounts giving rise to such refund had never been paid.  This Section 2.19 shall not be construed  to require any indemnified party to make available its Tax returns (or any other information  relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.  (h) Each party’s obligations under this Section 2.19 shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all obligations under the Loan Documents.  (i) For purposes of this Section 2.19, the term “Lender” includes the Issuing  Lender and the term “applicable law” includes FATCA.  2.20 Indemnity.  The Borrower agrees to indemnify each Lender for, and to  hold each Lender harmless from, any loss or expense that such Lender sustains or incurs as a  consequence of (a) default by the Borrower in making a borrowing of, conversion into or  continuation of Term SOFR Loans after the Borrower has given a notice requesting the same in  accordance with the provisions of this Agreement, (b) default by the Borrower in making any  prepayment of or conversion from Term SOFR Loans after the Borrower has given a notice  thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of  Term SOFR Loans on a day that is not the last day of an Interest Period with respect thereto.   Such indemnification may include an amount equal to the excess, if any, of (i) the amount of  interest that would have accrued on the amount so prepaid, or not so borrowed, converted or  continued, for the period from the date of such prepayment or of such failure to borrow, convert  or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert  or continue, the Interest Period that would have commenced on the date of such failure) in each  case at the applicable rate of interest for such Loans provided for herein (excluding, however, the  Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably  determined by such Lender) that would have accrued to such Lender on such amount by placing  such amount on deposit for a comparable period with leading banks in the interbank eurodollar  market.  A certificate as to any amounts payable pursuant to this Section submitted to the  Borrower by any Lender shall be conclusive in the absence of manifest error.  This covenant  





 






  74    shall survive the termination of this Agreement and the payment of the Loans and all other  amounts payable hereunder for nine months.  2.21 Change of Lending Office.  Each Lender agrees that, upon the occurrence  of any event giving rise to the operation of Section 2.18 or 2.19(a) with respect to such Lender, it  will, if requested by the Borrower, use reasonable efforts (subject to overall policy  considerations of such Lender) to designate another lending office for any Loans affected by  such event or to assign and delegate its rights and obligations hereunder to another of its offices,  branches or Affiliates with the object of avoiding the consequences of such event; provided, that  such designation or assignment is made on terms that, in the sole judgment of such Lender, cause  such Lender and its lending offices to suffer no material economic, legal or regulatory  disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of  the obligations of the Borrower or the rights of any Lender pursuant to Section 2.18 or 2.19(a).  2.22 Replacement of Lenders.  The Borrower shall be permitted to replace any  Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a),  (b) becomes a Defaulting Lender or (c) does not consent to any proposed amendment,  supplement, modification, consent or waiver of any provision of this Agreement or any other  Loan Document that requires the consent of the Supermajority Lenders, each of the Lenders or  each of the Lenders affected thereby (so long as the consent of the Required Lenders has been  obtained), with a replacement financial institution; provided that (i) such replacement does not  conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be  continuing at the time of such replacement, (iii) prior to any such replacement, such Lender shall  have taken no action under Section 2.21 so as to eliminate the continued need for payment of  amounts owing pursuant to Section 2.18 or 2.19(a), (iv) the replacement financial institution  shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to  the date of replacement, (v) the Borrower shall be liable to such replaced Lender under Section  2.20 if any Term SOFR Loan owing to such replaced Lender shall be purchased other than on the  last day of the Interest Period relating thereto, (vi) the replacement financial institution shall be  reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender shall be obligated  to make such replacement in accordance with the provisions of Section 10.6 (provided that the  Borrower shall be obligated to pay the registration and processing fee referred to therein), (viii)  until such time as such replacement shall be consummated, the Borrower shall pay all additional  amounts (if any) required pursuant to Section 2.18 or 2.19(a), as the case may be, and (ix) any  such replacement shall not be deemed to be a waiver of any rights that the Borrower, the  Administrative Agent or any other Lender shall have against the replaced Lender.  Each party  hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to  an Assignment and Assumption executed by the Borrower, the Administrative Agent and the  assignee, and that the Lender required to make such assignment need not be a party thereto in  order for such assignment to be effective.  2.23 Defaulting Lenders.  Notwithstanding any provision of this Agreement to  the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall  apply for so long as such Lender is a Defaulting Lender:  (a) fees shall cease to accrue on the unfunded portion of the Commitment of  such Defaulting Lender pursuant to Section 2.8(a);  





 






  75    (b) the Commitment and Revolving Extensions of Credit of such Defaulting  Lender shall not be included in determining whether the Required Lenders have taken or may  take any action hereunder (including any consent to any amendment, waiver or other  modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the vote  of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the  consent of such Lender or each Lender affected thereby;   (c) if any L/C Exposure or Protective Advance Exposure exists at the time  such Lender becomes a Defaulting Lender then:  all or any part of the L/C Exposure and Protective Advance Exposure of such Defaulting Lender  shall be reallocated among the non-Defaulting Lenders in accordance with their respective  Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving  Extensions of Credit plus such Defaulting Lender’s L/C Exposure and Protective Advance  Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;  if the reallocation described in clause (i) above cannot, or can only partially, be effected, the  Borrower shall within one Business Day following notice by the Administrative Agent (x) first,  prepay such Protective Advance Exposure and (y) second, cash collateralize for the benefit of the  Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s L/C  Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in  accordance with the procedures set forth in Section 8 for so long as such L/C Exposure is  outstanding;  if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Exposure  pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such  Defaulting Lender pursuant to Section 3.3(a) with respect to such Defaulting Lender’s L/C  Exposure during the period such Defaulting Lender’s L/C Exposure is cash collateralized;  if the L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above,  then the fees payable to the Lenders pursuant to Section 2.8(a) and Section 3.3(a) shall be  adjusted in accordance with such non-Defaulting Lenders’ Revolving Percentages; and  if all or any portion of such Defaulting Lender’s L/C Exposure is neither reallocated nor cash  collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or  remedies of the Issuing Lender or any other Lender hereunder, all fees payable under Section  3.3(a) with respect to such Defaulting Lender’s L/C Exposure shall be payable to the Issuing  Lender until and to the extent that such L/C Exposure is reallocated and/or cash collateralized;  and  (d) so long as such Lender is a Defaulting Lender, the Issuing Lender shall not  be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related  exposure and the Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by  the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the  Borrower in accordance with Section 2.23(c), and participating interests in any newly issued or  increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner  consistent with Section 2.23(c)(i) (and such Defaulting Lender shall not participate therein).  





 






  76    If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall  occur following the Closing Date and for so long as such event shall continue or (ii) the Issuing  Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one  or more other agreements in which such Lender commits to extend credit, the Issuing Lender  shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Lender,  as the case may be, shall have entered into arrangements with the Borrower or such Lender,  satisfactory to the Issuing Lender, as the case may be, to defease any risk to it in respect of such  Lender hereunder.  In the event that the Administrative Agent, the Borrower and the Issuing Lender  each agrees that a Defaulting Lender has adequately remedied all matters that caused such  Lender to be a Defaulting Lender, then the L/C Exposure and Protective Advance Exposure of  the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on  such date such Lender shall purchase at par such of the Loans of the other Lenders as the  Administrative Agent shall determine may be necessary in order for such Lender to hold such  Loans in accordance with its Revolving Percentage.  2.24 Incremental Facilities.  (a)  The Borrower and any one or more Lenders  (including New Lenders) may from time to time agree that such Lenders shall make, obtain or  increase the amount of their Commitments (any such new or increased Commitments,  “Incremental Commitments”) by executing and delivering to the Administrative Agent an  Increased Facility Activation Notice specifying (x) the amount of such Incremental  Commitments and (y) the applicable Increased Facility Closing Date (which shall be a date not  less than 10 Business Days after the date on which such notice is delivered to the Administrative  Agent (or such earlier date as shall be agreed by the Administrative Agent)); provided that (i)  with respect to any Increased Facility Closing Date, the Incremental Commitments shall be in a  minimum amount of $20,000,000 and (ii) the aggregate amount of Incremental Commitments  obtained after the Third Amendment Effective Date pursuant to this Section 2.24 shall not  exceed $100,000,000. No Lender shall have any obligation to participate in any increase  described in this paragraph unless it agrees to do so in its sole discretion.  (b) Any additional bank, financial institution or other entity which, with the  consent of the Borrower, the Issuing Lender and the Administrative Agent (which consent shall  not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection  with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each,  a “New Lender Supplement”), substantially in the form of Exhibit I-2, whereupon such bank,  financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and  to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits  of this Agreement.  (c) Unless otherwise agreed or otherwise directed by the Administrative  Agent, on each Increased Facility Closing Date, the Borrower shall borrow Revolving Loans  under the relevant Incremental Commitments from each Lender participating in the relevant  increase in an amount determined by reference to the amount of each Type of Loan (and, in the  case of Term SOFR Loans, of each Term SOFR Borrowing) which would then have been  outstanding from such Lender if (i) each such Type or Term SOFR Borrowing had been  borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of  





 






  77    each such Type or Term SOFR Borrowing requested to be so borrowed or effected had been  proportionately increased.  The Term SOFR Reference Rate applicable to any Term SOFR Loan  borrowed pursuant to the preceding sentence shall equal the Term SOFR Reference Rate then  applicable to the Term SOFR Loans of the other Lenders in the same Term SOFR Borrowing  (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed  upon between the Borrower and the relevant Lender).  (d) It shall be a condition precedent to the availability of any Incremental  Commitments that (i) no Default or Event of Default shall have occurred and be continuing  immediately prior to and immediately after giving effect to the making of such Incremental  Commitments, (ii) the representations and warranties set forth in each Loan Document shall be  true and correct in all material respects (or, if qualified by materiality, in all respects) on and as  of the Increased Facility Closing Date immediately prior to and immediately after giving effect  to the making of such Incremental Commitments, except to the extent expressly made as of an  earlier date, in which case they shall be so true and correct as of such earlier date and (iii) the  Borrower shall have delivered such legal opinions, board resolutions, secretary’s certificate,  officer’s certificate and other documents as shall be reasonably requested by the Administrative  Agent in connection with any Incremental Commitments.  2.25 Loan Modification Offers.    (a) The Borrower may on one or more occasions after the Closing  Date, by written notice to the Administrative Agent, make one or more offers (each, a “Loan  Modification Offer”) to all (and not fewer than all) the Lenders of one or more Facilities (each  Facility subject to such a Loan Modification Offer, an “Affected Facility”) to make one or more  Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent  and reasonably acceptable to the Borrower.  Such notice shall set forth (i) the terms and  conditions of the requested Loan Modification Offer and (ii) the date on which such Loan  Modification Offer is requested to become effective.  Permitted Amendments shall become  effective only with respect to the Loans of the Lenders of the Affected Facility that accept the  applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of  any Accepting Lender, only with respect to such Lender’s Loans and Commitments of such  Affected Facility as to which such Lender’s acceptance has been made.  With respect to all  Permitted Amendments consummated by the Borrower pursuant to this Section 2.25, such  Permitted Amendments shall not constitute voluntary or mandatory payments or prepayments for  purposes of Section 2.11 and (ii) any Loan Modification Offer, unless contemplating a scheduled  maturity date already in effect with respect to any Loans hereunder pursuant to a previously  consummated Permitted Amendment, must be in a minimum amount of $25,000,000 (or such  lesser amount as may be approved by the Administrative Agent in its reasonable discretion);  provided that the Borrower may at its election specify as a condition (a “Minimum Extension  Condition”) to consummating any such Permitted Amendment that a minimum amount (to be  determined and specified in the relevant Loan Modification Offer in the Borrower’s sole  discretion and which may be waived by the Borrower) of Loans of any or all Affected Facilities  be extended.  If the aggregate principal amount of Loans of any Affected Facility in respect of  which Lenders shall have accepted the relevant Loan Modification Offer shall exceed the  maximum aggregate principal amount of Loans of such Affected Facility offered to be extended  by the Borrower pursuant to such Loan Modification Offer, then the Loans of such Lenders shall  





 






  78    be extended ratably up to such maximum amount based on the relative principal amounts (but  not to exceed actual holdings of record) with respect to which such Lenders have accepted such  Loan Modification Offer.  (b) A Permitted Amendment shall be effected pursuant to a Loan  Modification Agreement executed and delivered by the Borrower, each Accepting Lender and  the Administrative Agent; provided that no Permitted Amendment shall become effective unless  (i) on the date of effectiveness thereof, the representations and warranties of each Loan Party set  forth in the Loan Documents (other than Section 4.7 as to no Default or Event of Default) shall  be true and correct in all material respects (or if qualified by materiality, in all respects), in each  case on and as of such date, except in the case of any such representation and warranty expressly  made as of an earlier date, in which case such representation and warranty shall be so true and  correct on and as of such earlier date, (ii) the Borrower shall have delivered, or agreed to deliver  by a date following the effectiveness of such Permitted Amendment reasonably acceptable to the  Administrative Agent, to the Administrative Agent such legal opinions, board resolutions,  secretary’s certificates, officer’s certificates and other documents (including reaffirmation  agreements, supplements and/or amendments to other Security Documents, in each case to the  extent applicable) as shall reasonably be requested by the Administrative Agent in connection  therewith and (iii) any applicable Minimum Extension Condition shall be satisfied (unless  waived by the Borrower).  The Administrative Agent shall promptly notify each Lender as to the  effectiveness of each Loan Modification Agreement.  Each Loan Modification Agreement may,  without the consent of any Lender other than the applicable Accepting Lenders, effect such  amendments to this Agreement and the other Loan Documents as may be necessary or  appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the  provisions of this Section 2.26, including any amendments necessary to treat the applicable  Loans of the Accepting Lenders as a new Facility of loans hereunder (and the Lenders hereby  irrevocably authorize the Administrative Agent to enter into any such amendments); provided  that (i) all prepayments of Loans (i.e., both extended and non-extended) shall continue to be  made on a ratable basis among all Lenders, based on the relative amounts of their Loans unless a  Permitted Amendment provides for lesser treatment of the Loans of the Accepting Lenders, until  the repayment of the non-extended Loans on the relevant scheduled maturity date in respect  thereof.  The Administrative Agent and the Lenders hereby acknowledge that in respect of  payments on non-extended Loans on the scheduled maturity date in respect thereof the pro rata  payment requirements contained elsewhere in this Agreement are not intended to apply to the  transactions effected pursuant to this Section 2.26.  This Section 2.26 shall supersede any  provisions in Section 2.17 or Section 10.1 to the contrary.  SECTION 3.  LETTERS OF CREDIT  3.1 L/C Commitment.  (a)  Subject to the terms and conditions hereof, the  Issuing Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section  3.4(a), agrees to issue letters of credit (“Letters of Credit”) during the Availability Period for the  account of the Borrower on any Business Day during the Revolving Commitment Period in such  form as may be approved from time to time by the Issuing Lender; provided that the Issuing  Lender shall not issue any Letter of Credit if, after giving effect to such issuance, the Total  Revolving Extensions of Credit would exceed the Line Cap, subject to the authority of the  Administrative Agent, in its sole discretion, to make Protective Advances pursuant to the terms  





 






  79    of Section 2.3.  Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later  than the earlier of (x) the first anniversary of its date of issuance (or such longer period as agreed  to by the applicable Issuing Lender in its sole discretion) and (y) the date that is five Business  Days prior to the Revolving Termination Date, provided that any Letter of Credit with a one-year  term may provide for the renewal thereof for additional one-year periods (which shall in no event  extend beyond the date referred to in clause (y) above unless such Letter of Credit has been cash  collateralized or other arrangements backstopping such Letter of Credit have been made, in each  case, reasonably satisfactory to the Issuing Lender). No more than 20 Letters of Credit shall be  outstanding at any time.  (b) The Issuing Lender shall not at any time be obligated to issue any Letter of  Credit if the issuance of such Letter of Credit would (i) result in such Issuing Lender’s L/C  Obligations exceeding such Lender’s L/C Commitment, (ii) violate one or more policies of the  Issuing Lender applicable to letters of credit generally or (iii) conflict with, or cause the Issuing  Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of  Law. Without limiting the foregoing and without affecting the limitations contained herein, it is  understood and agreed that the Borrower may from time to time request that an Issuing Lender  issue Letters of Credit in excess of such Issuing Lender’s L/C Commitment in effect at the time  of such request, and each Issuing Lender agrees to consider any such request in good faith.  Any  Letter of Credit so issued by an Issuing Lender in excess of its L/C Commitment then in effect  shall nonetheless constitute a Letter of Credit for all purposes of this Agreement, and shall not  affect the L/C Commitment of any other Issuing Bank.  (c) The parties hereto agree that the Existing Letters of Credit shall be deemed  to be Letters of Credit for all purposes under this Agreement, without any further action by the  Borrower, the Issuing Lender or any other Person.  3.2 Procedure for Issuance of Letter of Credit.  The Borrower may from time  to time request that the Issuing Lender issue a Letter of Credit (or the amendment, renewal or  extension of an outstanding Letter of Credit) by delivering to the Issuing Lender at its address for  notices specified herein, with a copy to the Administrative Agent, an Application therefor,  completed to the reasonable satisfaction of the Issuing Lender, and such other certificates,  documents and other papers and information as the Issuing Lender may request.  Upon receipt of  any Application, the Issuing Lender will process such Application and the certificates,  documents and other papers and information delivered to it in connection therewith in  accordance with its customary procedures and shall promptly issue the Letter of Credit requested  thereby (but in no event shall the Issuing Lender be required to issue, amended, renew or extend  any Letter of Credit earlier than three Business Days after its receipt of the Application therefor  and all such other certificates, documents and other papers and information relating thereto) by  issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be  agreed to by the Issuing Lender and the Borrower.  The Issuing Lender shall furnish a copy of  such Letter of Credit to the Borrower promptly following the issuance thereof.  The Issuing  Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish  to the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof).  3.3 Fees and Other Charges.  (a)   The Borrower will pay a fee on all  outstanding Letters of Credit at a per annum rate equal to the Applicable Margin then in effect  





 






  80    with respect to Revolving Loans that are Term SOFR Loans, shared ratably among the  Revolving Lenders and payable quarterly in arrears on each Fee Payment Date after the issuance  date.  In addition, the Borrower shall pay to each Issuing Lender for its own account a fronting  fee equal to 0.125% per annum multiplied by the daily average undrawn and unexpired amount  of each Letter of Credit issued by such Issuing Lender, payable quarterly in arrears.   (b) In addition to the foregoing fees, the Borrower shall pay or reimburse the  Issuing Lender for such normal and customary costs and expenses as are incurred or charged by  the Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise  administering any Letter of Credit.  3.4 L/C Participations.  (a)  The Issuing Lender irrevocably agrees to grant  and hereby grants to each L/C Participant, and, to induce the Issuing Lender to issue Letters of  Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and  purchases from the Issuing Lender, on the terms and conditions set forth below, for such L/C  Participant’s own account and risk an undivided interest equal to such L/C Participant’s  Revolving Percentage in the Issuing Lender’s obligations and rights under and in respect of each  Letter of Credit and the amount of each draft paid by the Issuing Lender thereunder.  Each L/C  Participant agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit for  which the Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms  of Section 3.5 (or in the event that any reimbursement received by the Issuing Lender shall be  required to be returned by it at any time), such L/C Participant shall pay to the Issuing Lender  upon demand at the Issuing Lender’s address for notices specified herein an amount equal to  such L/C Participant’s Revolving Percentage of the amount that is not so reimbursed (or is so  returned).  Each L/C Participant’s obligation to pay such amount shall be absolute and  unconditional and shall not be affected by any circumstance, including (i) any setoff,  counterclaim, recoupment, defense or other right that such L/C Participant may have against the  Issuing Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence  or continuance of a Default or an Event of Default or the failure to satisfy any of the other  conditions specified in Section 5, (iii) any adverse change in the condition (financial or  otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by  the Borrower, any other Loan Party or any other L/C Participant or (v) any other circumstance,  happening or event whatsoever, whether or not similar to any of the foregoing.  (b) If any amount required to be paid by any L/C Participant to the Issuing  Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made  by the Issuing Lender under any Letter of Credit is not paid to the Issuing Lender within three  Business Days after the date such payment is due, such L/C Participant shall pay to the Issuing  Lender on demand an amount equal to the product of (i) such amount, times (ii) the greater of (x)  the daily average NYFRB Rate during the period from and including the date such payment is  required to the date on which such payment is immediately available to the Issuing Lender and  (y) a rate determined by the Administrative Agent in accordance with banking industry rules on  interbank compensation, times (iii) a fraction the numerator of which is the number of days that  elapse during such period and the denominator of which is 360.  If any such amount required to  be paid by any L/C Participant pursuant to Section 3.4(a) is not made available to the Issuing  Lender by such L/C Participant within three Business Days after the date such payment is due,  the Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such  





 






  81    amount with interest thereon calculated from such due date at the rate per annum applicable to  the Alternate Base Rate plus the Applicable Margin.  A certificate of the Issuing Lender  submitted to any L/C Participant with respect to any amounts owing under this Section shall be  conclusive in the absence of manifest error.  (c) Whenever, at any time after the Issuing Lender has made payment under  any Letter of Credit and has received from any L/C Participant its pro rata share of such payment  in accordance with Section 3.4(a), the Issuing Lender receives any payment related to such Letter  of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral  applied thereto by the Issuing Lender), or any payment of interest on account thereof, the Issuing  Lender will distribute to such L/C Participant its pro rata share thereof; provided, however, that  in the event that any such payment received by the Issuing Lender shall be required to be  returned by the Issuing Lender, such L/C Participant shall return to the Issuing Lender the  portion thereof previously distributed by the Issuing Lender to it.  3.5 Reimbursement Obligation of the Borrower.  If any draft is paid under any  Letter of Credit, the Borrower shall reimburse the Issuing Lender for the amount of (a) the draft  so paid and (b) any taxes, fees, charges or other costs or expenses incurred by the Issuing Lender  in connection with such payment, not later than 12:00 Noon, New York City time, on (i) the  Business Day that the Borrower receives notice of such draft, if such notice is received on such  day prior to 10:00 A.M., New York City time and JPMCB is the applicable Issuing Lender, or  (ii) if clause (i) above does not apply, the Business Day immediately following the day that the  Borrower receives such notice.  Each such payment shall be made to the Issuing Lender at its  address for notices referred to herein in Dollars and in immediately available funds.  Interest  shall be payable on any such amounts from the date on which the relevant draft is paid until  payment in full at the rate set forth in (x) until the Business Day next succeeding the date of the  relevant notice, Section 2.14(b) and (y) thereafter, Section 2.14(c).  3.6 Obligations Absolute.  The Borrower’s obligations under this Section 3  shall be absolute, unconditional and irrevocable under any and all circumstances and irrespective  of any setoff, counterclaim or defense to payment that the Borrower may have or have had  against the Issuing Lender, any beneficiary of a Letter of Credit or any other Person.  The  Borrower also agrees with the Issuing Lender that the Issuing Lender shall not be responsible for,  and the Borrower’s Reimbursement Obligations under Section 3.5 shall not be affected by,  among other things, (a) any lack of validity or enforceability of any Letter of Credit or this  Agreement, or any term or provision therein, (b) any draft or other document presented under a  Letter of Credit proving to be invalid, fraudulent or forged in any respect or any statement  therein being untrue or inaccurate in any respect, (c) any dispute between or among the Borrower  and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may  be transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter  of Credit or any such transferee, (d) payment by the Issuing Lender under a Letter of Credit  against presentation of a draft or other document that does not comply with the terms of such  Letter of Credit, or (e) any other event or circumstance whatsoever, whether or not similar to any  of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable  discharge of, or provide a right of setoff against, the Borrower's obligations hereunder. The  Issuing Lender shall not have any liability or responsibility by reason of or in connection with  the issuance or transfer of any Letter of Credit or any payment or failure to make any payment  





 






  82    thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any  error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or  message or advice, however transmitted, in connection with any Letter of Credit (including any  document required to make a drawing thereunder), any error in interpretation of technical terms  or any consequence arising from causes beyond the control of the Issuing Lender; provided that  the foregoing shall not be construed to excuse the Issuing Lender from liability to the Borrower  to the extent of any direct damages (as opposed to special, indirect, consequential or punitive  damages, claims in respect of which are hereby waived by the Borrower to the extent permitted  by applicable law) suffered by the Borrower that are caused by the Issuing Lender's failure to  exercise care when determining whether drafts and other documents presented under a Letter of  Credit comply with the terms thereof.  The parties hereto expressly agree that, in the absence of  gross negligence or willful misconduct on the part of the Issuing Lender (as finally determined  by a court of competent jurisdiction), the Issuing Lender shall be deemed to have exercised care  in each such determination.  In furtherance of the foregoing and without limiting the generality  thereof, the parties agree that, with respect to documents presented which appear on their face to  be in substantial compliance with the terms of a Letter of Credit, the Issuing Lender may, in its  sole discretion, either accept and make payment upon such documents without responsibility for  further investigation, regardless of any notice or information to the contrary, or refuse to accept  and make payment upon such documents if such documents are not in strict compliance with the  terms of such Letter of Credit.  3.7 Letter of Credit Payments.  If any draft shall be presented for payment  under any Letter of Credit, the Issuing Lender shall promptly notify the Administrative Agent of  the date and amount thereof and the Administrative Agent shall provide such notice to the  Borrower; provided that any failure to give or delay in giving such notice shall not relieve the  Borrower of its obligation to reimburse the Issuing Lender and the Revolving Lenders pursuant  to Section 3.5. The Borrower may request that a Revolving Loan be made to provide funds for  the payment required by this Section 3.7; provided that, after giving effect to any such Revolving  Loan, the Line Cap would not be exceeded at such time. The proceeds of such Revolving Loan  shall be paid directly to the Issuing Lender to reimburse it for the payment made by it under the  Letter of Credit.  3.8 Applications.  To the extent that any provision of any Application related  to any Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this  Section 3 shall apply.  3.9 Replacement of an Issuing Lender. An Issuing Lender may be replaced at  any time by (a) the Borrower in its sole discretion upon written notice to the Administrative  Agent; provided that there are no outstanding Letters of Credit issued by such Issuing Lender  which are not cash collateralized by the Borrower or (b) written agreement among the Borrower  Representative, the Administrative Agent, the replaced Issuing Lender and the successor Issuing  Lender. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing  Lender. At the time any such replacement shall become effective, the Borrower shall pay all  unpaid fees accrued for the account of the replaced Issuing Lender pursuant to Section 3.3. From  and after the effective date of any such replacement, (a) the successor Issuing Lender shall have  all the rights and obligations of the Issuing Lender under this Agreement with respect to Letters  of Credit to be issued thereafter and (b) references herein to the term “Issuing Lender” shall be  





 






  83    deemed to refer to such successor or to any previous Issuing Lender, or to such successor and all  previous Issuing Lenders, as the context shall require. After the replacement of an Issuing Lender  hereunder, the replaced Issuing Lender shall remain a party hereto and shall continue to have all  the rights and obligations of an Issuing Lender under this Agreement with respect to Letters of  Credit then outstanding and issued by it prior to such replacement, but shall not be required to  issue additional Letters of Credit.    SECTION 4.  REPRESENTATIONS AND WARRANTIES  To induce the Administrative Agent and the Lenders to enter into this Agreement  and to make the Loans and issue or participate in the Letters of Credit, the Borrower hereby  represents and warrants to the Administrative Agent and each Lender that:  4.1 Financial Condition.  The audited consolidated balance sheets of the  Borrower and its consolidated Restricted Subsidiaries as at December 31, 2016, December 31,  2017 and December 31, 2018, and the related consolidated statements of income, stockholders’  equity and cash flows for the fiscal years ended on such dates, reported on by and accompanied  by an unqualified report from KPMG LLP, present fairly, in all material respects, the  consolidated financial condition of the Borrower and its consolidated Restricted Subsidiaries as  at such date, and the consolidated results of its operations and its consolidated cash flows for the  respective fiscal years then ended.  The unaudited consolidated balance sheet of the Borrower  and its consolidated Restricted Subsidiaries as at March 31, 2019, and the related unaudited  consolidated statement of income, stockholders’ equity and cash flow for the applicable three- month period ended on such date, present fairly, in all material respects, the consolidated  financial condition of the Borrower and its consolidated Restricted Subsidiaries as at each such  date, and the consolidated results of its operations and its consolidated cash flow for the three- month period then ended (subject to normal year-end audit adjustments).  All such financial  statements, including the related schedules and notes thereto, have been prepared in accordance  with GAAP applied consistently throughout the periods involved (except as approved by the  aforementioned firm of accountants and disclosed therein), except that the interim financial  statements are subject to year-end adjustments and are lacking footnote disclosures.   4.2 No Change.  Since December 31, 2018, there has been no development or  event that has had or could reasonably be expected to have a Material Adverse Effect.  4.3 Existence; Compliance with Law.  Each Group Member (a) is duly  organized or formed, validly existing and in good standing under the laws of the jurisdiction of  its organization, (b) has the corporate or similar organizational power and authority, and the legal  right, to own and operate its property, to lease the property it operates as lessee and to conduct  the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or  other organization and in good standing under the laws of each jurisdiction where its ownership,  lease or operation of property or the conduct of its business requires such qualification, except  where the failure to be so qualified could not, in the aggregate, reasonably be expected to have a  Material Adverse Effect and (d) is in compliance with all Requirements of Law except to the  extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to  have a Material Adverse Effect.  





 






  84    4.4 Power; Authorization; Enforceable Obligations.  (a)  Each Loan Party has  the corporate or similar organizational power and authority, and the legal right, to make, deliver  and perform the Loan Documents to which it is a party and, in the case of the Borrower, to  obtain extensions of credit hereunder.  Each Loan Party has taken all necessary corporate or  similar organizational action to authorize the execution, delivery and performance of the Loan  Documents to which it is a party and, in the case of the Borrower, to authorize the extensions of  credit on the terms and conditions of this Agreement.  Each Loan Document has been duly  executed and delivered on behalf of each Loan Party party thereto.  This Agreement constitutes,  and each other Loan Document upon execution will constitute, a legal, valid and binding  obligation of each Loan Party party thereto, enforceable against each such Loan Party in  accordance with its terms, except as enforceability may be limited by applicable bankruptcy,  insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’  rights generally and by general equitable principles (whether enforcement is sought by  proceedings in equity or at law).  (b) No consent or authorization of, filing with, notice to or other act by or in  respect of, any Governmental Authority or any other Person is required in connection with the  extensions of credit hereunder or with the execution, delivery, performance, validity or  enforceability of this Agreement or any of the Loan Documents, except (i) consents,  authorizations, filings and notices that have been obtained or made and are in full force and  effect and (ii) the filings referred to in Section 4.19.    4.5 No Legal Bar.  The execution, delivery and performance of this  Agreement and the other Loan Documents, the borrowings hereunder and the use of the proceeds  thereof will not violate any Requirement of Law or any Contractual Obligation of any Group  Member, except for violations that could not reasonably be expected to have a Material Adverse  Effect, and will not result in, or require, the creation or imposition of any Lien on any of their  respective properties or revenues pursuant to any Requirement of Law or any such Contractual  Obligation (other than the Liens created by the Security Documents).    4.6 Litigation.  No litigation, investigation or proceeding of or before any  arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower,  threatened by or against any Group Member or against any of their respective properties (a) with  respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby,  or (b) that could reasonably be expected to have a Material Adverse Effect if determined  adversely to any applicable Group Member.  4.7 No Default.  No Default or Event of Default has occurred and is  continuing.  4.8 Ownership of Property; Liens.   Each Group Member has such title in fee  simple or valid leasehold to the real property owned or leased by it as is necessary to the conduct  of its business and valid and legal title to all of its personal property owned by it, in each case,  subject to Permitted Liens.  4.9 Intellectual Property.  Except as could not reasonably be expected to have  a Material Adverse Effect, each Group Member owns, or is licensed to use, all material  





 






  85    Intellectual Property reasonably necessary for the conduct of its business as currently conducted,  free and clear of all Liens, except as permitted by Section 7.3, and to the knowledge of each  Loan Party, the use of any such material Intellectual Property and the conduct of each of the  Group Members does not infringe in any material respect upon the rights of any Person. Except  as could not reasonably be expected to have a Material Adverse Effect, no claim has been  asserted or is pending by any Person challenging or questioning the use of any material  Intellectual Property or the validity or effectiveness of any material Intellectual Property, nor  does the Borrower know of any valid basis for any such claim.  4.10 Taxes.  Each Group Member has filed or caused to be filed all Federal,  state and other material Tax returns that are required to be filed and has paid all Taxes shown to  be due and payable on said returns or on any assessments made against it or any of its property  and all other Taxes, fees or other charges imposed on it or any of its property by any  Governmental Authority (other than (i) any the amount or validity of which are currently being  contested in good faith by appropriate proceedings and with respect to which reserves in  conformity with GAAP have been provided on the books of the relevant Group Member, or (ii)  to the extent that the failure to file or pay, individually or in the aggregate, could not reasonably  be expected to have a Material Adverse Effect); to the knowledge of the Borrower, no material  Liens for Taxes have been filed, and, to the knowledge of the Borrower, no claim is being  asserted, with respect to any such Tax, fee or other charge.  4.11 Federal Regulations.  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, or extending credit for the purpose of purchasing or carrying Margin Stock, and no part of  the proceeds of any Borrowing hereunder will be used to buy or carry any Margin Stock.   Following the application of the proceeds of each Borrowing, not more than 25% of the value of  the assets (either of the Borrower only or of the Borrower and its Restricted Subsidiaries on a  consolidated basis) will be Margin Stock.    4.12 Labor Matters.  Except as, in the aggregate, could not reasonably be  expected to have a Material Adverse Effect:  (a) there are no strikes or other labor disputes  against any Group Member pending or, to the knowledge of the Borrower, threatened; (b) hours  worked by and payment made to employees of each Group Member have not been in violation of  the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such  matters; and (c) all payments due from any Group Member on account of employee health and  welfare insurance have been paid or accrued as a liability on the books of the relevant Group  Member.   4.13 ERISA.  Except as could not reasonably be expected, individually or in the  aggregate, to have a Material Adverse Effect: (a) each Group Member and each of their  respective ERISA Affiliates (and in the case of a Pension Plan or a Multiemployer Plan, each of  their respective ERISA Affiliates) are in compliance with all applicable provisions and  requirements of ERISA and the Code and other federal and state laws and the regulations and  published interpretations thereunder with respect to each Plan and Pension Plan and have  performed all their obligations under each Plan and Pension Plan; (b) no ERISA Event or  Foreign Plan Event has occurred or is reasonably expected to occur, and no ERISA Affiliate is  aware of any fact, event or circumstance that could reasonably be expected to constitute or result  





 






  86    in an ERISA Event; (c) each Plan or Pension Plan which is intended to qualify under Section  401(a) of the Code has received a favorable determination letter from the IRS indicating that  such Plan or Pension Plan is so qualified and the trust related thereto has been determined by the  Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code  or an application for such a determination is currently pending before the Internal Revenue  Service and, to the knowledge of the Borrower, nothing has occurred subsequent to the issuance  of the most recent determination letter which would cause such Plan or Pension Plan to lose its  qualified status; (d) no liability to the PBGC (other than required premium payments), the IRS,  any Plan or Pension Plan or any trust established under Title IV of ERISA has been or is  reasonably expected to be incurred by any Group Member or any of their ERISA Affiliates; (e)  each of the Group Members’ ERISA Affiliates has complied with the requirements of Section  515 of ERISA with respect to each Multiemployer Plan and is not in “default” (as defined in  Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan; (f) all amounts  required by applicable law with respect to, or by the terms of, any retiree welfare benefit  arrangement maintained by any Group Member or any ERISA Affiliate or to which any Group  Member or any ERISA Affiliate has an obligation to contribute have been accrued in accordance  with ASC Topic 715-60; (g) as of the most recent valuation date for each Multiemployer Plan for  which the actuarial report is available and except as reported in the most recent Form 10-K filed  with the SEC, no Group Member nor any of their respective ERISA Affiliates has any potential  liability for a complete withdrawal from such Multiemployer Plan (within the meaning of  Section 4203 of ERISA), when aggregated with such potential liability for a complete  withdrawal from all Multiemployer Plans, based on information available pursuant to Section  4221(e) of ERISA; (h) there has been no Prohibited Transaction or violation of the fiduciary  responsibility rules with respect to any Plan or Pension Plan that has resulted or could reasonably  be expected to result in a Material Adverse Effect; and (i) neither any Group Member nor any  ERISA Affiliate maintains or contributes to, or has any unsatisfied obligation to contribute to, or  liability under, any active or terminated Pension Plan other than (i) on the Closing Date, those  listed on Schedule 4.13 hereto and (ii) thereafter, Pension Plans not otherwise prohibited by this  Agreement.  Except as disclosed on Schedule 4.13, the present value of all accumulated benefit  obligations under each Pension Plan, did not, as of the close of its most recent plan year, exceed  by more than $10,000,000 the fair market value of the assets of such Pension Plan allocable to  such accrued benefits (determined in both cases using the applicable assumptions for financial  statement reporting purposes under ASC Topic 715), and the present value of all accumulated  benefit obligations of all underfunded Pension Plans did not, as of the date of the most recent  financial statements reflecting such amounts, exceed by more than $10,000,000 the fair market  value of the assets of all such underfunded Pension Plans (determined in both cases using the  applicable assumptions for financial statement reporting purposes under ASC Topic 715).  4.14 Investment Company Act; Other Regulations.  No Loan Party is an  “investment company”, or a company “controlled” by an “investment company”, within the  meaning of the Investment Company Act of 1940, as amended.  No Loan Party is subject to  regulation under any Requirement of Law (other than Regulation X of the Board) that limits its  ability to incur Indebtedness.  4.15 Subsidiaries; Capital Stock.  As of the Closing Date, (a) Schedule 4.15  sets forth the name and jurisdiction of incorporation or formation, as applicable, of each  Subsidiary and, as to each such Subsidiary, the percentage of each class of Capital Stock owned  





 






  87    by any Loan Party and (b) there are no outstanding subscriptions, options, warrants, calls, rights  or other agreements or commitments (other than stock options and restricted stock units granted  to employees or directors and directors’ qualifying shares) of any nature relating to any Capital  Stock of the Borrower or any Restricted Subsidiary, except (i) with respect to Capital Stock of  Loan Parties, as created by the Loan Documents and (ii) otherwise, as permitted by this  Agreement.  4.16 Use of Proceeds.  The proceeds of the Revolving Loans and the Letters of  Credit, shall be used for general corporate purposes (including to finance the Transactions).  4.17 Environmental Matters.  Except as, individually or in the aggregate, could  not reasonably be expected to have a Material Adverse Effect:  (a) Materials of Environmental Concern are not present at, on, under, in, or  about any real property now or formerly owned, leased or operated by any Group Member or at  any other location (including, without limitation, any location to which Materials of  Environmental Concern have been sent for re-use or recycling or for treatment, storage, or  disposal), in amounts or concentrations or under circumstances that constitute or constituted a  violation of, or could give rise to liability under, any Environmental Law;  (b) no Group Member has received or is aware of any notice of violation,  alleged violation, non-compliance, liability or potential liability under or relating to any  Environmental Law, nor does the Borrower have knowledge or reason to believe that any such  notice will be received or is being threatened;  (c) no judicial, arbitral, governmental or administrative litigation,  investigation, proceeding or similar action is pending or, to the knowledge of the Borrower,  threatened, under any Environmental Law to which any Group Member is or will be named as a  party, nor has any Group Member entered into or agreed to any settlements or other agreements,  consent decrees or other decrees, consent orders, administrative orders or other orders, or other  administrative or judicial requirements relating to compliance with or liability under any  Environmental Law that have not been fully and finally resolved;  (d) each Group Member, is in compliance, and within the period of all  applicable statute of limitation has been in compliance, with all applicable Environmental Laws;  and  (e) no Group Member has assumed or retained, by contract or operation of  law, any liability of any other Person under Environmental Laws or with respect to any Material  of Environmental Concern.  4.18 Accuracy of Information, etc.  The statements and information contained  in this Agreement, the other Loan Documents, and the other material documents, certificates and  statements furnished by or on behalf of any Loan Party to the Administrative Agent or the  Lenders, or any of them, in writing, for use in connection with the transactions contemplated by  this Agreement or the other Loan Documents (as modified or supplemented by other information  so furnished), taken together as a whole, did not contain as of the date such written statements,  information, documents or certificates were so furnished, any untrue statement of a material fact  





 






  88    or omit to state a material fact necessary to make the statements contained herein or therein not  misleading in any material respect.  The projections and pro forma financial information  contained in the materials referenced above are based upon good faith estimates and assumptions  believed by management of the Borrower to be reasonable at the time made, it being recognized  by the Lenders that such financial information as it relates to future events is not to be viewed as  fact and that actual results during the period or periods covered by such financial information  may differ from the projected results set forth therein by a material amount.  4.19 Security Documents.  The Guarantee and Collateral Agreement is  effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a  legal, valid and enforceable security interest in the Collateral described therein and proceeds  thereof.  In the case of the Pledged Collateral required to be delivered in the Guarantee and  Collateral Agreement, when such Pledged Collateral is delivered (in accordance with the  Intercreditor Agreement) to the Administrative Agent or the Term Loan Representative (together  with a properly completed and signed undated endorsement), in the case of Collateral consisting  of Deposit Accounts or Securities Accounts, when such Deposit Accounts or Securities  Accounts, as applicable, are subject to an Account Control Agreement (as defined in the  Guarantee and Collateral Agreement) and in the case of the other Collateral described in the  Guarantee and Collateral Agreement that can be perfected by the filing of a financing statement  or other filing, when financing statements and other filings specified on Schedule 4.19 in  appropriate form are filed in the offices specified on Schedule 4.19, the Guarantee and Collateral  Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and  interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the  Obligations (as defined in the Guarantee and Collateral Agreement), in each case prior and  superior in right to the Lien of any other Person (except Liens expressly permitted by this  Agreement or the Intercreditor Agreement, in each case, to be prior to the Liens on the  Collateral).  4.20 Solvency.  As of the Closing Date and after giving effect to the  Transactions, the Borrower and its Restricted Subsidiaries, on a consolidated basis, are Solvent.  4.21 Anti-Corruption Laws, Anti-Money Laundering and Sanctions.  The  Borrower has implemented and maintains in effect policies and procedures designed to ensure  compliance in all material respects by the Borrower, its Subsidiaries and their respective  directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions,  and the Borrower, its Subsidiaries and their respective officers and directors and to the  knowledge of the Borrower its employees and agents, are in compliance with Anti-Corruption  Laws and applicable Sanctions in all material respects.  None of (a) the Borrower, any  Subsidiary, any of their respective directors or officers, or (b) to the knowledge of the Borrower,  any employee or agent of the Borrower or any Subsidiary that will act in any capacity in  connection with or benefit from the credit facility established hereby, is a Sanctioned Person.    No Borrowing, use of proceeds or other transaction contemplated by this Agreement will violate  any Anti-Corruption Law or applicable Sanctions.  4.22 Plan Assets; Prohibited Transactions.  None of the Borrower or any of its  Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of the Plan Asset  Regulations), and neither the execution, delivery nor performance of the transactions  





 






  89    contemplated under this Agreement, including the making of any Loan hereunder, will give rise  to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.  SECTION 5.  CONDITIONS PRECEDENT  5.1 [Reserved].    5.2 Conditions to Each Extension of Credit.  The agreement of each Lender to  make any extension of credit requested to be made by it on any date (including, for the avoidance  of doubt, the making of its Commitments and the making of its initial extension of credit on the  Closing Date, but excluding any Protective Advance) is subject to the satisfaction of the  following conditions precedent:  (a) Representations and Warranties.  Each of the representations and  warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and  correct in all material respects (or in all respects if qualified by materiality) on and as of such  date as if made on and as of such date, except to the extent expressly made as of an earlier date,  in which case such representations and warranties shall have been so true and correct as of such  earlier date.  (b) No Default.  No Default or Event of Default shall have occurred and be  continuing on such date or after giving effect to the extensions of credit requested to be made on  such date.  (c) Borrowing Base Certificate.  The Administrative Agent shall have  received a completed Borrowing Base Certificate concurrently with the delivery of any  Borrowing Request delivered during a Quarterly Borrowing Base Period if immediately after  giving pro forma effect to such extension of credit, a Quarterly Borrowing Base Period would no  longer be in effect as a result of such extension of credit, unless the Borrower has delivered a  Borrowing Base Certificate within the 30 calendar days prior to the date specified in the  Borrowing Request as the date on which such extension of credit is to be made.  Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower  hereunder (other than the initial extensions of credit on the Closing Date and other than with  respect to a Protective Advance) shall constitute a representation and warranty by the Borrower  as of the date of such extension of credit that the conditions contained in this Section 5.2 have  been satisfied.  SECTION 6.  AFFIRMATIVE COVENANTS  The Borrower hereby agrees that, so long as the Commitments remain in effect,  any Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender or  the Administrative Agent hereunder, the Borrower shall and, in the case of Sections 6.3 through  6.8, 6.10 and 6.13, shall, to the extent applicable, cause each of its Restricted Subsidiaries to and,  in the case of Section 6.12, shall cause each of its Domestic Subsidiaries to:  6.1 Financial Statements.  Furnish to the Administrative Agent for delivery to  each Lender:  





 






  90    (a) as soon as available, but in any event within 90 days after the end of each  fiscal year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and  its consolidated Subsidiaries as at the end of such year and the related audited consolidated  statements of income, stockholders’ equity and cash flows for such year, setting forth in each  case in comparative form the figures for the previous year, reported on without a “going  concern” or like qualification or exception, or qualification arising out of the scope of the audit,  by KPMG, LLP or other independent certified public accountants of nationally recognized  standing acceptable to the Administrative Agent;   (b) as soon as available, but in any event not later than 45 days after the end  of each of the first three quarterly periods of each fiscal year of the Borrower, the unaudited  consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of  such quarter and the related unaudited consolidated statements of income, stockholders’ equity  and cash flows for such quarter and/or the portion of the fiscal year through the end of such  quarter, as required by applicable SEC rules, setting forth in each case in comparative form the  figures for the corresponding period or periods of the previous fiscal year (or, in the case of the  balance sheet, as of the end of the previous fiscal year), certified by a Responsible Officer as  being fairly stated in all material respects (subject to normal year-end audit adjustments and the  absence of footnotes);   (c) during a Full Cash Dominion Period, as soon as available, but in any event  not later than 30 days after the end of each calendar month of the Borrower, the unaudited  consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of  such month and the related unaudited consolidated statements of income and a statement of cash  flows related to capital expenditures, investing activities and financing activities for such month  and the portion of the fiscal year through the end of such month, setting forth in each case in  comparative form the figures for the previous year, certified by a Responsible Officer as being  fairly stated in all material respects (subject to normal year-end audit adjustments), it being  understood that, for the avoidance of doubt, no such monthly financial statements shall be  required to be delivered if the Full Cash Dominion Period that triggered the requirement to  deliver monthly financial statements pursuant to this Section 6.1(c) has ended, until the  occurrence of the next Full Cash Dominion Period, if any; and  (d) if any Unrestricted Subsidiary exists, concurrently with each delivery of  financial statements under clause (a), (b) or (c) above, financial statements (in substantially the  same form as the financial statements delivered pursuant to clause (a), (b) or (c) above, as  applicable) prepared on the basis of consolidating the accounts of the Borrower and its Restricted  Subsidiaries and treating any Unrestricted Subsidiaries as if they were not consolidated with the  Borrower, together with an explanation of reconciliation adjustments in reasonable detail.  All such financial statements shall be complete and correct in all material respects and shall be  prepared in reasonable detail and in accordance with GAAP applied (except as approved by such  accountants or officer, as the case may be, and disclosed in reasonable detail therein) consistently  throughout the periods reflected therein and with prior periods.  Documents required to be delivered pursuant to Section 6.1(a), (b), (c) or (d) or  Section 6.2(c) or (d) may be delivered electronically and if so delivered, shall be deemed to have  





 






  91    been delivered on the date on which (i) such documents are posted on the Borrower’s behalf on  IntraLinks/IntraAgency or another relevant 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) or (ii) such documents are filed of record with  the SEC; provided that, upon written request by the Administrative Agent, the Borrower shall  deliver paper copies of such documents to the Administrative Agent for further distribution to  each Lender until a written request to cease delivering paper copies is given by the  Administrative Agent. The Administrative Agent shall have no obligation to request the delivery  of or to maintain or deliver to Lenders 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, and each Lender shall be solely responsible for timely accessing posted  documents or requesting delivery of paper copies of such documents from the Administrative  Agent and maintaining its copies of such documents.    6.2 Certificates; Borrowing Base; Other Information.  Furnish to the  Administrative Agent for delivery to each Lender:  (a) [reserved];  (b) concurrently with the delivery of any financial statements pursuant to  Sections 6.1(a) and 6.1(b), (i) a Compliance Certificate executed by a Responsible Officer,  which Compliance Certificate shall (x) include a statement that, to each such Responsible  Officer’s knowledge, each Loan Party during such period has observed or performed all of its  covenants and other agreements, and satisfied every condition contained in this Agreement and  the other Loan Documents to which it is a party to be observed, performed or satisfied by it, and  that such Responsible Officer has obtained no knowledge of any Default or Event of Default  except as specified in such certificate, (y) in the case of quarterly or annual financial statements,  set forth, in reasonable detail, the calculation of the Consolidated Fixed Charge Coverage Ratio  for the Reference Period ending as of the last day of the fiscal year or fiscal quarter for which  financial statements are being delivered pursuant to Section 6.1 and (ii) in the case of quarterly  or annual financial statements, to the extent not previously disclosed to the Administrative  Agent, (x) a description of any change in the jurisdiction of organization of any Loan Party, (y) a  list of any material registered Intellectual Property acquired or created by any Loan Party and (z)  a description of any Person that has become a Group Member, a Restricted Subsidiary or an  Unrestricted Subsidiary, in each case since the date of the most recent report delivered pursuant  to this clause (ii) (or, in the case of the first such report so delivered, since the Closing Date);  (c) as soon as available, and in any event no later than 90 days after the end of  each fiscal year of the Borrower, a detailed consolidated budget for the following fiscal year  (including a projected consolidated balance sheet of the Borrower and its Restricted Subsidiaries  as of the end of the following fiscal year, the related consolidated statements of projected cash  flow and projected income and a description of the underlying assumptions applicable thereto  (collectively, the “Budget”), which Budget shall in each case be accompanied by a certificate of  a Responsible Officer stating that such Budget is based on reasonable estimates, information and  assumptions and that such Responsible Officer has no reason to believe that such Budget is  incorrect or misleading in any material respect;  





 






  92    (d) within 45 days after the end of each fiscal quarter of the Borrower (or 90  days, in the case of the fourth fiscal quarter of each fiscal year), a narrative discussion and  analysis of the financial condition and results of operations of the Borrower and its Restricted  Subsidiaries for such fiscal quarter and for the period from the beginning of the then current  fiscal year to the end of such fiscal quarter, as compared to the comparable periods of the  previous year;   (e) promptly after the same are sent, copies of all financial statements and  reports that the Borrower sends to the holders of any class of its public debt securities or public  equity securities and, promptly after the same are filed, copies of all financial statements and  reports that the Borrower may make to, or file with, the SEC;   (f) promptly following receipt thereof, copies of any documents described in  Section 101(k) or 101(l) of ERISA that any Group Member or any ERISA Affiliate may request  with respect to any Multiemployer Plan or any documents described in Section 101(f) of ERISA  that any Group Member or any ERISA Affiliate may request with respect to any Pension Plan;  provided, that if the relevant Group Members or ERISA Affiliates have not requested such  documents or notices from the administrator or sponsor of the applicable Multiemployer Plans,  then, upon reasonable request of the Administrative Agent, such Group Member or the ERISA  Affiliate shall promptly make a request for such documents or notices from such administrator or  sponsor and the Borrower shall provide copies of such documents and notices to the  Administrative Agent promptly after receipt thereof;   (g) as soon as available but in any event within 25 calendar days of the end of  each calendar month (or within 25 calendar days of the end of each quarterly period of each  fiscal year during a Quarterly Borrowing Base Period or within five Business Days of the end of  each week during a Full Cash Dominion Period), as of the last day of the period then ended, a  Borrowing Base Certificate and the information supporting the Borrowing Base calculation  required by the Borrowing Base Certificate (including the information set forth on the schedule  of reporting requirements attached thereto (in each case as modified from time to time by the  Administrative Agent in its Permitted Discretion)), an inventory report (including aging), an  accounts receivable report (including aging) and any additional reports or information with  respect to the Borrowing Base as the Administrative Agent may reasonably request or, in  addition, at the Borrower’s discretion, a Borrowing Base Certificate and the information  supporting the Borrowing Base calculation required by the Borrowing Base Certificate  (including the information set forth on the schedule of reporting requirements attached thereto  (in each case as modified from time to time by the Administrative Agent in its Permitted  Discretion)) may be delivered prior to any Scheduled Borrowing Base Delivery Date, and if the  Borrower so elects, then the Borrower must deliver a Borrowing Base Certificate within 5  Business Days of the end of each week (or within 25 calendar days of the end of each month  during a Quarterly Borrowing Base Period) until the next Scheduled Borrowing Base Delivery  Date.  The Borrower shall be required to update the aggregate amount and schedule, in each  case, related to ineligible Accounts and ineligible Inventory concurrently with the delivery of  each Borrowing Base Certificate; provided that, if neither a Quarterly Borrowing Base Period  nor a Weekly Borrowing Base Period is in effect, the Borrower shall not be required to provide  such update concurrently with the Borrowing Base Certificate to be delivered with respect to the  first two months of each fiscal quarter unless (i) a Default or Event of Default is continuing, (ii) a  





 






  93    Full Cash Dominion Period is in effect, or (iii) the aggregate amount of Loans outstanding are  greater than or equal to ten percent (10%) of the Total Commitments.  (h) an annex with each Borrowing Base Certificate delivered to the  Administrative Agent pursuant to Section 6.2(g) if, subsequent to the Closing Date, a Loan Party  shall acquire or obtain any Inventory that contains or bears intellectual property rights licensed to  any Loan Party that may be sold or otherwise disposed of without (i) infringing the rights of such  licensor, (ii) violating any contract with such licensor, or (iii) incurring any liability with respect  to payment of royalties other than royalties incurred pursuant to the sale of such Inventory under  the current licensing agreement, which annex shall specify all reasonable details (including the  location, title, patent number(s) and issue date) as to the Inventory so acquired or obtained and  the intellectual property rights licensed to the Loan Party in connection therewith.  (i) promptly, such (x) additional financial and other information as the  Administrative Agent may from time to time reasonably request and (y) information and  documentation reasonably requested by the Administrative Agent or any Lender for purposes of  compliance with applicable “know your customer” and anti-money laundering rules and  regulations, including the Patriot Act.  6.3 Payment of Obligations.  Pay, discharge or otherwise satisfy at or before  maturity or before they become delinquent, as the case may be, all its material obligations of  whatever nature (including Taxes), except where (a) the amount or validity thereof is currently  being contested in good faith by appropriate proceedings and reserves to the extent required by  GAAP with respect thereto have been provided on the books of the relevant Group Member or  (b) the failure to make such payments, individually or in the aggregate, could not reasonably be  expected to have a Material Adverse Effect.  6.4 Maintenance of Existence; Compliance.  (a) (i) Preserve, renew and keep  in full force and effect its organizational existence and (ii) take all reasonable action to maintain  all rights, privileges and franchises necessary in the normal conduct of its business, except, in  each case, as otherwise permitted by Section 7.4, Section 7.5 and except, in the case of clause (ii)  above, to the extent that failure to do so could not reasonably be expected to have a Material  Adverse Effect; (b) comply with all Contractual Obligations and Requirements of Law except to  the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to  have a Material Adverse Effect; and (c) maintain in effect and enforce policies and procedures  reasonably designed to ensure compliance in all material respects by the Borrower, its  Subsidiaries and their respective directors, officers, employees and agents with  Anti-Corruption  Laws and applicable Sanctions.  6.5 Maintenance of Property; Insurance.  (a)  Maintain, with financially sound  and reputable insurance companies, insurance in such amounts and against such risks as are  customarily maintained by companies engaged in the same or similar businesses operating in the  same or similar locations (including hazard and business interruption insurance) and (b) cause, in  the case of each property or casualty insurance policy, as requested by the Administrative Agent,  to be endorsed to the benefit of the Administrative Agent (including, without limitation, by  naming the Administrative Agent as lender loss payee and/or additional insured).  If the  Borrower or any other Loan Party shall fail to maintain insurance in accordance with this Section  





 






  94    6.5, or if the Borrower or any other Loan Party shall fail to so endorse and deliver all policies or  certificates with respect thereto, the Administrative Agent shall have the right (but shall be under  no obligation) to procure such insurance and the Borrower agrees to reimburse the  Administrative Agent for all reasonable costs and expenses of procuring such insurance.  6.6 Inspection of Property; Books and Records; Discussions; Appraisals; Field  Examinations.  (a)  (i) Keep proper books of records and account in which full, true and correct  (in all material respects) entries in conformity with GAAP and all Requirements of Law shall be  made of all dealings and transactions in relation to its business and activities and (ii) upon  reasonable prior notice, permit representatives of the Administrative Agent or any Lender to visit  and inspect any of its properties and examine and make abstracts from any of its books and  records at any reasonable time and as often as may reasonably be desired and to discuss the  business, operations, properties and financial and other condition of the Group Members with  officers and employees of the Group Members and, accompanied by one or more officers or  designees of the Borrower if requested by the Borrower, with their independent certified public  accountants; provided that excluding any such visits and inspections during the continuation of  an Event of Default (x) only the Administrative Agent, acting individually or on behalf of the  Lenders may exercise rights under this Section 6.6(b) and (y) the Administrative Agent shall not  exercise rights under this Section 6.6(b) more often than one time during any calendar year.  (b) No more than once in each twelve month period, at the request of the  Administrative Agent, the Loan Parties will cooperate with an appraiser selected and engaged by  the Administrative Agent to provide Inventory appraisals or updates thereof (the “Annual  Inventory Appraisal”), prepared on a basis reasonably satisfactory to the Administrative Agent,  such appraisals and updates to include information required by applicable law and regulations;  provided that (i) if an Event of Default has occurred and is continuing, there shall be no  limitation on the number or frequency of such appraisals and (ii) in addition to the Annual  Inventory Appraisal, if Availability is less than or equal to the greater of (x) 15% of the Line Cap  and (y) $28.0 million for a period of five consecutive Business Days, the Loan Parties will  cooperate with the Administrative Agent to provide such appraisals (at the request of the  Administrative Agent) on one additional occasion during such twelve month period.  For  purposes of this Section 6.6(b), it is understood and agreed that a single appraisal may consist of  appraisals conducted at multiple relevant sites and involve one or more relevant Loan Parties and  their assets.  All such appraisals shall be commenced upon reasonable notice to the Borrower and  performed during normal business hours of the Borrower, and all reasonable out-of-pocket costs  of such appraisals shall be at the sole expense of the Loan Parties.  (c) No more than once in each twelve month period, at the request of the  Administrative Agent, the Loan Parties will permit, upon reasonable notice, the Administrative  Agent or its designee to conduct a field examination (the “Annual Field Examination”) to ensure  the adequacy of Collateral included in any Borrowing Base and related reporting and control  systems and determine any variance between the Loan Parties’ general ledger and perpetual  inventory report; provided that (i) if an Event of Default has occurred and is continuing, there  shall be no limitation on the number or frequency of such field examinations and (ii) in addition  to the Annual Field Examination, if Availability is less than or equal to the greater of (x) 15% of  the Line Cap and (y) $28.0 million for a period of five consecutive Business Days, the Loan  Parties will permit the Administrative Agent to conduct such examinations (at the request of the  





 






  95    Administrative Agent) on one additional occasion during such twelve month period.  For  purposes of this Section 6.6(c), it is understood and agreed that (i) a single field examination may  be conducted at multiple relevant sites and involve one or more relevant Loan Parties and their  assets and (ii) the Administrative Agent shall use commercially reasonable efforts to coordinate  any such field exams.  All such field examinations shall be commenced upon reasonable notice  to the Borrower and performed during normal business hours of the Borrower, and all reasonable  out-of-pocket costs of such field examinations shall be at the sole expense of the Loan Parties.  (d) Concurrently with the Annual Field Examination the Borrower will  provide, an updated customer list for each Loan Party, which list shall state the customer’s name,  mailing address and phone number, delivered electronically in a text formatted file acceptable to  the Administrative Agent and certified as true and correct by a Responsible Officer of the  Borrower;  6.7 Notices.  Promptly give notice to the Administrative Agent, on behalf of  each Lender, of:  (a) the occurrence of any Default or Event of Default;  (b) any (i) default or event of default under any Contractual Obligation of any  Group Member or (ii) litigation, investigation or proceeding that may exist at any time between  any Group Member and any Governmental Authority, that in either case, if not cured or if  adversely determined, as the case may be, could reasonably be expected to have a Material  Adverse Effect;  (c) any litigation or proceeding affecting any Group Member which relates to  any Loan Document;  (d) (i) as soon as reasonably possible upon becoming aware of the occurrence  of or forthcoming occurrence of any material ERISA Event, a written notice specifying the  nature thereof, what action the Borrower, any of the other Group Members or any of their  respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and,  when known, any action taken or threatened by the IRS, the Department of Labor or the PBGC  with respect thereto; and (ii) with reasonable promptness, upon the Administrative Agent’s  reasonable request, copies of (1) each Schedule SB (Actuarial Information) to the annual report  (Form 5500 Series) filed by the Borrower, any of the other Group Members or any of their  respective ERISA Affiliates with the IRS with respect to each Pension Plan; (2) all notices  received by the Borrower, any of the other Group Members or any of their respective ERISA  Affiliates from a Multiemployer Plan sponsor concerning a material ERISA Event; and (3)  copies of such other documents or governmental reports or filings relating to any Plan or Pension  Plan as the Administrative Agent shall reasonably request;  (e) any other development or event that has had or could reasonably be  expected to have a Material Adverse Effect; and  (f) entry into any Permitted A/R Finance Transaction or the accounts  receivable, instruments, chattel paper, obligations, general intangibles and other similar assets of  any Account Debtor becoming subject to a Permitted A/R Finance Transaction; provided that the  





 






  96    Borrower may, at its option, provide updates regarding Account Debtors or the accounts  receivable, instruments, chattel paper, obligations, general intangibles and other similar assets of  which are subject to a Permitted A/R Finance Transaction.  Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible  Officer setting forth details of the occurrence referred to therein and stating what action the  relevant Group Member proposes to take with respect thereto.  6.8 Environmental Laws.  (a) Comply with, and use reasonable efforts to  ensure compliance by all tenants, subtenants, contractors, subcontractors, and invitees, if any,  with, all applicable Environmental Laws, and obtain and comply with and maintain, and use  reasonable efforts to ensure that all tenants, subtenants, contractors, subcontractors, and invitees,  obtain and comply with and maintain, any and all Environmental Permits. It being understood  that any noncompliance with this Section 6.8(a) shall be deemed not to constitute a breach of this  covenant provided that, such noncompliance with Environmental Laws, individually or in the  aggregate, could not reasonably be expected to give rise to a Material Adverse Effect.  (b) Promptly comply with all lawful orders and directives of all  Governmental Authorities regarding Environmental Laws, other than such orders and directives  as to which an appeal has been timely and properly taken in good faith, and provided that the  pendency of any and all such appeals could not reasonably be expected to give rise to a Material  Adverse Effect.  6.9 [Reserved].     6.10 Additional Collateral, etc.  (a)  With respect to any property acquired after  the Closing Date by any Loan Party (other than (v) any real property, (w) any property described  in paragraph (c) or (d) below, (x) any property subject to a Lien expressly permitted by Section  7.3(g), (y) while Permitted Term Loans are outstanding, any Term Loan Priority Collateral as to  which the Term Loan Representative determines, in its reasonable discretion and in consultation  with the Borrower, that the cost of obtaining a security interest therein is excessive in relation to  the value of the security to be afforded thereby) and (z) any property (other, while Permitted  Term Loans are outstanding, than Term Loan Priority Collateral) as to which the Administrative  Agent determines, in its reasonable discretion and in consultation with the Borrower, that the  cost of obtaining a security interest therein is excessive in relation to the value of the security to  be afforded thereby) as to which the Administrative Agent, for the benefit of the Secured Parties,  does not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent  such amendments to the Guarantee and Collateral Agreement or such other documents as the  Administrative Agent deems necessary or reasonably advisable to grant to the Administrative  Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all  actions necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of  the Secured Parties, a perfected security interest in such property with the priority required by the  Intercreditor Agreement, including the filing of Uniform Commercial Code financing statements  in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or  as may be requested by the Administrative Agent.  (b) [Reserved].  





 






  97    (c) With respect to any new Domestic Subsidiary (other than any Excluded  Subsidiary) created or acquired after the Closing Date by any Loan Party (which, for the  purposes of this paragraph (c), shall include any (1) existing Subsidiary that becomes a Domestic  Subsidiary that is not an Excluded Subsidiary and (2) any existing Domestic Subsidiary that  ceases to be an Excluded Subsidiary) within forty-five (45) days after the creation or acquisition  of such new Domestic Subsidiary (or such later date as the Administrative Agent shall agree to in  its sole discretion) (i) execute and deliver to the Administrative Agent such amendments to the  Guarantee and Collateral Agreement as the Administrative Agent deems necessary or reasonably  advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected  security interest with the priority required by the Intercreditor Agreement in the Capital Stock of  such new Subsidiary that is owned by any Loan Party, (ii) subject to the Intercreditor Agreement,  deliver to the Administrative Agent the certificates (if any) representing such Capital Stock,  together with undated endorsements, in blank, executed and delivered by a duly authorized  officer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to become a party to the  Guarantee and Collateral Agreement, (B) to take such actions necessary or reasonably advisable  to grant to the Administrative Agent for the benefit of the Secured Parties a perfected security  interest with the priority required by the Intercreditor Agreement in the Collateral described in  the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing  of Uniform Commercial Code financing statements in such jurisdictions as may be required by  the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative  Agent and (C) subject to the Intercreditor Agreement, to deliver to the Administrative Agent a  certificate of such Subsidiary, substantially in the form of Exhibit C-2, with appropriate  insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the  Administrative Agent legal opinions relating to the matters described above, which opinions  shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative  Agent.  (d) With respect to any new CFC Holding Company or Foreign Subsidiary  created or acquired after the Closing Date by any Loan Party (which, for the purposes of this  paragraph (d), shall include any existing Subsidiary that becomes a CFC Holding Company or a  Foreign Subsidiary), within sixty (60) days after the creation or acquisition of such new CFC  Holding Company or Foreign Subsidiary (or such later date as the Administrative Agent shall  agree to in its sole discretion) (i) execute and deliver to the Administrative Agent such  amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems  necessary or reasonably advisable to grant to the Administrative Agent, for the benefit of the  Secured Parties, a perfected security interest with the priority required by the Intercreditor  Agreement in the Capital Stock of such CFC Holding Company or Foreign Subsidiary that is  owned by any such Loan Party (provided that in no event shall more than 65% of the total  outstanding voting Capital Stock of any such CFC Holding Company or Foreign Subsidiary be  required to be so pledged), (ii) subject to the Intercreditor Agreement, deliver to the  Administrative Agent the certificates representing such pledged Capital Stock, together with  undated stock powers, in blank, executed and delivered by a duly authorized officer of the  relevant Loan Party and take such other action as the Administrative Agent deems necessary or  reasonably advisable to perfect the Administrative Agent’s security interest therein.  





 






  98    (e) Notwithstanding anything to the contrary in this Agreement or any other  Loan Document, no Loan Document shall grant the Secured Parties a security interest in any fee- owned or leased real property.  6.11 Designation of Subsidiaries.  The Borrower may at any time after the  Closing Date designate any Restricted Subsidiary as an Unrestricted Subsidiary or any  Unrestricted Subsidiary as a Restricted Subsidiary by delivering to the Administrative Agent a  certificate of a Responsible Officer specifying such designation and certifying that the conditions  to such designation set forth in this Section 6.11 are satisfied; provided that:  (a) both immediately before and immediately after any such designation, no  Event of Default shall have occurred and be continuing;  (b) after giving effect to such designation (and clause (c) below), the pro  forma Consolidated Secured Leverage Ratio for the Applicable Reference Period is no greater  than 2.00 to 1.00;   (c) in the case of a designation of a Restricted Subsidiary as an Unrestricted  Subsidiary, each Subsidiary of such Subsidiary has been, or concurrently therewith will be,  designated as an Unrestricted Subsidiary in accordance with this Section 6.11;  (d) the Payment Conditions are met; and  (e) in the case of a designation of a Restricted Subsidiary as an Unrestricted  Subsidiary, such Subsidiary shall substantially simultaneously be designated as an “Unrestricted  Subsidiary” under any Permitted Term Loans (and, to the extent applicable, any other agreement  governing Permitted Refinancing Indebtedness in respect of the Permitted Term Loans) or any  Permitted Notes and in the case of a designation of an Unrestricted Subsidiary as a Restricted  Subsidiary, such Subsidiary shall substantially simultaneously be designated as a “Restricted  Subsidiary” under the Permitted Terms (and, to the extent applicable, any other agreement  governing Permitted Refinancing Indebtedness in respect of the Permitted Term Loans) or  Permitted Notes.  The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall  constitute an Investment by the Borrower in such Subsidiary on the date of designation in an  amount equal to the fair market value of the Borrower’s Investment therein (as determined  reasonably and in good faith by a Responsible Officer).  The designation of any Unrestricted  Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of  any Investment, Indebtedness or Liens of such Subsidiary existing at such time. Notwithstanding  anything to the contrary contained in this Section 6.11, in no event shall any Restricted  Subsidiary contributing more than 20% of the Borrowing Base be designated an Unrestricted  Subsidiary unless the Administrative Agent receives a completed Borrowing Base Certificate  concurrently with such designation.   6.12 Deposit Account Control Agreements. With respect to any new Deposit  Account that is not an Excluded Account opened by a Loan Party after the Closing Date or any  Excluded Account that ceases to be an Excluded Account, deliver to the Administrative Agent  any Deposit Account Control Agreement required to be delivered pursuant to the Guarantee and  





 






  99    Collateral Agreement, in each case, in form and substance reasonably satisfactory to the  Administrative Agent.     SECTION 7.  NEGATIVE COVENANTS  The Borrower hereby agrees that, so long as the Commitments remain in effect,  any Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender or  the Administrative Agent hereunder, the Borrower shall not, and shall not permit any of its  Restricted Subsidiaries to, directly or indirectly:  7.1 Consolidated Fixed Charge Coverage Ratio. During any period  commencing on a date (each a “Commencement Date”) (a) on which an Event of Default has  occurred and is continuing or (b) occurring on or after Closing Date on which Availability is less  than or equal to the greater of (x) 10% of the Line Cap and (y) $19 million, and continuing until  any later date on which (x) no Event of Default shall be continuing and (y) on any such date  occurring on or after Closing Date, Availability shall have exceeded the threshold set forth in  clause (b) above for 21 consecutive days after the Commencement Date, permit the Consolidated  Fixed Charge Coverage Ratio for the Applicable Reference Period (including, for the avoidance  of doubt, the Applicable Reference Period on the applicable Commencement Date) to be less  than 1.10 to 1.00.  7.2 Indebtedness.  Create, issue, incur, assume, become liable in respect of or  suffer to exist any Indebtedness, except:  (a) Indebtedness in respect of the Obligations of any Group Member under or  secured by this Agreement;  (b) Indebtedness of the Borrower under Permitted Term Loans;   (c) Indebtedness of the Borrower or any Restricted Subsidiary owing to the  Borrower or any Restricted Subsidiary; provided that (x) any Indebtedness of any Loan Party  shall be unsecured and shall be subordinated in right of payment to the Obligations on terms  customary for intercompany subordinated Indebtedness, as reasonably determined by the  Administrative Agent, (y) any such Indebtedness owing to any Loan Party shall be evidenced by  a promissory note which shall have been pledged pursuant to the Guarantee and Collateral  Agreement and (z) any such Indebtedness owing by any Subsidiary that is not a Loan Party to  any Loan Party shall be incurred in compliance with Section 7.7;  (d) Guarantee Obligations incurred by any Group Member of obligations of  any Group Member to the extent such obligations are not prohibited hereunder; provided that (i)  to the extent any such obligations are subordinated to the Obligations, any such related  Guarantee Obligations incurred by a Loan Party shall be subordinated to the guarantee of such  Loan Party of the Obligations on terms no less favorable to the Lenders than the subordination  provisions of the obligations to which such Guarantee Obligation relates and (ii) any Guarantee  Obligations incurred by any Loan Party of obligations of a Restricted Subsidiary that is not a  Loan Party shall be permitted to the extent incurred in compliance with Section 7.7;  





 






  100    (e) Indebtedness outstanding on the Closing Date and listed on Schedule  7.2(e) and any Permitted Refinancing Indebtedness in respect thereof;  (f) Indebtedness (including Capital Lease Obligations) secured by Liens  permitted by Section 7.3(g) in an aggregate principal amount not to exceed at any one time  outstanding the greater of (i) $75,000,000 and (ii) 5% of Consolidated Net Tangible Assets (as of  the date incurred);   (g) Indebtedness representing deferred compensation to employees or  directors of the Borrower and its Restricted Subsidiaries incurred in the ordinary course of  business;  (h) Indebtedness incurred in the ordinary course of business or that is  consistent with past practice and owed in respect of any netting services, overdrafts and related  liabilities arising from treasury, depository, credit or debit card, purchase card or other cash  management services or in connection with any automated clearing-house transfers of funds, in  each case that does not constitute Indebtedness for borrowed money;  (i) Indebtedness arising under any Swap Agreement permitted by Section  7.11;   (j) Indebtedness (other than Indebtedness for borrowed money) that may be  deemed to exist pursuant to any guarantees, warranty or contractual service obligations,  performance, surety, statutory, appeal, bid, prepayment guarantee, payment (other than payment  of Indebtedness) or completion of performance guarantees or similar obligations incurred in the  ordinary course of business;  (k) Indebtedness in respect of workers’ compensation claims, payment  obligations in connection with health, disability or other types of social security benefits,  unemployment or other insurance obligations, reclamation and statutory obligations, in each case  in the ordinary course of business;  (l) Indebtedness arising from the honoring by a bank or other financial  institution of a check, draft or similar instrument drawn against insufficient funds, so long as  such Indebtedness is covered or extinguished within five Business Days;  (m) Indebtedness consisting of (i) the financing of insurance premiums or self- insurance obligations or (ii) take-or-pay obligations contained in supply or similar agreements in  each case in the ordinary course of business;  (n) Indebtedness in the form of purchase price adjustments (including in  respect of working capital), earnouts, deferred compensation, indemnification or other  arrangements representing acquisition consideration or deferred payments of a similar nature  incurred in connection with any Permitted Acquisitions or other Investments permitted under  Section 7.7 or Dispositions permitted under Section 7.5 (other than Dispositions permitted under  Section 7.5(m);  





 






  101    (o) (i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of  any Person not previously a Restricted Subsidiary that is merged or consolidated with or into the  Borrower or a Restricted Subsidiary in a transaction permitted hereunder) after the Closing Date,  or Indebtedness of any Person that is assumed by the Borrower or any Restricted Subsidiary in  connection with an acquisition of assets by the Borrower or such Restricted Subsidiary in a  Permitted Acquisition; provided that such Indebtedness exists at the time such Person becomes a  Restricted Subsidiary (or is so merged or consolidated) or such assets are acquired and is not  created in contemplation of or in connection with such Person becoming a Restricted Subsidiary  (or such merger or consolidation) or such assets being acquired and (ii) Permitted Refinancing  Indebtedness in respect of such Indebtedness; provided that after giving effect to the applicable  acquisition (or merger or consolidation) or such assumption of Indebtedness, the Consolidated  Leverage Ratio for the Applicable Reference Period, calculated on a Pro Forma Basis as of the  date of such acquisition (or merger or consolidation) or assumption, is not in excess of 5.00 to  1.00; provided further that the aggregate principal amount of Indebtedness of Subsidiaries that  are not Loan Parties outstanding under this Section 7.2(o), together with the aggregate principal  amount of Indebtedness of Restricted Subsidiaries that are not Loan Parties outstanding under  Sections 7.2(u) and 7.2(w), shall not exceed the Non-Guarantor Debt Limit (as of the date of  incurrence of Indebtedness pursuant to this Section 7.2(o));   (p)  [Reserved];  (q) Indebtedness of the Borrower in respect of the 2025 Notes in an aggregate  principal amount at any time outstanding not to exceed $300,000,000 and any Permitted  Refinancing Indebtedness in respect thereof;  (r) Indebtedness of the Borrower  in respect of the 2028 Notes in an aggregate  principal amount at any time outstanding not to exceed $275,000,000 and any Permitted  Refinancing Indebtedness in respect thereof;  (s) (i) Subordinated Indebtedness in an aggregate principal amount at any  time outstanding not to exceed the greater of (i) $150,000,000 and (ii) 15.00% of Consolidated  Net Tangible Assets (as of the date incurred);  (t) [Reserved].  (u) (i) Permitted Unsecured Indebtedness so long as, at the time of incurrence  of such Permitted Unsecured Indebtedness, the Consolidated Leverage Ratio for the Applicable  Reference Period, calculated on a Pro Forma Basis as of the date of incurrence thereof (but  excluding from Unrestricted Cash in making such pro forma calculation the Net Cash Proceeds  of such Indebtedness), is not in excess of 5.00 to 1.00; provided that (x) immediately prior to and  immediately after giving effect to the incurrence of any Permitted Unsecured Indebtedness under  this Section 7.2(u), no Default or Event of Default shall have occurred and be continuing and (y)  the aggregate principal amount of Permitted Unsecured Indebtedness of Restricted Subsidiaries  that are not Loan Parties outstanding under this Section 7.2(u), together with the aggregate  principal amount of Indebtedness of Restricted Subsidiaries that are not Loan Parties incurred  pursuant to Sections 7.2(o) and 7.2(w), shall not exceed the Non-Guarantor Debt Limit (as of the  





 






  102    date of incurrence of Indebtedness pursuant to this Section 7.2(u))and (ii) any Permitted  Refinancing Indebtedness in respect thereof;  (v) Indebtedness of the Borrower or any of its Restricted Subsidiaries arising  out of any Permitted Supply Chain Financing;  (w) additional Indebtedness of the Borrower or any of its Restricted  Subsidiaries in an aggregate principal amount (for the Borrower and all Restricted Subsidiaries)  not to exceed at any time outstanding the greater of (i) $100,000,000 and (ii) 7.5% of  Consolidated Net Tangible Assets (as of the date incurred); provided that the aggregate principal  amount of Indebtedness of Restricted Subsidiaries that are not Loan Parties outstanding under  this Section 7.2(w), together with the aggregate principal amount of Indebtedness of Restricted  Subsidiaries that are not Loan Parties outstanding under Section 7.2(o) and 7.2(u), shall not  exceed the Non-Guarantor Debt Limit (as of the date of incurrence of Indebtedness pursuant to  this Section 7.2(w));  (x) Attributable Indebtedness in an aggregate principal amount not to exceed  the greater of (i) $75,000,000 and (ii) 5% of Consolidated Net Tangible Assets (as of the date  incurred) at any time outstanding, which Attributable Indebtedness arises out of a sale and  leaseback transaction permitted under Section 7.10; and  (y) Indebtedness of any Loan Party in an aggregate principal amount not to  exceed the Net Cash Proceeds (Not Otherwise Applied) received after the Closing Date and on  or prior to such date from any issuance of Qualified Capital Stock by the Borrower (other than  any such issuance to a Group Member); and  (z) Guarantee Obligations incurred by any Group Member of obligations of  any Joint Venture or Unrestricted Subsidiary to the extent permitted under Section 7.7(u).  For purposes of determining compliance with this Section 7.2, in the event that an item of  Indebtedness meets the criteria of more than one of the categories of Indebtedness described in  clauses (a) through (z) above, the Borrower may, in its sole discretion, divide or classify or later  divide, classify or reclassify all or a portion of such item of Indebtedness in a manner that  complies with this Section 7.2 and will only be required to include the amount and type of such  Indebtedness (or any portion thereof) in one or more of the above clauses; provided that all  Indebtedness outstanding under the Loan Documents and Permitted Term Loans and, in each  case, any Permitted Refinancing Indebtedness in respect thereof, will at all times be deemed to  be outstanding in reliance only on the exception in Section 7.2(a) and Section 7.2(b),  respectively.  For the avoidance of doubt, a permitted refinancing in respect of Indebtedness incurred pursuant  to a Dollar-denominated or Consolidated Net Tangible Assets-governed basket shall not increase  capacity to incur Indebtedness under such Dollar-denominated or Consolidated Net Tangible  Assets-governed basket, and such Dollar-denominated or Consolidated Net Tangible Assets- governed basket shall be deemed to continue to be utilized by the amount of the original  Indebtedness incurred unless and until the Indebtedness incurred to effect such permitted  refinancing is no longer outstanding.  





 






  103    7.3 Liens.  Create, incur, assume or suffer to exist any Lien upon any of its  property, whether now owned or hereafter acquired, except:    (a) Liens for Taxes not yet due or that are being contested in good faith by  appropriate proceedings; provided that adequate reserves with respect thereto are maintained on  the books of the Borrower or its Restricted Subsidiaries, as the case may be, to the extent  required by GAAP;  (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or  other like Liens arising in the ordinary course of business that are not overdue for a period of  more than 60 days or that are being contested in good faith by appropriate proceedings;  (c) pledges, deposits or similar Liens in connection with workers’  compensation, unemployment insurance and other social security legislation;  (d) (i) deposits to secure (x) the performance of bids, supplier and other trade  contracts (including government contracts) (other than for borrowed money), leases, statutory  obligations (other than for borrowed money and other than any such obligation imposed pursuant  to Section 430(k) of the Code or Sections 303(k) or 4068 of ERISA) and (y) surety and appeal  bonds, performance bonds and other obligations of a like nature, in each case (with respect to  clauses (x) and (y)) incurred in the ordinary course of business and (ii) Liens on cash earnest  money deposits in connection with any letter of intent or purchase agreement permitted under  this Agreement;  (e) easements, rights-of-way, restrictions and other similar encumbrances  incurred in the ordinary course of business that, in the aggregate, are not substantial in amount  and that do not in any case materially detract from the value of the property subject thereto or  materially interfere with the ordinary conduct of the business of the Borrower or any of its  Restricted Subsidiaries;  (f) Liens in existence on the Closing Date listed on Schedule 7.3(f), securing  Indebtedness permitted by Section 7.2(e); provided that no such Lien is spread to cover any  additional property after the Closing Date and that the amount of Indebtedness secured thereby is  not increased (other than, in the case of Permitted Refinancing Indebtedness, by any Additional  Permitted Amount);  (g) Liens securing Indebtedness of any Group Member incurred pursuant to  Section 7.2(f) to finance the acquisition of fixed or capital assets (and any Permitted Refinancing  Indebtedness in respect thereof); provided that (i) such Liens shall be created within 180 days of  the acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any  property other than the property financed by such Indebtedness and the proceeds and products  thereof and (iii) the amount of Indebtedness secured thereby is not increased; provided further  that in the event that purchase money obligations are owed to any Person with respect to  financing of more than one purchase of any fixed or capital assets, such Liens may secure all  such purchase money obligations and may apply to all such fixed or capital assets financed by  such Person;  





 






  104    (h) (i) Liens on the Collateral created pursuant to the Security Documents (or  any ABL Security Documents (as defined in the Intercreditor Agreement)), (ii) Liens on cash  granted in favor of any Lenders and/or the Issuing Lender created as a result of any requirement  to provide cash collateral pursuant to this Agreement and (iii) Liens securing Permitted Term  Loans (and any Permitted Refinancing Indebtedness in respect thereof), provided that the Liens  on the Collateral securing any such Indebtedness shall be (x) junior, with respect to the ABL  Priority Collateral, to the Liens on the Collateral securing the Obligations and (ii) subject to the  Intercreditor Agreement;  (i) any interest or title of a licensor or lessor under any lease or license  entered into by any Group Member in the ordinary course of its business and covering only the  assets so leased;  (j) Liens solely on any cash earnest money deposits made by the Borrower or  any Restricted Subsidiary in connection with any letter of intent or purchase agreement relating  to a Permitted Acquisition;  (k) Liens in favor of any Loan Party so long as (in the case of any Lien  granted by a Loan Party) such Liens are junior to the Liens created pursuant to the Security  Documents;  (l) Liens arising from filing Uniform Commercial Code or personal property  security financing statements (or substantially equivalent filings outside of the United States)  regarding leases;  (m) any option or other agreement to purchase any asset of any Group  Member, the purchase, sale or other disposition of which is not prohibited by Section 7.5;  (n) Liens arising from the rendering of an interim or final judgment or order  against any Group Member that does not give rise to an Event of Default;  (o) Liens existing on any asset prior to the acquisition thereof by the Borrower  or any Restricted Subsidiary or existing on any asset of any Person that becomes a Restricted  Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or  consolidated with or into a Restricted Subsidiary in a transaction permitted hereunder) after the  Closing Date prior to the time such Person becomes a Restricted Subsidiary (or is so merged or  consolidated) to the extent the Liens on such assets secure Indebtedness permitted by Section  7.2(o); provided that (i) such Liens are not created in contemplation of or in connection with  such acquisition or such Person becoming a Restricted Subsidiary (or such merger or  consolidation) and (ii) such Liens attach at all times only to the same assets or category of assets  that such Liens (other than after acquired property that is affixed or incorporated into the  property covered by such Lien) attached to, and secure only the same Indebtedness or obligations  (or any Permitted Refinancing Indebtedness in respect thereof permitted by Section 7.2(o)) that  such Liens secured, immediately prior to such permitted acquisition;  (p) Liens arising out of conditional sale, title retention, consignment or similar  arrangements for sale of goods entered into by the Borrower or any other Restricted Subsidiary  in the ordinary course of business and permitted by this Agreement;  





 






  105    (q) non-exclusive licenses, sublicenses, leases and subleases of Intellectual  Property of any Group Member in the ordinary course of business;   (r) Liens encumbering reasonable and customary initial deposits and margin  deposits and similar Liens attaching to brokerage accounts incurred in the ordinary course of  business and not for speculative purposes;   (s) Liens in favor of customs and revenue authorities arising as a matter of  law to secure payment of customs duties in connection with the importation of goods in the  ordinary course of business;  (t) Liens on premium refunds granted in favor of insurance companies (or  their financing affiliates) in connection with the financing of insurance premiums;  (u) banker’s liens, rights of setoff or similar rights and remedies as to deposit  accounts or other funds maintained with depository institutions and securities accounts and other  financial assets maintained with a securities intermediary; provided that such deposit accounts or  funds and securities accounts or other financial assets are not established or deposited for the  purpose of providing collateral for any Indebtedness and are not subject to restrictions on access  by the Borrower or any Restricted Subsidiary in excess of those required by applicable banking  regulations;    (v) Liens (i) on cash advances in favor of the seller of any property to be  acquired in an Investment permitted pursuant to Section 7.7 to be applied against the purchase  price for such Investment or (ii) consisting of an agreement to dispose of any property in a  Disposition permitted by Section 7.5, in each case, solely to the extent such Investment or  Disposition, as the case may be, would have been permitted on the date of the creation of such  Lien;   (w) Liens solely on assets and securing Indebtedness of Restricted  Subsidiaries that are not Loan Parties permitted to be incurred pursuant to Section 7.2 in an  amount not to exceed the Non-Guarantor Limit;  (x) Liens on any Receivables Related Assets (i) granted to the provider of any  Permitted A/R Finance Transaction or (ii) that arise or may be deemed to arise pursuant to any  Permitted Supply Chain Financing;  (y) Liens not otherwise permitted by this Section so long as neither (i) the  aggregate outstanding principal amount of the obligations secured thereby nor (ii) the aggregate  fair market value (determined as of the date such Lien is incurred) of the assets subject thereto  exceeds (as to all Group Members) the greater of (i) $100,000,000 or 7.5% of Consolidated Net  Tangible Assets (as of the date incurred);  (z) [Reserved];  (aa) Liens on property purportedly rented to, or leased by, the Borrower or any  of its Restricted Subsidiaries pursuant to a sale and leaseback transaction permitted under  Section 7.10; provided that (i) such Liens do not encumber any other property of the Borrower or  





 






  106    its Restricted Subsidiaries and (ii) such Liens secure only Indebtedness permitted under Section  7.2(x); and  (bb) Liens on cash to secure commodity Swap Obligations in an amount not to  exceed $25,000,000 in the aggregate at any one time outstanding.  For purposes of determining compliance with this Section 7.3, in the event that a Lien securing  an item of Indebtedness (or any portion thereof) meets the criteria for more than one of the  categories of Liens described in clauses (a) through (bb) above, the Borrower may, in its sole  discretion, divide or classify or later divide, classify or reclassify all or a portion of such Lien in  a manner that complies with this Section 7.3 and will only be required to include the amount and  type of such Lien in one or more of the above clauses; provided that all Liens securing  Indebtedness outstanding under the Loan Documents and the ABL Credit Agreement, and, in  each case, any Permitted Refinancing thereof, will at all times be deemed to be outstanding in  reliance only on the exception in Section 7.3(h).  Notwithstanding anything to the contrary in this  Section 7.3, the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,  directly or indirectly create, incur, assume or suffer to exist any Lien securing Indebtedness for  borrowed money (excluding, for the avoidance of doubt, Liens permitted pursuant to Sections  7.3(g) and 7.3(aa), or any other Lien permitted under this Section 7.3 securing Indebtedness  constituting Capital Lease Obligations or Attributable Indebtedness that is permitted to be  incurred under Section 7.2) upon any of fee-owned or leased real property, whether now owned  or hereafter acquired other than any Lien securing Permitted Term Loans.  7.4 Fundamental Changes.  Enter into any merger, consolidation or  amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution),  or Dispose of all or substantially all of its property or business, except that:    (a) any Restricted Subsidiary of the Borrower may be merged or consolidated  with or into the Borrower (provided that the Borrower shall be the continuing or surviving  corporation) or with or into any other Restricted Subsidiary (provided, that when any Subsidiary  Guarantor is merging with or into another Restricted Subsidiary, such Subsidiary Guarantor shall  be the continuing or surviving corporation or the continuing or surviving corporation shall,  substantially simultaneously with such merger or consolidation, become a Subsidiary  Guarantor);  (b) any Restricted Subsidiary may merge, consolidate or amalgamate with any  other Person (other than the Borrower) in order to effect an Investment permitted pursuant to  Section 7.7; provided that if such Restricted Subsidiary is a Subsidiary Guarantor the continuing  or surviving Person shall be a Subsidiary Guarantor;   (c) any Restricted Subsidiary of the Borrower may Dispose of any or all of its  assets (i) to the Borrower or any Subsidiary Guarantor (upon voluntary liquidation or otherwise)  or (ii) pursuant to a Disposition permitted by Section 7.5; and   (d) any Restricted Subsidiary of the Borrower that is not a Subsidiary  Guarantor may (i) dispose of any or all or substantially all of its assets to any Group Member  (upon voluntary liquidation or otherwise) or (ii) liquidate or dissolve if the Borrower determines  





 






  107    in good faith that such liquidation or dissolution is in the best interest of the Borrower and is not  materially disadvantageous to the Administrative Agent or the Lenders.   7.5 Disposition of Property.  Dispose of any of its property, whether now  owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares  of such Restricted Subsidiary’s Capital Stock to any Person, except:  (a) the Disposition of surplus, outdated, obsolete or worn out, or no longer  used or useable property (other than accounts receivable or inventory) in the ordinary course of  business;  (b) Dispositions of inventory, cash and Cash Equivalents in the ordinary  course of business;  (c) Dispositions permitted by Section 7.4(c)(i) or Section 7.4(d)(i);  (d) the sale or issuance of any Restricted Subsidiary’s Capital Stock to the  Borrower or any Subsidiary Guarantor;   (e) Dispositions of accounts receivable in connection with the compromise,  settlement or collection thereof in the ordinary course of business consistent with past practice  and not as part of any accounts receivables financing transaction;  (f) Dispositions of assets other than Accounts or Inventory included in the  Borrowing Base (including as a result of like-kind exchanges) to the extent that (i) such assets  are exchanged for credit (on a fair market value basis) against the purchase price of similar or  replacement assets or (ii) such asset is Disposed of for fair market value and the proceeds of such  Disposition are promptly applied to the purchase price of similar or replacement assets;  (g) Dispositions resulting from any casualty or other insured damage to, or  any taking under power of eminent domain or by condemnation or similar proceeding of, any  asset of any Group Member;  (h) non-exclusive licenses or sublicenses of intellectual property in the  ordinary course of business, to the extent that they do not materially interfere with the business  of the Borrower or any Restricted Subsidiary;  (i) the lapse, abandonment, cancellation, non-renewal or discontinuance of  use or maintenance of non-material intellectual property or rights relating thereto that the  Borrower determines in its reasonable judgment to be desirable to the conduct of its business and  not materially disadvantageous to the interests of the Lenders;   (j) licenses, leases or subleases entered into in the ordinary course of  business, to the extent that they do not materially interfere with the business of the Borrower or  any Restricted Subsidiary;  





 






  108    (k) Dispositions to any Group Member; provided that any such Disposition  involving a Restricted Subsidiary that is not a Subsidiary Guarantor shall be made in compliance  with Sections 7.7 and 7.9;  (l)  (i) Dispositions of assets to the extent that such Disposition constitutes an  Investment referred to in and permitted by Section 7.7, (ii) Dispositions of assets to the extent  that such Disposition constitute a Restricted Payment referred to in and permitted by Section 7.6  (iii) Dispositions set forth on Schedule 7.5(l) and (iv) sale and leaseback transactions permitted  under Section 7.10;   (m) Dispositions of Receivables Related Assets in Permitted A/R Finance  Transactions; and  (n) other Dispositions of (i) assets not included in the Borrowing Base  (including Capital Stock) and/or (ii) Inventory in connection with the sale of plant facility  permitted by this Section 7.5 in an aggregate amount not to exceed $30,000,000; provided that  (A) in each case, such Disposition shall be for fair market value (provided that with respect to  any Disposition of Eligible Inventory fair market value shall be in no event less than the value  ascribed to such assets in the most recent Borrowing Base Certificate delivered to the  Administrative Agent pursuant to Section 6.2(g)), (B) at least 75% of the total consideration for  any such Disposition in excess of the greater of (x) $30,000,000 and (y) 2.5% of Consolidated  Net Tangible Assets received by the Borrower and its Restricted Subsidiaries shall be in the form  of cash or Cash Equivalents and Designated Non-Cash Consideration, (C) no Event of Default  then exists or would result from such Disposition (except if such Disposition is made pursuant to  an agreement entered into at a time when no Event of Default exists), the Borrower shall have  delivered to the Administrative Agent a pro forma Borrowing Base Certificate, modified to give  effect to such Dispositions so that the Administrative Agent may determine whether any  prepayment is necessary to comply with Section 2.11(a) and (D) the requirements of Section  2.11(b), to the extent applicable, are complied with in connection therewith; provided, however,  that for purposes of clause (B) above, the following shall be deemed to be cash:  (I) any  liabilities (other than liabilities that are by their terms subordinated to the Obligations) of the  Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet (or  in the notes thereto), or if the incurrence of such liability took place after the date of such balance  sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in  good faith by the Borrower) that are (i) assumed by the transferee of any such assets and for  which the Borrower and/or its Restricted Subsidiaries have been validly released by all relevant  creditors in writing or (ii) otherwise cancelled or terminated in connection with such Disposition,  (II) any securities received by the Borrower or such Restricted Subsidiary from such transferee  that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents  (to the extent of the cash or Cash Equivalents received in the conversion) within 180 days  following the closing of the applicable Disposition and (III) any Designated Non-Cash  Consideration received by the Borrower or any of its Restricted Subsidiaries in such Disposition  having an aggregate fair market value, taken together with all other Designated Non-Cash  Consideration received pursuant to this Section 7.5(n) that is at that time outstanding, not to  exceed the greater of (1) $60,000,000 and (2) 4% of Consolidated Net Tangible Assets (as of the  date of such disposition (or, at the Borrower’s election, as of the date of entry into a binding  agreement with respect to such Disposition) (with the fair market value of each item of  





 






  109    Designated Non-Cash Consideration being measured at the time received and without giving  effect to subsequent changes in value); and  (o) other Dispositions of operating segments, business units, divisions, lines  of business, or the assets or Capital Stock of any Subsidiary of the Borrower which individually  may comprise an operating segment,  business unit, division or line of business, division, and  with respect to which the Board of Directors of the Borrower has determined are no longer  strategic or core to the Borrower’s business (taken as a whole), in an aggregate sales price for  each such Disposition or related series of Dispositions not to exceed $75,000,000 (exclusive of  any earnout consideration payable in connection therewith); provided that no more than two (2)  such Dispositions or series of related Dispositions may be consummated prior to the Scheduled  Maturity Date;  (p) the surrender or waiver of contract rights in the ordinary course of  business or the surrender or waiver of litigation claims or the settlement, release or surrender of  tort or litigation claims of any kind;   (q) the transfer of improvements or alterations in connection with any lease of  property upon the termination thereof;   (r) any Restricted Payment permitted by Section 7.6 or Investment permitted  by Section 7.7; and  (s) the termination of a lease of real or personal property.  Notwithstanding anything to the contrary contained in this Section 7.5, in no  event shall any Disposition of assets included in the Borrowing Base and contributing more than  20% of the Borrowing Base (other than Dispositions permitted pursuant to Section 7.5(b)) be  permitted unless the Administrative Agent receives a completed Borrowing Base Certificate  concurrently with such Disposition.   7.6 Restricted Payments.  Declare or pay any dividend (other than dividends  payable solely in common stock of the Person making such dividend) on, or make any payment  on account of, or set apart assets for a sinking or other analogous fund for, the purchase,  redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group  Member, whether now or hereafter outstanding, or make any other distribution in respect thereof,  either directly or indirectly, whether in cash or property or in obligations of any Group Member  (collectively, “Restricted Payments”), except that:  (a) any Restricted Subsidiary may make Restricted Payments ratably to its  equity holders (or if not ratably, on a basis more favorable to the Borrower and the other Loan  Parties);   (b) so long as no Event of Default shall have occurred and be continuing, the  Borrower may purchase its common stock or common stock options from present or former  officers or employees of any Group Member upon the death, disability or termination of  employment of such officer or employee, provided, that the aggregate amount of payments under  this Section 7.6(b) after the Closing Date (net of any proceeds received by the Borrower after the  





 






  110    Closing Date in connection with resales of any common stock or common stock options so  purchased) shall not exceed $5,000,000;  (c) the Borrower may declare and pay dividends with respect to its Capital  Stock payable solely in shares of Qualified Capital Stock;  (d) the Borrower may make cash payments in lieu of the issuance of fractional  shares representing insignificant interests in the Borrower in connection with the exercise of  warrants, options or other securities convertible into or exchangeable for Capital Stock in the  Borrower;  (e) the Borrower may acquire its Capital Stock upon the exercise of stock  options for such Capital Stock of the Borrower if such Capital Stock represents a portion of the  exercise price of such stock options or in connection with tax withholding obligations arising in  connection with the exercise of options by, or the vesting of restricted Capital Stock or similar  equity awards held by, any current or former director, officer or employee of any Group  Member;  (f) the Borrower may convert or exchange any of its Capital Stock for or into  Qualified Capital Stock;  (g) so long as the Payment Conditions are met, the Borrower may make  Restricted Payments; and  (h) so long as no Default or Event of Default shall have occurred and be  continuing or would result therefrom, the Borrower may on any date make additional Restricted  Payments in an aggregate amount not to exceed from and after the Closing Date the greater of (i)  $25,000,000 and (ii) 2% of Consolidated Net Tangible Assets.   7.7 Investments.  Make any advance, loan, extension of credit (by way of  guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes,  debentures or other debt securities of, or any assets constituting a business unit of, or make any  other investment in, any other Person (all of the foregoing, “Investments”), except:  (a) extensions of trade credit in the ordinary course of business;  (b) investments in cash and Cash Equivalents;  (c) Guarantee Obligations of any Group Member in respect of Indebtedness or  other obligations of the Borrower or any Restricted Subsidiary (including any such Guarantee  Obligations arising as a result of any such Person being a joint and several co-applicant with  respect to any letter of credit or letter of guaranty); provided that (i) (A) a Restricted Subsidiary  that is not a Subsidiary Guarantor shall not Guarantee any Indebtedness for borrowed money of  any Loan Party and (B) any Guarantee Obligations in respect of Subordinated Indebtedness shall  be subordinated to the Obligations on terms no less favorable to the Lenders than those of the  Subordinated Indebtedness and (ii) no Guarantee Obligations of any Loan Party of Indebtedness  (excluding, for the avoidance of doubt, Guarantee Obligations in respect of obligations not  constituting Indebtedness) of any Restricted Subsidiary that is not a Loan Party shall be  





 






  111    permitted pursuant to this Section 7.7(c) if, at the time of the incurrence of, and after giving  effect to, such Guarantee Obligations (and any substantially simultaneous use of the Permitted  Amount), the Permitted Amount would be less than zero;  (d) loans and advances to directors, officers and employees of any Group  Member in the ordinary course of business (including for travel, entertainment and relocation  expenses) in an aggregate amount for the Borrower and its Restricted Subsidiaries not to exceed  $5,000,000 at any one time outstanding;  (e) loans or advances made by the Borrower or any Restricted Subsidiary to  any Restricted Subsidiary; provided that no loan or advance made by any Loan Party to a  Restricted Subsidiary that is not a Loan Party shall be permitted pursuant to this Section 7.7(e) if,  at the time of, and after giving effect to, the making of such loan or advance (and any  substantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the  Permitted Amount would be less than zero;  (f)  Investments in assets useful in the business of the Borrower and its  Restricted Subsidiaries, other than current assets, made by any Group Member with the proceeds  of any Disposition of ABL Priority Collateral;  (g) (i) Investments by the Borrower in any Subsidiary Guarantor and by any  Subsidiary Guarantor in any Loan Party, and (ii) Investments (including by way of capital  contributions) by any Group Member in Equity Interests in their Restricted Subsidiaries;  provided, in the case of clause (ii), no Investment by any Loan Party in any Restricted Subsidiary  that is not a Loan Party shall be permitted pursuant to this Section 7.7(g) if, at the time of the  making of, and after giving effect to, such Investment (and any substantially simultaneous use of  the Permitted Amount), the Permitted Amount would be less than zero;  (h) any Permitted Acquisition; provided that the Payment Conditions are met;  (i) promissory notes and other non-cash consideration received in connection  with Dispositions permitted by Section 7.5;  (j) Investments acquired as a result of the purchase or other acquisition by  any Group Member in connection with a Permitted Acquisition; provided, that such Investments  were not made in contemplation of such Permitted Acquisition and were in existence at the time  of such Permitted Acquisition;  (k) Investments existing on the Closing Date and set forth on Schedule 7.7(k)  and any modification, refinancing, renewal, refunding, replacement or extension thereof;  provided that the amount of any Investment permitted pursuant to this Section 7.7(k) is not  increased from the amount of such Investment on the Closing Date;  (l) Investments received in connection with the bankruptcy or reorganization  of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case  in the ordinary course of business;  





 






  112    (m) Investments of a Restricted Subsidiary acquired after the Closing Date or  of a corporation merged into the Borrower or merged or consolidated with any Restricted  Subsidiary, in each case in accordance with Section 7.4 after the Closing Date, to the extent that  such Investments were not made in contemplation of or in connection with such acquisition,  merger or consolidation and were in existence on the date of such acquisition, merger or  consolidation;  (n) guarantees by the Borrower or any Restricted Subsidiary of leases (other  than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in  each case entered into in the ordinary course of business;   (o) Investments made to effect the pledges and deposits described in, and  permitted under, Section 7.3(c) and (d);  (p) Investments by the Borrower or any Restricted Subsidiary that result  solely from the receipt by the Borrower or such Restricted Subsidiary from any of its  Subsidiaries of a dividend or other Restricted Payment in the form of Capital Stock, evidences of  Indebtedness or other securities (but not any additions thereto made after the date of the receipt  thereto);  (q) mergers and consolidations permitted under Section 7.4 that do not  involve any Person other than the Borrower and Restricted Subsidiaries that are Wholly Owned  Subsidiaries;  (r) [reserved];   (s) [reserved];  (t) in addition to Investments otherwise expressly permitted by this Section,  Investments by the Borrower or any of its Restricted Subsidiaries so long as the Payment  Conditions are met;  (u) (i) any Investment in any Joint Venture or Unrestricted Subsidiary and (ii)  any Permitted Acquisition of Persons that do not, upon acquisition thereof, become Subsidiary  Guarantors, and property that is not, upon acquisition thereof, owned by Loan Parties; provided  that no Investment or Permitted Acquisition shall be permitted pursuant to this Section 7.7(u) if,  at the time of, and after giving effect to, the making of such loan or advance (and any  substantially simultaneous use of the Permitted Amount) and the use of proceeds thereof, the  Permitted Amount would be less than zero;   (v) Investments constituting the extension of credit made to any purchaser of  Receivables Related Assets in connection with any Permitted A/R Finance Transaction relating  to the balance of the purchase price payable therefor by such purchaser; and  (w) Investments by the Borrower in connection with its membership in  Northwest Farm Credit Services system, consistent with past practice, and as required by the  bylaws of Northwest Farm Credit Services and the requirements of the Farm Credit Act of 1971  and the regulations thereunder.  





 






  113    7.8 Optional Payments of Certain Debt Instruments.  Make or offer to make  any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise  optionally or voluntarily defease or segregate funds with respect to any Junior Indebtedness or  Permitted Term Loans (any of the foregoing, a “Restricted Debt Payment”) other than:   (a) refinancings of Junior  Indebtedness with the proceeds of permitted  Refinancing Indebtedness permitted in respect thereof under Section 7.2;  (b) payments of or in respect of Junior Indebtedness made solely with  proceeds of Qualified Capital Stock or the conversion of any Junior Indebtedness into Qualified  Capital Stock;   (c) prepayments of Junior Indebtedness; provided that no prepayment of any  such Indebtedness shall be permitted unless the Payment Conditions are met;   (d) prepayments of Permitted Term Loans so long as (A) the Payment  Conditions are met or (B) such Restricted Debt Payment is made using the Net Cash Proceeds of  any Disposition of Term Loan Priority Collateral.  Notwithstanding anything to the contrary contained in this Section 7.8, in no  event shall any payment in respect of Subordinated Indebtedness be permitted if such payment is  in violation of the subordination provisions of such Subordinated Indebtedness.   7.9 Transactions with Affiliates.  Enter into any transaction, including any  purchase, sale, lease or exchange of property, the rendering of any service or the payment of any  management, advisory or similar fees, with any Affiliate (other than (x) transactions between or  among the Loan Parties and (y) transactions between or among the Borrower and its Restricted  Subsidiaries consistent with past practices and made in the ordinary course of business) unless  such transaction is (a) otherwise permitted under this Agreement and (b) upon fair and  reasonable terms no less favorable to the relevant Group Member than it would obtain in a  comparable arm’s length transaction with a Person that is not an Affiliate as determined in good  faith by the board of directors of the Borrower; provided that the foregoing restriction in clause  (b) shall not apply to (i) transactions permitted under Section 7.6; (ii) the payment of customary  directors’ fees and indemnification and reimbursement of expenses to directors, officers or  employees; (iii) any issuance of securities or other payments, awards or grants in cash, securities  or otherwise pursuant to, or the funding of, employment agreements, stock options and stock  ownership plans approved by the Borrower’s Board of Directors; (iv) employment, retention,  severance and similar arrangements (including equity or equity based incentive plans, stock  ownership plans, compensation or incentive plans and arrangements and employee benefit plans  and arrangements) and indemnification arrangements entered into in the ordinary course of  business between the Borrower or any Restricted Subsidiary and any employee, officer or  director thereof; (v) intercompany transactions undertaken in good faith (as certified by a  Responsible Officer) for the purpose of improving the consolidated tax efficiency of the Group  Members, (vi) Investments permitted by Section 7.7(d), (vii) payment of customary fees and  reasonable out of pocket costs to, and indemnities for the benefit of, directors, officers and  employees of the Borrower and its Subsidiaries in the ordinary course of business to the extent  





 






  114    attributable to the ownership or operation of the Borrower and its Subsidiaries, and (viii)  transactions disclosed in the Borrower’s SEC filings made prior to the Closing Date.  7.10 Sales and Leasebacks.  Enter into any arrangement with any Person  providing for the leasing by any Group Member of real or personal property that has been or is to  be sold or transferred by such Group Member to such Person or to any other Person to whom  funds have been or are to be advanced by such Person on the security of such property or rental  obligations of such Group Member, unless (a) the Disposition of the property subject to such  transaction is permitted by Section 7.5 and the Borrower or the applicable Restricted Subsidiary  would be entitled to incur Liens with respect to such transaction pursuant to Section 7.3 and  Indebtedness in an amount equal to the Attributable Indebtedness with respect to such  transaction pursuant to Section 7.2 and (b) the Net Cash Proceeds received by the applicable  Group Member in connection with such transaction are at least equal to the fair market value (as  determined by the board of directors of the Borrower or a member of the senior management of  the Borrower) of such property; provided that the aggregate amount of consideration paid to the  Group Members (and the aggregate principal amount of any Attributable Indebtedness) in  respect of transactions permitted under this Section 7.10 shall not exceed the greater of  (i)$75,000,000 and (ii) 5% of Consolidated Net Tangible Assets (as of the date of consummation  of such arrangement).  7.11 Swap Agreements.  Enter into any Swap Agreement, except (a) Swap  Agreements entered into to hedge or mitigate risks to which any Group Member has actual  exposure (other than those in respect of Capital Stock), (b) Swap Agreements entered into in  order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one  floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or  investment of any Group Member and (c) Swap Agreements in existence as of the Closing Date  and reflected in the Borrower’s filings with the SEC.  7.12 Changes in Fiscal Periods.  Change Borrower’s fiscal year end or change  the Borrower’s method of determining fiscal quarters (without the consent of the Administrative  Agent) except as permitted by GAAP and recommended by Borrower’s auditors or required by  GAAP.  7.13 Negative Pledge Clauses.  Enter into or suffer to exist or become effective  any agreement that prohibits or limits the ability of any Group Member to create, incur, assume  or suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter  acquired to secure its obligations under the Loan Documents to which it is a party other than (a)  (i) this Agreement, the other Loan Documents, the Permitted Notes and the Permitted Term Loan  Documents, (ii) agreements related to other Indebtedness permitted by this Agreement to the  extent that encumbrances or restrictions imposed by such other Indebtedness are not more  restrictive on the Loan Party or any of its applicable Subsidiaries than the encumbrances and  restrictions contained in this Agreement as determined by the chief executive officer or the chief  financial officer of the Borrower in good faith and (iii) any agreement governing any Permitted  Refinancing Indebtedness in respect of the Loans, the Permitted Notes or the Permitted Term  Loans, in each case, with respect to this clause (iii), so long as any such agreement is not more  restrictive than the Loan Documents, the Permitted Term Loan Documents or the documents  governing the Indebtedness being refinanced, as applicable, (b) any agreements governing any  





 






  115    purchase money Liens, Attributable Indebtedness or Capital Lease Obligations otherwise  permitted hereby (in which case, any prohibition or limitation shall only be effective against the  assets financed thereby), (c) any agreement in effect at the time any Subsidiary becomes a  Restricted Subsidiary of the Borrower, so long as such prohibition or limitation applies only to  such Restricted Subsidiary (and, if applicable, its Subsidiaries) and such agreement was not  entered into in contemplation of such Person becoming a Restricted Subsidiary of the Borrower,  as such agreement may be amended, restated, supplemented, modified extended renewed or  replaced, so long as such amendment, restatement, supplement, modification, extension, renewal  or replacement does not expand in any material respect the scope of any restriction contemplated  by this Section 7.13 contained therein, (d) customary provisions restricting assignments,  subletting, sublicensing, pledging or other transfers contained in leases, subleases, licenses or  sublicenses, so long as such restrictions are limited to the property or assets subject to such  leases, subleases, licenses or sublicenses, as the case may be, (e) customary restrictions and  conditions contained in agreements relating to the sale of a Restricted Subsidiary or any assets  pending such sale; provided that such restrictions or conditions apply only to the Restricted  Subsidiary or assets that is to be sold and such sale is permitted hereunder, (f) restrictions  imposed by applicable law or regulation or license requirements; (g) customary provisions  restricting assignment of any agreement, which provisions are entered into in the ordinary course  of business; (h) any customary restriction pursuant to any document, agreement or instrument  governing or relating to any Lien permitted under Section 7.3 and (i) customary provisions  contained in joint venture agreements, shareholder agreements and other similar agreements  applicable to joint ventures permitted hereunder and applicable solely to such joint venture (and  its assets or Capital Stock issued by such Person) entered into in the ordinary course of business.  7.14 Clauses Restricting Subsidiary Distributions.  Enter into or suffer to exist  or become effective any consensual encumbrance or restriction on the ability of any Restricted  Subsidiary of the Borrower to (a) make Restricted Payments in respect of any Capital Stock of  such Restricted Subsidiary held by, or pay any Indebtedness owed to, any Group Member, (b)  make loans or advances to, or other Investments in, any Group Member or (c) transfer any of its  assets to any Group Member, except for (i) any encumbrances or restrictions existing under (A)  this Agreement, the other Loan Documents, the Permitted Notes and the Permitted Term Loan  Documents, (B) any agreement governing Indebtedness incurred pursuant to Section 7.2 so long  as such encumbrance or restriction is customary in agreements governing Indebtedness of such  type and is no more restrictive than the Loan Documents or (C) any agreement governing  Permitted Refinancing Indebtedness in respect of the Loans, any Permitted Term Loan or any  other Indebtedness incurred pursuant to Section 7.2, in each case so long as any such agreement  is not more restrictive than the Loan Documents, the Permitted Term Loan Documents or the  documents governing the Indebtedness being refinanced, as applicable, (ii) any encumbrances or  restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has  been entered into in connection with the Disposition of all or substantially all of the Capital  Stock or assets of such Restricted Subsidiary, (iii) any encumbrance or restriction applicable to a  Restricted Subsidiary (and, if applicable, its Subsidiaries) under any agreement of such  Restricted Subsidiary in effect at the time such Person becomes a Restricted Subsidiary of the  Borrower, so long as such agreement was not entered into in contemplation of such Person  becoming a Restricted Subsidiary of the Borrower, as such agreement may be amended, restated,  supplemented, modified extended renewed or replaced, so long as such amendment, restatement,  supplement, modification, extension, renewal or replacement does not expand in any material  





 






  116    respect the scope of any restriction contemplated by this Section 7.14 contained therein, (iv)  customary provisions restricting assignments, subletting, sublicensing, pledging or other  transfers contained in leases, subleases, licenses or sublicenses, so long as such restrictions are  limited to the property or assets subject to such leases, subleases, licenses or sublicenses, as the  case may be, (v) customary restrictions and conditions contained in agreements relating to the  sale of a Restricted Subsidiary or any assets pending such sale, provided that such restrictions or  conditions apply only to the Restricted Subsidiary or assets that is to be sold and such sale is  permitted hereunder, (vi) restrictions of the nature referred to in clause (c) above under the  agreements governing purchase money liens, Attributable Indebtedness or Capital Lease  Obligations otherwise permitted hereby, which restrictions are only effective against the assets  financed thereby, (vii) any applicable law, rule or regulation (including applicable currency  control laws and applicable state corporate statutes restricting the payment of dividends in  certain circumstances), (viii) agreements related to other Indebtedness permitted by this  Agreement to the extent that encumbrances or restrictions imposed by such other Indebtedness  (x) are (A) customary for financing arrangements of their type or (B) not, when taken as a whole,  materially more restrictive on the Loan Party or any of its applicable Subsidiaries than the  restrictions contained in this Agreement as determined by the chief executive officer or the chief  financial officer of the Borrower in good faith and (y) will not materially affect the Loan Parties’  ability to satisfy their obligations hereunder or under the other Loan Documents, or (ix)  customary provisions contained in joint venture agreements, shareholder agreements and other  similar agreements applicable to joint ventures permitted hereunder and applicable solely to such  joint venture (and its assets or Capital Stock issued by such Person) entered into in the ordinary  course of business.  7.15 Lines of Business.  Enter into any business, either directly or through any  Restricted Subsidiary, except for those businesses in which the Group Members were engaged on  the Closing Date or that are reasonably related, ancillary or complementary thereto.  7.16 Use of Proceeds.  Request any Loan or Letter of Credit, and the Borrower  shall not use, and shall procure that its Restricted Subsidiaries and its or their respective  directors, officers, employees and agents shall not use, the proceeds of any Loan or Letter of  Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or  giving of money, or anything else of value, to any Person in violation of any Anti-Corruption  Laws, (b) for the purpose of funding, financing or facilitating any activities, business or  transaction of or with any Sanctioned Person, or in any Sanctioned Country, to the extent that  such activities, businesses or transaction would be prohibited by Sanctions if conducted by a  corporation incorporated in the United States or a European Union member state or (c) in any  manner that would result in the violation of  any Sanctions applicable to any party hereto.  SECTION 8.  EVENTS OF DEFAULT  If any of the following events shall occur and be continuing:  (a) the Borrower shall fail to pay any principal of any Loan or Reimbursement  Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any  interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder or  





 






  117    under any other Loan Document, within five days after any such interest or other amount  becomes due in accordance with the terms hereof; or  (b) any representation or warranty made or deemed made by any Loan Party  herein or in any other Loan Document or that is contained in any certificate, document or  financial or other statement furnished by it at any time under or in connection with this  Agreement or any such other Loan Document shall prove to have been inaccurate in any material  respect on or as of the date made or deemed made; or  (c) any Loan Party shall default in the observance or performance of any  agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only),  Section 6.7(a) or Section 7 of this Agreement or Section 5.13 of the Guarantee and Collateral  Agreement; or  (d) any Loan Party shall default in the observance or performance of any  agreement in Section 6.2(g) and such default shall continue unremedied for a period of 5 days  after notice to the Borrower from the Administrative Agent;  (e) any Loan Party shall default in the observance or performance of any other  agreement contained in this Agreement or any other Loan Document (other than as provided in  paragraphs (a) through (c) of this Section), and such default shall continue unremedied for a  period of 30 days after notice to the Borrower from the Administrative Agent or the Required  Lenders; or  (f) any Group Member shall (i) default in making any payment of any  principal of any Material Indebtedness (including any Guarantee Obligation, but excluding the  Loans) on the scheduled or original due date with respect thereto; or (ii) default in making any  payment of any interest on any such Material Indebtedness beyond the period of grace, if any,  provided in the instrument or agreement under which such Material Indebtedness was created; or  (iii) default in the observance or performance of any other agreement or condition relating to any  such Material Indebtedness or contained in any instrument or agreement evidencing, securing or  relating thereto, or any other event shall occur or condition exist, the effect of which default or  other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness  (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice  if required, such Material Indebtedness to become due prior to its stated maturity or (in the case  of any such Indebtedness constituting a Guarantee Obligation) to become payable; or  (g) (i) any Group Member shall commence any case, proceeding or other  action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to  bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief  entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking  reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or  other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee,  custodian, conservator or other similar official for it or for all or any substantial part of its assets;  or (ii) there shall be commenced against any Group Member any case, proceeding or other action  of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any  such adjudication or appointment or (B) remains undismissed or undischarged for a period of 60  





 






  118    days; or (iii) there shall be commenced against any Group Member any case, proceeding or other  action seeking issuance of a warrant of attachment, execution, distraint or similar process against  all or any substantial part of its assets that results in the entry of an order for any such relief that  shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from  the entry thereof; or (iv) any Group Member shall take any action in furtherance of, or indicating  its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)  above; or (v) any Group Member shall generally not, or shall be unable to, or shall admit in  writing its inability to, pay its debts as they become due; or (vi) or any Group Member shall  make a general assignment for the benefit of its creditors; or  (h) (i) an ERISA Event and/or a Foreign Plan Event shall have occurred; (ii) a  trustee shall be appointed by a United States district court to administer any Pension Plan; (iii)  the PBGC shall institute proceedings to terminate any Pension Plan; (iv) any Group Member or  any of their respective ERISA Affiliates shall have been notified by the sponsor of a  Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such  Multiemployer Plan and such entity does not have reasonable grounds for contesting such  Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate  manner; or (v) any other event or condition shall occur or exist with respect to a Plan, a Foreign  Benefit Arrangement, or a Foreign Plan; and in each case in clauses (i) through (v) above, such  event or condition, together with all other such events or conditions, if any, would reasonably be  expected to result in a Material Adverse Effect; or  (i) one or more judgments or decrees shall be entered against any Group  Member involving in the aggregate a liability (not paid or fully covered by insurance as to which  the relevant insurance company has not disputed coverage) of $75,000,000 or more, and all such  judgments or decrees shall not have been vacated, discharged, satisfied, stayed or bonded, as  applicable, pending appeal within 30 days from the entry thereof; or  (j) any of the Security Documents or the Intercreditor Agreement shall cease,  for any reason, to be in full force and effect (other than pursuant to the terms hereof or the  Intercreditor Agreement, respectively), or any Loan Party or any Affiliate of any Loan Party  shall so assert, or any Lien created by any of the Security Documents shall cease to be  enforceable and of the same effect and priority purported to be created thereby (and, for the  avoidance of doubt, as required by the Intercreditor Agreement), except  to the extent that such  cessation results from the failure of the Administrative Agent to maintain possession of  certificates representing securities pledged or to file continuation statements under the Uniform  Commercial Code of any applicable jurisdiction; or  (k) the guarantee contained in Article II of the Guarantee and Collateral  Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so  assert; or  (l) the subordination provisions contained in any Subordinated Indebtedness  with an aggregate principal amount in excess of $30,000,000 shall cease, for any reason, to be in  full force and effect, or any Loan Party or any Subsidiary of any Loan Party shall so assert; or  (m) a Change of Control shall occur;   





 






  119    then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii)  of paragraph (g) above with respect to the Borrower, automatically the Commitments shall  immediately terminate and the Loans (with accrued interest thereon) and all other amounts  owing under this Agreement and the other Loan Documents (including all amounts of L/C  Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have  presented the documents required thereunder) shall immediately become due and payable, and  (B) if such event is any other Event of Default, either or both of the following actions may be  taken:  (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the  request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower  declare the Commitments to be terminated forthwith, whereupon the Commitments shall  immediately terminate; and (ii) with the consent of the Required Lenders, the Administrative  Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by  notice to the Borrower, declare the Loans (with accrued interest thereon) and all other amounts  owing under this Agreement and the other Loan Documents (including all amounts of L/C  Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have  presented the documents required thereunder) to be due and payable forthwith, whereupon the  same shall immediately become due and payable.  With respect to all Letters of Credit with  respect to which presentment for honor shall not have occurred at the time of an acceleration  pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account  opened by the Administrative Agent an amount equal to the aggregate then undrawn and  unexpired amount of such Letters of Credit.  Amounts held in such cash collateral account shall  be applied by the Administrative Agent to the payment of drafts drawn under such Letters of  Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been  fully drawn upon, if any, shall be applied to repay other obligations of the Borrower hereunder  and under the other Loan Documents.  After all such Letters of Credit shall have expired or been  fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other  obligations of the Borrower hereunder and under the other Loan Documents shall have been paid  in full and no Letters of Credit shall be outstanding, the balance, if any, in such cash collateral  account shall be returned to the Borrower (or such other Person as may be lawfully entitled  thereto).  Except as expressly provided above in this Section, presentment, demand, protest and  all other notices of any kind are hereby expressly waived by the Borrower.  In addition to any other rights and remedies granted to the Administrative Agent and the Lenders  in the Loan Documents, the Administrative Agent on behalf of the Lenders may exercise all  rights and remedies of a secured party under the New York Uniform Commercial Code or any  other applicable law.  Without limiting the generality of the foregoing, the Administrative Agent,  without demand of performance or other demand, presentment, protest, advertisement or notice  of any kind (except any notice required by law referred to below) to or upon any Loan Party or  any other Person (all and each of which demands, defenses, advertisements and notices are  hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize  upon the Collateral, or any part thereof, or consent to the use by the Loan Parties of any cash  collateral arising in respect of the Collateral on such terms as the Administrative Agent deems  reasonable, and/or may forthwith sell, lease, assign give an option or options to purchase or  otherwise dispose of and deliver, or acquire by credit bid on behalf of the Lenders, the Collateral  or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or  private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or  any Lender or elsewhere, upon such terms and conditions as it may deem advisable and at such  





 






  120    prices as it may deem best, for cash or on credit or for future delivery, all without assumption of  any credit risk. The Administrative Agent or any Lender shall have the right upon any such  public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to  purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption  in any Loan Party, which right or equity is hereby waived and released.  The Borrower further  agrees, at the Administrative Agent’s request, to assemble, or cause the applicable Loan Party to  assemble, the Collateral and make it available to the Administrative Agent at places which the  Administrative Agent shall reasonably select, whether at the Borrower’s or such Loan Party’s  premises or elsewhere.  The Administrative Agent shall apply the net proceeds of any action  taken by it pursuant to this Section 8, after deducting all reasonable costs and expenses of every  kind incurred in connection therewith or incidental to the care or safekeeping of any of the  Collateral or in any other way relating to the Collateral or the rights of the Administrative Agent  and the Lenders hereunder, including reasonable attorneys’ fees and disbursements, to the  payment in whole or in part of the obligations of the Loan Parties under the Loan Documents, in  such order as the Administrative Agent may elect, and only after such application and after the  payment by the Administrative Agent of any other amount required by any provision of law,  including Section 9-615(a)(3) of the New York UCC, need the Administrative Agent account for  the surplus, if any, to any Loan Party.  To the extent permitted by applicable law, the Borrower  on behalf of itself and the other Loan Parties, waives all claims, damages and demands it or any  other Loan Party may acquire against the Administrative Agent or any Lender arising out of the  exercise by them of any rights hereunder, except to the extent such damages are found by a final  and nonappealable decision of a court of competent jurisdiction to have resulted from the gross  negligence or willful misconduct of the Administrative Agent or such Lender, as the case may  be.  If any notice of a proposed sale or other disposition of Collateral shall be required by law,  such notice shall be deemed reasonable and proper if given at least 10 days before such sale or  other disposition.  SECTION 9.  THE AGENTS  9.1 Appointment.  (a) Each Lender hereby irrevocably appoints the entity named as  Administrative Agent in the heading of this Agreement and its successors and assigns to serve as  the administrative agent under the Loan Documents and each Lender and each Issuing Lender  authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise  such powers under this Agreement and the other Loan Documents as are delegated to the  Administrative Agent under such agreements and to exercise such powers as are reasonably  incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the  Administrative Agent to execute and deliver, and to perform its obligations under, each of the  Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers  and remedies that the Administrative Agent may have under such Loan Documents.  (b) As to any matters not expressly provided for herein and in the other Loan  Documents (including enforcement or collection), the Administrative Agent shall not be required  to exercise any discretion or take any action, but shall be required to act or to refrain from acting  (and shall be fully protected in so acting or refraining from acting) upon the written instructions  of the Required Lenders (or such other number or percentage of the Lenders as shall be  





 






  121    necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in  writing, such instructions shall be binding upon each Lender; provided, however, that the  Administrative Agent shall not be required to take any action that (i) the Administrative Agent in  good faith believes exposes it to liability unless the Administrative Agent receives an  indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing  Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan  Document or applicable law, including any action that may be in violation of the automatic stay  under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of  debtors or that may effect a forfeiture, modification or termination of property of a Defaulting  Lender in violation of any requirement of law relating to bankruptcy, insolvency or  reorganization or relief of debtors; provided, further, that the Administrative Agent may seek  clarification or direction from the Required Lenders (or, for matters that require consent of a  greater or different number or percentage pursuant to Section 10.1, such other number or  percentage of Lenders) prior to the exercise of any such instructed action and may refrain from  acting until such clarification or direction has been provided. Except as expressly set forth in the  Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be  liable for the failure to disclose, any information relating to the Borrower, any Subsidiary or any  Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as  Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall  require the Administrative Agent to expend or risk its own funds or otherwise incur any financial  liability in the performance of any of its duties hereunder or in the exercise of any of its rights or  powers if it shall have reasonable grounds for believing that repayment of such funds or adequate  indemnity against such risk or liability is not reasonably assured to it.  (c) In performing its functions and duties hereunder and under the other Loan  Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing  Lenders (except in limited circumstances expressly provided for herein relating to the  maintenance of the Register), and its duties are entirely mechanical and administrative in nature.  Without limiting the generality of the foregoing, the Administrative Agent does not assume and  shall not be deemed to have assumed any obligation or duty or any other relationship as the  agent, fiduciary or trustee of or for any Lender, other than as expressly set forth herein and in the  other Loan Documents, regardless of whether a Default or an Event of Default has occurred and  is continuing (and it is understood and agreed that the use of the term “agent” (or any similar  term) herein or in any other Loan Document with reference to the Administrative Agent is not  intended to connote any fiduciary duty or other implied (or express) obligations arising under  agency doctrine of any applicable law, and that such term is used as a matter of market custom  and is intended to create or reflect only an administrative relationship between contracting  parties); additionally, each Lender agrees that it will not assert any claim against the  Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent  in connection with this Agreement and/or the transactions contemplated hereby.  (d) Nothing in this Agreement or any Loan Document shall require the  Administrative Agent to account to any Lender for any sum or the profit element of any sum  received by the Administrative Agent for its own account.  (e) The Administrative Agent may perform any of its duties and exercise its  rights and powers hereunder or under any other Loan Document by or through any one or more  





 






  122    sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub- agent may perform any of their respective duties and exercise their respective rights and powers  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 pursuant to this Agreement. The  Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent  except to the extent that a court of competent jurisdiction determines in a final and  nonappealable judgment that the Administrative Agent acted with gross negligence or willful  misconduct in the selection of such sub-agent.  (f) No Arranger shall have obligations or duties whatsoever in such capacity  under this Agreement or any other Loan Document and shall incur no liability hereunder or  thereunder in such capacity, but all such persons shall have the benefit of the indemnities  provided for hereunder.  (g) In case of the pendency of any proceeding with respect to any Loan Party  under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or  hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan  or any Reimbursement 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 (but not obligated) by  intervention in such proceeding or otherwise:  to file and prove a claim for the whole amount of the principal and interest owing and unpaid in  respect of the Loans and all other Obligations that are owing and unpaid and to file such other  documents as may be necessary or advisable in order to have the claims of the Lenders and the  Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.17 and 9.3)  allowed in such judicial proceeding; and  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 proceeding is hereby authorized by each Lender and each other Secured Party 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 or the other Secured Parties, to  pay to the Administrative Agent any amount due to it, in its capacity as the Administrative  Agent, under the Loan Documents (including under Section 9.3). 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 Issuing Lender any plan of reorganization, arrangement, adjustment or  composition affecting the Obligations or the rights of any Lender or Issuing Lender or to  authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing  Lender in any such proceeding.  (h) The provisions of this Article are solely for the benefit of the  Administrative Agent, the Lenders and the Issuing Lenders, and, except solely to the extent of  the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Article,  





 






  123    none of the Borrower or any Subsidiary, or any of their respective Affiliates, shall have any  rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not  a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the  Guarantees of the Obligations provided under the Loan Documents, to have agreed to the  provisions of this Article.  9.2 Administrative Agent’s Reliance, Indemnification, Etc..  (a) Neither the Administrative Agent nor any of its Related Parties shall be (i)  liable for any action taken or omitted to be taken by such party, the Administrative Agent or any  of its Related Parties under or in connection with this Agreement or the other Loan Documents  (x) with the consent of 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 to be necessary, under the circumstances as provided in the Loan Documents) or (y) in  the absence of its own gross negligence or willful misconduct (such absence to be presumed  unless otherwise determined by a court of competent jurisdiction by a final and non-appealable  judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements,  representations or warranties made by any Loan Party or any officer thereof contained in this  Agreement or any other Loan Document or in any certificate, report, statement or other  document referred to or provided for in, or received by the Administrative Agent under or in  connection with, this Agreement or any other Loan Document or for the value, validity,  effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan  Document or for any failure of any Loan Party to perform its obligations hereunder or  thereunder.  (b) The Administrative Agent shall be deemed not to have knowledge of any  Default unless and until written notice thereof (stating that it is a “notice of default”) is given to  the Administrative Agent by the Borrower, a Lender or an Issuing Lender, and 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 any Loan Document, (ii)  the contents of any certificate, report or other document delivered thereunder or in connection  therewith, (iii) the performance or observance of any of the covenants, agreements or other terms  or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the  sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any  other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article  IV or elsewhere in any Loan Document, other than to confirm receipt of items (which on their  face purport to be such items) expressly required to be delivered to the Administrative Agent or  satisfaction of any condition that expressly refers to the matters described therein being  acceptable or satisfactory to the Administrative Agent or (vi) the creation, perfection or priority  of Liens on the Collateral.  (c) Without limiting the foregoing, the Administrative Agent (i) may treat the  payee of any promissory note as its holder until such promissory note has been assigned in  accordance with Section 10.6, (ii) may rely on the Register to the extent set forth in Section  10.6(b), (iii) may consult with legal counsel (including counsel to the Borrower), independent  public accountants and other experts selected by it, and shall not be liable for any action taken or  omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants  





 






  124    or experts, (iv) makes no warranty or representation to any Lender or Issuing Lender and shall  not be responsible to any Lender or Issuing Lender for any statements, warranties or  representations made by or on behalf of any Loan Party in connection with this Agreement or  any other Loan Document, (v) in determining compliance with any condition hereunder to the  making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the  satisfaction of a Lender or an Issuing Lender, may presume that such condition is satisfactory to  such Lender or Issuing Lender unless the Administrative Agent shall have received notice to the  contrary from such Lender or Issuing Lender sufficiently in advance of the making of such Loan  or the issuance of such Letter of Credit and (vi) shall be entitled to rely on, and shall incur no  liability under or in respect of this Agreement or any other Loan Document by acting upon, any  notice, consent, certificate or other instrument or writing (which writing may be a fax, any  electronic message, Internet or intranet website posting or other distribution) or any statement  made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise  authenticated by the proper party or parties (whether or not such Person in fact meets the  requirements set forth in the Loan Documents for being the maker thereof).  9.3 Posting of Communications.  (a) The Borrower agrees that the Administrative Agent may, but shall not be  obligated to, make any Communications available to the Lenders and the Issuing Lenders by  posting the Communications on IntraLinksTM, DebtDomain, SyndTrak, ClearPar or any other  electronic platform chosen by the Administrative Agent to be its electronic transmission system  (the “Approved Electronic Platform”).  (b) Although the Approved Electronic Platform and its primary web portal are  secured with generally-applicable security procedures and policies implemented or modified by  the Administrative Agent from time to time (including, as of the Closing Date, a user  ID/password authorization system) and the Approved Electronic Platform is secured through a  per-deal authorization method whereby each user may access the Approved Electronic Platform  only on a deal-by-deal basis, each of the Lenders, each of the Issuing Lenders and the Borrower  acknowledges and agrees that the distribution of material through an electronic medium is not  necessarily secure, that the Administrative Agent is not responsible for approving or vetting the  representatives or contacts of any Lender that are added to the Approved Electronic Platform,  and that there may be confidentiality and other risks associated with such distribution. Each of  the Lenders, each of the Issuing Lenders and the Borrower hereby approves distribution of the  Communications through the Approved Electronic Platform and understands and assumes the  risks of such distribution.  (c) THE APPROVED ELECTRONIC PLATFORM AND THE  COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE  APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY  OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE  APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR  ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE  COMMUNICATIONS. 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  





 






  125    FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE  APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE  APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE  AGENT, ANY ARRANGER OR ANY OF THEIR RESPECTIVE RELATED PARTIES  (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN  PARTY, ANY LENDER, ANY ISSUING LENDER OR ANY OTHER PERSON OR ENTITY  FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL,  INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER  IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR  THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS  THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.  (d) Each Lender agrees that notice to it (as provided in the next sentence)  specifying that Communications have been posted to the Approved Electronic Platform shall  constitute effective delivery of the Communications to such Lender for purposes of the Loan  Documents. Each Lender agrees (i) to notify the Administrative Agent in writing (which could  be in the form of electronic communication) from time to time of such Lender’s or Issuing  Lender’s (as applicable) email address to which the foregoing notice may be sent by electronic  transmission and (ii) that the foregoing notice may be sent to such email address.  (e) Each of the Lenders and the Borrower agrees that the Administrative  Agent may, but (except as may be required by applicable law) shall not be obligated to, store the  Communications on the Approved Electronic Platform in accordance with the Administrative  Agent’s generally applicable document retention procedures and policies, but subject to the  requirements of Section 10.15.  (f) Nothing herein shall prejudice the right of the Administrative Agent or  any Lender to give any notice or other communication pursuant to any Loan Document in any  other manner specified in such Loan Document.  9.4 The Administrative Agent Individually. With respect to its Commitment  and Loans, Letter of Credit Commitments and Letters of Credit, the Person serving as the  Administrative Agent shall have and may exercise the same rights and powers hereunder and is  subject to the same obligations and liabilities as and to the extent set forth herein for any other  Lender or Issuing Lender, as the case may be. The terms “Lenders”, “Required Lenders” and any  similar terms shall, unless the context clearly otherwise indicates, include the Administrative  Agent in its individual capacity as a Lender or as one of the Required Lenders, as applicable. The  Person serving as the Administrative Agent and its Affiliates may accept deposits from, lend  money to, own securities of, act as the financial advisor or in any other advisory capacity for and  generally engage in any kind of banking, trust or other business with, the Borrower, any  Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the  Administrative Agent and without any duty to account therefor to the Lenders or the Issuing  Lenders.  9.5 Successor Administrative Agent.  





 






  126    (a) The Administrative Agent may resign at any time by giving 30 days’ prior  written notice thereof to the Lenders and the Borrower, whether or not a successor  Administrative Agent has been appointed. Upon any such resignation, the Required Lenders  shall have the right to appoint a successor Administrative Agent. If no successor Administrative  Agent shall have been so appointed by the Required Lenders, and shall have accepted such  appointment, within 30 days after the retiring Administrative Agent’s giving of notice of  resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a  successor Administrative Agent, which shall be a bank with an office in New York, New York or  an Affiliate in New York, New York of any such bank. In either case, such appointment shall be  subject to the prior written approval of the Borrower (which approval may not be unreasonably  withheld and shall not be required while an Event of Default has occurred and is continuing).  Upon the acceptance of any appointment as Administrative Agent by a successor Administrative  Agent, such successor Administrative Agent shall succeed to, and become vested with, all the  rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance  of appointment as Administrative Agent by a successor Administrative Agent, the retiring  Administrative Agent shall be discharged from its duties and obligations under this Agreement  and the other Loan Documents. Prior to any retiring Administrative Agent’s resignation  hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as  may be reasonably necessary to assign to the successor Administrative Agent its rights as  Administrative Agent under the Loan Documents.  (b) Notwithstanding paragraph (a) of this Section, in the event no successor  Administrative Agent shall have been so appointed and shall have accepted such appointment  within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the  retiring Administrative Agent may give notice of the effectiveness of its resignation to the  Lenders and the Borrower, whereupon, on the date of effectiveness of such resignation stated in  such notice, (i) the retiring Administrative Agent shall be discharged from its duties and  obligations hereunder and under the other Loan Documents; provided that, solely for purposes of  maintaining any security interest granted to the Administrative Agent under any Security  Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue  to be vested with such security interest as collateral agent for the benefit of the Secured Parties,  and continue to be entitled to the rights set forth in such Security Document and Loan Document,  and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to  hold such Collateral, in each case until such time as a successor Administrative Agent is  appointed and accepts such appointment in accordance with this Section (it being understood and  agreed that the retiring Administrative Agent shall have no duty or obligation to take any further  action under any Security Document, including any action required to maintain the perfection of  any such security interest), and (ii) the Required Lenders shall succeed to and become vested  with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided  that (A) all payments required to be made hereunder or under any other Loan Document to the  Administrative Agent for the account of any Person other than the Administrative Agent shall be  made directly to such Person and (B) all notices and other communications required or  contemplated to be given or made to the Administrative Agent shall directly be given or made to  each Lender. Following the effectiveness of the Administrative Agent’s resignation from its  capacity as such, the provisions of this Article and Section 10.3, as well as any exculpatory,  reimbursement and indemnification provisions set forth in any other Loan Document, shall  continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their  





 






  127    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 and in respect of the  matters referred to in the proviso under clause (i) above.  (c) Any successor Administrative Agent appointed pursuant to this Section  9.5 shall deliver to Borrower, on or before the date on which it becomes the Administrative  Agent hereunder, either (i) a duly executed copy of IRS Form W-9 (or any applicable successor  form) certifying that the successor Administrative Agent is not subject to backup withholding, or  (ii) (A) a duly completed and executed copy of IRS Form W-8ECI to establish that the successor  Administrative Agent is not subject to withholding Taxes under the Code with respect to any  amounts payable for the account of the successor Administrative Agent under any of the Loan  Documents, and (B) a duly executed copy of IRS Form W-8IMY, certifying on Part I and Part  VI of such IRS Form W-8IMY (or applicable successor form or Parts) that it is a U.S. branch  that has agreed to be treated as a U.S. person for United States federal withholding Tax purposes  with respect to payments received by it from Borrower for the account of others under the Loan  Documents.  9.6 Acknowledgments of Lenders and Issuing Lenders.  (a) Each Lender represents that it is engaged in making, acquiring or holding  commercial loans in the ordinary course of its business and that it has, independently and without  reliance upon the Administrative Agent, any Arranger or any other Lender, or any of the Related  Parties of any of the foregoing, and based on such documents and information as it has deemed  appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender,  and to make, acquire or hold Loans hereunder. Each Lender also acknowledges that it will,  independently and without reliance upon the Administrative Agent, any Arranger or any other  Lender, or any of the Related Parties of any of the foregoing, and based on such documents and  information (which may contain material, non-public information within the meaning of the  United States securities laws concerning the Borrower and its Affiliates) 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.  (b) Each Lender, by delivering its signature page to this Agreement on the  Closing Date, or delivering its signature page to an Assignment and Assumption or any other  Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have  acknowledged receipt of, and consented to and approved, each Loan Document and each other  document required to be delivered to, or be approved by or satisfactory to, the Administrative  Agent or the Lenders on the Closing Date.  9.7 Collateral Matters.  (a) Except with respect to the exercise of setoff rights in accordance with  Section 9.8 or with respect to a Secured Party’s right to file a proof of claim in an insolvency  proceeding, no Secured Party shall have any right individually to realize upon any of the  Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all  





 






  128    powers, rights and remedies under the Loan Documents may be exercised solely by the  Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof.  (b) The Secured Parties irrevocably authorize the Administrative Agent, at its  option and in its discretion, to subordinate any Lien on any property granted to or held by the  Administrative Agent under any Loan Document to the holder of any Lien on such property that  is permitted by Section 7.3. 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 or any other Secured Party for any  failure to monitor or maintain any portion of the Collateral.  (c) At least once each calendar year, the Administrative Agent will conduct or  caused to be conducted an Annual Field Examination, pursuant to Section 6.6(c), and an Annual  Inventory Appraisal, pursuant to Sections 6.6(b).  9.8 Credit Bidding.  The Secured Parties hereby irrevocably authorize the  Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of  the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all  of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner  purchase (either directly or through one or more acquisition vehicles) all or any portion of the  Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code,  including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any  other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or  acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of)  the Administrative Agent (whether by judicial action or otherwise) in accordance with any  applicable law. In connection with any such credit bid and purchase, the Obligations owed to the  Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the  direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent  or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that  shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion  of the contingent claim amount used in allocating the contingent interests) for the asset or assets  so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles  that are issued in connection with such purchase). In connection with any such bid, (i) the  Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign  any successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’  ratable interests in the Obligations which were credit bid shall be deemed without any further  action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing  such sale, (iii) the Administrative Agent shall be authorized to adopt documents providing for the  governance of the acquisition vehicle or vehicles (provided that any actions by the  Administrative Agent with respect to such acquisition vehicle or vehicles, including any  disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by,  and the governing documents shall provide for, control by the vote of the Required Lenders or  their permitted assignees under the terms of this Agreement or the governing documents of the  applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of  this Agreement and without giving effect to the limitations on actions by the Required Lenders  





 






  129    contained in Section 10.1 of this Agreement), (iv) the Administrative Agent on behalf of such  acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably  on account of the relevant Obligations which were credit bid, interests, whether as equity,  partnership interests, limited partnership interests or membership interests, in any such  acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the  need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent  that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for  any reason (as a result of another bid being higher or better, because the amount of Obligations  assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the  acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the  Secured Parties pro rata with their original interest in such Obligations and the equity interests  and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall  automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to  take any further action. Notwithstanding that the ratable portion of the Obligations of each  Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii)  above, each Secured Party shall execute such documents and provide such information regarding  the Secured Party (and/or any designee of the Secured Party which will receive interests in or  debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably  request in connection with the formation of any acquisition vehicle, the formulation or  submission of any credit bid or the consummation of the transactions contemplated by such  credit bid.  9.9 Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person  became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender  party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the   Administrative Agent, and each Arranger and their respective Affiliates, and not, for the  avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least  one of the  following is and will be true:  such Lender is not using “plan assets” (within the meaning of the Plan Asset  Regulations) of one  or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,  the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class  exemption  for certain transactions determined by independent qualified professional asset managers), PTE  95-60 (a class exemption for certain transactions involving insurance company  general  accounts), PTE 90-1 (a class exemption for certain transactions involving insurance  company  pooled separate accounts), PTE 91-38 (a class exemption for certain transactions  involving bank  collective investment funds) or PTE 96-23 (a class exemption for certain  transactions  determined by in-house asset managers), is applicable with respect to such Lender’s  entrance  into, participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement,  (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager”  (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager  made the investment decision on behalf of such Lender to enter into, participate in, administer  





 






  130    and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the  entrance into, participation in, administration of and performance of the Loans, the Letters of  Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b)  through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the  requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Letters of  Credit, the Commitments and this Agreement, or  such  other  representation,  warranty  and  covenant  as  may  be  agreed  in  writing between the  Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is  true with respect to a Lender or such Lender has provided another representation, warranty and  covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and (y) covenants, from the date such Person became a Lender party hereto to the date such  Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and each  Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit  of the Borrower or any other Loan Party, that none of the Administrative Agent, or any Arranger  or any of their respective Affiliates is a fiduciary with respect to the Collateral or the assets of  such Lender (including in connection with the reservation or exercise of any rights by the  Administrative Agent under this Agreement, any Loan Document or any documents related to  hereto or thereto).  (c) The Administrative Agent hereby informs the Lenders that it is not  undertaking to provide investment advice or to give advice in a fiduciary capacity, in connection  with the transactions contemplated hereby, and that such Person has a financial interest in the  transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive  interest or other payments with respect to the Loans, the Letters of Credit, the Commitments, this  Agreement and any other Loan Documents (ii) may recognize a gain if it extended the Loans, the  Letters of Credit or the Commitments for an amount less than the amount being paid for an  interest in the Loans, or the Commitments by such Lender or (iii) may receive fees or other  payments in connection with the transactions contemplated hereby, the Loan Documents or  otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront  fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees,  utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate  transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees,  breakage or other early termination fees or fees similar to the foregoing.  9.10 Flood Insurance Laws.  JPMCB has adopted internal policies and  procedures that address requirements placed on federally regulated lenders under the Flood  Insurance Laws. JPMCB, as administrative agent or collateral agent on a syndicated facility, will  post on the applicable electronic platform (or otherwise distribute to each Lender in the  syndicate) documents that it receives in connection with the Flood Insurance Laws.  However,  JPMCB reminds each Lender and Participant in the facility that, pursuant to the Flood Insurance  Laws, each federally regulated Lender (whether acting as a Lender or Participant in the facility)  is responsible for assuring its own compliance with the flood insurance requirements.  





 






  131    SECTION 10.  MISCELLANEOUS  10.1 Amendments and Waivers.  Subject to Section 2.16(b), neither this  Agreement, any other Loan Document, nor any terms hereof or thereof may be amended,  supplemented or modified except in accordance with the provisions of this Section 10.1.  The  Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the  written consent of the Required Lenders, the Administrative Agent and each Loan Party party to  the relevant Loan Document may, from time to time, (a) enter into written amendments,  supplements or modifications hereto and to the other Loan Documents for the purpose of adding  any provisions to this Agreement or the other Loan Documents or changing in any manner the  rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms  and conditions as the Required Lenders or the Administrative Agent, as the case may be, may  specify in such instrument, any of the requirements of this Agreement or the other Loan  Documents or any Default or Event of Default and its consequences; provided, however, that no  such waiver and no such amendment, supplement or modification shall (i) forgive the principal  amount or extend the final scheduled date of maturity of any Loan, reduce the stated rate of any  interest or fee payable hereunder (except (x) in connection with the waiver of applicability of any  post-default increase in interest rates (which waiver shall be effective with the consent of the  Majority Facility Lenders of each adversely affected Facility) and (y) that any amendment or  modification of defined terms used in the financial covenants in this Agreement shall not  constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend the  scheduled date of any payment thereof, or increase the amount or extend the expiration date of  any Lender’s Commitment, in each case without the written consent of each Lender directly  affected thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1  without the written consent of such Lender; (iii) reduce any percentage specified in the definition  of “Required Lenders” “Supermajority Lenders” or “Majority Facility Lenders” without the  written consent of each Lender of the applicable Facility or change any other provision of this  Agreement or any other Loan Document specifying the number or percentage of Lenders (or  Lenders of any Facility) required to waive, amend or otherwise modify any rights thereunder or  make any determination or grant any consent thereunder without the written consent of each  Lender (or each Lender of the applicable Facility, as applicable), (iv) consent to the assignment  or transfer by the Borrower of any of its rights and obligations under this Agreement and the  other Loan Documents, release all or substantially all of the Collateral or release all or  substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and  Collateral Agreement, in each case without the written consent of all Lenders; (v) amend, modify  or waive any provision of Section 2.17 without the written consent of each Lender in respect of  each Facility adversely affected thereby; (vi) increase the advance rates set forth in the definition  of “Borrowing Base” or add new categories of eligible assets, without the written consent of the  Supermajority Lenders; (vii) modify eligibility criteria, as such eligibility criteria are in effect on  the Closing Date (including adding new categories of eligible assets or eliminating any category  of the Reserves in effect on the Closing Date; provided, however, that, for the avoidance of  doubt, notwithstanding anything in this Section 10.1 to the contrary, the Administrative Agent  may, in its Permitted Discretion and without the consent of any other Lenders, eliminate any  category of Reserve that was added after the Closing Date by the Administrative Agent) in any  manner that has the effect of increasing the amounts available to be borrowed hereunder without  the written consent of the Supermajority Lenders; (viii) amend, modify or waive any provision of  Section 9 or any other provision of any Loan Document that affects the Administrative Agent  





 






  132    without the written consent of the Administrative Agent; (ix) prior to the occurrence of any  Event of Default under clause (g)(i) or (g)(ii) of Section 8, subordinate the Lien on all or  substantially all of the Collateral securing the Obligations to the Lien securing any other  Indebtedness without the written consent of each Lender affected thereby; provided that the  consent of each affected Lender pursuant to this clause (ix) shall not be required in connection  with any “debtor-in-possession” financing or the use of the Collateral in any insolvency  proceeding; provided, further, that, for the avoidance of doubt, no Lender consent shall be  required with respect to any subordination of Liens expressly permitted pursuant to Sections  9.7(b) and 10.14(a), in each case, as in effect on the Third Amendment Effective Date; or (x)  amend, modify or waive any provision of Section 3 without the written consent of the Issuing  Lender.  Any such waiver and any such amendment, supplement or modification shall apply  equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the  Administrative Agent and all future holders of the Loans.  In the case of any waiver, the Loan  Parties, the Lenders and the Administrative Agent shall be restored to their former position and  rights hereunder and under the other Loan Documents, and any Default or Event of Default  waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any  subsequent or other Default or Event of Default, or impair any right consequent thereon.  Notwithstanding the foregoing, (i) this Agreement may be amended (or amended  and restated) with the written consent of the Required Lenders, the Administrative Agent and the  Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the  extensions of credit from time to time outstanding thereunder and the accrued interest and fees in  respect thereof to share in the benefits of this Agreement and the other Loan Documents with the  Revolving Extensions of Credit and the accrued interest and fees in respect thereof, in each case,  as permitted by this Agreement and (b) to include appropriately the Lenders holding such credit  facilities in any determination of the Required Lenders and Majority Facility Lenders and (ii) no  Lender’s consent is required to effect any amendment or supplement to any intercreditor  agreement or arrangement that is not prohibited by this Agreement that is for the purpose of  adding the holders of any Indebtedness as expressly contemplated by the terms of such  intercreditor agreement or arrangement and such other amendments reasonably related thereto as  the Administrative Agent may determine.  Furthermore, notwithstanding the foregoing, (i) the Administrative Agent, with  the consent of the Borrower, may amend, modify or supplement any Loan Document without the  consent of any Lender or the Required Lenders in order to correct, amend or cure any ambiguity,  inconsistency or defect or correct any typographical error or other manifest error in any Loan  Document not materially adverse to any Lender and (ii) the Loan Documents may be amended in  accordance with Section 2.24 and Section 2.25.  Subject to Section 6.10(e), if any fee-owned or leased real property shall be taken  as Collateral then (a) the Lenders shall receive 45 days’ prior notice, (b) each Lender shall  confirm to the Administrative Agent that it has completed all flood due diligence, receives copies  of all flood insurance documentation and confirmed floor insurance compliance as required by  the Flood Insurance Laws or as otherwise satisfactory to such Lender and (c) concurrently with  the placement of the initial Lien on real property as Collateral, this Agreement shall be amended  (in a manner satisfactory to each federally-regulated Lender) to include provisions regarding on- going compliance with Flood Insurance Laws, including a covenant to maintain appropriate  





 






  133    flood insurance and provisions requiring satisfactory completion of flood insurance due diligence  by all Lenders prior to taking a new Lien on real property or modifying any Loan Document to  add, increase, renew or extend any loan, commitment or credit line hereunder.  10.2 Notices.  All notices, requests and demands to or upon the respective  parties hereto to be effective shall be in writing (including by facsimile or e-mail), and, unless  otherwise expressly provided herein, shall be deemed to have been duly given or made when  delivered, or three Business Days after being deposited in the mail, postage prepaid, or, in the  case of facsimile or e-mail notice, when received, addressed as follows in the case of the  Borrower and the Administrative Agent, and as set forth in an administrative questionnaire  delivered to the Administrative Agent in the case of the Lenders, or to such other address as may  be hereafter notified by the respective parties hereto:  Borrower: Clearwater Paper Corporation  601 West Riverside, Suite 1100  Spokane, WA 99201  Attention:  Heidi Blair, VP, Treasurer  Facsimile: 509-444-9793  E-mail:  Heidi.blair@clearwaterpaper.com           with a copy to:    Pillsbury Winthrop Shaw Pittman LLP   4 Embarcadero Center   San Francisco, CA 94111  Attention:  Philip J. Tendler, Esq.   Facsimile: (415) 983-1200  E-mail: philip.tendler@pillsburylaw.com      Administrative Agent: JPMorgan Chase Bank, N.A.   2200 Ross Avenue, 9th Floor  Dallas, TX 75201  Attention: Jerome Prince, Executive Director  Phone: 214-965-2514  E-mail: jerome.d.prince@jpmorgan.com      with a copy to: JPMorgan Chase Bank, N.A.  1301 2nd Avenue, Floor 25  Seattle, WA 98101  Attention: Andrew Duzor, Executive Director  Phone: 206-500-1804  E-mail: andrew.c.duzor@jpmorgan.com         provided that any notice, request or demand to or upon the Administrative Agent or the Lenders  shall not be effective until received.  





 






  134    Notices and other communications to the Lenders hereunder may be delivered or  furnished by electronic communications pursuant to procedures approved by the Administrative  Agent; provided that the foregoing shall not apply to notices pursuant to Section 2 unless  otherwise agreed by the Administrative Agent and the applicable Lender.  The Administrative  Agent or the Borrower may, 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.  10.3 No Waiver; Cumulative Remedies.  No failure to exercise and no delay in  exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or  privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor  shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude  any other or further exercise thereof or the exercise of any other right, remedy, power or  privilege.  The rights, remedies, powers and privileges herein provided are cumulative and not  exclusive of any rights, remedies, powers and privileges provided by law.  10.4 Survival of Representations and Warranties.  All representations and  warranties made hereunder, in the other Loan Documents and in any document, certificate or  statement delivered pursuant hereto or in connection herewith shall survive the execution and  delivery of this Agreement and the making of the Loans and other extensions of credit hereunder.  10.5 Limitation of Liability; Payment of Expenses and Taxes.    (a) The Loan Parties agree that the Agents, Lenders, Arranger, Issuing Lenders, their  respective affiliates, and their respective officers, directors, employees, agents, advisors and  controlling persons, and with respect to Issuing Lenders, correspondents and branches (each such  Person being called a “Lender-Related Person”) shall not be liable for any damages arising from  the use by others of information or other materials obtained through electronic,  telecommunications or other information transmission systems, except to the extent any such  damages are found by a final and nonappealable decision of a court of competent jurisdiction to  have resulted from (x) the gross negligence or willful misconduct of such Lender-Related Person  (or any of its Affiliates, officers, directors, employees, agents, advisors or controlling persons) or  (y) a material breach in bad faith by such Indemnitee of its obligations under the Loan  Documents. No Lender-Related Person shall be liable for any indirect, special, exemplary,  punitive or consequential damages in connection with this Agreement or the other Loan  Documents or the transactions contemplated hereby or thereby.    (b)  The Borrower agrees (i) to pay or reimburse the Administrative Agent and the  Arrangers for all of their respective reasonable and documented out-of-pocket costs and expenses  incurred in connection with the syndication of the Commitments and the development,  preparation and execution of, and any amendment, supplement or modification to, this  Agreement and the other Loan Documents and any other documents prepared in connection  herewith or therewith, and the consummation and administration of the transactions  contemplated hereby and thereby, including the reasonable and documented fees, disbursements  and other charges of one primary counsel to the Administrative Agent and the Arrangers and, if  necessary, one local counsel in each applicable jurisdiction and filing and recording fees and  expenses, with statements with respect to the foregoing to be submitted to the Borrower at least  





 






  135    three (3) Business Days prior to the Closing Date (in the case of amounts to be paid on the  Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis  as the Administrative Agent shall deem appropriate, (ii) to pay or reimburse each Lender, Issuing  Lender and the Administrative Agent for all its reasonable and documented costs and out-of- pocket expenses incurred in connection with the enforcement or preservation of any rights under  this Agreement, the other Loan Documents and any such other documents, including the  reasonable and documented fees, disbursements and other charges of counsel to the  Administrative Agent and the Lenders and including all reasonable and documented costs and  expenses incurred during any workout, restructuring or negotiations (it being understood that  expenses reimbursed by the Borrower under this Section 10.5 shall include costs and expenses  incurred in connection with (A) appraisals, environmental reviews and insurance reviews, (B)  field examinations and the preparation of Reports based on the fees charged by a third party  retained by the Administrative Agent or the internally allocated fees for each Person employed  by the Administrative Agent with respect to each field examination and (C) forwarding loan  proceeds, collecting checks and other items of payment and establishing and maintaining the  accounts and lock boxes, and costs and expenses of preserving and protecting the Collateral, (iii)  to pay, indemnify, and hold each Lender, Issuing Lender and the Administrative Agent harmless  from, any and all recording and filing fees and any and all liabilities with respect to the execution  and delivery of, or consummation or administration of any of the transactions contemplated by,  or any amendment, supplement or modification of, or any waiver or consent under or in respect  of, this Agreement, the other Loan Documents and any such other documents, and (iv) to pay,  indemnify, and hold each Lender, the Arrangers and each Agent, their respective affiliates, and  their respective officers, directors, employees, agents, advisors and controlling persons, and with  respect to Issuing Lenders, correspondents and branches (each, an “Indemnitee”) harmless from  and against any and all other liabilities, losses, claims, damages, penalties, actions, judgments,  suits, costs or expenses (including the reasonable and documented fees, disbursements and other  charges of counsel) of any kind or nature whatsoever with respect to the execution, delivery,  enforcement, performance and administration of this Agreement, the other Loan Documents and  any such other documents, including any claim, litigation, investigation or proceeding regardless  of whether any Indemnitee is a party thereto and whether or not the same are brought by the  Borrower, its equity holders, affiliates or creditors or any other Person, including any of the  foregoing relating to the use of proceeds of the Loans or Letters of Credit (including any refusal  by the Issuing Lender 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) or the violation of, noncompliance with or liability under, any Environmental Law  applicable to any Group Member or its operations or properties and the reasonable and  documented fees, disbursements and other charges of legal counsel (limited to reasonable and  documented fees, disbursements and other charges of one primary counsel for all Indemnities  (taken together as a single group or client) and, if necessary, one local counsel required in any  relevant jurisdiction (which may include a single counsel acting in multiple jurisdictions) and  applicable special regulatory counsel for all Indemnitees (and, in the case of an actual or  perceived conflict of interest, of another firm of counsel (and, if applicable, another local counsel  in any relevant jurisdiction and applicable special regulatory counsel) for all similarly affected  Indemnitees) (in connection with claims, actions or proceedings by any Indemnitee against any  Loan Party under any Loan Document (all the foregoing in this clause (iv), collectively, the  “Indemnified Liabilities”), provided, that the Borrower shall have no obligation hereunder to any  





 






  136    Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are  found by a final and nonappealable decision of a court of competent jurisdiction to have resulted  from (x) the bad faith, gross negligence or willful misconduct of such Indemnitee (or any of its  Affiliates, officers, directors, employees, agents, advisors or controlling persons), (y) a material  breach by such Indemnitee of its obligations under the Loan Documents or (z) disputes or  proceedings that are brought by an Indemnitee against any other Indemnitee (other than any  claims against any Arranger or Agent in its capacity or in fulfilling its roles as an Arranger or  Agent hereunder or any similar role with respect to any Facility) to the extent such disputes do  not arise from any act or omission of any Loan Party or any of its Affiliates.  Without limiting  the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert  and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries  to waive, all rights for contribution or any other rights of recovery with respect to all claims,  demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind  or nature, under or related to Environmental Laws, that any of them might have by statute or  otherwise against any Indemnitee.  All amounts due under this Section 10.5 shall be payable not  later than 10 days after written demand therefor.  This Section 10.5 shall not apply with respect  to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.   The agreements in this Section 10.5 shall survive the termination of this Agreement and the  repayment of the Loans and all other amounts payable hereunder.  10.6 Successors and Assigns; Participations and Assignments.  (a)   The  provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto  and their respective successors and assigns permitted hereby (including any affiliate of the  Issuing Lender that issues any Letter of Credit), except that (i) the Borrower may not assign or  otherwise transfer any of its rights or obligations hereunder without the prior written consent of  each Lender (and any attempted assignment or transfer by the Borrower without such consent  shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or  obligations hereunder except in accordance with this Section.  (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any  Lender may assign to one or more Eligible Assignees (each, an “Assignee”), all or a portion of  its rights and obligations under this Agreement (including all or a portion of its Commitments  and the Loans at the time owing to it) with the prior written consent of:  (A) the Borrower (such consent not to be unreasonably  withheld), provided that no consent of the Borrower shall  be required for an assignment to a Lender, an affiliate of a  Lender, an Approved Fund (as defined below) or, if a  Specified Event of Default has occurred and is continuing,  any other Person; and provided, further, that the Borrower  shall be deemed to have consented to any such assignment  unless the Borrower shall object thereto by written notice to  the Administrative Agent within 10 Business Days after  having received notice thereof;   (B) the Administrative Agent (such consent not to be  unreasonably withheld), provided that no consent of the  





 






  137    Administrative Agent shall be required for an assignment  of all or any portion of its Commitment or Loan to a  Lender, an Affiliate of a Lender or an Approved Fund; and  (C) the Issuing Lender (such consent not to be unreasonably  withheld).  (ii) Assignments shall be subject to the following additional  conditions:   (A) except in the case of an assignment to a Lender, an affiliate  of a Lender or an Approved Fund or an assignment of the  entire remaining amount of the assigning Lender’s  Commitments or Loans, the amount of the Commitments or  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) shall not be less than  $5,000,000) unless each of the Borrower and the  Administrative Agent otherwise consent, provided that (1)  no such consent of the Borrower shall be required if an  Event of Default has occurred and is continuing and (2)  such amounts shall be aggregated in respect of each Lender  and its affiliates or Approved Funds, if any;   (B) (1) the parties to each assignment shall execute and deliver  to the Administrative Agent an Assignment and  Assumption, together with a processing and recordation fee  of $3,500 and (2) the assigning Lender shall have paid in  full any amounts owing by it to the Administrative Agent;  and   (C) the Assignee, if it shall not be a Lender, shall deliver to the  Administrative Agent an administrative questionnaire in  which the Assignee designates one or more credit contacts  to whom all syndicate-level information (which may  contain material non-public information about the  Borrower and its Affiliates and their Related Parties or their  respective securities) will be made available and who may  receive such information in accordance with the Assignee’s  compliance procedures and applicable laws, including  Federal and state securities laws.  For the purposes of this Section 10.6, “Approved Fund” means any Person (other  than a natural person) that is engaged in making, purchasing, holding or investing in bank loans  and similar extensions of credit in the ordinary course of its business and that is administered or  





 






  138    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.  (iii) Subject to acceptance and recording thereof pursuant to paragraph  (b)(iv) below, from and after the effective date specified in each Assignment and  Assumption the Assignee thereunder shall be a party hereto 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 2.18, 2.19, 2.20 and 10.5).  Any assignment or transfer by a Lender of rights or  obligations under this Agreement that does not comply with this Section 10.6 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 paragraph (c) of this Section.  (iv) The Administrative Agent, acting for this purpose as an agent of  the Borrower, shall maintain at one of its offices a copy of each Assignment and  Assumption delivered to it and a register for the recordation of the names and addresses  of the Lenders, and the Commitments of, and principal amount (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, and the  Borrower, the Administrative Agent, the Issuing Lender 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, notwithstanding notice to the contrary.  (v) Upon its receipt of a duly completed Assignment and Assumption  executed by an assigning Lender and an Assignee, the Assignee’s completed  administrative questionnaire (unless the Assignee shall already be a Lender hereunder),  the processing and recordation fee referred to in paragraph (b) of this Section and any  written consent to such assignment required by paragraph (b) of this Section, the  Administrative Agent shall accept such Assignment and Assumption and record the  information contained therein in the Register.  No assignment shall be effective for  purposes of this Agreement unless it has been recorded in the Register as provided in this  paragraph.  (vi) Each assignee, by its execution and delivery of an Assignment and  Assumption, shall be deemed to have represented to the assigning Lender and the  Administrative Agent that such assignee is an Eligible Assignee. In no event shall the  Administrative Agent be obligated to ascertain, monitor or inquire as to whether any  prospective assignee is an Eligible Assignee or have any liability with respect to any  assignment made to a Disqualified Lender or any other Person that is not an Eligible  Assignee  (c) Any Lender may, without the consent of the Borrower or the  Administrative Agent, sell participations to one or more Eligible Assignees (a “Participant”) in  





 






  139    all or a portion of such Lender’s rights and obligations under this Agreement (including all or a  portion of its Commitments and the Loans owing to it); provided that (i) such Lender’s  obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely  responsible to the other parties hereto for the performance of such obligations, and (iii) the  Borrower, the Administrative Agent, the Issuing Lender and the other Lenders shall continue to  deal solely and directly with such Lender in connection with such Lender’s rights and obligations  under this Agreement.  Any agreement 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 may provide that such Lender will not, without the consent of the Participant, agree to  any amendment, modification or waiver that (i) requires the consent of each Lender directly  affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (ii) directly  affects such Participant.  Each Lender that sells a participation agrees, at the Borrower’s request  and expense, to use reasonable efforts to effectuate the provisions of Section 2.22 with respect to  any Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of  Sections 2.18, 2.19 and 2.20 (subject to the requirements and limitations therein, including the  requirements under Section 2.19(f) (it being understood that the documentation required under  Section 2.19(f) shall be delivered to the participating Lender)) to the same extent as if it were a  Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section;  provided that such Participant (i) agrees to be subject to the provisions of Sections 2.18 and 2.19  as if it were an assignee under paragraph (b) of this Section and (ii) shall not be entitled to  receive any greater payment under Sections 2.18 or 2.19, with respect to any participation, than  its participating Lender would have been entitled to receive, except to the extent that (x) the  Borrower is notified of the participation sold to such Participant and the sale of the participation  to the Participant is made with the Borrower’s prior written consent or (y) such entitlement to  receive a greater payment results from an adoption of or any change in any Requirement of Law  or in the interpretation or application thereof or compliance by any Lender with any request or  directive (whether or not having the force of law) from any central bank or other Governmental  Authority made subsequent to the Closing Date that occurs after the Participant acquired the  applicable participation.  To the extent permitted by law, each Participant also shall be entitled to  the benefits of Section 10.7(b) as though it were a Lender, provided such Participant shall be  subject to Section 10.7(a) as though it were a Lender.  Each Lender that sells a participation  shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register  on which it enters the name and address of each Participant and the principal amounts (and stated  interest) of each Participant’s interest in the Loans or other obligations under the Loan  Documents (the “Participant Register”); provided that no Lender shall have any obligation to  disclose all or any portion of the Participant Register to any Person (including the identity of any  Participant or any information relating to a Participant’s interest in any Commitments, Loans,  Letters of Credit or its other obligations under any Loan Document) 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.  





 






  140    (d) Any Lender may at any time pledge or assign a security interest in all or  any portion of its rights under this Agreement to secure obligations of such Lender, including  any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central  banking authority, and this Section shall not apply to any such pledge or assignment of a security  interest; provided that no such pledge or assignment of a security interest shall release a Lender  from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender  as a party hereto.  The Borrower, upon receipt of written notice from the relevant Lender, agrees  to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in  this paragraph (d).  (e) [Reserved].  (f) The list of Disqualified Lenders (i) shall be made available to the Lenders  by posting on IntraLinks/IntraAgency or another relevant 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) and (ii) shall be provided to any  Lender upon request by such Lender to the Administrative Agent.  A Lender may provide the list  of Disqualified Lenders to any potential assignee or participant on a confidential basis in  accordance with Section 10.15 hereof for the purpose of verifying whether such Person is a  Disqualified Lender.  10.7 Adjustments; Set-off.  (a)  Except to the extent that this Agreement or a  court order expressly provides for payments to be allocated to a particular Lender, if any Lender  (a “Benefitted Lender”) shall receive any payment of all or part of the Obligations owing to it  (other than in connection with an assignment made pursuant to Section 10.6), or receive any  collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events  or proceedings of the nature referred to in Section 8(f), or otherwise), in a greater proportion than  any such payment to or collateral received by any other Lender, if any, in respect of the  Obligations owing to such other Lender, such Benefitted Lender shall purchase for cash from the  other Lenders a participating interest in such portion of the Obligations owing to each such other  Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be  necessary to cause such Benefitted Lender to share the excess payment or benefits of such  collateral ratably with each of the Lenders; provided, however, that if all or any portion of such  excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase  shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery,  but without interest; provided further, that to the extent prohibited by applicable law as described  in the definition of “Excluded Swap Obligation,” no amounts received from, or set-off with  respect to, any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor.  (b) In addition to any rights and remedies of the Lenders provided by law,  each Lender shall have the right, without notice to the Borrower, any such notice being expressly  waived by the Borrower to the extent permitted by applicable law, upon any Obligations  becoming due and payable by the Borrower (whether at the stated maturity, by acceleration or  otherwise), to apply to the payment of such Obligations, by setoff or otherwise, any and all  deposits (general or special, time or demand, provisional or final), in any currency, and any other  credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute  or contingent, matured or unmatured, at any time held or owing by such Lender, any affiliate  





 






  141    thereof or any of their respective branches or agencies to or for the credit or the account of the  Borrower; provided that if any Defaulting Lender shall exercise any such right of setoff (i) all  amounts so set-off shall be paid over immediately to the Administrative Agent for further  application in accordance with the provisions of this Agreement 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 Issuing Lender and the Lenders and (ii) 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 set-off.  Each Lender agrees promptly to notify the Borrower and the Administrative  Agent after any such application made by such Lender, provided that the failure to give such  notice shall not affect the validity of such application.  10.8 Counterparts.  This Agreement may be executed by one or more of the  parties to this Agreement on any number of separate counterparts, and all of said counterparts  taken together shall be deemed to constitute one and the same instrument.  Delivery of an  executed signature page of this Agreement by e-mail or facsimile transmission shall be effective  as delivery of a manually executed counterpart hereof.  A set of the copies of this Agreement  signed by all the parties shall be lodged with the Borrower and the Administrative Agent.  10.9 Severability.  Any provision of this Agreement that is prohibited or  unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such  prohibition or unenforceability without invalidating the remaining provisions hereof, and any  such prohibition or unenforceability in any jurisdiction shall not invalidate or render  unenforceable such provision in any other jurisdiction.  10.10 Integration.  This Agreement and the other Loan Documents represent the  entire agreement of the Borrower, the Administrative Agent and the Lenders with respect to the  subject matter hereof and thereof, and there are no promises, undertakings, representations or  warranties by the Administrative Agent or any Lender relative to the subject matter hereof not  expressly set forth or referred to herein or in the other Loan Documents.  10.11 GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND  OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED  BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK.  10.12 Submission To Jurisdiction; Waivers.  The Borrower and each Credit  Party hereby irrevocably and unconditionally:  (a) submits for itself and its property in any legal action or proceeding relating  to this Agreement and the other Loan Documents to which it is a party, or for recognition and  enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the  United States for the Southern District of New York located in the Borough of Manhattan (or in  the event such courts lack subject matter jurisdiction, to the courts of the State of New York  located in the Borough of Manhattan), and appellate courts from any thereof; provided, that  nothing contained herein or in any other Loan Document will prevent any Lender or the  Administrative Agent from bringing any action to enforce any award or judgment or exercise any  





 






  142    right under the Security Documents or against any Collateral or any other property of any Loan  Party in any other forum in which jurisdiction can be established;  (b) consents that any such action or proceeding may be brought in such courts  and waives any objection that it may now or hereafter have to the venue of any such action or  proceeding in any such court or that such action or proceeding was brought in an inconvenient  court and agrees not to plead or claim the same;  (c) agrees that service of process in any such action or proceeding may be  effected by mailing a copy thereof by registered or certified mail (or any substantially similar  form of mail), postage prepaid, to the Borrower or the applicable Credit Party at its address set  forth in Section 10.2 or at such other address of which the applicable party shall have been  notified pursuant thereto;  (d) agrees that nothing herein shall affect the right to effect service of process  in any other manner permitted by law; and  (e) waives, to the maximum extent not prohibited by law, any right it may  have to claim or recover in any legal action or proceeding referred to in this Section any indirect,  special, exemplary, punitive or consequential damages.  10.13 Acknowledgments.  The Borrower hereby acknowledges and agrees that  (a) no fiduciary, advisory or agency relationship between the Loan Parties and the Credit Parties  is intended to be or has been created in respect of any of the transactions contemplated by this  Agreement or the other Loan Documents, irrespective of whether the Credit Parties have advised  or are advising the Loan Parties on other matters, and the relationship between the Credit Parties,  on the one hand, and the Loan Parties, on the other hand, in connection herewith and therewith is  solely that of creditor and debtor, (b) the Credit Parties, on the one hand, and the Loan Parties, on  the other hand, have an arm’s length business relationship that does not directly or indirectly give  rise to, nor do the Loan Parties rely on, any fiduciary duty to the Loan Parties or their affiliates  on the part of the Credit Parties, (c) the Loan Parties are capable of evaluating and  understanding, and the Loan Parties understand and accept, the terms, risks and conditions of the  transactions contemplated by this Agreement and the other Loan Documents, (d) the Loan  Parties have been advised that the Credit Parties are engaged in a broad range of transactions that  may involve interests that differ from the Loan Parties’ interests and that the Credit Parties have  no obligation to disclose such interests and transactions to the Loan Parties, (e) the Loan Parties  have consulted their own legal, accounting, regulatory and tax advisors to the extent the Loan  Parties have deemed appropriate in the negotiation, execution and delivery of this Agreement  and the other Loan Documents, (f) each Credit Party has been, is, and will be acting solely as a  principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has  not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties, any  of their affiliates or any other Person, (g) none of the Credit Parties has any obligation to the  Loan Parties or their affiliates with respect to the transactions contemplated by this Agreement or  the other Loan Documents except those obligations expressly set forth herein or therein or in any  other express writing executed and delivered by such Credit Party and the Loan Parties or any  such affiliate and (h) no joint venture is created hereby or by the other Loan Documents or  





 






  143    otherwise exists by virtue of the transactions contemplated hereby among the Credit Parties or  among the Loan Parties and the Credit Parties.  10.14 Releases of Guarantees and Liens.  (a) Upon any sale, transfer or other  Disposition by any Loan Party (other than any such sale, transfer or other Disposition to another  Loan Party) of any Collateral in a transaction permitted by this Agreement, upon the pledge by  any Loan Party (other than any such pledge in favor of another Loan Party) of any Collateral  constituting Receivables Related Assets in connection with a Permitted A/R Finance Transaction  (so long as such pledge is permitted by this Agreement), or upon the effectiveness of any written  consent to the release of the security interest in any Collateral created under any Security  Document pursuant to Section 10.1, the security interests in such Collateral created by the  Security Documents shall be automatically released.  In connection with any termination or  release pursuant to this clause (a), the Administrative Agent shall promptly execute and deliver  to the relevant Loan Party, and shall file and record, at such Loan Party’s expense, all documents  that such Loan Party shall reasonably request to evidence such release including UCC-3  amendments or termination statements in relation to any UCC-1 financing statements then of  record, and shall promptly return to the relevant Loan Party any share certificates (and related  powers and proxies), instruments, chattel paper, negotiable documents of title and other  Collateral theretofore delivered to the Administrative Agent, each in the form in which the same  was received, free and clear of all Liens created by and through the Administrative Agent.  In  connection with a future Permitted Term Loan permitted under this Agreement, the Credit  Parties irrevocably authorize and direct the Administrative Agent, to subordinate any Lien on  any Term Loan Priority Collateral granted to or held by the Administrative Agent under any  Loan Document to Permitted Term Loan Liens on Term Loan Priority Collateral.  (b) At such time as the Loans and the other obligations (other than  indemnification or reimbursement obligations under Section 2.18, 2.19(a), 2.19(d) or 2.20 for  which the Borrower has not been notified and contingent indemnification obligations that are  expressly stated to survive repayment of the Facilities) under the Loan Documents shall have  been paid in full, no Letters of Credit shall be outstanding (other than Letters of Credit cash  collateralized or otherwise backstopped in a manner satisfactory to the applicable Issuing Lender  and the Administrative Agent) and the Commitments have been terminated, all Collateral shall  automatically be released from the Liens created by the Security Documents, and the Security  Documents and all obligations (other than those expressly stated to survive such termination) of  the Administrative Agent and each Loan Party under the Security Documents shall automatically  terminate, all without delivery of any instrument or performance of any act by any Person. In  connection with any termination or release pursuant to this clause (b), the Administrative Agent  shall promptly execute and deliver to the relevant Loan Party, and shall file and record, at such  Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence  such release, including UCC-3 amendments or termination statements in relation to any UCC-1  financing statements then of record, and shall promptly return to the relevant Loan Party any  share certificates (and related powers and proxies), instruments, chattel paper, negotiable  documents and other Collateral theretofore delivered to the Administrative Agent, each in the  form in which the same was received, free and clear of all Liens created by and through the  Administrative Agent.    





 






  144    Notwithstanding anything to the contrary contained herein or in any other Loan Document, the  Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of  notice to or consent of any Lender except as expressly required by Section 10.1) to take any  action requested by the Borrower having the effect of releasing any Collateral or guarantee  obligations (i) to the extent necessary to permit consummation of any transaction not prohibited  by any Loan Document or that has been consented to in accordance with Section 10.1 or (ii)  under the circumstances described in paragraphs (a) or (b) above.  10.15 Confidentiality.  Each of the Administrative Agent and each Lender agrees  to keep confidential all non-public information provided to it by any Loan Party, the  Administrative Agent or any Lender pursuant to or in connection with this Agreement that is  designated by the provider thereof as confidential; provided that nothing herein shall prevent the  Administrative Agent or any Lender from disclosing any such information (a) to the  Administrative Agent, any other Lender or any affiliate thereof, (b) subject to an agreement to  comply with the provisions of this Section, to any actual or prospective Transferee or any direct  or indirect counterparty to any Swap Agreement (or any professional advisor to such  counterparty), in each case made expressly for the benefit of the Loan Parties, (c) to its  employees, directors, agents, attorneys, accountants and other professional advisors or those of  any of its affiliates, that are advised of the confidential nature of such information and of this  Section 10.15, (d) upon the request or demand of any Governmental Authority, (e) in response to  any order of any court or other Governmental Authority or as may otherwise be required  pursuant to any Requirement of Law, (f) if requested or required to do so in connection with any  litigation or similar proceeding, (g) that has been publicly disclosed other than as a result of a  breach of this Section 10.15 or any other applicable confidentiality or non-disclosure  requirement, (h) to the National Association of Insurance Commissioners or any similar  organization or any nationally recognized rating agency that requires access to information about  a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (i)  in connection with the exercise of any remedy hereunder or under any other Loan Document to  the extent relevant to the proceedings pursuant to which such remedy is being exercised, (j) to  data service providers (including league table providers) that serve the lending industry to the  extent such information is of the type customarily provided to such providers or (k) if agreed by  the Borrower in its sole discretion, to any other Person.  Each Lender acknowledges that information furnished to it pursuant to this  Agreement or the other Loan Documents may include material non-public information  concerning the Borrower and its Affiliates and their Related Parties or their respective securities,  and confirms that it has developed compliance procedures regarding the use of material non- public information and that it will handle such material non-public information in accordance  with those procedures and applicable law, including Federal and state securities laws.  All information, including requests for waivers and amendments, furnished by the  Borrower or the Administrative Agent pursuant to, or in the course of administering, this  Agreement or the other Loan Documents will be syndicate-level information, which may contain  material non-public information about the Borrower and its Affiliates and their Related Parties or  their respective securities.  Accordingly, each Lender represents to the Borrower and the  Administrative Agent that it has identified in its administrative questionnaire a credit contact  





 






  145    who may receive information that may contain material non-public information in accordance  with its compliance procedures and applicable law, including Federal and state securities laws.  The Borrower hereby acknowledges that the Administrative Agent will make  available to the Lenders materials and/or information provided by or on behalf of the Loan  Parties hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on  IntraLinks/IntraAgency or another similar electronic system (the “Platform”).  10.16 WAIVERS OF JURY TRIAL.  THE BORROWER, THE  ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND  UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR  PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  AND FOR ANY COUNTERCLAIM THEREIN.  10.17 USA Patriot Act.  Each Lender hereby notifies the Borrower that pursuant  to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October  26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that  identifies the Borrower, which information includes the name and address of the Borrower and  other information that will allow such Lender to identify the Borrower in accordance with the  Patriot Act.  10.18 Intercreditor Agreement.  Each Lender hereby authorizes and directs the  Administrative Agent (a) to enter into any Intercreditor Agreement on its behalf, perform such  Intercreditor Agreement on its behalf and take any actions thereunder as determined by the  Administrative Agent to be necessary or advisable to protect the interest of the Lenders, and each  Lender agrees to be bound by the terms of such Intercreditor Agreement and (b) to enter into any  other intercreditor agreement reasonably satisfactory to the Administrative Agent on its behalf,  perform such intercreditor agreement on its behalf and take any actions thereunder as determined  by the Administrative Agent to be necessary or advisable to protect the interests of the Lenders,  and each Lender agrees to be bound by the terms of such intercreditor agreement. Each Lender  acknowledges that the Intercreditor Agreement governs, among other things, Lien priorities and  rights of the Lenders and the secured parties under any Permitted Term Loans with respect to the  Collateral, including the Term Loan Priority Collateral. In the event of any conflict between this  Agreement or any Loan Document with the Intercreditor Agreement, the Intercreditor  Agreement shall govern and control.  10.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.   Notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any  liability of any Affected Financial Institution arising under any Loan Document may be subject  to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees  and consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the  applicable Resolution Authority to any such liabilities arising hereunder which may be payable  to it by any party hereto that is an Affected Financial Institution; and  





 






  146    (b) the effects of any Bail-in Action on any such liability, including, if  applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or  other instruments of ownership in such Affected Financial Institution, its parent entity, or  a bridge institution that may be issued to it or otherwise conferred on it, and that such  shares or other instruments of ownership will be accepted by it in lieu of any rights with  respect to any such liability under this Agreement or any other Loan Document; or  (iii) the variation of the terms of such liability in connection with the  exercise of the Write-Down and Conversion Powers of the applicable Resolution  Authority.  10.20 Acknowledgement Regarding Any Supported QFCs.  To the extent  that the Loan Documents provide support, through a guarantee or otherwise, for hedging  agreements or any other agreement or instrument that is a QFC (such support “QFC Credit  Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows  with respect to the resolution power of the Federal Deposit Insurance Corporation under the  Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer  Protection Act (together with the regulations promulgated thereunder, the “U.S. Special  Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the  provisions below applicable notwithstanding that the Loan Documents and any Supported QFC  may in fact be stated to be governed by the laws of the State of New York and/or of the United  States or any other state of the United States):  In the event a Covered Entity that is party to a Supported QFC (each, a “Covered  Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of  such Supported QFC and the benefit of such QFC Credit Support (and any interest and  obligation in or under such Supported QFC and such QFC Credit Support, and any rights in  property securing such Supported QFC or such QFC Credit Support) from such Covered Party  will be effective to the same extent as the transfer would be effective under the U.S. Special  Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,  obligation and rights in property) were governed by the laws of the United States or a state of the  United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes  subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan  Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that  may be exercised against such Covered Party are permitted to be exercised to no greater extent  than such Default Rights could be exercised under the U.S. Special Resolution Regime if the  Supported QFC and the Loan Documents were governed by the laws of the United States or a  state of the United States. Without limitation of the foregoing, it is understood and agreed that  rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the  rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.  





 






  Schedule 1.1A  Schedule 1.1A  Commitments  Lender Commitment  JPMorgan Chase Bank, N.A. $75,000,000  Wells Fargo Bank, N.A. $70,000,000  Bank of America, N.A. $45,000,000  KeyBank, N.A. $30,000,000  TD Bank, N.A. $30,000,000  U.S. Bank National Association $25,000,000  Total: $275,000,000      





 






      EXHIBIT A  FORM OF   BORROWING REQUEST    JPMorgan Chase Bank, N.A.,  as Administrative Agent  [ADDRESS]  Telephone: [ ]  Email: [ ]   Fax: [ ]      Attention:  [ ]       Copy to:    JPMorgan Chase Bank, N.A.,  as Administrative Agent  [ADDRESS]    Attention: [ ]    [Date]    Ladies and Gentlemen:  Reference is hereby made to the ABL Credit Agreement, dated as of July 26, 2019 (as amended,  restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit  Agreement”), among Clearwater Paper Corporation, a Delaware corporation (the “Borrower”), each  lender from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such  capacity, the “Administrative Agent”).  Unless otherwise defined herein, terms defined in the Credit  Agreement and used herein shall have the meanings given to them in the Credit Agreement. This notice  constitutes a Borrowing Request and the Borrower hereby gives you notice, pursuant to Section 2.2 of the  Credit Agreement, that it requests a Borrowing under the Credit Agreement, and in that connection the  Borrower specifies the following information with respect to such Borrowing:  (A) Aggregate principal amount of Borrowing:    $_________________    (B) Date of Borrowing (which is a Business Day):________________  (C) Type of Borrowing: ABR Loan / Term SOFR Loan (delete as applicable)  (D) Interest Period:   a. One Month   _____   b. Three Month  _____  





 






 3          c. Six Month    _____  [(E) Location and number of the Borrower’s account to which proceeds of the  requested Borrowing are to be disbursed:    [NAME AND LOCATION OF BANK]    (Account No.: ______________)]  The Borrower hereby certifies that the conditions specified in paragraphs (a) and (b) of  Section 5.2 of the Credit Agreement have been satisfied.        Very truly yours,    [BORROWER],  by      Name:   Title:  





 






         EXHIBIT B  FORM OF   INTEREST ELECTION REQUEST    JPMorgan Chase Bank, N.A.,  as Administrative Agent  [ADDRESS]  Telephone: [ ]  Email: [ ]   Fax: [ ]      Attention:  [ ]       Copy to:    JPMorgan Chase Bank, N.A.,  as Administrative Agent  [ADDRESS]    Attention: [ ]    [Date]  Ladies and Gentlemen:  Reference is hereby made to the ABL Credit Agreement, dated as of July 26, 2019 (as amended, restated,  amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),  among Clearwater Paper Corporation (the “Borrower”), the Lenders party thereto, certain other parties  and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”).   Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the  meanings given to them in the Credit Agreement. This notice constitutes an Interest Election Request and  the Borrower hereby gives you notice, pursuant to Section 2.12 of the Credit Agreement, that it requests  to convert an existing Borrowing under the Credit Agreement, and in that connection the Borrower  specifies the following information with respect to such conversion requested hereby:  (A)        List date, Type, principal amount, currency and Interest Period (if applicable) of  existing Borrowing: ___________   (B) Effective date of interest election (which is a Business Day):________________  (C) Type of Borrowing: ____________________________________  (F) Interest Period and last day thereof (if a Term SOFR Borrowing):  _____________________      Very truly yours,    





 






         [BORROWER],  by      Name:   Title: