executed-creditagreement






                                                                Execution Version                                             Revolving Facility CUSIP Number: 01131DAD3                                               Term Facility CUSIP Number: 01131DAE1                                                  Published CUSIP Number: 01131DAC5                                                                                                           SECOND AMENDED AND RESTATED                               CREDIT AGREEMENT                               Dated as of October 24, 2019                                       among                                 ALAMO GROUP INC.,                                  as the Borrower,               CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO,                                  as the Guarantors,                               BANK OF AMERICA, N.A.,                       as Administrative Agent, Swingline Lender and                                    L/C Issuer,                                        and                            THE LENDERS PARTY HERETO                     WELLS FARGO BANK, NATIONAL ASSOCIATION,                                       and                                    BBVA USA,                               as Co-Syndication Agents                                                                                and                                                                       BOFA SECURITIES, INC.,                                       and                          WELLS FARGO SECURITIES, LLC,                       as Joint Lead Arrangers and Joint Bookrunners    5700661  4836-1085-4821 





 






                                TABLE OF CONTENTS                                                                             Page   ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ................................................................... 1        1.01  Defined Terms .............................................................................................................. 1        1.02  Other Interpretive Provisions .................................................................................... 34        1.03  Accounting Terms ...................................................................................................... 34        1.04  Rounding .................................................................................................................... 35        1.05  Times of Day ............................................................................................................... 35        1.06  Letter of Credit Amounts. .......................................................................................... 35        1.07  UCC Terms................................................................................................................. 36        1.08  Exchange Rates; Currency Equivalents. ................................................................... 36        1.09  Additional Alternative Currencies ............................................................................. 36  ARTICLE II COMMITMENTS AND CREDIT EXTENSIONS ............................................................ 37        2.01  Loans .......................................................................................................................... 37        2.02  Borrowings, Conversions and Continuations of Loans ............................................. 37        2.03  Letters of Credit. ........................................................................................................ 39        2.04  Swingline Loans.......................................................................................................... 48        2.05  Prepayments ............................................................................................................... 50        2.06  Termination or Reduction of Commitments ............................................................. 52        2.07  Repayment of Loans ................................................................................................... 53        2.08  Interest and Default Rate ........................................................................................... 54        2.09  Fees ............................................................................................................................. 55        2.10  Computation of Interest and Fees; Retroactive Adjustments of Applicable              Rate ............................................................................................................................. 56        2.11  Evidence of Debt ......................................................................................................... 56        2.12  Payments Generally; Administrative Agent’s Clawback .......................................... 57        2.13  Sharing of Payments by Lenders. .............................................................................. 59        2.14  Cash Collateral. .......................................................................................................... 60        2.15  Defaulting Lenders. .................................................................................................... 61        2.16  Incremental Facilities ................................................................................................. 63  ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY .................................................... 66        3.01  Taxes. .......................................................................................................................... 66        3.02  Illegality ...................................................................................................................... 70        3.03  Inability to Determine Rates ...................................................................................... 71        3.04  Increased Costs; Reserves on Eurodollar Rate Loans............................................... 73        3.05  Compensation for Losses ........................................................................................... 75        3.06  Mitigation Obligations; Replacement of Lenders...................................................... 76        3.07  Survival....................................................................................................................... 76  ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS ............................................ 76        4.01  Conditions of Initial Credit Extension ....................................................................... 76        4.02  Conditions to all Credit Extensions ........................................................................... 79  ARTICLE V REPRESENTATIONS AND WARRANTIES .................................................................. 79        5.01  Existence, Qualification and Power ........................................................................... 79        5.02  Authorization; No Contravention .............................................................................. 80        5.03  Governmental Authorization; Other Consents ......................................................... 80        5.04  Binding Effect. ............................................................................................................ 80        5.05  Financial Statements; No Material Adverse Effect ................................................... 80                                          ii 





 






      5.06  Litigation .................................................................................................................... 81        5.07  No Default ................................................................................................................... 81        5.08  Ownership of Property ............................................................................................... 81        5.09  Environmental Matters. ............................................................................................. 82        5.10  Insurance .................................................................................................................... 83        5.11  Taxes ........................................................................................................................... 83        5.12  ERISA Compliance. ................................................................................................... 83        5.13  Margin Regulations; Investment Company Act ........................................................ 84        5.14  Disclosure ................................................................................................................... 84        5.15  Compliance with Laws ............................................................................................... 85        5.16  Solvency ...................................................................................................................... 85        5.17  Casualty, Etc............................................................................................................... 85        5.18  Sanctions Concerns and Anti-Corruption Laws ....................................................... 85        5.19  Responsible Officers ................................................................................................... 85        5.20  Subsidiaries; Equity Interests; Loan Parties ............................................................. 85        5.21  Intellectual Property .................................................................................................. 86        5.22  EEA Financial Institutions. ........................................................................................ 86        5.23  Covered Entities ......................................................................................................... 86        5.24  Beneficial Ownership Certification............................................................................ 87        5.25  Labor Matters ............................................................................................................ 87  ARTICLE VI AFFIRMATIVE COVENANTS...................................................................................... 87        6.01  Financial Statements. ................................................................................................. 87        6.02  Certificates; Other Information ................................................................................. 88        6.03  Notices ........................................................................................................................ 90        6.04  Payment of Obligations .............................................................................................. 91        6.05  Preservation of Existence, Etc .................................................................................... 91        6.06  Maintenance of Properties ......................................................................................... 91        6.07  Maintenance of Insurance .......................................................................................... 91        6.08  Compliance with Laws ............................................................................................... 91        6.09  Books and Records ..................................................................................................... 92        6.10  Inspection Rights ........................................................................................................ 92        6.11  Use of Proceeds ........................................................................................................... 92        6.12  Material Contracts ..................................................................................................... 92        6.13  Covenant to Guarantee Obligations .......................................................................... 92        6.14  Compliance with Environmental Laws ..................................................................... 93        6.15  Anti-Corruption Laws; Sanctions. ............................................................................. 93  ARTICLE VII NEGATIVE COVENANTS ........................................................................................... 93        7.01  Liens ........................................................................................................................... 93        7.02  Indebtedness ............................................................................................................... 95        7.03  Investments ................................................................................................................. 96        7.04  Fundamental Changes................................................................................................ 97        7.05  Dispositions ................................................................................................................. 97        7.06  Restricted Payments ................................................................................................... 98        7.07  Change in Nature of Business .................................................................................... 98        7.08  Transactions with Affiliates ....................................................................................... 98        7.09  Burdensome Agreements ........................................................................................... 98        7.10  Use of Proceeds ........................................................................................................... 99        7.11  Financial Covenants ................................................................................................... 99        7.12  Amendments of Organization Documents; Fiscal Year; Legal Name, State              of Formation; Form of Entity and Accounting Changes........................................... 99                                         iii 





 






      7.13  Sale and Leaseback Transactions ............................................................................ 100        7.14  Sanctions ................................................................................................................... 100        7.15  Anti-Corruption Laws.............................................................................................. 100        7.16  Negative Pledge ........................................................................................................ 100        7.17  Morbark Acquisition Related Documents ............................................................... 100  ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES ............................................................... 101        8.01  Events of Default. ..................................................................................................... 101        8.02  Remedies upon Event of Default .............................................................................. 103        8.03  Application of Funds ................................................................................................ 103  ARTICLE IX ADMINISTRATIVE AGENT ....................................................................................... 105        9.01  Appointment and Authority..................................................................................... 105        9.02  Rights as a Lender .................................................................................................... 105        9.03  Exculpatory Provisions ............................................................................................ 105        9.04  Reliance by Administrative Agent ........................................................................... 106        9.05  Delegation of Duties ................................................................................................. 107        9.06  Resignation of Administrative Agent ....................................................................... 107        9.07  Non-Reliance on Administrative Agent, the Arrangers and Other Lenders .......... 108        9.08  No Other Duties, Etc ................................................................................................ 109        9.09  Administrative Agent May File Proofs of Claim ..................................................... 109        9.10  Guaranty Matters. .................................................................................................... 110        9.11  Specified Cash Management Agreements and Specified Hedge Agreements ......... 110        9.12  Certain ERISA Matters. .......................................................................................... 111  ARTICLE X CONTINUING GUARANTY ........................................................................................ 112        10.01 Guaranty................................................................................................................... 112        10.02 Rights of Lenders ..................................................................................................... 112        10.03 Certain Waivers ....................................................................................................... 112        10.04 Obligations Independent .......................................................................................... 113        10.05 Subrogation .............................................................................................................. 113        10.06 Termination; Reinstatement .................................................................................... 113        10.07 Stay of Acceleration.................................................................................................. 113        10.08 Condition of Borrower ............................................................................................. 114        10.09 Appointment of Borrower ........................................................................................ 114        10.10 Right of Contribution ............................................................................................... 114        10.11 Keepwell. .................................................................................................................. 114  ARTICLE XI MISCELLANEOUS ..................................................................................................... 115        11.01 Amendments, Etc ..................................................................................................... 115        11.02 Notices; Effectiveness; Electronic Communications. .............................................. 117        11.03 No Waiver; Cumulative Remedies; Enforcement ................................................... 119        11.04 Expenses; Indemnity; Damage Waiver.................................................................... 120        11.05 Payments Set Aside .................................................................................................. 122        11.06 Successors and Assigns ............................................................................................. 122        11.07 Treatment of Certain Information; Confidentiality. ............................................... 127        11.08 Right of Setoff. .......................................................................................................... 128        11.09 Interest Rate Limitation ........................................................................................... 128        11.10 Counterparts; Integration; Effectiveness. ............................................................... 129        11.11 Survival of Representations and Warranties. ......................................................... 129        11.12 Severability ............................................................................................................... 129        11.13 Replacement of Lenders. .......................................................................................... 130        11.14 Governing Law; Jurisdiction; Etc. .......................................................................... 131                                         iv 





 






11.15 Waiver of Jury Trial. ............................................................................................... 132  11.16 Subordination ........................................................................................................... 132  11.17 No Advisory or Fiduciary Responsibility ................................................................ 132  11.18 Electronic Execution; Electronic Records. .............................................................. 133  11.19 USA Patriot Act Notice. ........................................................................................... 133  11.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.............. 134  11.21 Acknowledgement Regarding Any Supported QFCs. ............................................. 134  11.22 Amendment and Restatement; No Novation ........................................................... 135  11.23 Time of the Essence .................................................................................................. 136  11.24 ENTIRE AGREEMENT .......................................................................................... 136                                                        v 





 






BORROWER PREPARED SCHEDULES         Schedule 1.01(c)  Responsible Officers        Schedule 5.12     Pension Plans        Schedule 5.20(a)  Subsidiaries, Joint Ventures, Partnerships and Other Equity Investments        Schedule 5.20(b)  Loan Parties        Schedule 5.25     Labor Matters        Schedule 7.01     Existing Liens        Schedule 7.02     Existing Indebtedness        Schedule 7.03     Existing Investments           ADMINISTRATIVE AGENT PREPARED SCHEDULES         Schedule 1.01(a)  Certain Addresses for Notices        Schedule 1.01(b)  Initial Commitments and Applicable Percentages        Schedule 1.01(d)  Existing Letters of Credit        Schedule 1.01(e)  KeyBank L/Cs        Schedule 2.01     Swingline Commitments        Schedule 2.03     Letter of Credit Commitments           EXHIBITS         Exhibit A         Form of Administrative Questionnaire        Exhibit B         Form of Assignment and Assumption        Exhibit C         Form of Compliance Certificate        Exhibit D         Form of Joinder Agreement        Exhibit E         Form of Loan Notice        Exhibit F         Form of Permitted Acquisition Certificate        Exhibit G         Form of Revolving Note        Exhibit H         Form of Specified Party Designation Notice        Exhibit I         Form of Swingline Loan Notice        Exhibit J         Form of Term Note        Exhibit K         Form of Incremental Term Note         Exhibit L         Forms of U.S. Tax Compliance Certificates        Exhibit M         Form of Authorization to Share Insurance Information        Exhibit N         Form of Notice of Loan Prepayment                                          vi 





 






               SECOND AMENDED AND RESTATED CREDIT AGREEMENT         This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of  October 24,  2019,  among ALAMO  GROUP  INC.,  a  Delaware  corporation (the  “Borrower”),  the  Guarantors  (defined  herein),  the  Lenders  (defined  herein),  and  BANK  OF  AMERICA,  N.A.,  as  Administrative Agent, Swingline Lender and L/C Issuer.                            PRELIMINARY STATEMENTS:         WHEREAS, pursuant to that certain Securities Purchase Agreement dated as of September 11,  2019 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof,  the “Morbark Acquisition Agreement”) by and among the Borrower, Alamo Acquisition Corporation, a  Delaware  corporation  and  a  wholly-owned  indirect  Subsidiary  of  the  Borrower  (collectively  with  the  Borrower,  the  “Purchaser”), Morbark  Holdings  Group,  LLC,  a  Delaware  limited  liability  company  (“Morbark Holdings”), Stellex Capital Partners LP, a Delaware limited partnership (“Stellex”), and the  members of Morbark party thereto (collectively with Stellex, the “Sellers”), the Purchaser will purchase  (the  “Morbark  Acquisition”)  all  of the  Equity  Interests  of each  of  Morbark  Holdings,  Stellex  Morbark  Blocker,  LLC,  a  Delaware  limited  liability  company  (“Blocker”)  and  Stellex  Morbark  Splitter,  LP,  a  Delaware limited partnership (“Splitter”, and collectively with Morbark Holdings and Blocker, “Morbark”)  from the Sellers.          WHEREAS,  the  Borrower  is  party  to  that  certain Amended  and  Restated  Revolving  Credit  Agreement (With Letter of Credit Facility), dated as of August 25, 2004, by and among the Borrower, the  Guarantors  (as  defined  therein),  the  lenders  party  thereto  and  the  Administrative  Agent  (as  amended,  restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit  Agreement”).         WHEREAS,  the  Loan  Parties  (as  hereinafter  defined)  have requested that  the  Lenders, the  Swingline Lender and the L/C Issuer amend and restate the Existing Credit Agreement, and make loans and  other financial accommodations to the Loan Parties in an aggregate amount of up to $650,000,000 in order  to finance the consummation of the Morbark Acquisition, to pay fees and expenses incurred in connection  with the Transactions (as defined herein), and to finance other working capital needs and general corporate  purposes of the Borrower and its Subsidiaries.         WHEREAS, the Lenders, the Swingline Lender and the L/C Issuer have agreed to make such loans  and other financial accommodations to the Loan Parties on the terms and subject to the conditions set forth  herein.         NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained,  the parties hereto covenant and agree as follows:                                     ARTICLE I                                                               DEFINITIONS AND ACCOUNTING TERMS         1.01  Defined Terms.         As used in this Agreement, the following terms shall have the meanings set forth below:         “Acquisition” means the acquisition, whether through a single transaction or a series of related  transactions, of (a) a majority of the Voting Stock or other controlling ownership interest in another Person                                          1 





 






(including  the  purchase  of  an  option,  warrant  or  convertible  or  similar  type  security  to  acquire  such  a  controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such  equity  or  other  ownership  interest  or  upon  the  exercise  of  an  option  or  warrant  for,  or  conversion  of  securities into, such equity or other ownership interest, or (b) assets of another Person which constitute all  or substantially all of the assets of such Person or of a division, line of business or other business unit of  such Person.         “Additional  Guaranteed  Obligations”  means  (a)  all  obligations  arising  under  Specified  Cash  Management  Agreements  and  Specified  Hedge  Agreements  and  (b)  all  costs  and  expenses  incurred  in  connection with enforcement and collection of the foregoing, including the fees, charges and disbursements  of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or  contingent, due or to become due, now existing or hereafter arising and including interest, expenses and  fees  that  accrue  after  the  commencement by or  against  any  Loan Party  or  any  Affiliate  thereof  of  any  proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless  of whether such interest, expenses and fees are allowed claims in such proceeding; provided that Additional  Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such  Guarantor.         “Additional Lender” has the meaning specified in Section 2.16(b).         “Administrative Agent” means Bank of America in its capacity as administrative agent under any  of the Loan Documents, or any successor administrative agent.         “Administrative  Agent’s Office” means the  Administrative  Agent’s  address  and,  as  appropriate,  account as set forth on Schedule 1.01(a), or such other address or account as the Administrative Agent may  from time to time notify the Borrower and the Lenders.         “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form  of Exhibit A or any other form approved by the Administrative Agent.         “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  Person specified.         “Aggregate Commitments” means the Commitments of all the Lenders.         “Agreement” means this Second Amended and Restated Credit Agreement, including all schedules,  exhibits and annexes hereto.         “Alternative Currency” means Australian Dollars and each other currency (other than Dollars) that  is approved in accordance with Section 1.09; provided that for each Alternative Currency, such requested  currency is an Eligible Currency.         “Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in  Dollars,  the  equivalent  amount  thereof  in  the  applicable  Alternative  Currency  as  determined  by  the  Administrative Agent or the L/C Issuer, as the case may be, by reference to Bloomberg (or such other  publicly available service for displaying exchange rates), to be the exchange rate for the purchase of such  Alternative Currency with Dollars at approximately 11:00 a.m. on the date two (2) Business Days prior to  the date as of which the foreign exchange computation is made; provided, however, that if no such rate is  available, the “Alternative Currency Equivalent” shall be determined by the Administrative Agent or the                                          2 





 






L/C Issuer, as the case may be, using any reasonable method of determination it deem appropriate in its  sole discretion (and such determination shall be conclusive absent manifest error).         “Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to  which such a Person is subject.         “Applicable  Percentage”  means  (a) in  respect  of  the  Term  Facility,  with  respect  to  any Term  Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Facility represented  by  (i) on  or  prior  to  the  Closing  Date,  such  Term  Lender’s  Term  Commitment  at  such  time  and  (ii) thereafter, the outstanding principal amount of such Term Lender’s Term Loans at such time, (b)  in  respect of an Incremental Term Facility, with respect to any Incremental Term Lender at any time, the  percentage (carried out to the ninth decimal place) of the Incremental Term Facility represented by (i) on  or prior to the applicable Incremental Effective Date, such Incremental Term Lender’s Incremental Term  Commitment at such time and (ii) thereafter, the outstanding principal amount of such Incremental Term  Lender’s Incremental Term Loans at such time and (c) in respect of the Revolving Facility, with respect to  any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving  Facility  represented  by  such  Revolving  Lender’s  Revolving  Commitment  at  such  time,  subject  to  adjustment  as  provided  in Section  2.15.  If  the  Commitment  of  all  of  the  Revolving  Lenders  to  make  Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated  pursuant to Section 8.02, or if the Revolving Commitments have expired, then the Applicable Percentage  of each Revolving Lender in respect of the Revolving Facility shall be determined based on the Applicable  Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving  effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of  determination. The Applicable Percentage of each Lender in respect of each Facility is set forth opposite  the name of such Lender on Schedule 1.01(b) or in the Assignment and Assumption pursuant to which such  Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.16,  as applicable.         “Applicable Rate” means, for any day, the rate per annum set forth below opposite the applicable  Level then in effect (based on the Consolidated Leverage Ratio), it being understood that the Applicable  Rate for (a) Revolving Loans that are Base Rate Loans shall be the percentage set forth under the column  “Revolving  Loans” and  “Base  Rate”,  (b) Revolving Loans  that  are  Eurodollar  Rate  Loans  shall  be  the  percentage set forth under the column “Revolving Loans” and “Eurodollar Rate & Letter of Credit Fee”,  (c) that portion of the Term Loan comprised of Base Rate Loans shall be the percentage set forth under the  column “Term Loan” and “Base Rate”, (d) that portion of the Term Loan comprised of Eurodollar Rate  Loans shall be the percentage set forth under the column “Term Loan” and “Eurodollar Rate & Letter of  Credit Fee”, (e) the Letter of Credit Fee shall be the percentage set forth under the column “Revolving  Loans” and “Eurodollar Rate & Letter of Credit Fee”, and (f) the Commitment Fee shall be the percentage  set forth under the column “Commitment Fee”:                                    Applicable Rate                            Eurodollar Rate              Consolidated                       Base Rate                                                                Commitment        Level   Leverage   & Letter of Credit Fee                          Revolving          Revolving  Term       Fee                 Ratio             Term Loan                           Loans              Loans     Loan         1     ≤1.50:1.00  1.25%    1.25%     0.25%    0.25%      0.15%             >1.50:1.00 but         2                 1.50%    1.50%     0.50%    0.50%      0.15%              ≤2.00 to 1.00             >2.00:1.00 but         3                 1.75%    1.75%     0.75%    0.75%      0.20%              ≤2.50 to 1.00                                          3 





 






           >2.50:1.00 but         4                 2.00%    2.00%     1.00%    1.00%      0.25%              ≤3.00 to 1.00         5     >3.00:1.00  2.50%    2.50%     1.50%    1.50%      0.30%                                                                             The  Applicable  Rate  in  respect  of  any  Incremental  Term  Loan  shall  be  as  set  forth  in  the  Incremental Agreement executed in connection therewith.  Any increase or decrease in the Applicable Rate  resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business  Day  immediately  following  the  date  a  Compliance Certificate  is  delivered  pursuant  to Section  6.02(a);  provided, however, that if a Compliance Certificate is not delivered when due in accordance with Section  6.02(a), then, upon the request of the Required Lenders, Pricing Level 5 shall apply, in each case as of the  first Business Day after the date on which such Compliance Certificate was required to have been delivered  and  in  each  case  shall  remain  in  effect  until  the  first  Business  Day  following  the  date  on  which  such  Compliance Certificate is delivered.         Notwithstanding anything to the contrary contained in this definition, (i) the determination of the  Applicable  Rate  for  any  period  shall  be  subject  to  the  provisions  of Section  2.10(b)  and  (ii) the initial  Applicable Rate shall be set at Pricing Level 5 until the first Business Day immediately following the date  a Compliance Certificate is delivered to the Administrative Agent pursuant to Section 6.02(a) for the fiscal  quarter ending December 31, 2019. Any adjustment in the Applicable Rate shall be applicable to all Credit  Extensions then existing or subsequently made or issued.         “Applicable Revolving Percentage” means with respect to any Revolving Lender at any time, such  Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.         “Appropriate Lender”  means,  at  any  time,  (a) with  respect  to  any  Facility,  a  Lender that  has  a  Commitment with respect to such Facility or holds a Loan under such Facility at such time, (b) with respect  to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant  to Section 2.03, the Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline  Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders.         “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.         “Arrangers” means, collectively, BofA Securities, Inc. and Wells Fargo Securities, LLC in their  respective capacities as joint lead arrangers and joint bookrunners.         “Assignment and Assumption” means an assignment and assumption entered into by a Lender and  an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and  accepted by the Administrative Agent, in substantially the form of Exhibit B or any other form (including  an  electronic  documentation  form  generated  by  use  of  an  electronic  platform)  approved  by  the  Administrative Agent.         “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any  Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of  such  date  in  accordance  with  GAAP,  (b) in  respect  of  any  Synthetic  Lease  Obligation,  the  capitalized  amount of the remaining lease or similar payments under the relevant lease or other applicable agreement  or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance  with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease, (c) all  Synthetic Debt of such Person and (d) in respect of any Securitization Transaction, the outstanding principal  amount of such financing, after taking into account reserve accounts and making appropriate adjustments,  determined by the Administrative Agent in its reasonable judgment.                                          4 





 






      “Audited Financial Statements” means the audited Consolidated balance sheet of the Borrower and  its Subsidiaries for the fiscal year ended December 31, 2018, and the related Consolidated statements of  income or operations, Shareholders’ Equity and cash flows for such fiscal year of the Borrower and its  Subsidiaries, including the notes thereto.         “Australian Dollar” means the lawful currency of Australia.         “Authorization to Share Insurance Information” means the authorization substantially in the form  of Exhibit M (or such other form as required by each of the Loan Party’s insurance companies).         “Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b).         “Availability Period” means in respect of the Revolving Facility, the period from and including the  Closing Date to the earliest of (i) the Maturity Date for the Revolving Facility, (ii) the date of termination  of  the  Revolving  Commitments  pursuant  to Section  2.06,  and  (iii) the  date of  termination  of  the  Commitment of each Revolving Lender to make Revolving Loans and of the obligation of the L/C Issuer  to make L/C Credit Extensions pursuant to Section 8.02.         “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55  of  Directive  2014/59/EU  of  the  European  Parliament  and  of  the Council  of  the  European  Union,  the  implementing law for such EEA Member Country from time to time which is described in the EU Bail-In  Legislation Schedule.         “Bank of America” means Bank of America, N.A. and its successors.         “Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of  (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced  from time to time by Bank of America as its “prime rate”, and (c) the Eurodollar Rate plus 1.00%, subject  to the interest rate floors set forth therein; provided that if the Base Rate shall be less than zero, such rate  shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America  based  upon  various  factors  including  Bank  of  America’s  costs  and  desired  return,  general  economic  conditions and other factors, and is used as a reference point for pricing some loans, which may be priced  at, above, or below such announced rate. Any change in such prime rate announced by Bank of America  shall take effect at the opening of business on the day specified in the public announcement of such change.  If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base  Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause  (c) above.         “Base Rate Loan” means a Revolving Loan, a Term Loan or an Incremental Term Loan that bears  interest based on the Base Rate.         “Beneficial Ownership Certification” means a certification regarding beneficial ownership required  by the Beneficial Ownership Regulation.         “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person                                          5 





 






whose assets include (for purposes of ERISA Section 3(42) 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”.         “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted  in accordance with, 12 U.S.C. 1841(k)) of such party.         “Borrower” has the meaning specified in the introductory paragraph hereto.         “Borrower Materials” has the meaning specified in Section 6.02.         “Borrowing” means a Revolving Borrowing, a Swingline Borrowing or a Term Borrowing, as the  context may require.         “BTFG Receivables Facility” means that certain Revolving Uncommitted Receivables Purchase  Agreement dated as of August 7, 2018, by and among Morbark, LLC, a Michigan limited liability company  and a Guarantor hereunder, Rayco Manufacturing, LLC, an Ohio limited liability company and a Guarantor  hereunder (collectively, the “Receivable Sellers”), and BTFG Trust, a Delaware statutory trust acting with  respect to a series of such trust known as Series 2018-1 (the “Receivable Purchaser”) as amended, extended,  renewed or  otherwise  modified  from  time  to  time,  pursuant  to  which the  Receivable  Sellers  finance  a  portion or all of the accounts receivable owing to it by the obligors set forth on Exhibit C thereto, for which  the aggregate amount of unpaid receivables outstanding at any time shall not exceed $9,500,000.         “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative  Agent’s Office is located and, if such day relates to interest at a rate based on the Eurodollar Rate, means  any such day that is also a London Banking Day.         “Capital  Expenditures”  means,  with  respect  to  any  Person  for  any  period,  any  expenditure  in  respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements  and maintenance which are properly charged to current operations). For purposes of this definition, the  purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment or  with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount  by which such purchase price exceeds the credit granted by the seller of such equipment for the equipment  being traded in at such time or the amount of such insurance proceeds, as the case may be.         “Capitalized Lease” means any lease that has been or is required to be, in accordance with GAAP,  recorded, classified and accounted for as a capitalized lease or financing lease.         “Cash Collateralize” means to deposit in a Controlled Account or pledge and deposit with or  deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or Swingline  Lender (as applicable) or the Lenders, as collateral for L/C Obligations, the Obligations in respect of  Swingline Loans, or obligations of the Revolving Lenders to fund participations in respect of L/C  Obligations or Swingline Loans (as the context may require), (a) cash or deposit account balances, (b)  backstop  letters  of  credit  entered  into  on  terms,  from  issuers  and  in  amounts  satisfactory  to  the  Administrative Agent and the L/C Issuer, and/or (c) if the Administrative Agent and the applicable  L/C Issuer or Swingline Lender shall agree, in their sole discretion, other credit support, in each case,  in Dollars and pursuant to documentation in form and substance satisfactory to the Administrative  Agent and the L/C Issuer or the Swingline Lender (as applicable).          “Cash Collateral”  shall  have  a  meaning  correlative  to  the  foregoing  and  shall  include  the  proceeds of such Cash Collateral and other credit support.                                          6 





 






      “Cash Equivalents” means any of the following types of Investments, to the extent owned by the  Borrower or any of its Subsidiaries free and clear of all Liens (other than Permitted Liens):               (a)   readily marketable obligations issued or directly and fully guaranteed or insured        by the United States or any agency or instrumentality thereof having maturities of not more than        three hundred sixty days (360) days from the date of acquisition thereof; provided that the full faith        and credit of the United States is pledged in support thereof;               (b)   time deposits with, or insured certificates of deposit or bankers’ acceptances of,        any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States,        any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding        company  organized  under  the  laws  of  the  United  States,  any  state  thereof  or  the  District  of        Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues)        commercial paper rated as described in clause (c) of this definition and (iii) has combined capital        and surplus of at least $500,000,000, in each case with maturities of not more than one hundred        eighty (180) days from the date of acquisition thereof;               (c)   commercial paper issued by any Person organized under the laws of any state of        the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least        “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than one        hundred eighty (180) days from the date of acquisition thereof;                (d)   Investments, classified in accordance with GAAP as current assets of the Borrower        or any of its Subsidiaries, in money market investment programs registered under the Investment        Company Act of 1940, which are administered by financial institutions that have the highest rating        obtainable  from  either  Moody’s  or  S&P,  and  the  portfolios  of  which  are  limited  solely  to        Investments  of  the  character,  quality  and  maturity  described  in clauses  (a),  (b)  and  (c)  of  this        definition; and               (e)   any  repurchase  agreement  entered  into  with  any  bank  (or  other  commercial        banking institution of the stature referred to in clause (b)) which (i) is secured by a fully perfected        security interest in any obligation of the type described in any of clauses (a) through (c) and (ii) has        a market value at the time such repurchase agreement is entered into of not less than 100% of the        repurchase obligation of such bank (or other commercial banking institution) thereunder.         “Cash Management Agreement” means any agreement that is not prohibited by the terms hereof to  provide treasury or cash management services, including deposit accounts, overnight draft, credit cards,  debit  cards,  p-cards  (including  purchasing  cards  and  commercial  cards),  funds  transfer,  automated  clearinghouse,  zero  balance  accounts,  returned  check  concentration,  controlled  disbursement,  lockbox,  account reconciliation and reporting and trade finance services and other cash management services.         “Cash Management Bank” means any Person in its capacity as a party to a Cash Management  Agreement that, (a) at the time it enters into a Cash Management Agreement with a Loan Party or any  Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender,  is a party to a Cash Management Agreement with a Loan Party or any Subsidiary, in each case in its capacity  as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s  Affiliate  ceased  to  be  a  Lender); provided, however, that  for  any  of  the  foregoing  to  be  included  as  a  “Specified Cash Management Agreement” on any date of determination by the Administrative Agent, the  applicable  Cash  Management  Bank  (other  than  the  Administrative  Agent  or  an  Affiliate  of  the  Administrative Agent) must have delivered a Specified Party Designation Notice to the Administrative  Agent prior to such date of determination.                                          7 





 






      “Cash Taxes” means for the Borrower and its Subsidiaries for any period, Taxes paid or due and  payable by them during such period.         “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act  of 1980.         “CERCLIS”  means  the  Comprehensive  Environmental  Response,  Compensation  and  Liability  Information System maintained by the U.S. Environmental Protection Agency.         “CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code in  which the Borrower or any Loan Party is a United States shareholder within the meaning of Section 951(b)  of the Code.         “Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the  adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation  or  treaty  or  in  the  administration,  interpretation,  implementation  or  application  thereof  by  any  Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether  or not having the force of law) by any Governmental Authority; provided that notwithstanding anything  herein  to  the  contrary,  (i) the  Dodd-Frank  Wall  Street  Reform  and  Consumer  Protection  Act  and  all  requests,  rules,  guidelines  or  directives  thereunder  or  issued  in  connection  therewith  or  in the  implementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank for  International  Settlements,  the  Basel  Committee  on  Banking  Supervision  (or  any  successor  or  similar  authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in  each  case  be  deemed  to  be  a  “Change  in  Law”,  regardless  of  the  date  enacted,  adopted,  issued  or  implemented.         “Change of Control” means an event or series of events by which:               (a)   any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the        Securities Exchange Act of 1934, but excluding any employee benefit plan of 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 Securities Exchange Act of 1934, except that a person or group shall be deemed to        have “beneficial ownership” of all securities that such person or group has the right to acquire,        whether such right is exercisable immediately or only after the passage of time (such right, an        “option right”)), directly or indirectly, of 35% or more of the equity securities of the Borrower        entitled to vote for members of the board of directors or equivalent governing body of the Borrower        on a fully-diluted basis (and taking into account all such securities that such “person” or “group”        has the right to acquire pursuant to any option right); or               (b)   during any period of twelve (12) consecutive months, a majority of the members        of the board of directors or other equivalent governing body of the Borrower cease to be composed        of individuals (i) who were members of that board or equivalent governing body on the first day of        such  period,  (ii) whose  election  or nomination to  that  board  or  equivalent  governing  body  was        nominated, appointed or approved by individuals referred to in clause (i) above constituting at the        time of such election or nomination at least a majority of that board or equivalent governing body        or  (iii) whose  election  or  nomination  to  that  board  or  other  equivalent  governing  body  was        nominated,  appointed  or approved  by  individuals  referred  to  in clauses  (i)  and  (ii)  above        constituting at the time of such election or nomination at least a majority of that board or equivalent        governing body; or                                          8 





 






            (c)   the Borrower shall cease to own and control, of record and beneficially, directly or        indirectly, 100% of the Equity Interests of each Guarantor (excluding directors’ qualifying shares        required by Law) except as otherwise expressly permitted under this Agreement.         “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, are Revolving Loans, Term Loans or Incremental Term Loans and,  when  used  in  reference  to  any  Commitment,  refers  to  whether  such  Commitment  is  a  Revolving  Commitment, Term Commitment or Incremental Term Commitment.         “Closing Date” means the date hereof.         “Code” means the Internal Revenue Code of 1986.         “Commitment” means a Term Commitment, an Incremental Term Commitment or a Revolving  Commitment, as the context may require.         “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.         “Compliance Certificate” means a certificate substantially in the form of Exhibit C.         “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”  means,  when  used  with  reference  to  financial  statements or  financial  statement  items of the Borrower and its Subsidiaries or any other Person, such statements or items on a consolidated  basis in accordance with the consolidation principles of GAAP.         “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of  (a) (i) Operating  Cash  Flow, less (ii) Maintenance  Capital Expenditures,  to  (b) the sum  of (i) Interest  Expense, (ii) principal payments made with respect to Indebtedness For Borrowed Money, (iii) Cash Taxes,  and (iv) dividends paid in cash by the Borrower to its shareholders, in each case, of or by the Borrower and  its Subsidiaries for the most recently completed Measurement Period.         “Consolidated Funded Debt” means, for any period, for the Borrower and its Subsidiaries on a  Consolidated  basis, the  sum  of  (a)  the  outstanding  principal  amount  of  all  Indebtedness For  Borrowed  Money, whether current or long-term, (including the Obligations), (b) the portion of obligations with respect  to  Capitalized  Leases  that  are  capitalized  in  the  Consolidated  balance  sheet  of  the  Borrower  and  its  Subsidiaries, and (c) without duplication, all Guaranties with respect to outstanding principal amounts of  Indebtedness of the type specified in subsections (a) and (b) above of Persons other than the Borrower or  any of its Subsidiaries.         “Consolidated  Leverage  Ratio”  means,  as  of  any  date  of  determination,  the  ratio  of  (a) Consolidated  Funded Debt as  of  such  date  to  (b) Operating  Cash  Flow of the  Borrower and  its  Subsidiaries on a Consolidated basis for the most recently completed Measurement Period.         “Consolidated Net Income” means, at any date of determination, the net income (or loss) of the  Borrower and its Subsidiaries on a Consolidated basis for the most recently completed Measurement Period;  provided that Consolidated Net Income shall exclude (a) unusual and infrequent gains and unusual and  infrequent  losses  for  such  Measurement  Period,  (b) the  net  income  of  any  Subsidiary  during  such  Measurement Period to the extent that the declaration or payment of dividends or similar distributions by                                          9 





 






such Subsidiary of such income is not permitted by operation of the terms of its Organization Documents  or any  agreement,  instrument  or  Law  applicable  to  such  Subsidiary  during  such  Measurement  Period,  except that the Borrower’s equity in any net loss of any such Subsidiary for such Measurement Period shall  be included in determining Consolidated Net Income, and (c) any income (or loss) for such Measurement  Period of any Person if such Person is not a Subsidiary, except that the Borrower’s equity in the net income  of any such Person for such Measurement Period shall be included in Consolidated Net Income up to the  aggregate  amount  of  cash  actually  distributed  by  such  Person  during  such  Measurement  Period  to the  Borrower or  a  Subsidiary  as  a  dividend  or  other  distribution  (and  in  the  case  of  a  dividend  or  other  distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to the  Borrower as described in clause (b) of this proviso).         “Consolidated Total Liabilities” means, as of any date, the total liabilities that would be reflected  on the Consolidated balance sheet of the Borrower, prepared as of such date in accordance with GAAP.         “Contractual Obligation” means, as to any Person, any provision of any security issued by such  Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it  or any of its property is bound.         “Control” means the possession, directly or indirectly, of the power to direct or cause the direction  of the management or policies of a Person, whether through the ability to exercise voting power, by contract  or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.         “Controlled  Account”  means  each  deposit  account  and  securities  account  that  is  subject  to  a  Qualifying Control Agreement.         “Cost of Acquisition” means, with respect to any Acquisition, as at the date of entering into any  agreement therefor, the sum of the following (without duplication): (a) the value of the Equity Interests of  the Borrower or any Subsidiary to be transferred in connection with such Acquisition, (b) the amount of  any cash and fair market value of other property (excluding property described in clause (a) and the unpaid  principal amount of any debt instrument) given as consideration in connection with such Acquisition, (c) the  amount (determined by using the face amount or the amount payable at maturity, whichever is greater) of  any Indebtedness incurred, assumed or acquired by the Borrower or any Subsidiary in connection with such  Acquisition,  (d) all  additional  purchase  price  amounts  in  the  form  of  earnouts  and  other  contingent  obligations  that should  be  recorded  on  the  financial  statements  of  the  Borrower  and  its Subsidiaries  in  accordance with GAAP in connection with such Acquisition, (e) all amounts paid in respect of covenants  not  to  compete  and  consulting  agreements  that  should  be  recorded  on  the  financial  statements  of  the  Borrower and its Subsidiaries in accordance with GAAP, and other affiliated contracts in connection with  such Acquisition, and (f) the aggregate fair market value of all other consideration given by the Borrower  or any Subsidiary in connection with such Acquisition. For purposes of determining the Cost of Acquisition  for any transaction, the Equity Interests of the Borrower shall be valued in accordance with GAAP.         “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).         “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.         “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,  conservatorship,  bankruptcy,  assignment  for  the  benefit  of  creditors,  moratorium,  rearrangement,                                          10 





 






receivership,  insolvency,  reorganization,  or  similar  debtor  relief  Laws  of  the  United  States  or  other  applicable jurisdictions from time to time in effect.         “Default” means any event or condition that constitutes an Event of Default or that, with the giving  of any notice, the passage of time, or both, would be an Event of Default.         “Default Rate” means (a) with respect to any Obligation for which a rate is specified, a rate per  annum equal to two percent (2%) in excess of the rate otherwise applicable thereto and (b) with respect to  any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus  the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%), in each case, to  the fullest extent permitted by Applicable Law.         “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.         “Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all  or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded  hereunder  unless  such  Lender  notifies  the  Administrative  Agent  and  the  Borrower  in  writing  that  such  failure is the result of such Lender’s determination that one or more conditions precedent to funding (each  of which conditions precedent, together with any applicable default, shall be specifically identified in such  writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swingline Lender  or  any  other  Lender  any  other  amount  required  to  be  paid  by  it  hereunder  (including  in  respect  of  its  participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due,  (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swingline Lender in writing  that it does not intend to comply with its funding obligations hereunder, or has made a public statement to  that  effect  (unless  such  writing  or  public  statement  relates  to such  Lender’s  obligation  to  fund  a  Loan  hereunder and states that such position is based on such Lender’s determination that a condition precedent  to funding (which condition precedent, together with any applicable default, shall be specifically identified  in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after  written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative  Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided  that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such  written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect  parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had  appointed  for  it  a  receiver,  custodian,  conservator,  trustee,  administrator,  assignee  for  the  benefit  of  creditors or similar Person charged with reorganization or liquidation of its business or assets, including the  Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a  capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting  Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct  or indirect parent company thereof by a Governmental Authority so long as such ownership interest does  not result in or provide such Lender with immunity from the jurisdiction of courts within the United States  or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such  Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with  such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under  any one or more of clauses (a) through (d) above, and the effective date of such status, shall be conclusive  and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to  Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written notice of such  determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the  Swingline Lender and each other Lender promptly following such determination.                                          11 





 






      “Designated Jurisdiction” means any country or territory to the extent that such country or territory  is the subject of any Sanction.         “Disposed Asset Operating Cash Flow” means with respect to each Disposition of a Person or all  or substantially all of a line of business consummated during any Measurement Period, the actual Operating  Cash Flow attributable to such Person or such line of business during such Measurement Period on a pro  forma basis as if such Disposition occurred on the first day of such Measurement Period.          “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including  any Sale and Leaseback Transaction) of any property by any Loan Party or Subsidiary (or the granting of  any  option  or  other  right  to  do  any  of  the  foregoing),  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.         “Dollar” and “$” mean lawful money of the United States.         “Dollar Equivalent” means, for any amount, at the time of determination thereof, (a) if such amount  is  expressed  in  dollars,  such  amount,  (b)  if  such  amount  is  expressed  in  an  Alternative  Currency,  the  equivalent of such amount in dollars determined by using the rate of exchange for the purchase of dollars  with  the  Alternative  Currency  last  provided  (either  by  publication  or  otherwise  provided  to  the  Administrative Agent or the L/C Issuer, as applicable) by the applicable Bloomberg source (or such other  publicly available source for displaying exchange rates) on date that is two (2) Business Days immediately  preceding the date of determination (or if such service ceases to be available or ceases to provide such rate  of exchange, the equivalent of such amount in dollars as determined by the Administrative Agent or the  L/C Issuer, as applicable using any method of determination it deems appropriate in its sole discretion) and  (c)  if  such  amount  is  denominated  in  any  other  currency,  the  equivalent  of  such  amount  in  dollars  as  determined by the Administrative Agent or the L/C Issuer, as applicable, using any method of determination  it deems appropriate in its sole discretion. Any determination by the Administrative Agent or the L/C Issuer  pursuant to clauses (b) or (c) above shall be conclusive absent manifest error.         “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States,  any state thereof or the District of Columbia.         “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of  an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with  its parent.         “EEA  Member  Country”  means  any  of  the  member  states  of  the  European  Union,  Iceland,  Liechtenstein, and Norway.         “EEA Resolution Authority” means any public administrative authority or any Person entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee)  having  responsibility for the resolution of any EEA Financial Institution.         “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section  11.06 (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).                                          12 





 






      “Eligible Currency” means any lawful currency other than Dollars that is readily available, freely  transferable and convertible into Dollars in the international interbank market available to the L/C Issuer  and as to which a Dollar Equivalent may be readily calculated.  If, after the designation by the L/C Issuer  of any currency as an Alternative Currency, any change in currency controls or exchange regulations or any  change in the national or international financial, political or economic conditions are imposed in the country  in which such currency is issued, result in, in the reasonable opinion of the Administrative Agent and/or  L/C Issuer, (a) such currency no longer being readily available, freely transferable and convertible into  Dollars, (b) a Dollar Equivalent is no longer readily calculable with respect to such currency, (c) providing  such currency is impracticable for the L/C Issuer or (d) no longer a currency in which the L/C Issuer is  willing to make L/C Credit Extensions (each of clauses (a), (b), (c), and (d) a “Disqualifying Event”), then  the  L/C  Issuer  shall  promptly  notify  the Administrative  Agent and  the  Borrower,  and  such  country’s  currency shall no longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer  exist.         “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil,  surface and subsurface strata, and natural resources such as wetland, flora and fauna.         “Environmental Laws” means any and all federal, state, local, and foreign statutes, laws (including  common  law),  regulations,  standards,  ordinances, rules,  judgments,  interpretations,  orders,  decrees,  permits, agreements or governmental restrictions relating to pollution or the protection of the Environment  or human health (to the extent related to exposure to hazardous materials), including those relating to the  manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous  Materials, air emissions and discharges to waste or public systems.         “Environmental Liability” means any liability, contingent or otherwise (including any liability for  damages, costs of environmental remediation, fines, penalties or indemnities) whether based in contract,  tort,  implied  or  express  warranty,  strict  liability,  criminal  or  civil  statute  or  common  law,  directly  or  indirectly relating to (a) any Environmental Law, (b) the generation, use, handling, transportation, storage,  treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) Release or  threatened  Release  of  any  Hazardous  Materials  or  (e) any  contract,  agreement  or  other  consensual  arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.         “Environmental  Permit”  means  any  permit,  certification,  registration,  approval,  identification  number, license or other authorization required under any Environmental Law.         “Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other  ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or  acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such  Person,  all  of  the  securities  convertible  into  or  exchangeable  for  shares  of  capital  stock  of  (or  other  ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition  from such Person of such shares (or such other interests), and all of the other ownership or profit interests  in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and  whether  or  not  such  shares,  warrants,  options,  rights  or  other  interests  are  outstanding  on  any  date  of  determination.         “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules  and regulations promulgated thereunder.         “ERISA Affiliate” means any trade or business (whether or not incorporated) under common control  with the Borrower within the meaning of Sections 414(b) or (c) of the Code (and Sections 414(m) and (o)  of the Code for purposes of provisions relating to Section 412 of the Code).                                          13 





 






      “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of  the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan  year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a  cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete  or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of  a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section  4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan;  (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of,  or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan  is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430,  431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under  Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA,  upon the Borrower or any ERISA Affiliate or (i) a failure by the Borrower or any ERISA Affiliate to meet  all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not  waived,  or  the  failure by  the  Borrower  or  any  ERISA  Affiliate  to  make  any  required  contribution  to  a  Multiemployer Plan.         “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.         “Eurodollar Rate” means:               (a)   for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum        equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or        any other Person that takes over the administration of such rate for U.S. Dollars for a period equal        in length to such Interest Period) (“LIBOR”), as published on the applicable Bloomberg screen page        (or such other commercially available source providing such quotations as may be designated by        the Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at or about 11:00        a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for        Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such        Interest Period; and               (b)   for any interest calculation with respect to a Base Rate Loan on any date, the rate        per annum equal to the LIBOR Rate, at or about 11:00 a.m., London time, two (2) London Banking        Days prior to such date for Dollar deposits with a term of one (1) month commencing that day;         provided that, if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for  purposes of this Agreement.         “Eurodollar Rate Loan” means a Revolving Loan, a Term Loan or an Incremental Term Loan that  bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate”.         “Event of Default” has the meaning specified in Section 8.01.         “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to  the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a  Lien to secure, 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  thereof)  by  virtue  of  such Guarantor’s failure  for  any  reason  to  constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after  giving effect to Section 10.11 and any other “keepwell”, support or other agreement for the benefit of such                                          14 





 






Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the  time the Guaranty of such Guarantor, or grant by such Guarantor of a Lien, becomes effective with respect  to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one  Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable  to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first  sentence of this definition.         “Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient  or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured  by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed  as a result of such Recipient being organized under the laws of, or having its principal office or, in the case  of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision  thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes  imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in  a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such  interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under  Section  11.13)  or  (ii) such  Lender  changes  its  Lending  Office,  except  in  each  case  to  the  extent  that,  pursuant to Sections 3.01(b) or (d), amounts with respect to such Taxes were payable either to such Lender’s  assignor immediately before such Lender became a party hereto or to such Lender immediately before it  changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(f)  and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.         “Existing Credit Agreement” has the meaning specified in the Preliminary Statements hereto.         “Existing  Letters of  Credit”  means  those  certain  letters  of  credit  set  forth  on Schedule 1.01(d)  (inclusive of the KeyBank L/Cs).         “Existing Loans” has the meaning set forth in Section 11.22(b).         “Exiting Lender” has the meaning set forth in Section 11.22(b).         “Facility” means the Term Facility, an Incremental Term Facility or the Revolving Facility, as the  context may require.         “Facility Termination Date” means the date as of which all of the following shall have occurred:  (a) the  Aggregate  Commitments  have  terminated,  (b) all  Obligations  have  been  paid  in  full  (other  than  contingent indemnification obligations), and (c) all Letters of Credit have terminated or expired (other than  Letters of Credit as to which other arrangements with respect thereto satisfactory to the Administrative  Agent and the L/C Issuer shall have been made).         “FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards  Board.         “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 and any agreements entered into  pursuant to Section 1471(b)(1) of the Code.         “Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve  Bank of New York based on such day’s federal funds transactions by depository institutions (as determined  in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to                                          15 





 






time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the  federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than  zero, such rate shall be deemed to be zero for the purposes of this Agreement.          “Fee Letters” means, collectively, (a) the administrative agency fee letter, dated September 16,  2019, among the Borrower, the Administrative Agent and BofA Securities, Inc., (b) the joint fee letter,  dated September 16, 2019, between the Borrower, the Arrangers, Bank of America and Wells Fargo Bank,  National Association, and (c) the fee letter, dated September 16, 2019 between the Borrower, Wells Fargo  Bank, National Association, and Wells Fargo Securities, LLC.         “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person,  and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a  jurisdiction  other  than  that  in  which  the  Borrower  is  resident  for  tax  purposes.  For  purposes  of  this  definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute  a single jurisdiction.         “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.         “FRB” means the Board of Governors of the Federal Reserve System of the United States.         “Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender,  (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C  Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has  been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof,  and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline  Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been  reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof.         “FSHCO”  means  any  Subsidiary  substantially  all  of  the  assets  of  which  constitute  the  Equity  Interests of CFCs.         “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing,  holding  or  otherwise  investing in  commercial  loans  and  similar  extensions  of  credit  in  the  ordinary course of its activities.         “GAAP” means generally accepted accounting principles in the United States set forth from time  to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute  of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards  Board  (or  agencies  with  similar  functions  of  comparable  stature  and  authority  within  the  accounting  profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable  to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.         “Governmental Authority” means the government of the United States or any other nation, or of  any  political  subdivision  thereof,  whether  state  or  local,  and  any  agency,  authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative,  judicial,  taxing,  regulatory  or  administrative  powers  or  functions  of  or  pertaining  to  government  (including, without  limitation, any supra-national bodies such as the European Union or the European Central Bank).         “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person  guaranteeing  or  having  the  economic  effect  of  guaranteeing  any  Indebtedness  of  the  kind  described  in  clauses (a) through (g) of the definition thereof or other obligation payable or performable by another Person                                          16 





 






(the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such  Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment  of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the  purpose  of  assuring  the  obligee  in  respect  of  such  Indebtedness  or  other  obligation  of  the  payment  or  performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or  any other financial statement condition or liquidity or level of income or cash flow of the primary obligor  so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the  purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of  the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or  in part), or (b) any Lien on any assets of such Person securing any Indebtedness of the kind described in  clauses (a) through (g) of the definition thereof or other obligation of any other Person, whether or not such  Indebtedness  or  other  obligation  is  assumed  or  expressly  undertaken  by  such  Person (or  any  right,  contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any  Guarantee  shall  be  deemed  to  be  an  amount  equal  to  the  stated  or  determinable  amount  of the  related  primary  obligation,  or  portion thereof,  in  respect  of which  such  Guarantee  is made  or,  if  not  stated  or  determinable,  the  maximum  reasonably  anticipated  liability  in  respect  thereof  as  determined  by  the  guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.         “Guaranteed Obligations” has the meaning set forth in Section 10.01.         “Guarantors”  means,  collectively,  (a)  the Domestic Subsidiaries  of the  Borrower set  forth  on  Schedule 5.20(b) and those other Domestic Subsidiaries as may from time to time become parties to this  Agreement pursuant to Section 6.13, and (b) with respect to Additional Guaranteed Obligations owing by  any Loan Party or any of its Subsidiaries and any Swap Obligation of a Specified Loan Party (determined  before giving effect to Sections 10.01 and 10.11) under the Guaranty, the Borrower.         “Guaranty” means, collectively, the Guarantee made by the Guarantors under Article X in favor of  the Specified Parties, together with each other guaranty delivered pursuant to Section 6.13.         “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous  or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, natural gas,  natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic  mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or  compounds of any nature in any form regulated pursuant to any Environmental Law.         “Hedge Bank” means any Person in its capacity as a party to a Swap Contract that, (a) at the time  it enters into a Swap Contract not prohibited under Articles VI or VII, is a Lender or an Affiliate of a Lender,  or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract not prohibited under  Articles VI or VII, in each case, in its capacity as a party to such Swap Contract (even if such Person ceases  to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Specified Hedge  Agreement  with  a  Person  who  is  no  longer  a  Lender  (or  Affiliate  of  a  Lender),  such  Person  shall  be  considered a Hedge Bank only through the stated termination date (without extension or renewal) of such  Specified Hedge Agreement and provided further that for any of the foregoing to be included as a “Specified  Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank  (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a  Specified Party Designation Notice to the Administrative Agent prior to such date of determination.         “Impacted Loans” has the meaning assigned to such term in Section 3.03(a).         “Incremental Agreement” has the meaning specified in Section 2.16(f).                                          17 





 






      “Incremental Commitments” means Incremental Revolving Commitments and/or the Incremental  Term Commitments.         “Incremental Effective Date” has the meaning specified in Section 2.16(f).         “Incremental Revolving Commitment” has the meaning assigned to such term in Section 2.16(a).         “Incremental Revolving Commitment Lender” has the meaning specified in Section 2.16(g).         “Incremental Term Commitment” has the meaning assigned to such term in Section 2.16(a).         “Incremental Term Facility” means, at any time, (a) on or prior to an Incremental Effective Date,  the aggregate amount of any Incremental Term Commitments in respect of Incremental Term Loans at such  time and (b) thereafter, the aggregate principal amount of the Incremental Term Loans of all Incremental  Term Lenders outstanding at such time.         “Incremental Term Lender” means a Lender with an Incremental Term Commitment in respect of  Incremental Term Loans or an outstanding Incremental Term Loan.         “Incremental  Term  Loan  Maturity  Date”  has  the  meaning  assigned  to  such  term  in Section  2.16(c)(ii).         “Incremental  Term  Loans”  means  any  loans  made  pursuant  to  any  Incremental  Term  Commitments.         “Incremental  Term  Note”  means  a  promissory  note  made  by  the  Borrower  in  favor  of  an  Incremental Term Lender evidencing Incremental Term Loans made by such Incremental Term Lender,  substantially in the form of Exhibit K.         “Indebtedness”  means,  as  to  any  Person  at  a  particular time,  without  duplication,  all  of  the  following, whether or not included as indebtedness or liabilities in accordance with GAAP:               (a)   all  obligations  of such  Person  for  borrowed  money  and  all  obligations  of  such        Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;               (b)   all direct or contingent obligations of such Person arising under letters of credit        (including  standby  and  commercial),  bankers’  acceptances,  bank  guaranties,  surety  bonds  and        similar instruments;               (c)   net obligations of such Person under any Swap Contract;               (d)   all obligations (including, without limitation, earnout obligations) of such Person        to pay the deferred purchase price of property or services (other than trade accounts payable in the        ordinary course of business and not past due for more than sixty (60) days after the date on which        such trade account was created);               (e)   indebtedness (excluding prepaid interest thereon) secured by a Lien on property        owned or being purchased by such Person (including indebtedness arising under conditional sales        or other title retention agreements), whether or not such indebtedness shall have been assumed by        such Person or is limited in recourse;                                          18 





 






            (f)   all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease        Obligations of such Person and all Synthetic Debt of such Person;               (g)   all obligations of such Person to purchase, redeem, retire, defease or otherwise        make any payment in respect of any Equity Interest in such Person or any other Person or any        warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred        interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid        dividends; and               (h)   all Guarantees of such Person in respect of any of the foregoing.         For  all  purposes  hereof,  the  Indebtedness  of  any  Person  shall  include  the  Indebtedness  of  any  partnership  or  joint  venture  (other  than  a  joint  venture  that  is  itself  a  corporation  or  limited  liability  company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly  made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date  shall be deemed to be the Swap Termination Value thereof as of such date.         “Indebtedness For Borrowed Money” means, as of any date with respect to the Borrower and its  Subsidiaries on a Consolidated basis and without duplication, (i) all Indebtedness represented by notes,  bonds,  debentures  or  other  evidences  of  indebtedness,  for  the  repayment  of  money borrowed,  (ii)  all  Indebtedness representing deferred payment of the purchase price of property, (iii) all Indebtedness under  any Capitalized Lease, (iv) all Indebtedness under any Guaranty, and (v) all Indebtedness secured by a Lien  on any property or asset.         “Indemnified Taxes” means all (a) Taxes, other than Excluded Taxes, imposed on or with respect  to any payment made by or on account of any obligation of any Loan Party under any Loan Document and  (b) to the extent not otherwise described in clause (a), Other Taxes.         “Indemnitee” has the meaning specified in Section 11.04(b).         “Information” has the meaning specified in Section 11.07(a).         “Intercompany Debt” has the meaning specified in Section 7.02(d).         “Interest Expense” means, for the Borrower and its Subsidiaries on a Consolidated basis for any  period,  total  interest  expense  in  respect  of  Consolidated  Total  Liabilities  payable  during  such  period,  including, without limitation, all commissions, discounts, and other fees and charges with respect to letters  of credit, all as determined in accordance with GAAP.         “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of each Interest  Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made;  provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three (3) months, the  respective dates that fall every three (3) months after the beginning of such Interest Period shall also be  Interest Payment Dates; and (b) as to any Base Rate Loan or Swingline Loan, the last Business Day of each  March, June, September and December and the Maturity Date of the Facility under which such Loan was  made  (with  Swingline  Loans  being  deemed  made  under  the  Revolving  Facility  for  purposes  of  this  definition).         “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such  Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on                                          19 





 






the date one (1), two (2), three (3) or six (6) months thereafter (in each case, subject to availability), as  selected by the Borrower in its Loan Notice; provided that:               (a)   any Interest Period that would otherwise end on a day that is not a Business Day        shall be extended to the next succeeding Business Day unless such Business Day falls in another        calendar month, in which case such Interest Period shall end on the next preceding Business Day;               (b)   any Interest Period that begins on the last Business Day of a calendar month (or on        a day for which there is no numerically corresponding day in the calendar month at the end of such        Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest        Period; and               (c)   no  Interest  Period  shall  extend  beyond  the  Maturity Date  of  the  Facility  under        which such Loan was made.         “Investment” means, as to any Person, any direct or indirect acquisition or investment by such  Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person,  (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other  acquisition  of  any  other  debt  or  interest  in,  another  Person  (including  any  partnership  or  joint venture  interest in such other Person and any arrangement pursuant to which the investor guaranties Indebtedness  of such other Person), or (c) the purchase or other acquisition (in one transaction or a series of transactions)  of assets of another Person which constitute all or substantially all of the assets of such Person or of a  division, line of business or other business unit of such Person. For purposes of covenant compliance, the  amount  of  any  Investment  shall  be  the  amount  actually  invested,  without  adjustment  for  subsequent  increases or decreases in the value of such Investment.         “Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or  other taking for public use of, any property of any Loan Party or any Subsidiary.         “IRS” means the United States Internal Revenue Service.         “ISP” means 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).         “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,  and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any  Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.         “Joinder Agreement” means a joinder agreement substantially in the form of Exhibit D executed  and delivered in accordance with the provisions of Section 6.13.         “KeyBank L/Cs” mean those certain letters of credit set forth on Schedule 1.01(e), provided that  such L/Cs shall not be renewed beyond the stated expiration dates set forth on Schedule 1.01(e).         “Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules,  guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including  the interpretation or administration thereof by any Governmental Authority charged with the enforcement,  interpretation or administration thereof, and all applicable administrative orders, directed duties, requests,  licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case  whether or not having the force of law.                                          20 





 






      “L/C  Advance”  means,  with  respect  to  each  Revolving  Lender,  such  Lender’s  funding  of  its  participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage.         “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit  which has not been reimbursed on the date when made or refinanced as a Revolving Borrowing.          “L/C Commitment” means, with respect to the L/C Issuer, the commitment of the L/C Issuer to  issue Letters of Credit hereunder. The initial amount of the L/C Issuer’s L/C Commitment is set forth on  Schedule 2.03.         “L/C  Credit  Extension”  means,  with  respect  to  any  Letter  of  Credit,  the  issuance  thereof  or  extension of the expiry date thereof, or the increase of the amount thereof.         “L/C Disbursement” means any payment made by the L/C Issuer pursuant to a Letter of Credit.         “L/C Issuer” means (i) Bank of America, through itself or through one of its designated Affiliates  or branch offices, in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters  of Credit hereunder and (ii) solely with respect to the KeyBank L/Cs, KeyBank National Association.         “L/C Obligations” means, as at any date of determination, the aggregate amount available to be  drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts (including  all L/C Borrowings). For purposes of computing the amount available to be drawn under any Letter of  Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all  purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but  any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter  of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.         “Lender” means each of the Persons identified as a “Lender” on the signature pages hereto, each  other Person that becomes a “Lender” in accordance with this Agreement and, their successors and assigns  and, unless the context requires otherwise, includes the Swingline Lender.          “Lending Office” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office  or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other  office or offices as such Person may from time to time notify the Borrower and the Administrative Agent;  which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or  such Affiliate.         “Letter of Credit” means any letter of credit issued hereunder and shall include the Existing Letters  of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit. Letters of  Credit may be issued in Dollars or in an Alternative Currency.         “Letter of Credit Application” means an application and agreement for the issuance or amendment  of a Letter of Credit in the form from time to time in use by the L/C Issuer.         “Letter of Credit Fee” has the meaning specified in Section 2.03(l).         “Letter of Credit Sublimit” means, as of any date of determination, an amount equal to the lesser of  (a) $10,000,000 and (b) the Revolving Facility. The Letter of Credit Sublimit is part of, and not in addition  to, the Revolving Facility.         “LIBOR” has the meaning specified in the definition of Eurodollar Rate.                                          21 





 






      “LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative  Agent  designates  to  determine  LIBOR  (or  such  other  commercially  available  source  providing  such  quotations as may be designated by the Administrative Agent from time to time).         “LIBOR Successor Rate” has the meaning specified in Section 3.03(c).         “LIBOR Successor Rate Conforming Changes” has the meaning specified in Section 3.03(f).         “Lien”  means  any  mortgage,  pledge,  hypothecation,  assignment,  deposit  arrangement,  encumbrance,  lien  (statutory  or  otherwise),  charge,  or  preference,  priority  or  other  security  interest  or  preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any  conditional sale or other title retention agreement (including consignments), any easement, right of way or  other encumbrance on title to real property and any financing lease having substantially the same economic  effect as any of the foregoing).         “Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a  Term Loan, an Incremental Term Loan, a Revolving Loan or a Swingline Loan.         “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the  Fee  Letters,  (e) each  Issuer  Document,  (f) each  Joinder  Agreement,  (g) any  agreement  creating  or  perfecting rights  in  Cash  Collateral  pursuant  to  the  provisions  of Section  2.14, (h) each  Incremental  Agreement and (i) all other certificates, agreements, documents and instruments executed and delivered, in  each case, by or on behalf of any Loan Party pursuant to the foregoing (but specifically excluding any  Specified Hedge  Agreement  or  any Specified Cash  Management  Agreement)  and  any  amendments,  modifications or supplements thereto or to any other Loan Document or waivers hereof or to any other  Loan Document; provided, however, that for purposes of Section 11.01, “Loan Documents” shall mean this  Agreement and the Guaranty.         “Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the  other,  or  (c) a  continuation  of  Eurodollar  Rate  Loans,  pursuant  to Section  2.02(a),  which  shall  be  substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent  (including any form on an electronic platform or electronic transmission system as shall be approved by the  Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.         “Loan Parties” means, collectively, the Borrower and each Guarantor.         “London Banking Day” means any day on which dealings in Dollar deposits are conducted by and  between banks in the London interbank eurodollar market.         “Maintenance Capital Expenditures” means Capital Expenditures incurred by the Borrower or its  Subsidiaries in connection with the replacement or maintenance of equipment or other fixed assets of the  Borrower and its Subsidiaries.           “Master Agreement” has the meaning set forth in the definition of “Swap Contract.”         “Material Acquisition” means a Permitted Acquisition for which the aggregate Cost of Acquisition  paid by the Loan Parties is in excess of $90,000,000.         “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon,  the  operations,  business,  assets,  properties,  liabilities  (actual  or  contingent),  condition  (financial  or  otherwise) of the Loan Parties and their respective Subsidiaries taken as a whole; or (b) a material adverse                                          22 





 






effect on (i) the rights, remedies and benefits available to, or conferred upon, the Administrative Agent or  any Lender under any Loan Documents; (ii) the ability of any Loan Party to perform its Obligations under  any Loan Document to which it is a party, or (iii) the legality, validity, binding effect or enforceability  against any Loan Party of any Loan Document to which it is a party.         “Material Contract” means, with respect to any Person, each contract, agreement, permit or license,  written or oral, of such Person as to which the breach, nonperformance, cancellation or failure to renew by  any party thereto, individually or in the aggregate, could reasonably be expected to have a Material Adverse  Effect.         “Maturity  Date”  means  (a) with  respect  to  the  Revolving  Facility, October 24,  2024, (b) with  respect to the Term Facility, October 24, 2024 and (c) with respect to any Incremental Term Facility, the  maturity  date  set  forth  in  the  Incremental  Agreement  for  such  Incremental  Term  Facility; provided,  however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding  Business Day.         “Measurement Period” means a period of four (4) consecutive fiscal quarters, which, at any date  of determination unless otherwise specified herein, shall be the most recently completed four (4) fiscal  quarters of the Borrower.         “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting  of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the L/C Issuer  with  respect  to  Letters  of  Credit  issued  and  outstanding  at  such  time  and  (b)  otherwise,  an  amount  determined by the Administrative Agent and the L/C Issuer in their sole discretion.         “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.         “Morbark” has the meaning specified in the Preliminary Statements hereto.         “Morbark Acquisition” has the meaning specified in the Preliminary Statements hereto.         “Morbark Acquisition Agreement” has the meaning specified in the Preliminary Statements hereto.         “Morbark  Acquisition  Related  Documents”  means,  collectively, the  Morbark  Acquisition  Agreement and each other material agreement entered into in relation thereto.         “Morbark Holdings” has the meaning specified in the Preliminary Statements hereto.         “Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3)  of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or  during the preceding five (5) plan years, has made or been obligated to make contributions.         “Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including  the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan  is described in Section 4064 of ERISA.         “Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by any Loan  Party in respect of any Disposition or Involuntary Disposition, net of (a) direct costs incurred in connection  therewith  (including,  without  limitation,  legal,  accounting  and  investment  banking  fees  and  sales  commissions),  (b) taxes  paid  or  payable  as  a  result  thereof  and  (c)  the  amount  necessary  to  retire  any  Indebtedness  secured  by  a  Permitted  Lien  on  the  related  property;  it  being  understood  that  “Net  Cash                                          23 





 






Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other  disposition of any non-cash consideration received by any Loan Party in any Disposition or Involuntary  Disposition.         “Non-Consenting  Lender”  means  any  Lender  that  does  not  approve  any  consent,  waiver  or  amendment that (a) requires the approval of all Lenders or all affected Lenders, or all Lenders or all affected  Lenders in a Facility, in accordance with the terms of Section 11.01 and (b) has been approved by the  Required Lenders.         “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.         “Non-Extension Notice Date” has the meaning specified in Section 2.03(b).         “Note” means a Term Note, an Incremental Term Note or a Revolving Note, as the context may  require.         “Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be  substantially in the form of Exhibit N or such other form as may be approved by the Administrative Agent  (including any form on an electronic platform or electronic transmission system as shall be approved by the  Administrative Agent), appropriately completed and signed by a Responsible Officer.         “NPL” means the National Priorities List under CERCLA.         “Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of,  any Loan Party arising under any Loan Document or otherwise with respect to any Loan, or Letter of Credit  and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing,  including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including  those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter  arising and including interest, expenses and fees that accrue after the commencement by or against any  Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such  Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed  claims in such proceeding; provided that, without limiting the foregoing, the Obligations of a Guarantor  shall exclude any Excluded Swap Obligations with respect to such Guarantor.         “OFAC”  means  the  Office  of  Foreign  Assets  Control  of  the  United  States  Department  of  the  Treasury.         “Operating Cash Flow” means, for the Borrower and its Subsidiaries on a Consolidated basis, for  any period, the sum of Consolidated Net Income, less income or plus loss from discontinued operations and  extraordinary items, less gains or plus losses from the sale of assets, plus income tax expense, plus interest  expense, plus depreciation, depletion, amortization and other non-cash charges, plus Target Operating Cash  Flow, and less Disposed Asset Operating Cash Flow, each as determined in accordance with GAAP.         “Organization Documents” means, (a) with respect to any corporation, the charter or certificate or  articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect  to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of  formation or organization and operating agreement or limited liability company agreement (or equivalent  or comparable documents with respect to any non-U.S. jurisdiction); (c) with respect to any partnership,  joint  venture,  trust  or  other  form  of  business  entity,  the  partnership,  joint  venture  or  other  applicable  agreement of formation or organization (or equivalent or comparable documents with respect to any non-                                         24 





 






U.S. jurisdiction) and (d) with respect to all entities, any agreement, instrument, filing or notice with respect  thereto filed in connection with its formation or organization with the applicable Governmental Authority  in the jurisdiction of its formation or organization (or equivalent or comparable documents with respect to  any non-U.S. jurisdiction).         “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections  arising  from  such  Recipient  having  executed,  delivered,  become  a  party  to,  performed  its  obligations under, received payments under, received or perfected a security interest under, engaged in any  other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan  or Loan Document).         “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing  or  similar  Taxes  that  arise  from  any  payment  made  under,  from  the  execution,  delivery,  performance,  enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with  respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with  respect to an assignment (other than an assignment made pursuant to Section 3.06).         “Outstanding Amount” means (a) with respect to Term Loans, Incremental Term Loans, Revolving  Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving  effect  to  any  Borrowings  and  prepayments  or  repayments  of  Term  Loans, Incremental  Term  Loans,  Revolving Loans and Swingline Loans, as the case may be, occurring on such date; and (b) with respect to  any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of  such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date  and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result  of any reimbursements by the Borrower of Unreimbursed Amounts.         “Participant” has the meaning specified in Section 11.06(d).         “Participant Register” has the meaning specified in Section 11.06(d).         “Patriot Act” has the meaning specified in Section 11.19.         “PBGC” means the Pension Benefit Guaranty Corporation.         “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding  standards with respect to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code  and Sections 302, 303, 304 and 305 of ERISA.         “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or  a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate or  with respect to which the Borrower or any ERISA Affiliate has any liability and is either covered by Title  IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.         “Permitted  Acquisition”  means  an  Acquisition  by  a  Loan  Party  (the Person  or  division,  line  of  business or other business unit of the Person to be acquired in such Acquisition shall be referred to herein  as the “Target”), in each case that is a type of business (or assets used in a type of business) permitted to  be engaged in by the Borrower and its Subsidiaries pursuant to the terms of this Agreement, in each case  so long as:                                          25 





 






            (a)   no Default or Event of Default shall then exist or would exist after giving effect        thereto;               (b)   after giving effect to the Acquisition on a pro forma basis, the Loan Parties are in        Pro Forma Compliance;               (c)   the  Borrower  shall  comply,  and  cause  the  Target  to comply, with  the  terms  of        Section 6.13 to the extent applicable; and               (d)   the Administrative Agent and the Lenders shall have received not less than five (5)        Business  Days  prior  to  the  consummation  of  any  Permitted  Acquisition or  series  of  related        Permitted Acquisitions with an aggregate Cost of Acquisition in excess of $45,000,000, a Permitted        Acquisition Certificate, executed by a Responsible Officer of the Borrower (i) certifying that such        Permitted Acquisition complies with the requirements of this Agreement, (ii) demonstrating the        Loan Parties’ Pro Forma Compliance, and (iii) including a calculation of the Target Operating Cash        Flow (as if the business, assets or Person acquired had been acquired on the first (1st) day of the        Measurement  Period for  which  such  pro  forma  financial  statements  are  delivered) during  such        Measurement Period.         “Permitted Acquisition Certificate” means a certificate substantially the form of Exhibit F or any  other form approved by the Administrative Agent.         “Permitted Liens” has the meaning set forth in Section 7.01.         “Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of business; (b)  Dispositions of property to any Loan Party; (c) Dispositions of accounts receivable in connection with the  collection  or  compromise  thereof;  (d) licenses,  sublicenses,  leases  or  subleases  granted  to  others  not  interfering in any material respect with the business of the Loan Parties; and (e) the sale or disposition of  Cash Equivalents for fair market value.         “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or other entity.         “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including  a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to  which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.         “Platform” has the meaning specified in Section 6.02.         “Pro Forma Compliance” means, with respect to any transaction, that such transaction does not  cause, create or result in a Default after giving pro forma effect, based upon the results of operations for the  most recently completed Measurement Period to (a) such transaction and (b) all other transactions which  are contemplated or required to be given pro forma effect hereunder that have occurred on or after the first  day of the relevant Measurement Period.         “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.         “Public Lender” has the meaning specified in Section 6.02.         “Purchaser” has the meaning specified in the Preliminary Statements hereto.                                          26 





 






      “QFC”  has  the  meaning  assigned  to  the  term  “qualified  financial  contract”  in,  and  shall  be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).         “QFC Credit Support” has the meaning specified in Section 11.21.         “Qualified  ECP  Guarantor”  means,  at  any  time,  each  Loan  Party  with  total  assets  exceeding  $10,000,000  or  that  qualifies  at  such  time  as  an  “eligible  contract  participant”  under  the  Commodity  Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time  under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.         “Qualifying Control Agreement” means an agreement, among a Loan Party, a depository institution  or  securities  intermediary  and the  Administrative  Agent,  which  agreement  is  in  form  and  substance  acceptable to the Administrative Agent and which provides the Administrative Agent with “control” (as  such term is used in Article 9 of the UCC) over the deposit account(s) or securities account(s) described  therein.         “Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of  any payment to be made by or on account of any obligation of any Loan Party hereunder.         “Register” has the meaning specified in Section 11.06(c).         “Regulation U” means Regulation U of the FRB, as in effect from time to time and all official  rulings and interpretations thereunder or thereof.         “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors,  officers,  employees,  agents,  trustees,  administrators,  managers,  advisors,  consultants,  service  providers and representatives of such Person and of such Person’s Affiliates.         “Release”  means  any  release,  spill,  emission,  discharge,  deposit,  disposal,  leaking,  pumping,  pouring,  dumping,  emptying,  injection  or  leaching  into  the  Environment,  or into,  from  or  through  any  building, structure or facility.         “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty (30) day notice period has been waived.         “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation  of Term Loans, Incremental Term Loans or Revolving Loans, a Loan Notice, (b) with respect to an L/C  Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan, a Swingline  Loan Notice.         “Required Class Lenders” means, at any time with respect to any Class of Loans or Commitments,  Lenders having Total Credit Exposures with respect to such Class representing more than 50% of the Total  Credit Exposures of all Lenders of such Class. The Total Credit Exposure of any Defaulting Lender with  respect to such Class shall be disregarded in determining Required Class Lenders at any time.         “Required Incremental Term Lenders” means, at any time, Incremental Term Lenders having Total  Incremental Term Credit Exposures representing more than 50% of the Total Incremental Term Credit  Exposures of all Incremental Term Lenders. The Total Incremental Term Credit Exposure of any Defaulting  Lender shall be disregarded in determining Required Incremental Term Lenders at any time.                                          27 





 






      “Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more  than 50% of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender  shall  be  disregarded  in  determining  Required  Lenders  at  any  time; provided that,  the  amount  of  any  participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Lender has failed to  fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the  Lender that is the Swingline Lender or the L/C Issuer, as the case may be, in making such determination.         “Required  Revolving Lenders”  means,  at  any  time,  Revolving  Lenders  having  Total  Revolving  Exposures representing more than 50% of the Total Revolving Exposures of all Revolving Lenders. The  Total  Revolving  Exposure  of  any  Defaulting  Lender  shall  be  disregarded  in  determining Required  Revolving Lenders at any time; provided that, the amount of any participation in any Swingline Loan and  Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to  and funded by another Lender shall be deemed to be held by the Revolving Lender that is the Swingline  Lender or the L/C Issuer, as the case may be, in making such determination.         “Required Term Lenders” means, at any time, Term Lenders having Total Term Credit Exposures  representing more than 50% of the Total Term Credit Exposures of all Term Lenders. The Total Term  Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Term Lenders at  any time.         “Resignation Effective Date” has the meaning set forth in Section 9.06(a).         “Responsible Officer” means the chief executive officer, president, executive vice-president, vice- president, chief  financial  officer,  treasurer,  assistant  treasurer  or  controller  of  a  Loan  Party,  solely  for  purposes  of  the  delivery  of  incumbency  certificates  pursuant  to Section  4.01(b),  the  secretary  or  any  assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other  officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice  to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or  pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document  delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed  to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan  Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan  Party.  To  the  extent  requested  by  the  Administrative  Agent,  each  Responsible Officer  will  provide  an  incumbency certificate and to the extent requested by the Administrative Agent, appropriate authorization  documentation, in form and substance satisfactory to the Administrative Agent.         “Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account of  any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Subsidiaries, now  or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other  acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of the  Borrower or any of its Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to  obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of  Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, and (d) any  payment with respect to any earnout obligation.         “Revaluation Date” means with respect to any Letter of Credit, each of the following: (a) each date  of issuance, amendment and/or extension of a Letter of Credit denominated in an Alternative Currency,  (b) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an Alternative  Currency, (c) in the case of all Existing Letters of Credit denominated in Alternative Currencies, the Closing  Date, and (d) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the  Required Lenders shall require.                                          28 





 






      “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the  same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the  Revolving Lenders pursuant to Section 2.01(b).         “Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving  Loans to the Borrower pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations, and  (c) purchase  participations  in  Swingline  Loans,  in  an  aggregate  principal  amount  at  any  one  time  outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(b) under the  caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to  which such Lender becomes a party hereto or in any Incremental Agreement, as applicable, as such amount  may be adjusted from time to time in accordance with this Agreement; it being understood that a Lender’s  Revolving  Commitment  shall  include  any  Incremental  Revolving  Commitments  of  such  Lender.  The  Revolving Commitment of all of the Revolving Lenders on the Closing Date shall be $350,000,000.         “Revolving Exposure” means, as to any Lender at any time, the aggregate principal amount at such  time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swingline  Loans at such time.         “Revolving  Facility”  means,  at  any  time,  the  aggregate  amount  of  the  Revolving  Lenders’  Revolving Commitments at such time.         “Revolving Lender” means, at any time, (a) so long as any Revolving Commitment is in effect, any  Lender  that  has  a  Revolving  Commitment  at  such  time  or  (b) if  the  Revolving  Commitments  have  terminated  or  expired,  any  Lender  that  has  a  Revolving  Loan  or  a  participation  in  L/C Obligations  or  Swingline Loans at such time.         “Revolving Loan” has the meaning specified in Section 2.01(b).         “Revolving Note” means a promissory note made by the Borrower in favor of a Revolving Lender  evidencing Revolving Loans or Swingline Loans, as the case may be, made by such Revolving Lender,  substantially in the form of Exhibit G.         “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and  any successor thereto.         “Sale and Leaseback Transaction” means, with respect to any Loan Party or any Subsidiary, any  arrangement, directly or indirectly, with any Person whereby such Loan Party or such Subsidiary shall sell  or  transfer  any  property  used  or  useful  in  its  business,  whether  now  owned  or  hereafter  acquired,  and  thereafter rent or lease such property or other property that it intends to use for substantially the same  purpose or purposes as the property being sold or transferred.         “Sanction(s)”  means  any  sanction  administered  or  enforced  by  the  United  States  Government  (including,  without  limitation,  OFAC),  the  United  Nations Security  Council, the  European  Union,  Her  Majesty’s Treasury (“HMT”) or other relevant sanctions authority.         “SEC”  means  the  Securities  and  Exchange  Commission,  or  any  Governmental  Authority  succeeding to any of its principal functions.         “Securitization Transaction” means, with respect to any Person, any financing transaction or series  of  financing  transactions  (including  factoring  arrangements)  pursuant  to  which  such  Person  or  any  Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts,                                          29 





 






payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special  purpose subsidiary or affiliate of such Person.         “Sellers” has the meaning specified in the Preliminary Statements hereto.         “Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’ equity  of the Borrower and its Subsidiaries as of such date, determined in accordance with GAAP.         “Solvency Certificate” means a solvency certificate in form and substance reasonably satisfactory  to the Administrative Agent.         “Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on  such date (a) the fair value of the property of such Person is greater than the total amount of liabilities,  including  contingent liabilities,  of  such  Person,  (b) the  present  fair  saleable  value  of the  assets  of  such  Person is not less than the amount that will be required to pay the probable liability of such Person on its  debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it  will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature,  (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a  transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such  Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature  in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as  the amount that, in the light of all the facts and circumstances existing at such time, represents the amount  that can reasonably be expected to become an actual or matured liability.         “Specified Cash Management Agreement” means any Cash Management Agreement between the  any Loan Party and any Cash Management Bank.         “Specified Hedge Agreement” means any interest rate, currency, foreign exchange, or commodity  Swap Contract not prohibited under Article VI or VII between any Loan Party and any Hedge Bank.         “Specified Loan Party” means any Loan Party that is not then an “eligible contract participant”  under the Commodity Exchange Act (determined prior to giving effect to Section 10.11).         “Specified Obligations” means all Obligations and all Additional Guaranteed Obligations.         “Specified Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the  Hedge Banks, the Cash Management Banks, the Indemnitees and each co-agent or sub-agent appointed by  the Administrative Agent from time to time pursuant to Section 9.05.         “Specified Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender  substantially in the form of Exhibit H.         “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company  or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned,  or  the  management  of  which  is  otherwise  controlled,  directly,  or  indirectly  through  one  or  more  intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary”  or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.         “Supported QFC” has the meaning specified in Section 11.21.                                          30 





 






      “Swap  Contract”  means  (a) any  and  all  rate  swap  transactions,  basis  swaps,  credit  derivative  transactions,  forward  rate  transactions, commodity  swaps,  commodity  options,  forward  commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward  bond  or  forward  bond  price  or  forward  bond  index transactions, interest  rate  options,  forward  foreign  exchange  transactions,  cap  transactions,  floor  transactions,  collar  transactions,  currency  swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement  (any  such  master  agreement,  together  with  any  related  schedules,  a  “Master  Agreement”),  including any such obligations or liabilities under any Master Agreement.         “Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under  any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of  the Commodity Exchange Act.         “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into  account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any  date on or after the date such Swap Contracts have been closed out and termination value(s) determined in  accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause  (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based  upon one or more mid-market or other readily available quotations provided by any recognized dealer in  such Swap Contracts (which may include a Lender or any Affiliate of a Lender).         “Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.04.         “Swingline Commitment” means, as to any Lender (a) the amount set forth opposite such Lender’s  name on Schedule 2.01 hereof or (b) if such Lender has entered into an Assignment and Assumption or has  otherwise assumed a Swingline Commitment after the Closing Date, the amount set forth for such Lender  as its Swingline Commitment in the Register maintained by the Administrative Agent pursuant to Section  11.06(c).         “Swingline Lender” means Bank of America in its capacity as provider of Swingline Loans, or any  successor swingline lender hereunder.         “Swingline Loan” has the meaning specified in Section 2.04(a).         “Swingline Loan Notice” means a notice of a Swingline Borrowing pursuant to Section 2.04(b),  which shall be substantially in the form of Exhibit I or such other form as approved by the Administrative  Agent (including any form on an electronic platform or electronic transmission system as shall be approved  by  the  Administrative  Agent),  appropriately  completed  and  signed  by  a  Responsible  Officer  of  the  Borrower.         “Swingline Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b) the Revolving  Facility. The Swingline Sublimit is part of, and not in addition to, the Revolving Facility.         “Synthetic Debt” means, with respect to any Person as of any date of determination thereof, all  obligations  of  such  Person  in  respect  of  transactions  entered  into  by  such  Person  that  are  intended  to  function  primarily  as  a  borrowing  of  funds  (including  any  minority  interest  transactions  that  function                                          31 





 






primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability  on the Consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.         “Synthetic  Lease  Obligation”  means  the  monetary  obligation  of  a  Person  under  (a) a  so-called  synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property  (including Sale and Leaseback Transactions), in each case, creating obligations that do not appear on the  balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person,  would be characterized as the indebtedness of such Person (without regard to accounting treatment).         “Target” has the meaning set forth in the definition of “Permitted Acquisition.”         “Target Operating Cash Flow” means, with respect to each Permitted Acquisition consummated  during  any Measurement  Period,  the  actual  Operating  Cash  Flow  attributable  to  the  Target  of  such  Permitted  Acquisition  during  such  Measurement  Period  on  a  pro  forma  basis  as  if  such  Permitted  Acquisition occurred on the first day of such Measurement Period.         “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  Borrowing”  means  a  borrowing  consisting  of  simultaneous  Term  Loans or  Incremental  Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period  made by each of the Term Lenders or Incremental Term Lenders, as applicable, pursuant to Article II.         “Term Commitment” means, as to each Term Lender, its obligation to make Term Loans to the  Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to  exceed the amount set forth opposite such Term Lender’s name on Schedule 1.01(b) under the caption  “Term Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such  Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in  accordance with this Agreement. The Term Commitment of all of the Term Lenders on the Closing Date  shall be $300,000,000.         “Term Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate amount of  the Term Commitments at such time and (b) thereafter, the aggregate principal amount of the Term Loans  of all Term Lenders outstanding at such time.         “Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that has a Term  Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term Loans at  such time.         “Term Loan” means an advance made by any Term Lender under the Term Facility.         “Term Note” means a promissory note made by the Borrower in favor of a Term Lender evidencing  Term Loans made by such Term Lender, substantially in the form of Exhibit J.         “Threshold Amount” means $7,500,000.         “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving  Exposure and Outstanding Amount of all Term Loans and Incremental Term Loans of such Lender at such  time.                                          32 





 






      “Total Incremental Term Credit Exposure” means, as to any Incremental Term Lender at any time,  the Outstanding Amount of all Incremental Term Loans of such Incremental Term Lender at such time.         “Total  Revolving  Exposure”  means,  as  to  any  Revolving  Lender  at  any  time,  the  unused  Commitments and Revolving Exposure of such Revolving Lender at such time.         “Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans,  Swingline Loans and L/C Obligations.         “Total Term Credit Exposure” means, as to any Term Lender at any time, the Outstanding Amount  of all Term Loans of such Term Lender at such time.         “Transactions” means, collectively, (a) the entering into by the Loan Parties and their applicable  Subsidiaries of the Loan Documents to which they are intended to be a party, (b) the consummation of the  Morbark  Acquisition,  (c)  the  entering  into  by  the  Loan  Parties  and  their  applicable Subsidiaries  of  the  Morbark Acquisition Related Documents to which they are or are intended to be a party and (d) the payment  of fees and expenses incurred in connection with the consummation of the foregoing.         “Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.         “UCC” means the Uniform Commercial Code as in effect in the State of New York.         “UCP” means 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).         “United States” and “U.S.” mean the United States of America.         “Unreimbursed Amount” has the meaning specified in Section 2.03(f).         “U.S. Loan Party” means any Loan Party that is organized under the laws of the United States, any  state thereof for the District of Columbia.         “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30)  of the Code.         “U.S. Special Resolution Regimes” has the meaning specified in Section 11.21.         “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(f)(ii)(B)(3).         “Voting  Stock”  means,  with  respect  to  any  Person,  Equity  Interests  issued  by  such  Person  the  holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors  (or  persons  performing  similar  functions)  of  such  Person,  even  though  the  right  to  so  vote  has  been  suspended by the happening of such contingency.         “Withholding Agent” means the Borrower and the Administrative Agent.         “Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the  write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In  Legislation  for  the  applicable  EEA  Member  Country,  which  write-down  and  conversion  powers  are  described in the EU Bail-In Legislation Schedule.                                          33 





 






      1.02  Other Interpretive Provisions.         With reference to this Agreement and each other Loan Document, unless otherwise specified herein  or in such other Loan Document:               (a)   The definitions of terms herein shall apply equally to the singular and plural forms        of  the  terms  defined.  Whenever  the  context  may  require,  any  pronoun  shall  include  the        corresponding  masculine,  feminine  and  neuter  forms.  The  words  “include,”  “includes”  and        “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”        shall be construed to have the same meaning and effect as the word “shall.” Unless the context        requires  otherwise,  (i) any  definition  of  or  reference  to  any  agreement,  instrument  or  other        document (including the Loan Documents and any Organization Document) shall be construed as        referring to such agreement, instrument or other document as from time to time amended, amended        and restated, modified, extended, restated, replaced or supplemented from time to time (subject to        any restrictions on such amendments, supplements or modifications set forth herein or in any other        Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s        successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of        similar  import  when  used  in  any  Loan  Document,  shall  be  construed  to  refer  to  such  Loan        Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan        Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed        to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the        Loan Document in which such references appear, (v) any reference to any law shall include all        statutory  and  regulatory  rules,  regulations,  orders  and  provisions  consolidating,  amending,        replacing or interpreting such law and any reference to any law, rule or regulation shall, unless        otherwise specified, refer to such law, rule or regulation as amended, modified, extended, restated,        replaced or supplemented from time to time, and (vi) the words “asset” and “property” shall be        construed to have the same meaning and effect and to refer to any and all tangible and intangible        assets and properties, including cash, securities, accounts and contract rights.               (b)   In the computation of periods of time from a specified date to a later specified date,        the  word  “from”  means  “from  and  including;”  the  words  “to”  and  “until”  each  mean  “to  but        excluding;” and the word “through” means “to and including.”               (c)   Section  headings  herein  and  in  the  other  Loan  Documents  are  included  for        convenience of reference only and shall not affect the interpretation of this Agreement or any other        Loan Document.               (d)   Any  reference  herein  to  a  merger,  transfer,  consolidation,  amalgamation,        assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of        or by a limited liability company, or an allocation of assets to a series of a limited liability company        (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation,        amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with        a separate Person. Any division of a limited liability company shall constitute a separate Person        hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or        any other like term shall also constitute such a Person or entity).         1.03  Accounting Terms.               (a)   Generally. All accounting terms not specifically or completely defined herein shall        be construed in conformity with, and all financial data (including financial ratios and other financial        calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity                                          34 





 






      with,  GAAP  applied  on  a  consistent  basis,  as  in  effect from  time to  time,  applied  in  a  manner        consistent  with  that  used  in  preparing  the  Audited  Financial  Statements,  except  as  otherwise        specifically  prescribed  herein.  Notwithstanding  the  foregoing,  for  purposes  of  determining        compliance with any covenant (including the computation of any financial covenant) contained        herein, (i) Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100%        of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC        470–20 on financial liabilities shall be disregarded, and (ii) 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  any  election under  FASB  ASC  Topic  825  “Financial        Instruments” (or any other financial accounting standard having a similar result or effect) to value        any Indebtedness of the Borrower or any Subsidiary at “fair value”, as defined therein. For purposes        of determining the amount of any outstanding Indebtedness, no effect shall be given to any election        by the Borrower to measure an item of Indebtedness using fair value (as permitted by Financial        Accounting Standards Board Accounting Standards Codification 825–10–25 (formerly known as        FASB 159) or any similar accounting standard).               (b)   Changes  in  GAAP.  If  at  any  time  any  change  in  GAAP  would  affect  the        computation of any financial ratio or requirement set forth in any Loan Document, and either the        Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the        Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original        intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);        provided that, until so amended, (i) such ratio or requirement shall continue to be computed in        accordance  with  GAAP  prior  to  such  change  therein and  (ii) the Borrower  shall  provide  to the        Administrative Agent and the Lenders financial statements and other documents required under        this  Agreement  or  as  reasonably  requested  hereunder  setting  forth  a  reconciliation  between        calculations of such ratio or requirement made before and after giving effect to such change in        GAAP.                (c)   Pro Forma Treatment. Without duplication of any other provisions regarding pro        forma treatment herein, each Disposition of all or substantially all of a line of business, and each        Permitted Acquisition,  by  the  Borrower  and  its  Subsidiaries  that  is  consummated  during  any        Measurement Period shall, for purposes of determining compliance with the financial covenants        set forth in Section 7.11 and for purposes of determining the Applicable Rate, be given pro forma        effect as of the first day of such Measurement Period.         1.04  Rounding.         Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be  calculated by dividing the appropriate component by the other component, carrying the result to one place  more than the number of places by which such ratio is expressed herein and rounding the result up or down  to the nearest number (with a rounding-up if there is no nearest number).         1.05  Times of Day.         Unless otherwise specified, all references herein to times of day shall be references to Eastern time  (daylight or standard, as applicable).         1.06  Letter of Credit Amounts.          Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to  be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided,                                          35 





 






however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document  related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of  such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such  Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in  effect at such time.         1.07  UCC Terms.         Terms defined in the UCC in effect on the Closing Date and not otherwise defined herein shall,  unless the context otherwise indicates, have the meanings provided by those definitions. Subject to the  foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.         1.08  Exchange Rates; Currency Equivalents.               (a)   The  Administrative  Agent  or  the  L/C  Issuer,  as  applicable,  shall determine  the        Dollar  Equivalent  amounts  of  Credit  Extensions  and  Outstanding  Amounts  denominated  in        Alternative Currencies. Such Dollar Equivalent shall become effective as of such Revaluation Date        and shall be the Dollar Equivalent of such amounts until the next Revaluation Date to occur. Except        for purposes of financial statements delivered by Loan Parties hereunder or calculating financial        covenants hereunder or except as otherwise provided herein, the applicable amount of any currency        (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount        as so determined by the Administrative Agent or the L/C Issuer, as applicable.               (b)   Wherever  in  this  Agreement  in  connection  with  the  issuance,  amendment  or        extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is        expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such        amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to        the  nearest  unit  of  such  Alternative  Currency,  with  0.5  of  a  unit  being  rounded  upward),  as        determined by the Administrative Agent or the L/C Issuer, as the case may be.               (c)   The Administrative Agent does not warrant, nor accept responsibility, nor shall the        Administrative Agent have any liability with respect to the administration, submission or any other        matter related to the rates in the definition of “Eurodollar Rate” or with respect to any rate that is        an alternative or replacement for or successor to any of such rates (including, without limitation,        any LIBOR Successor Rate) or the effect of any of the foregoing, or of any LIBOR Successor Rate        Conforming Changes.         1.09  Additional Alternative Currencies.                (a)   The Borrower may from time to time request that Letters of Credit be issued in a        currency other than those specifically listed in the definition of “Alternative Currency”; provided        that such requested currency is an Eligible Currency. Such request shall be subject to the approval        of the Administrative Agent and the L/C Issuer.               (b)   Any such request shall be made to the Administrative Agent not later than 11:00        a.m., twenty (20) Business Days prior to the date of the desired L/C Credit Extension (or such other        time  or  date  as  may  be  agreed  by  the  Administrative  Agent and the  L/C  Issuer,  in  their  sole        discretion). The Administrative Agent shall promptly notify the L/C Issuer thereof. The L/C Issuer        shall notify the Administrative Agent, not later than 11:00 a.m., ten (10) Business Days after receipt        of such request whether it consents, in its sole discretion, to the issuance of Letters of Credit, as the        case may be, in such requested currency.                                          36 





 






      (c)   Any failure by the L/C Issuer to respond to such request within the time period  specified in the preceding sentence shall be deemed to be a refusal by the L/C Issuer to permit  Letters of Credit to be issued in such requested currency. If the Administrative Agent and the L/C  Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative  Agent shall so notify the Borrower. If the Administrative Agent and L/C Issuer do not consent to  any  request  for  an  additional  currency  under  this Section 1.09,  the  Administrative  Agent  shall  promptly so notify the Borrower.                               ARTICLE II                                                  COMMITMENTS AND CREDIT EXTENSIONS   2.01  Loans.         (a)   Term Borrowing. Subject to the terms and conditions set forth herein, each Term  Lender severally agrees to make a single loan to the Borrower, in Dollars, on the Closing Date in  an amount not to exceed such Term Lender’s Applicable Percentage of the Term Facility. The Term  Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance  with  their  respective  Applicable  Percentage  of  the  Term  Facility.  Term  Borrowings  repaid  or  prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans,  as further provided herein; provided, however, any Term Borrowing made on the Closing Date or  any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans.         (b)   Revolving Borrowings. Subject to the terms and conditions set forth herein, each  Revolving  Lender  severally  agrees  to make  loans  (each  such  loan,  a  “Revolving  Loan”)  to  the  Borrower, in Dollars, from time to time, on any Business Day during the Availability Period, in an  aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving  Commitment; provided, however, that after giving effect to any Revolving Borrowing, (i) the Total  Revolving Outstandings shall not exceed the Revolving Facility, and (ii) the Revolving Exposure  of any Lender shall not exceed such Revolving Lender’s Revolving Commitment. Within the limits  of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions  hereof, the Borrower may borrow Revolving Loans, prepay under Section 2.05, and reborrow under  this Section 2.01(b). Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further  provided herein; provided, however, any Revolving Borrowings made on the Closing Date or any  of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans.   2.02  Borrowings, Conversions and Continuations of Loans.         (a)   Notice of Borrowing. Each Borrowing, each conversion of Loans from one Type  to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s  irrevocable notice to the Administrative Agent, which may be given by: (i) telephone or (ii) a Loan  Notice; provided that any  telephonic  notice  must  be confirmed  immediately  by delivery  to  the  Administrative  Agent  of  a  Loan  Notice.  Each  such  Loan  Notice  must  be  received  by  the  Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days prior to the requested  date  of  any  Borrowing  of,  conversion  to  or  continuation  of  Eurodollar  Rate  Loans  or  of  any  conversion of Eurodollar Rate Loans to Base Rate Loans, and (B) on the requested date of any  Borrowing of Base Rate Loans. Each Borrowing of, conversion to or continuation of Eurodollar  Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess  thereof (or, in connection with any conversion or continuation of a Term Loan, if less, the entire  principal  thereof  then  outstanding).  Except  as  provided  in Sections  2.03(c)  and 2.04(c),  each  Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a                                    37 





 






whole multiple of $100,000 in excess thereof (or, in connection with any conversion or continuation  of a Term Loan, if less, the entire principal thereof then outstanding). Each Loan Notice and each  telephonic notice shall specify (I) the applicable Facility and whether the Borrower is requesting a  Borrowing, a conversion of Loans from one Type to the other, or a continuation of Loans, as the  case  may  be,  under  such  Facility,  (II) the  requested  date  of  the  Borrowing,  conversion  or  continuation, as the case may be (which shall be a Business Day), (III) the principal amount of  Loans to be borrowed, converted or continued, (IV) the Type of Loans to be borrowed or to which  existing Loans are to be converted, and (V) if applicable, the duration of the Interest Period with  respect thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower  fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall  be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans  shall be effective as of the last day of the Interest Period then in effect with respect to the applicable  Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of  Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be  deemed to have specified an Interest Period of one (1) month. Notwithstanding anything to the  contrary herein, a Swingline Loan may not be converted to a Eurodollar Rate Loan.          (b)   Advances. Following receipt of a Loan Notice for a Facility, the Administrative  Agent shall promptly notify each Appropriate Lender of the amount of its Applicable Percentage  under such Facility of the applicable Loans, and if no timely notice of a conversion or continuation  is provided by the Borrower, the Administrative Agent shall notify each Appropriate Lender of the  details of any automatic conversion to Base Rate Loans described in Section 2.02(a). In the case of  a  Borrowing,  each  Appropriate  Lender  shall  make  the  amount  of  its  Loan  available  to  the  Administrative Agent in immediately available funds at the Administrative Agent’s Office not later  than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of  the  applicable  conditions  set  forth  in Section 4.02 (and, if  such  Borrowing  is  the  initial Credit  Extension, Section 4.01), the Administrative Agent shall make all funds so received available to  the  Borrower  in  like  funds  as  received  by  the  Administrative  Agent  either  by  (i) crediting  the  account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire  transfer of such funds, in each case in accordance with instructions provided to (and reasonably  acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date a  Loan  Notice  with respect  to  a  Revolving  Borrowing  is  given  by  the  Borrower,  there  are  L/C  Borrowings outstanding, then the proceeds of such Revolving Borrowing, first, shall be applied to  the  payment  in  full  of  any  such  L/C  Borrowings,  and second,  shall  be  made  available  to  the  Borrower as provided above.         (c)   Eurodollar Rate Loans. Except as otherwise provided herein, a Eurodollar Rate  Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar  Rate  Loan.  During  the  existence  of  a  Default, no  Loans  may  be  requested  as,  converted  to  or  continued as Eurodollar Rate Loans without the consent of the Required Lenders, and the Required  Lenders  may  demand  that  any  or  all  of  the  outstanding  Eurodollar  Rate  Loans  be  converted  immediately to Base Rate Loans.         (d)   Interest Rates. 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.         (e)   Interest Periods. After giving effect to all Term Borrowings, all conversions of  Term Loans and Incremental Term Loans from one Type to the other, and all continuations of Term  Loans and Incremental Term Loans as the same Type, there shall not be more than five (5) Interest  Periods in effect in respect of the Term Facility and the Incremental Term Facility. After giving                                    38 





 






effect to all Revolving Borrowings, all conversions of Revolving Loans from one Type to the other,  and all continuations of Revolving Loans as the same Type, there shall not be more than five (5)  Interest Periods in effect in respect of the Revolving Facility.         (f)   Cashless Settlement Mechanism. Notwithstanding anything to the contrary in this  Agreement,  any  Lender  may  exchange,  continue  or  rollover  all  or  the  portion  of  its  Loans  in  connection with any refinancing, extension, loan modification or similar transaction permitted by  the  terms  of  this  Agreement,  pursuant  to  a  cashless  settlement  mechanism  approved  by  the  Borrower, the Administrative Agent and such Lender.   2.03  Letters of Credit.          (a)   The Letter of Credit Commitment. Subject to the terms and conditions set forth  herein, in addition to the Loans provided for in Section 2.01, the Borrower may request that the  L/C Issuer, in reliance on the agreements of the Revolving Lenders set forth in this Section 2.03,  issue,  at  any  time  and  from  time  to  time  during  the  Availability  Period,  Letters  of  Credit  denominated in Dollars or in one or more Alternative Currencies for its own account or the account  of any of its Subsidiaries in such form as is acceptable to the Administrative Agent and the L/C  Issuer in its reasonable determination. Letters of Credit issued hereunder shall constitute utilization  of the Revolving Commitments.         (b)   Notice of Issuance, Amendment, Extension, Reinstatement or Renewal.                (i)   To request the issuance of a Letter of Credit (or the amendment of the        terms and conditions, extension of the terms and conditions, extension of the expiration        date, or reinstatement of amounts paid, or renewal of an outstanding Letter of Credit), the        Borrower shall deliver (or transmit by electronic communication, if arrangements for doing        so have been approved by the L/C Issuer) to the L/C Issuer and to the Administrative Agent        not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the        Administrative Agent and the L/C Issuer may agree in a particular instance in their sole        discretion) prior to the proposed issuance date or date of amendment, as the case may be a        notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be        amended,  extended,  reinstated  or  renewed,  and  specifying  the  date  of  issuance,        amendment, extension, reinstatement or renewal (which shall be a Business Day), the date        on which such Letter of Credit is to expire (which shall comply with clause (d) of this        Section 2.03), the amount of such Letter of Credit, the name and address of the beneficiary        thereof, the purpose and nature of the requested Letter of Credit and such other information        as shall be necessary to prepare, amend, extend, reinstate or renew such Letter of Credit. If        requested by the L/C Issuer, the Borrower also shall submit a letter of credit application        and reimbursement agreement on the L/C Issuer’s standard form in connection with any        request for a Letter of Credit. In the event of any inconsistency between the terms and        conditions of this Agreement and the terms and conditions of any form of letter of credit        application and reimbursement agreement or other agreement submitted by the Borrower        to, or entered into by the Borrower with, the L/C Issuer relating to any Letter of Credit, the        terms and conditions of this Agreement shall control.               (ii)  If the Borrower so requests in any applicable Letter of Credit Application        (or  the  amendment  of  an  outstanding  Letter  of  Credit),  the  L/C  Issuer  may,  in  its  sole        discretion, agree to issue a Letter of Credit that has automatic extension provisions (each,        an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of        Credit  shall  permit the L/C  Issuer  to  prevent  any  such  extension  at  least  once  in  each                                    39 





 






      twelve-month period (commencing with the date of issuance of such Letter of Credit) by        giving  prior  notice  to  the  beneficiary  thereof  not  later  than  a  day  (the  “Non-Extension        Notice Date”) in each such twelve-month period to be agreed upon by the Borrower and        the L/C Issuer at the time such Letter of Credit is issued. Unless otherwise directed by the        L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer        for  any  such  extension.  Once  an  Auto-Extension  Letter  of  Credit  has  been  issued,  the        Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer        to permit the extension of such Letter of Credit at any time to an expiration date not later        than the date permitted pursuant to Section 2.03(d); provided, that the L/C Issuer shall not        (A) permit any such extension if (1) the L/C Issuer has determined that it would not be        permitted, or would have no obligation, at such time to issue such Letter of Credit in its        extended form under the terms hereof (except that the expiration date may be extended to        a date that is no more than one (1) year from the then-current expiration date) or (2) it has        received  notice  (which  may  be  in writing  or  by  telephone  (if  promptly  confirmed  in        writing)) on or before the day that is seven (7) Business Days before the Non-Extension        Notice  Date  from  the  Administrative  Agent  that  the Required  Revolving  Lenders  have        elected not to permit such extension or (B) be obligated to permit such extension if it has        received  notice  (which  may  be  in  writing  or  by  telephone  (if  promptly  confirmed  in        writing)) on or before the day that is seven (7) Business Days before the Non-Extension        Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that        one or more of the applicable conditions set forth in Section 4.02 is not then satisfied, and        in each such case directing the L/C Issuer not to permit such extension.         (c)   Limitations on Amounts, Issuance and Amendment. A Letter of Credit shall be  issued,  amended,  extended,  reinstated  or  renewed  only  if  (and  upon  issuance,  amendment,  extension,  reinstatement  or  renewal  of  each  Letter  of  Credit  the  Borrower  shall  be  deemed  to  represent  and  warrant  that),  after  giving  effect  to  such  issuance,  amendment,  extension,  reinstatement or renewal (w) the aggregate amount of the outstanding Letters of Credit issued by  the L/C Issuer shall not exceed its L/C Commitment, (x) the aggregate L/C Obligations shall not  exceed the Letter of Credit Sublimit, (y) the Revolving Exposure of any Lender shall not exceed  its  Revolving  Commitment  and  (z) the  Total  Revolving  Exposure  shall  not  exceed  the  total  Revolving Commitments.               (i)   The L/C Issuer shall not be under any obligation to issue any Letter of        Credit if:                     (A)   any order, judgment or decree of any Governmental Authority or              arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing              the Letter of Credit, or any Law applicable to the L/C Issuer or any request or              directive  (whether  or  not  having  the  force  of  law)  from  any  Governmental              Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the              L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of              Credit in particular or shall impose upon the L/C Issuer with respect to the Letter              of Credit any restriction, reserve or capital requirement (for which the L/C Issuer              is not otherwise compensated hereunder) not in effect on the Closing Date, or shall              impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not              applicable  on  the  Closing  Date  and  which the L/C  Issuer  in  good  faith  deems              material to it;                     (B)   the issuance of such Letter of Credit would violate one or more              policies of the L/C Issuer applicable to letters of credit generally;                                    40 





 






                  (C)   except as otherwise agreed by the Administrative Agent and the              L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000, in              the case of a commercial Letter of Credit, or $200,000, in the case of a standby              Letter of Credit;                     (D)   any Revolving Lender is at that time a Defaulting Lender, unless              the L/C  Issuer  has  entered  into  arrangements,  including  the  delivery  of  Cash              Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower              or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure              (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender              arising from either the Letter of Credit then proposed to be issued or that Letter of              Credit  and  all  other  L/C  Obligations  as  to  which the L/C  Issuer  has  actual  or              potential Fronting Exposure, as it may elect in its sole discretion; or                     (E)   the  Letter  of  Credit  contains  any  provisions  for  automatic              reinstatement of the stated amount after any drawing thereunder.               (ii)  The L/C Issuer shall be under no obligation to amend any Letter of Credit        if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in        its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does        not accept the proposed amendment to the Letter of Credit.         (d)   Expiration Date. Each Letter of Credit shall have a stated expiration date no later  than the earlier of (i) the date twelve (12) months after the date of the issuance of such Letter of  Credit (or, in the case of any extension of the expiration date thereof, whether automatic or by  amendment, twelve  months  after  the  then-current  expiration  date  of  such  Letter  of Credit)  and  (ii) the date that is five (5) Business Days prior to the Maturity Date.         (e)   Participations.                (i)   By the issuance of a Letter of Credit (or an amendment to a Letter of Credit        increasing the amount or extending the expiration date thereof), and without any further        action on the part of the L/C Issuer or the Lenders, the L/C Issuer hereby grants to each        Revolving  Lender,  and  each  Revolving  Lender  hereby  acquires  from the L/C  Issuer,  a        participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the        aggregate  amount  available  to  be  drawn  under  such  Letter  of  Credit.  Each  Revolving        Lender acknowledges and agrees that its obligation to acquire participations pursuant to        this clause (e) in respect of Letters of Credit is absolute, unconditional and irrevocable and        shall  not  be  affected  by  any  circumstance  whatsoever,  including  any  amendment,        extension,  reinstatement  or  renewal  of  any  Letter  of  Credit  or  the  occurrence  and        continuance of a Default or reduction or termination of the Revolving Commitments.               (ii)  In  consideration  and  in  furtherance  of  the  foregoing,  each  Revolving        Lender hereby absolutely, unconditionally and irrevocably agrees to pay in Dollars to the        Administrative Agent, for account of the L/C Issuer, such Lender’s Applicable Percentage        of the Dollar Equivalent of each L/C Disbursement made by the L/C Issuer not later than        1:00 p.m. on the Business Day specified in the notice provided by the Administrative Agent        to  the  Revolving  Lenders  pursuant  to Section  2.03(f)  until  such  L/C  Disbursement  is        reimbursed by the Borrower or at any time after any reimbursement payment is required to        be  refunded  to  the  Borrower  for  any  reason,  including  after  the  Maturity  Date.  Such        payment  shall  be  made  without  any  offset,  abatement,  withholding  or  reduction                                    41 





 






      whatsoever.  Each  such  payment  shall  be  made  in  the  same  manner  as  provided  in        Section 2.02 with respect to Loans made by such Lender (and Section 2.02 shall apply,        mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this        Section 2.03),  and  the  Administrative  Agent  shall  promptly  pay  to  the  L/C  Issuer  the        amounts  so  received  by  it  from  the  Lenders.  Promptly  following  receipt  by  the        Administrative Agent of any payment from the Borrower pursuant to Section 2.03(f), the        Administrative Agent shall distribute such payment to the L/C Issuer or, to the extent that        the Revolving Lenders have made payments pursuant to this clause (e) to reimburse the        L/C Issuer, then to such Lenders and the L/C Issuer as their interests may appear. Any        payment made by a Lender pursuant to this clause (e) to reimburse the L/C Issuer for any        L/C Disbursement shall not constitute a Loan and shall not relieve the Borrower of its        obligation to reimburse such L/C Disbursement.               (iii) Each  Revolving  Lender  further  acknowledges  and  agrees  that  its        participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s        Applicable Percentage of the aggregate amount available to be drawn under such Letter of        Credit at each time such Lender’s Commitment is amended pursuant to the operation of        Section 2.16, as a result of an assignment in accordance with Section 11.06 or otherwise        pursuant to this Agreement.               (iv)  If  any  Revolving  Lender  fails  to  make  available  to  the  Administrative        Agent for the account of the L/C Issuer any amount required to be paid by such Lender        pursuant to the foregoing provisions of this Section 2.03(e), then, without limiting the other        provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender        (acting through the Administrative Agent), on demand, such amount with interest thereon        for the period from the date such payment is required to the date on which such payment        is immediately available to the L/C Issuer at a rate per annum equal to the greater of the        Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking        industry rules on interbank compensation, plus any administrative, processing or similar        fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender        pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute        such  Lender’s  Revolving  Loan  included  in  the  relevant  Revolving  Borrowing  or  L/C        Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the        L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with        respect to any amounts owing under this clause (e)(iv) shall be conclusive absent manifest        error.         (f)   Reimbursement. If the L/C Issuer shall make any L/C Disbursement in respect of  a Letter of Credit, the Borrower shall reimburse the L/C Issuer in respect of such L/C Disbursement  by  paying  to  the  Administrative  Agent  an  amount  equal  to  such  L/C  Disbursement (in  the  appropriate Alternative Currency, if applicable) not later than 12:00 noon on (i) the Business Day  that the Borrower receives notice of such L/C Disbursement, if such notice is received prior to  10:00 a.m. or (ii) the Business Day immediately following the day that the Borrower receives such  notice, if such notice is not received prior to such time, provided that, if such L/C Disbursement  (or  the  Dollar  Equivalent  thereof) is  not  less  than $500,000,  the  Borrower  may,  subject  to  the  conditions to borrowing set forth herein, request in accordance with Section 2.02 or Section 2.04  that such payment be financed with a Borrowing of Base Rate Loans or Swingline Loan in an  equivalent  amount (or  Dollar  Equivalent  amount  in  the  case  of  a  Letter  of  Credit  issued  in  an  Alternative  Currency) and,  to  the  extent  so  financed,  the  Borrower’s  obligation  to  make  such  payment  shall  be  discharged  and  replaced  by  the  resulting  Borrowing  of  Base  Rate  Loans  or  Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent                                    42 





 






shall notify each Revolving Lender of the applicable L/C Disbursement, the payment then due from  the  Borrower  in  respect  thereof  (the  “Unreimbursed  Amount”)  and  such  Lender’s  Applicable  Percentage thereof.  Promptly upon receipt of such notice, each Revolving Lender shall pay to the  Administrative Agent its Applicable Percentage of the Unreimbursed Amount pursuant to Section  2.03(e)(ii), subject  to  the  amount  of  the  unutilized  portion  of  the  aggregate  Revolving  Commitments. Any notice given by the L/C Issuer or the Administrative Agent pursuant to this  Section 2.03(f) may be given by telephone if immediately confirmed in writing; provided that the  lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such  notice.         (g)   Obligations Absolute. The Borrower’s obligation to reimburse L/C Disbursements  as provided in clause (f) of this Section 2.03 shall be absolute, unconditional and irrevocable, and  shall  be  performed  strictly  in  accordance  with  the  terms  of  this  Agreement  under  any  and  all  circumstances whatsoever and irrespective of:               (i)   any lack of validity or enforceability of this Agreement, any other Loan        Document or any Letter of Credit, or any term or provision herein or therein;               (ii)  the existence of any claim, counterclaim, setoff, defense or other right that        the  Borrower  or  any  Subsidiary  may  have  at  any  time  against  any  beneficiary  or  any        transferee of such Letter of Credit (or any Person for whom any such beneficiary or any        such transferee may be acting), the L/C Issuer or any other Person, whether in connection        with this Agreement, the transactions contemplated hereby or by such Letter of Credit or        any agreement or instrument relating thereto, or any unrelated transaction;               (iii) any  draft,  demand,  certificate  or  other  document  presented  under  such        Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or        any statement in such draft or other document being untrue or inaccurate in any respect; or        any loss or delay in the transmission or otherwise of any document required in order to        make a drawing under such Letter of Credit;               (iv)  waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s        protection and not the protection of the Borrower or any waiver by the L/C Issuer which        does not in fact materially prejudice the Borrower;               (v)   honor of a demand for payment presented electronically even if such Letter        of Credit required that demand be in the form of a draft;               (vi)  any payment made by the L/C Issuer in respect of an otherwise complying        item  presented  after  the  date  specified  as  the  expiration  date  of,  or  the  date  by  which        documents must be received under such Letter of Credit if presentation after such date is        authorized by the UCC, the ISP or the UCP, as applicable;               (vii) payment by the L/C Issuer under a Letter of Credit against presentation of        a draft or other document that does not comply strictly with the terms of such Letter of        Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person        purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of        creditors, liquidator, receiver or other representative of or successor to any beneficiary or        any  transferee  of  such  Letter  of  Credit,  including  any  arising  in  connection  with  any        proceeding under any Debtor Relief Law;                                    43 





 






            (viii) any other event or circumstance whatsoever, whether or not similar to any        of the foregoing, that might, but for the provisions of this Section 2.03, constitute a legal        or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations        hereunder; or               (ix)  any adverse change in the relevant exchange rates or in the availability of        the  relevant  Alternative Currency  to  the Borrower or  any Subsidiary  or  in  the  relevant        currency markets generally.         (h)   Examination. The Borrower shall promptly examine a copy of each Letter of Credit  and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance  with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C  Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C  Issuer and its correspondents unless such notice is given as aforesaid.         (i)   Liability. None of the Administrative Agent, the Lenders, the L/C Issuer, or any of  their Related Parties shall have any liability or responsibility by reason of or in connection with the  issuance or transfer of any Letter of Credit by the L/C Issuer or any payment or failure to make any  payment 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  other communication under or relating to any Letter of Credit (including any document required to  make a drawing thereunder), any error in interpretation of technical terms, any error in translation  or any consequence arising from causes beyond the control of the L/C Issuer; provided that the  foregoing shall not be construed to excuse the L/C Issuer from liability to the Borrower to the extent  of any direct damages (as opposed to consequential 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 L/C Issuer’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 L/C  Issuer (as finally determined by a court of competent jurisdiction), the L/C Issuer shall be deemed  to have exercised care in each such determination, and that:               (i)   the L/C Issuer may replace a purportedly lost, stolen, or destroyed original        Letter of Credit or missing amendment thereto with a certified true copy marked as such        or waive a requirement for its presentation;               (ii)  the L/C Issuer may accept documents that appear on their face to be in        substantial compliance with the terms of a Letter of Credit without responsibility for further        investigation,  regardless  of  any  notice  or  information  to  the  contrary,  and  may  make        payment  upon  presentation  of  documents  that  appear  on  their  face  to  be  in  substantial        compliance  with  the  terms  of  such  Letter  of  Credit  and without  regard  to  any  non-       documentary condition in such Letter of Credit;               (iii) the L/C Issuer shall have the right, in its sole discretion, to decline to accept        such documents and to make such payment if such documents are not in strict compliance        with the terms of such Letter of Credit; and               (iv)  this sentence shall establish the standard of care to be exercised by the L/C        Issuer when determining whether drafts and other documents presented under a Letter of        Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent        permitted by Applicable Law, any standard of care inconsistent with the foregoing).                                    44 





 






      Without limiting the foregoing, none of the Administrative Agent, the Lenders, the L/C        Issuer, or any of their Related Parties shall have any liability or responsibility by reason of        (A) any  presentation  that  includes  forged  or  fraudulent  documents  or  that  is  otherwise        affected by the fraudulent, bad faith, or illegal conduct of the beneficiary or other Person,        (B) the L/C  Issuer  declining  to  take-up  documents  and  make  payment,  (C) against        documents that are fraudulent, forged, or for other reasons by which that it is entitled not        to  honor,  (D) following  a  Borrower’s  waiver  of  discrepancies  with  respect  to  such        documents or request for honor of such documents or (E) the L/C Issuer retaining proceeds        of  a  Letter  of  Credit  based  on  an  apparently  applicable  attachment  order,  blocking        regulation, or third-party claim notified to the L/C Issuer.         (j)   Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer  and the Borrower when a Letter of Credit is issued by it (including any such agreement applicable  to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit,  and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the  foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights  and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer  required or permitted under any law, order, or practice that is required or permitted to be applied to  any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the  L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in  the  decisions,  opinions,  practice  statements,  or  official  commentary  of  the  ICC  Banking  Commission, the Bankers Association for Finance and Trade – International Financial Services  Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or  not any Letter of Credit chooses such law or practice.         (k)   Benefits. The L/C Issuer shall act on behalf of the Lenders with respect to any  Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have  all  of  the  benefits  and  immunities  (i)  provided  to  the  Administrative  Agent  in Article  IX with  respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of  Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters  of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C  Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect  to the L/C Issuer.         (l)   Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the  account of each Revolving Lender in accordance with its Applicable Revolving Percentage a Letter  of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate  times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount available to be drawn under any standby Letter of  Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) payable on the first Business Day following the end of each March,  June, September and December, commencing with the first such date to occur after the issuance of  such Letter of Credit and (ii) accrued through and including the last day of each calendar quarter in  arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available  to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate  separately  for  each  period  during  such  quarter  that  such  Applicable  Rate  was  in  effect.  Notwithstanding  anything  to  the  contrary  contained  herein,  upon  the  request  of  the  Required  Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the  Default Rate.                                    45 





 






      (m)   Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The  Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each  Letter of Credit, at the rate per annum equal to the percentage separately agreed upon between the  Borrower and the L/C Issuer, computed on the Dollar Equivalent of the daily amount available to  be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due  and payable no later than the tenth Business Day after the end of each March, June, September and  December in the most recently- ended quarterly period (or portion thereof, in the case of the first  payment), commencing with the first such date to occur after the issuance of such Letter of Credit,  on  the  Maturity  Date  and  thereafter  on  demand.  For  purposes  of  computing  the  daily  amount  available  to  be  drawn  under  any  Letter  of  Credit,  the  amount  of  such  Letter  of  Credit  shall  be  determined in accordance with Section 1.06. In addition, the Borrower shall pay directly to the L/C  Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other  processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit  as from time to time in effect. Such customary fees and standard costs and charges are due and  payable on demand and are nonrefundable.         (n)   Disbursement Procedures. The L/C Issuer for any Letter of Credit shall, within the  time allowed by Applicable Laws or the specific terms of the Letter of Credit following its receipt  thereof, examine all documents purporting to represent a demand for payment under such Letter of  Credit. The L/C Issuer shall promptly after such examination notify the Administrative Agent and  the Borrower in writing of such demand for payment if the L/C Issuer has made or will make an  L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall  not relieve the Borrower of its obligation to reimburse the L/C Issuer and the Lenders with respect  to any such L/C Disbursement.         (o)   Interim Interest. If the L/C Issuer for any standby Letter of Credit shall make any  L/C Disbursement, then, unless the Borrower shall reimburse such L/C Disbursement in full on the  date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day  from and including the date such L/C Disbursement is made to but excluding the date that the  Borrower reimburses such L/C Disbursement, at the rate per annum then applicable to Base Rate  Loans; provided that if the Borrower fails to reimburse such L/C Disbursement when due pursuant  to clause (f) of this Section 2.03, then Section 2.08(b) shall apply. Interest accrued pursuant to this  clause (o) shall be for account of the L/C Issuer, except that interest accrued on and after the date  of payment by any Lender pursuant to clause (f) of this Section 2.03 to reimburse the L/C Issuer  shall be for account of such Lender to the extent of such payment.         (p)   Replacement of the L/C Issuer. The L/C Issuer may be replaced at any time by  written agreement between the Borrower, the Administrative Agent, the replaced L/C Issuer and  the  successor  L/C  Issuer.  The  Administrative  Agent  shall  notify  the  Lenders  of  any  such  replacement  of the L/C  Issuer. At  the  time  any  such  replacement  shall  become  effective,  the  Borrower shall pay all unpaid fees accrued for the account of the replaced L/C Issuer pursuant to  Section 2.03(m). From and after the effective date of any such replacement, (i) the successor L/C  Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect  to Letters of Credit to be issued by it thereafter and (ii) references herein to the term “L/C Issuer”  shall be deemed to include such successor or any previous L/C Issuer, or such successor and all  previous L/C Issuer, as the context shall require. After the replacement of the L/C Issuer hereunder,  the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and  obligations of an L/C Issuer under this Agreement with respect to Letters of Credit issued by it  prior to such replacement, but shall not be required to issue additional Letters of Credit.         (q)   Cash Collateralization.                                     46 





 






            (i)   If any Event of Default shall occur and be continuing, on the Business Day        that  the  Borrower  receives  notice  from  the  Administrative  Agent  or  the  Required        Revolving  Lenders  (or,  if  the  maturity  of  the  Loans  has  been  accelerated,  Revolving        Lenders with L/C Obligations representing at least 66-2/3% of the total L/C Obligations)        demanding the deposit of Cash Collateral pursuant to this clause (q), the Borrower shall        immediately deposit into an account established and maintained on the books and records        of the Administrative Agent (the “Collateral Account”) an amount in cash equal to 105%        of the total L/C Obligations as of such date plus any accrued and unpaid interest thereon,        provided that  the  obligation  to  deposit  such  Cash  Collateral  shall  become  effective        immediately, and such deposit shall become immediately due and payable, without demand        or other notice of any kind, upon the occurrence of any Event of Default with respect to        the  Borrower  described  in clause (f)  of Section 8.01. Such  deposit  shall  be  held  by  the        Administrative Agent as collateral for the payment and performance of the obligations of        the  Borrower  under  this  Agreement.  In  addition,  and without  limiting  the  foregoing  or        clause (d)  of  this Section  2.03,  if  any  L/C  Obligations  remain  outstanding  after  the        expiration date specified in said clause (d), the Borrower shall immediately deposit into the        Collateral Account an amount in cash equal to 105% of such L/C Obligations as of such        date plus any accrued and unpaid interest thereon.               (ii)  The  Administrative  Agent  shall  have  exclusive  dominion  and  control,        including the exclusive right of withdrawal, over the Collateral Account. Other than any        interest earned on the investment of such deposits, which investments shall be made at the        option  and  sole  discretion  of  the  Administrative  Agent  and  at  the  Borrower’s  risk  and        expense, such deposits shall not bear interest. Interest or profits, if any, on such investments        shall  accumulate  in  the  Collateral  Account.  Moneys in  the  Collateral  Account  shall  be        applied by the Administrative Agent to reimburse the L/C Issuer for L/C Disbursements        for  which  it  has  not  been  reimbursed,  together  with  related  fees,  costs,  and  customary        processing charges, and, to the extent not so applied, shall be held for the satisfaction of        the reimbursement obligations of the Borrower for the L/C Obligations at such time or, if        the maturity of the Loans has been accelerated (but subject to the consent of Lenders with        L/C Obligations representing 66-2/3% of the total L/C Obligations), be applied to satisfy        other obligations of the Borrower under this Agreement. If the Borrower is required to        provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event        of Default, such amount (to the extent not applied as aforesaid) shall be returned to the        Borrower within three (3) Business Days after all Events of Default have been cured or        waived.         (r)   Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit  issued  or  outstanding  hereunder  is  in support  of  any obligations  of,  or  is  for  the  account  of,  a  Subsidiary, the Borrower shall be obligated to reimburse, indemnify and compensate the L/C Issuer  hereunder for any and all drawings under such Letter of Credit as if such Letter of Credit had been  issues solely for the account of the Borrower. The Borrower irrevocably waives any and all defenses  that might otherwise be available to it as a guarantor or surety of any or all of the obligations of  such Subsidiary in respect of such Letter of Credit. The Borrower hereby acknowledges that the  issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower,  and  that  the  Borrower’s  business  derives  substantial  benefits  from  the  businesses  of  such  Subsidiaries.         (s)   Conflict with Issuer Documents. In the event of any conflict between the terms  hereof and the terms of any Issuer Document, the terms hereof shall control.                                    47 





 






2.04  Swingline Loans.         (a)   The Swingline. Subject to the terms and conditions set forth herein, the Swingline  Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in  its sole discretion make loans to the Borrower (each such loan, a “Swingline Loan”). Each such  Swingline Loan may be made, subject to the terms and conditions set forth herein, to the Borrower,  in Dollars, from time to time on any Business Day during the Availability Period in an aggregate  amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided,  however, that (i) after giving effect to any Swingline Loan, (A) the Total Revolving Outstandings  shall not exceed the Revolving Facility at such time, (B) the Revolving Exposure of any Revolving  Lender at such time shall not exceed such Lender’s Revolving Commitment, and (C) the aggregate  amount of all Swingline Loans outstanding shall not exceed the Swingline Commitment of the  Swingline Lender, (ii) the Borrower shall not use the proceeds of any Swingline Loan to refinance  any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any obligation  to make any Swingline Loan if it shall determine (which determination shall be conclusive and  binding  absent  manifest  error)  that  it  has,  or  by  such  Credit  Extension  may  have,  Fronting  Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the  Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this  Section 2.04. Each Swingline Loan shall bear interest only at a rate based on the Base Rate plus the  Applicable Rate. Immediately upon the making of a Swingline Loan, each Revolving Lender shall  be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline  Lender  a  risk  participation  in such  Swingline  Loan  in  an  amount  equal  to  the product  of  such  Revolving Lender’s Applicable Revolving Percentage times the amount of such Swingline Loan.         (b)   Borrowing Procedures.               Each Swingline Borrowing shall be made upon the Borrower’s irrevocable notice        to  the  Swingline  Lender  and  the  Administrative  Agent,  which  may  be  given  by:  (i)        telephone or (ii) a Swingline Loan Notice; provided that any telephonic notice must be        confirmed immediately by delivery to the Swingline Lender and the Administrative Agent        of a Swingline Loan Notice. Each such Swingline Loan Notice must be received by the        Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested        borrowing  date,  and  shall  specify  (A) the  amount  to  be  borrowed,  which  shall  be  a        minimum  of $250,000 or  a  whole  multiple  of  $50,000 in  excess  thereof,  and  (B) the        requested date of the Borrowing (which shall be a Business Day). Promptly after receipt        by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will confirm        with the Administrative Agent (by telephone or in writing) that the Administrative Agent        has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify        the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the        Swingline Lender has received notice (by telephone or in writing) from the Administrative        Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on the date of        the proposed Swingline Borrowing (1) directing the Swingline Lender not to make such        Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence        of Section 2.04(a), or (2) that one or more of the applicable conditions specified in Article        IV is not then satisfied, then, subject to the terms and conditions hereof, the Swingline        Lender may, make the amount of its Swingline Loan available to the Borrower at its office        by  crediting  the  account  of  the  Borrower  on  the  books  of  the  Swingline  Lender  in        immediately available funds.         (c)   Refinancing of Swingline Loans.                                    48 





 






      (i)   The Swingline Lender at any time in its sole discretion may request, on  behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so  request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount  equal to such Lender’s Applicable Revolving Percentage of the amount of Swingline Loans  then outstanding. Such request shall be made in writing (which written request shall be  deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements  of Section 2.02,  without  regard  to  the  minimum  and multiples  specified  therein  for  the  principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving  Facility and the conditions set forth in Section 4.02. The Swingline Lender shall furnish  the Borrower with a copy of the applicable Loan Notice promptly after delivering such  notice to the Administrative Agent. Each Revolving Lender shall make an amount equal to  its Applicable Revolving Percentage of the amount specified in such Loan Notice available  to the Administrative Agent in immediately available funds (and the Administrative Agent  may apply Cash Collateral available with respect to the applicable Swingline Loan) for the  account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00  p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii),  each Revolving Lender that so makes funds available shall be deemed to have made a Base  Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds  so received to the Swingline Lender.         (ii)  Notwithstanding  anything  to  the  contrary  in  the  foregoing,  if  for  any  reason  any  Swingline  Loan  cannot  be  refinanced  by  such  a  Revolving  Borrowing  in  accordance with Section 2.04(c)(i) (including, without limitation, the failure to satisfy the  conditions set forth in Section 4.02), the request for Base Rate Loans submitted by the  Swingline Lender as set forth herein shall be deemed to be a request by the Swingline  Lender  that  each  of  the  Revolving  Lenders  fund  its  risk  participation  in  the  relevant  Swingline Loan and each Revolving Lender’s payment to the Administrative Agent for the  account of Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in  respect of such participation.         (iii) If  any  Revolving  Lender  fails  to  make  available  to  the  Administrative  Agent for the account of the Swingline Lender any amount required to be paid by such  Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in  Section  2.04(c)(i),  the  Swingline  Lender  shall  be  entitled  to  recover  from  such  Lender  (acting through the Administrative Agent), on demand, such amount with interest thereon  for the period from the date such payment is required to the date on which such payment  is immediately available to the Swingline Lender at a rate per annum equal to the greater  of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance  with  banking  industry  rules  on  interbank  compensation, plus any  administrative,  processing or similar fees customarily charged by the Swingline Lender in connection with  the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the  amount so paid shall constitute such Lender’s Revolving Loan included in the relevant  Revolving Borrowing or funded participation in the relevant Swingline Loan, as the case  may  be.  A  certificate  of the Swingline  Lender  submitted  to  any  Lender  (through  the  Administrative Agent) with respect to any amounts owing under this clause (c)(iii) shall be  conclusive absent manifest error.         (iv)  Each  Revolving  Lender’s  obligation  to  make  Revolving  Loans  or  to  purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(c)  shall  be  absolute  and  unconditional  and  shall  not  be  affected  by  any  circumstance,  including  (A) any  setoff,  counterclaim,  recoupment,  defense  or  other  right  which  such                              49 





 






      Lender may have against the Swingline Lender, the Borrower or any other Person for any        reason whatsoever,  (B) the  occurrence  or  continuance  of  a  Default  or  (C) any  other        occurrence, event or condition, whether or not similar to any of the foregoing; provided,        however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to        this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery        by the Borrower of a Loan Notice). No such funding of risk participations shall relieve or        otherwise impair the obligation of the Borrower to repay Swingline Loans, together with        interest as provided herein.         (d)   Repayment of Participations.               (i)   At any time after any Revolving Lender has purchased and funded a risk        participation  in  a  Swingline  Loan,  if  the  Swingline  Lender  receives  any  payment  on        account of such Swingline Loan, the Swingline Lender will distribute to such Revolving        Lender its Applicable Revolving Percentage thereof in the same funds as those received by        the Swingline Lender.               (ii)  If any payment received by the Swingline Lender in respect of principal        or interest on any Swingline Loan is required to be returned by the Swingline Lender under        any of the circumstances described in Section 11.05 (including pursuant to any settlement        entered into by the Swingline Lender in its discretion), each Revolving Lender shall pay to        the  Swingline  Lender  its  Applicable  Revolving  Percentage  thereof  on  demand  of  the        Administrative Agent, plus interest thereon from the date of such demand to the date such        amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative        Agent will make such demand upon the request of the Swingline Lender. The obligations        of the Lenders under this clause shall survive the payment in full of the Obligations and        the termination of this Agreement.         (e)   Interest  for  Account  of  Swingline Lender. The Swingline  Lender  shall  be  responsible for invoicing the Borrower for interest on the Swingline Loans. Until each Revolving  Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such  Revolving Lender’s Applicable Revolving Percentage of any Swingline Loan, interest in respect  of such Applicable Revolving Percentage shall be solely for the account of the Swingline Lender.         (f)   Payments Directly to Swingline Lender. The Borrower shall make all payments of  principal and interest in respect of the Swingline Loans directly to the Swingline Lender.   2.05  Prepayments.         (a)   Optional.               (i)   The Borrower may, upon notice to the Administrative Agent pursuant to        delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from        time to time voluntarily prepay Term Loans, Incremental Term Loans and Revolving Loans        in  whole  or  in  part  without  premium  or  penalty  subject  to Section 3.05; provided that,        unless otherwise agreed by the Administrative Agent, (A) such notice must be received by        the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any        date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base        Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal amount        of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (C) any prepayment        of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of                                    50 





 






$100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then  outstanding. Each such notice shall specify the date and amount of such prepayment and  the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the  Interest  Period(s)  of  such  Loans.  The  Administrative  Agent  will  promptly  notify  each  Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion  of  such  prepayment  (based  on  such  Lender’s  Applicable  Percentage  in  respect  of  the  relevant Facility). If such notice is given by the Borrower, the Borrower shall make such  prepayment and the payment amount specified in such notice shall be due and payable on  the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied  by  all  accrued  interest  on  the  amount  prepaid,  together  with  any  additional  amounts  required pursuant to Section 3.05. Each prepayment of the outstanding Term Loans and  Incremental Term Loans pursuant to this Section 2.05(a) shall be applied to the principal  repayment installments thereof as directed by the Borrower (and in the absence of such  direction, to the outstanding Term Loans and Incremental Term Loans on a pro-rata basis).  Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with  their respective Applicable Percentages in respect of each of the relevant Facilities.         (ii)  The  Borrower  may,  upon  notice  to  the  Swingline  Lender  pursuant  to  delivery  to  the  Swingline  Lender  of  a  Notice  of  Loan  Prepayment  (with  a  copy to the  Administrative  Agent),  at  any time  or  from  time to time,  voluntarily  prepay Swingline  Loans in whole or in part without premium or penalty; provided that, unless otherwise  agreed by the Swingline Lender, (A) such notice must be received by the Swingline Lender  and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and  (B) any such prepayment shall be in a minimum principal amount of $250,000 or a whole  multiple  of  $50,000 in  excess  hereof  (or,  if  less,  the  entire  principal  thereof  then  outstanding). Each such notice shall specify the date and amount of such prepayment. If  such notice is given by the Borrower, the Borrower shall make such prepayment and the  payment amount specified in such notice shall be due and payable on the date specified  therein.    (b)   Mandatory.         (i)   Dispositions and Involuntary Dispositions. The Borrower shall prepay the  Loans  and/or  Cash  Collateralize  the  L/C  Obligations  as  hereinafter  provided  in  an  aggregate amount equal to 100% of the Net Cash Proceeds received by any Loan Party or  any  Subsidiary  from  all  Dispositions  (other  than  Permitted  Transfers)  and  Involuntary  Dispositions within one (1) Business Day of the date of such Disposition or Involuntary  Disposition; provided, however,  that  so  long  as  no  Default  shall  have  occurred  and  be  continuing, such Net Cash Proceeds shall not be required to be so applied (A) until the  aggregate  amount  of  the  Net  Cash  Proceeds  derived  from  any  such  Disposition  or  Involuntary  Disposition in  any  fiscal  year  of  the  Borrower  is  equal  to  or  greater  than  $5,000,000 and (B) at the election of the Borrower (as notified by the Borrower to the  Administrative Agent on or prior to the date that such prepayment would otherwise be  required) to the extent such Loan Party or such Subsidiary reinvests all or any portion of  such Net Cash Proceeds in operating assets (but specifically excluding current assets as  classified by GAAP) within twelve (12) months after the receipt of such Net Cash Proceeds  (or if committed to reinvestment during such twelve (12) month period, reinvested no later  than six (6) months thereafter); provided that, if such Net Cash Proceeds shall have not  been so reinvested, such Net Cash Proceeds shall be immediately applied to prepay the  Loans and/or Cash Collateralize the L/C Obligations.                              51 





 






                  (ii)  Application  of  Payments.  Each  prepayment  of  Loans  pursuant  to  the              foregoing  provisions  of clause  (i) of this Section  2.05(b)  shall  be  applied, first,  to  the              principal repayment installments of the Term Loan and Incremental Term Loans on a pro-             rata basis for all such principal repayment installments, including, without limitation, the              final principal repayment installment on each applicable Maturity Date and, second, to the              Revolving Facility in the manner set forth in clause (iv) of this Section 2.05(b). Subject to              Section  2.15,  such  prepayments  shall  be  paid  to  the  Lenders  in  accordance  with  their              respective Applicable Percentages in respect of the relevant Facilities.                     (iii) Revolving  Outstandings.  If  for  any  reason  the  Total  Revolving              Outstandings at any time exceed the Revolving Facility at such time, the Borrower shall              immediately prepay Revolving Loans, Swingline Loans and L/C Borrowings and/or Cash              Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,              however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations              pursuant to this Section 2.05(b) unless, after the prepayment of the Revolving Loans and              Swingline Loans, the Total Revolving Outstandings exceed the Revolving Facility at such              time.                     (iv)  Application of Other Payments. Except as otherwise provided in Section              2.15, prepayments of the Revolving Facility made pursuant to this Section 2.05(b), first,              shall be applied ratably to the L/C Borrowings and the Swingline Loans, second, shall be              applied to the outstanding Revolving Loans, and, third, shall be used to Cash Collateralize              the remaining L/C Obligations; and, in the case of prepayments of the Revolving Facility              required pursuant to clause (i) of this Section 2.05(b), the amount remaining, if any, after              the  prepayment  in  full  of  all  L/C  Borrowings,  Swingline  Loans  and  Revolving  Loans              outstanding at such time and the Cash Collateralization of the remaining L/C Obligations              in full may be retained by the Borrower for use in the ordinary course of its business. Upon              the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as              Cash Collateral shall be applied (without any further action by or notice to or from the              Borrower  or  any  other  Loan  Party  or  any  Defaulting  Lender  that  has  provided  Cash              Collateral) to reimburse the L/C Issuer or the Revolving Lenders, as applicable.                     (v)   Alternative Currencies. If the Administrative Agent notifies the Borrower              at any time that the Outstanding Amount of all L/C Obligations denominated in Alternative              Currencies at such time exceeds an amount equal to 105% of the Letter of Credit Sublimit              then in effect, then, within two (2) Business Days after receipt of such notice, the Borrower              shall Cash Collateralize Letters of Credit in an aggregate amount sufficient to reduce such              Outstanding Amount as of such date of payment to an amount not to exceed 100% of the              Letter of Credit Sublimit then in effect.         Within the parameters of the applications set forth above, prepayments pursuant to this Section  2.05(b) shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest  Period maturities. All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise  without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through  the date of prepayment.         2.06  Termination or Reduction of Commitments.               (a)   Optional. The Borrower may, upon notice to the Administrative Agent, terminate        the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to        time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline                                          52 





 






Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later  than 11:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such  partial  reduction  shall  be  in  an  aggregate  amount  of  $10,000,000  or  any  whole  multiple  of  $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Revolving  Facility  if,  after  giving  effect  thereto  and  to  any  concurrent  prepayments  hereunder,  the  Total  Revolving Outstandings would exceed the Revolving Facility, (B) the Letter of Credit Sublimit if,  after  giving  effect  thereto,  the  Outstanding  Amount  of  L/C  Obligations  not  fully  Cash  Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swingline Sublimit  if,  after  giving  effect  thereto  and  to  any  concurrent  prepayments  hereunder,  the  Outstanding  Amount of Swingline Loans would exceed the Letter of Credit Sublimit.         (b)   Mandatory.               (i)   The  aggregate  Term  Commitments shall  be  automatically  and        permanently reduced to zero on the date of the Term Borrowing.               (ii)  If  after  giving  effect  to  any  reduction  or  termination  of  Revolving        Commitments  under  this Section  2.06,  the  Letter  of  Credit  Sublimit or the  Swingline        Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit or the        Swingline Sublimit, as the case may be, shall be automatically reduced by the amount of        such excess.         (c)   Application of Commitment Reductions; Payment of Fees.               The Administrative Agent will promptly notify the Lenders of any termination or        reduction  of  the  Letter  of  Credit  Sublimit,  Swingline Sublimit or  the  Revolving        Commitment under this Section 2.06. Upon any reduction of the Revolving Commitments,        the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s        Applicable  Revolving  Percentage  of  such reduction amount.  All  fees  in  respect  of  the        Revolving Facility accrued until the effective date of any termination of the Revolving        Facility shall be paid on the effective date of such termination.   2.07  Repayment of Loans.         (a)   Term Loans. The Borrower shall repay to the Term Lenders the aggregate principal  amount of all Term Loans outstanding on the following dates in the respective amounts set forth  opposite such dates (which amounts shall be reduced as a result of the application of prepayments  in  accordance  with  the  order  of  priority  set  forth  in Section 2.05),  unless  accelerated  sooner  pursuant to Section 8.02;                                          Principal Repayment                   Payment Dates                                            Installments                 December 31, 2019           $3,750,000                   March 31, 2020            $3,750,000                   June 30, 2020             $3,750,000                 September 30, 2020          $3,750,000                 December 31, 2020           $3,750,000                   March 31, 2021            $3,750,000                   June 30, 2021             $3,750,000                 September 30, 2021          $3,750,000                 December 31, 2021           $3,750,000                                   53 





 






                 March 31, 2022            $3,750,000                   June 30, 2022             $3,750,000                 September 30, 2022          $3,750,000                 December 31, 2022           $3,750,000                   March 31, 2023            $3,750,000                   June 30, 2023             $3,750,000                 September 30, 2023          $3,750,000                 December 31, 2023           $3,750,000                   March 31, 2024            $3,750,000                   June 30, 2024             $3,750,000                 September 30, 2024          $3,750,000                                                   provided, however, that (i) the final principal repayment installment of the Term Loans shall be  repaid on the Maturity Date for the Term Facility and in any event shall be in an amount equal to  the aggregate principal amount of all Term Loans outstanding on such date, (ii) if any principal  repayment installment to be made by the Borrower (other than principal repayment installments on  Eurodollar  Rate  Loans)  shall  come  due  on  a  day  other  than  a  Business  Day,  such  principal  repayment installment shall be due on the next succeeding Business Day, and such extension of  time shall be reflected in computing interest or fees, as the case may be and (iii) if any principal  repayment installment to be made by the Borrower on a Eurodollar Rate Loan shall come due on a  day other than a Business Day, such principal repayment installment shall be extended to the next  succeeding Business Day unless the result of such extension would be to extend such principal  repayment  installment  into  another  calendar  month,  in  which  event  such  principal  repayment  installment shall be due on the immediately preceding Business Day.         (b)   Revolving  Loans.  The  Borrower  shall  repay  to  the  Revolving  Lenders  on  the  Maturity Date for the Revolving Facility the aggregate principal amount of all Revolving Loans  outstanding on such date.         (c)   Swingline Loans. The Borrower shall repay each Swingline Loan on the earlier to  occur of (i) the date ten (10) Business Days after such Loan is made and (ii) the Maturity Date for  the Revolving Facility.         (d)   Incremental Term Loans.  The principal amount of any Incremental Term Loans  shall be repaid in the amounts and on the dates set forth in the applicable Incremental Agreement.  The outstanding unpaid principal balance and all accrued and unpaid interest on any Incremental  Term Loans shall be due and payable on the Incremental Term Loan Maturity Date therefor as  specified  in  the  applicable  Incremental  Agreement  or,  if  earlier,  on  the  date  on  which  they  are  declared due and payable pursuant to the terms of this Agreement.   2.08  Interest and Default Rate.         (a)   Interest. Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan  under a Facility shall bear interest on the outstanding principal amount thereof for each Interest  Period from the applicable Borrowing date at a rate per annum equal to the Eurodollar Rate for  such Interest Period plus the Applicable Rate for such Facility; (ii) each Base Rate Loan under a  Facility  shall  bear  interest  on  the  outstanding  principal  amount  thereof  from  the  applicable  Borrowing  date  at  a  rate  per  annum  equal  to  the  Base  Rate  plus  the  Applicable  Rate  for  such  Facility;  and  (iii) each  Swingline  Loan  shall  bear  interest  on  the  outstanding  principal  amount  thereof from the applicable Borrowing date at a rate per annum equal to the Base Rate plus the  Applicable Rate for the Revolving Facility. To the extent that any calculation of interest or any fee                                   54 





 






required to be paid under this Agreement shall be based on (or result in) a calculation that is less  than zero, such calculation shall be deemed zero for purposes of this Agreement.         (b)   Default Rate.               (i)   If any amount of principal of any Loan is not paid when due, whether at        stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at        a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest        extent permitted by Applicable Laws.               (ii)  If any amount (other than principal of any Loan) payable by the Borrower        under any Loan Document is not paid when due, whether at stated maturity, by acceleration        or otherwise, then upon the request of the Required Lenders such amount shall thereafter        bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate        to the fullest extent permitted by Applicable Laws.               (iii) Upon  the  request  of the Required  Lenders,  while  any  Event  of  Default        exists (including a payment default), all outstanding Obligations (including Letter of Credit        Fees) may accrue at a fluctuating interest rate per annum at all times equal to the Default        Rate to the fullest extent permitted by Applicable Laws.               (iv)  Accrued and unpaid interest on past due amounts (including interest on        past due interest) shall be due and payable upon demand.         (c)   Interest Payments. Interest on each Loan shall be due and payable in arrears on  each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after  judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.   2.09  Fees.   In addition to certain fees described in clauses (l), (m) and (o) of Section 2.03:         (a)   Commitment  Fee.  The  Borrower  shall pay  to  the  Administrative  Agent  for  the  account  of  each  Revolving  Lender  in  accordance  with  its  Applicable  Revolving  Percentage,  a  commitment fee equal to the Applicable Rate times the actual daily amount by which the Revolving  Facility  exceeds  the sum  of (i) the  Outstanding  Amount  of  Revolving  Loans  and  (ii) the  Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15. For the  avoidance of doubt, the Outstanding Amount of Swingline Loans shall not be counted towards or  considered usage of the Revolving Facility for purposes of determining the commitment fee. The  commitment  fee  shall  accrue  at  all  times  during  the Availability Period, including  at  any time  during which one or more of the conditions in Article IV is not met, and shall be due and payable  quarterly  in  arrears  on  the  last  Business  Day  of  each  March,  June,  September  and  December,  commencing with the first such date to occur after the Closing Date, and on the last day of the  Availability Period for the Revolving Facility. The commitment fee shall be calculated quarterly in  arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount  shall be computed and multiplied by the Applicable Rate separately for each period during such  quarter that such Applicable Rate was in effect.         (b)   Other Fees.                                    55 





 






            (i)   The Borrower shall pay to the Administrative Agent and the Arrangers for        its own account fees in the amounts and at the times specified in the Fee Letters. Such fees        shall be fully earned when paid and shall not be refundable for any reason whatsoever.               (ii)  The  Borrower  shall  pay  to  the  Lenders such  fees  as  shall  have  been        separately agreed upon in writing in the amounts and at the times so specified. Such fees        shall be fully earned when paid and shall not be refundable for any reason whatsoever.   2.10  Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.         (a)   Computation of Interest and Fees. All computations of interest for Base Rate Loans  (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the  basis  of  a  year  of  365  or  366  days,  as  the  case  may  be,  and  actual  days  elapsed.  All  other  computations of fees and interest shall be made on the basis of a three hundred sixty (360) day year  and actual days elapsed (which results in more fees or interest, as applicable, being paid than if  computed on the basis of a 365 day year). Interest shall accrue on each Loan for the day on which  the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the  Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is  made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the  Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all  purposes, absent manifest error.         (b)   Financial Statement Adjustments or Restatements. If, as a result of any restatement  of or other adjustment to the financial statements of the Borrower and its Subsidiaries or for any  other reason, the Borrower or the Lenders determine that (i) the Consolidated Leverage Ratio as  calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of  the  Consolidated  Leverage  Ratio  would  have  resulted  in  higher  pricing  for  such  period,  the  Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for  the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand  by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for  relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically  and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount  equal to the excess of the amount of interest and fees that should have been paid for such period  over the amount of interest and fees actually paid for such period. This clause (b) shall not limit the  rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under any  provision of this Agreement to payment of any Obligations hereunder at the Default Rate or under  Article VIII. The Borrower’s obligations under this clause (b) shall survive the termination of the  Aggregate Commitments and the repayment of all other Obligations hereunder.   2.11  Evidence of Debt.         (a)   Maintenance of Accounts. The Credit Extensions made by each Lender shall be  evidenced by one or more accounts or records maintained by such Lender in the ordinary course of  business.  The  Administrative  Agent  shall  maintain  the  Register  in  accordance  with Section  11.06(c). The accounts or records maintained by each Lender shall be conclusive absent manifest  error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest  and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or  otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to  the Obligations. In the event of any conflict between the accounts and records maintained by any  Lender  and  the  Register,  the  Register  shall  control  in  the  absence  of  manifest  error.  Upon  the  request of any Lender made through the Administrative Agent, the Borrower shall execute and                                    56 





 






deliver  to  such  Lender  (through the  Administrative  Agent)  a  Note,  which  shall  evidence  such  Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its  Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and  payments with respect thereto.         (b)   Maintenance  of  Records.  In  addition to  the  accounts and  records  referred  to  in  Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its  usual  practice  accounts  or  records  evidencing  the purchases  and  sales  by  such  Lender  of  participations in Letters of Credit and Swingline Loans. In the event of any conflict between the  accounts and records maintained by the Administrative Agent and the accounts and records of any  Lender  in  respect  of  such  matters,  the  accounts  and  records  of  the  Administrative  Agent  shall  control in the absence of manifest error.   2.12  Payments Generally; Administrative Agent’s Clawback.         (a)   General. All payments to be made by the Borrower shall be made free and clear of  and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as  otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the  Administrative Agent, for the account of the respective Lenders to which such payment is owed, at  the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00  p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender  its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided  herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on  the  next  succeeding  Business  Day  and  any  applicable  interest  or  fee  shall  continue  to  accrue.  Subject to Section 2.07(a) and as otherwise specifically provided for in this Agreement, if any  payment to be made by the Borrower shall come due on a day other than a Business Day, payment  shall be made on the next following Business Day, and such extension of time shall be reflected in  computing interest or fees, as the case may be.         (b)   (i)   Funding by Lenders; Presumption by Administrative Agent. Unless the  Administrative Agent shall have received notice from a Lender prior to the proposed date of any  Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior  to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the  Administrative  Agent  such  Lender’s  share  of  such  Borrowing,  the  Administrative  Agent  may  assume that such Lender has made such share available on such date in accordance with Section  2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share  available in accordance with and at the time required by Section 2.02) and may, in reliance upon  such  assumption,  make  available  to  the  Borrower  a  corresponding  amount.  In  such  event,  if  a  Lender has not in fact made its share of the applicable Borrowing available to the Administrative  Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative  Agent  forthwith  on  demand  such  corresponding  amount  in  immediately  available  funds  with  interest thereon, for each day from and including the date such amount is made available to the  Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a  payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined  by the Administrative Agent in accordance with banking industry rules on interbank compensation,  plus any administrative,  processing  or  similar  fees  customarily  charged  by  the  Administrative  Agent  in  connection  with  the  foregoing,  and  (B) in  the  case  of  a  payment  to  be  made  by  the  Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall  pay  such  interest  to  the  Administrative  Agent  for  the  same  or  an  overlapping  period,  the  Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the                                    57 





 






Borrower  for  such  period.  If  such  Lender  pays  its  share  of  the  applicable  Borrowing  to  the  Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in  such  Borrowing.  Any  payment  by  the  Borrower  shall  be  without  prejudice  to  any  claim  the  Borrower  may  have  against  a  Lender that  shall  have  failed  to  make  such  payment  to  the  Administrative Agent.               (ii)  Payments  by  Borrower;  Presumptions  by  Administrative  Agent.  Unless        the Administrative Agent shall have received notice from the Borrower prior to the date on        which any payment is due to the Administrative Agent for the account of the Lenders or        the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative        Agent may assume that the Borrower has made such payment on such date in accordance        herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders        or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has        not in fact made such payment, then each of the Appropriate Lenders or the L/C Issuer, as        the case may be, severally agrees to repay to the Administrative Agent forthwith on demand        the amount so distributed to such Lender or the L/C Issuer, in immediately available funds        with interest thereon, for each day from and including the date such amount is distributed        to it to but excluding the date of payment to the Administrative Agent, at the greater of the        Federal Funds Rate and a rate determined by the Administrative Agent in accordance with        banking industry rules on interbank compensation.         A notice of the Administrative Agent to any Lender or the Borrower with respect to any  amount owing under this clause (b) shall be conclusive, absent manifest error.         (c)   Failure  to  Satisfy  Conditions  Precedent.  If  any  Lender  makes  available  to  the  Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing  provisions  of  this Article  II,  and  such  funds  are  not  made  available  to  the  Borrower  by  the  Administrative Agent because the conditions to the applicable Credit Extension set forth in Article  IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall  return such funds (in like funds as received from such Lender) to such Lender, without interest.         (d)   Obligations of Lenders Several. The obligations of the Lenders hereunder to make  Term  Loans,  Incremental  Term  Loans  (if  any) and  Revolving  Loans,  to  fund  participations  in  Letters  of  Credit  and  Swingline  Loans  and  to  make  payments  pursuant to Section  11.04(c)  are  several and not joint. The failure of any Lender to make any Loan, to fund any such participation  or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve  any other Lender of its corresponding obligation to do so on such date, and no Lender shall be  responsible for the failure of any other Lender to so make its Loan, to purchase its participation or  to make its payment under Section 11.04(c).         (e)   Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain  the funds for any Loan in any particular place or manner or to constitute a representation by any  Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.         (f)   Pro  Rata  Treatment.  Except  to  the  extent  otherwise  provided  herein:  (i) each  Borrowing (other than Swingline Borrowings) shall be made from the Appropriate Lenders, each  payment of fees under Section 2.09 and clauses (l), (m) and (o) of Section 2.03 shall be made for  account  of  the  Appropriate  Lenders,  and  each  termination  or  reduction  of  the  amount  of  the  Commitments shall be applied to the respective Commitments of the Lenders, pro rata according  to the amounts of their respective Commitments; (ii) each Borrowing shall be allocated pro rata  among the Lenders according to the amounts of their respective Commitments (in the case of the                                    58 





 






      making of Revolving Loans) or their respective Loans that are to be included in such Borrowing        (in  the  case  of  conversions  and  continuations  of  Loans);  (iii) each  payment  or  prepayment  of        principal of Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata        in accordance with the respective unpaid principal amounts of the Loans held by them; and (iv) each        payment of interest on Loans by the Borrower shall be made for account of the Appropriate Lenders        pro rata in accordance with the amounts of interest on such Loans then due and payable to the        respective Appropriate Lenders.         2.13  Sharing of Payments by Lenders.          If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment  in respect of (a) Obligations in respect of any of the Facilities due and payable to such Lender hereunder  and under the other Loan Documents at such time in excess of its ratable share (according to the proportion  of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate  amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under  the  other  Loan  Documents  at  such  time)  of  payments  on  account  of  the  Obligations  in  respect  of  the  Facilities  due  and  payable  to  all  Lenders  hereunder  and  under  the  other  Loan  Documents  at such time  obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not  due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of  its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and  payable)  to  such  Lender  at  such  time  to  (ii) the  aggregate  amount  of  the  Obligations  in  respect  of  the  Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents  at such time) of payments on account of the Obligations in respect of the Facilities owing (but not due and  payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the  Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender receiving such greater  proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at face value)  participations in the Loans and sub-participations in L/C Obligations and Swingline Loans of the other  Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall  be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the  Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the  case may be, provided that:                                 (1)   if  any  such  participations  or  sub-participations  are                          purchased  and  all  or  any  portion  of  the  payment  giving  rise  thereto  is                          recovered, such participations or sub-participations shall be rescinded and                          the purchase price restored to the extent of such recovery, without interest;                          and                                 (2)   the provisions of this Section 2.13 shall not be construed                          to  apply  to  (A) any  payment  made  by  or  on  behalf  of  the  Borrower                          pursuant to and in accordance with the express terms of this Agreement                          (including  the  application  of  funds  arising  from  the  existence  of  a                          Defaulting Lender), (B) the application of Cash Collateral provided for in                          Section 2.14, or (C) any payment obtained by a Lender as consideration                          for the assignment of or sale of a participation in any of its Loans or sub-                         participations in L/C Obligations or Swingline Loans to any assignee or                          participant, other than an assignment to any Loan Party or any Affiliate                          thereof (as to which the provisions of this Section 2.13 shall apply).         Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under  Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may                                          59 





 






exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully  as if such Lender were a direct creditor of such Loan Party in the amount of such participation.         2.14  Cash Collateral.                (a)   Obligation to Cash Collateralize. At any time there shall exist a Defaulting Lender,        within one Business Day following the written request of the Administrative Agent or the L/C        Issuer (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the L/C        Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect        to Section 2.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount        not less than the Minimum Collateral Amount.                (b)   Grant  of  Security  Interest.  The  Borrower,  and  to  the  extent  provided  by  any        Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the        Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders,        and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all        balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds        of the foregoing, all as security for the obligations to which such Cash Collateral may be applied        pursuant to Section 2.14(c). If at any time the Administrative Agent determines that Cash Collateral        is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuer        as  herein  provided,  or  that  the  total  amount  of  such Cash  Collateral  is  less  than the  Minimum        Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or        provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate        such deficiency (determined in the case of Cash Collateral provided pursuant to Section 2.15(a)(v),        after  giving  effect  to Section  2.15(a)(v)  and  any  Cash  Collateral  provided  by  the  Defaulting        Lender). All Cash Collateral (other than credit support not constituting funds subject to deposit)        shall be maintained in one or more Controlled Accounts at Bank of America. The Borrower shall        pay  on  demand  therefor  from  time  to  time  all  customary  account  opening,  activity  and  other        administrative  fees  and  charges  in  connection  with the  maintenance  and  disbursement  of Cash        Collateral.               (c)   Application.  Notwithstanding  anything  to  the  contrary  contained  in  this        Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15 or        8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C        Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by        a Revolving Lender that is a Defaulting Lender, any interest accrued on such obligation) and other        obligations for which the Cash Collateral was so provided, prior to any other application of such        property as may be provided for herein.               (d)   Release. Cash Collateral (or the appropriate portion thereof) provided to reduce        Fronting  Exposure  or  to  secure  other  obligations  shall  be  released  promptly  following  (i) the        elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including        by  the  termination  of  Defaulting  Lender  status  of  the  applicable  Revolving  Lender  (or,  as        appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the determination        by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided,        however, (A) any such release shall be without prejudice to, and any disbursement or other transfer        of  Cash  Collateral  shall be  and  remain  subject  to,  any  other  Lien  conferred  under  the  Loan        Documents  and  the  other  applicable  provisions  of  the  Loan  Documents,  and  (B) the  Person        providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released        but instead held to support future anticipated Fronting Exposure or other obligations.                                          60 





 






2.15  Defaulting Lenders.           (a)   Adjustments.  Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no  longer a Defaulting Lender, to the extent permitted by Applicable Law:               (i)   Waivers and Amendments. Such Defaulting Lender’s right to approve or        disapprove  any  amendment,  waiver  or  consent  with  respect  to  this  Agreement  shall  be        restricted  as  set  forth  in  the  definition  of  “Required  Lenders”,  “Required  Revolving        Lenders”, “Required Term Lenders”, “Required Incremental Term Lenders” and Section        11.01.               (ii)  Defaulting Lender Waterfall. Any payment of principal, interest, fees or        other amounts received by the Administrative Agent for the account of such Defaulting        Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise)        or received by the Administrative Agent from a Defaulting Lender pursuant to Section        11.08 shall be applied at such time or times as may be determined by the Administrative        Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender        to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any        amounts  owing  by  such  Defaulting  Lender  to the L/C  Issuer  or the Swingline  Lender        hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to        such  Defaulting  Lender  in  accordance  with Section  2.14; fourth,  as  the  Borrower  may        request (so long as no Default or Event of Default exists), to the funding of any Loan in        respect of which such Defaulting Lender has failed to fund its portion thereof as required        by this Agreement, as determined by the Administrative Agent; fifth, if so determined by        the Administrative Agent and the Borrower, to be held in a deposit account and released        pro  rata in  order  to  (A) satisfy  such  Defaulting  Lender’s  potential  future  funding        obligations with respect to Loans under this Agreement and (B) Cash Collateralize the L/C        Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to        future  Letters  of  Credit  issued  under  this  Agreement,  in  accordance  with Section 2.14;        sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swingline        Lender as a result of any judgment of a court of competent jurisdiction obtained by any        Lender, the L/C Issuer or the Swingline Lender against such Defaulting Lender as a result        of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so        long as no Default or Event of Default exists, to the payment of any amounts owing to the        Borrower as a result of any judgment of a court of competent jurisdiction obtained by the        Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of        its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise        as  may  be  required  under  the  Loan  Documents in  connection  with  any  Lien  conferred        thereunder  or  directed  by  a  court  of  competent  jurisdiction; provided that  if  (x)  such        payment is a payment of the principal amount of any Loans or L/C Borrowings in respect        of which such Defaulting Lender has not fully funded its appropriate share, and (y) such        Loans were made or the related Letters of Credit were issued at a time when the conditions        set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to        pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata        basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to,        such Defaulting Lender until such time as all Loans and funded and unfunded participations        in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance        with  the  Commitments  hereunder  without  giving  effect  to Section  2.15(a)(v).  Any        payments, prepayments or other amounts paid or payable to a Defaulting Lender that are        applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral                                    61 





 






      pursuant  to  this Section  2.15(a)(ii)  shall  be  deemed  paid  to  and  redirected  by  such        Defaulting Lender, and each Lender irrevocably consents hereto.               (iii) Certain Fees.                     (A)   Fees. No Defaulting Lender shall be entitled to receive any fee              payable  under Section  2.09(a)  for  any  period  during  which  that  Lender  is  a              Defaulting Lender (and the Borrower shall not be required to pay any such fee that              otherwise would have been required to have been paid to that Defaulting Lender).                     (B)   Letter of Credit Fees. Each Defaulting Lender shall be entitled to              receive  Letter  of  Credit  Fees  for  any  period  during  which  that  Lender  is  a              Defaulting  Lender  only  to  the  extent  allocable  to  its  Applicable  Revolving              Percentage of the stated amount of Letters of Credit for which it has provided Cash              Collateral pursuant to Section 2.14.                     (C)   Defaulting Lender Fees. With respect to any Letter of Credit Fee              not required to be paid to any Defaulting Lender pursuant to clause (B) above, the              Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee              otherwise  payable  to  such  Defaulting  Lender  with  respect  to  such  Defaulting              Lender’s  participation  in  L/C  Obligations  or  Swingline  Loans that  has  been              reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay              to the L/C Issuer and the Swingline Lender, as applicable, the amount of any such              fee otherwise payable to such Defaulting Lender to the extent allocable to such              L/C Issuer’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender,              and (3) not be required to pay the remaining amount of any such fee.               (iv)  Reallocation  of  Applicable  Revolving  Percentages  to  Reduce  Fronting        Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and        Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance        with their respective Applicable Revolving Percentages (calculated without regard to such        Defaulting Lender’s Commitment) but only to the extent that such reallocation does not        cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such        Non-Defaulting  Lender’s  Revolving  Commitment.  Subject  to Section  11.20,  no        reallocation  hereunder  shall  constitute  a  waiver  or  release of  any  claim  of  any  party        hereunder  against  a  Defaulting  Lender  arising  from  that  Lender  having  become  a        Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such        Non-Defaulting Lender’s increased exposure following such reallocation.               (v)   Cash  Collateral,  Repayment  of  Swingline  Loans.  If  the  reallocation        described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower        shall, without prejudice to any right or remedy available to it hereunder or under Applicable        Law,  (A) first,  prepay  Swingline  Loans  in  an  amount  equal  to  the  Swingline  Lender’s        Fronting Exposure and (B) second, Cash Collateralize the L/C Issuer’s Fronting Exposure        in accordance with the procedures set forth in Section 2.14.         (b)   Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline  Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the  Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified  in such notice and subject to any conditions set forth therein (which may include arrangements with  respect  to  any Cash Collateral), that  Lender  will,  to  the  extent  applicable,  purchase  at  par  that                                    62 





 






portion of outstanding Loans of the other Lenders or take such other actions as the Administrative  Agent may determine to be necessary to cause the Loans and funded and unfunded participations  in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with their  Revolving Commitments (without giving effect to Section 2.15(a)(iv)), whereupon such Lender  will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with  respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a  Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by  the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver  or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting  Lender.         (c)   New  Swingline  Loans/Letters  of  Credit.  So long  as  any  Revolving  Lender  is  a  Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans  unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline  Loan and (ii) the L/C Issuer shall not be required to issue, extend, increase, reinstate or renew any  Letter  of  Credit  unless it is  satisfied  that  it  will  have  no  Fronting  Exposure  after  giving  effect  thereto.   2.16  Incremental Facilities.         (a)   Increase in Revolving Facility; Incremental Term Facility.  Subject to the terms  and  conditions  set  forth  herein,  the  Borrower  shall  have  the  right,  by  written  notice  to  the  Administrative Agent, to request from time to time that one or more Lenders (and/or one or more  other  Persons  which  are  Eligible  Assignees and  which  will  become  Lenders),  (x)  prior  to  the  Maturity  Date  for  the  Revolving  Facility,  provide  an  increase  to  the  existing  Revolving  Commitments (each, an “Incremental Revolving Commitment”) and/or (y) establish one or more  new term loan commitments (each, an “Incremental Term Commitment”), by an aggregate amount  (for all such requests) not exceeding $200,000,000, provided that, each Incremental Commitment  shall be in an aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in excess  thereof.         (b)   Lenders; Additional Lenders. Incremental Commitments may be provided by any  existing Lender (it being understood that no existing Lender will have an obligation to make a  portion of any Incremental Commitment unless it in its sole discretion so agrees) or by any other  Eligible  Assignee  (any  such  other  bank,  financial  institution  or  other  investor  being  called  an  “Additional  Lender”); provided that  (w)  the  Administrative  Agent  shall  have  consented  (such  consent  not  to  be  unreasonably  withheld  or  delayed)  to  such  Lender’s  or  Additional  Lender’s  making such Incremental Term Loans or providing such Incremental Revolving Commitment if  such  consent  would  be  required  under Section  11.06(b)(iii)(B) for  an  assignment  of  Loans  or  Commitments, as applicable, to such Lender or Additional Lender; (x) solely with respect to any  Incremental  Revolving  Commitment,  the  Swingline  Lender  and  each  L/C  Issuer  shall  have  consented (such consent not to be unreasonably withheld or delayed) to such Additional Lenders  providing  such  Incremental  Revolving  Commitment  if  such  consent  would  be  required  under  Section 11.06(b)(iii)(C) for an assignment of Loans or Commitments, as applicable, to such Lender  or Additional Lender; (y) the limitations on assignments to certain Persons as set forth in Section  11.06 shall also be applicable with respect to any Additional Lender; and (z) any Additional Lender  shall execute and deliver an Incremental Agreement.         (c)   Incremental Term Commitments.  The terms and provisions (including, without  limitation,  pricing  and  amortization)  for  each  Incremental  Term  Loan  shall  be  set  forth  in  the  Incremental Agreement with respect to such Incremental Term Loan; provided that in any event,                                    63 





 






                  (i)   the weighted average life to maturity of any Incremental Term Loan shall              be no shorter than the remaining weighted average life to maturity of the then existing              Term Loans (including any then existing Incremental Term Loans);                     (ii)  the maturity date of each Incremental Term Loan (the “Incremental Term              Loan Maturity Date”) shall not be earlier than the latest Maturity Date under any Facility              (including any then outstanding Incremental Term Loans); and                     (iii)  the Applicable Rate and all-in yield for each Incremental Term Loan shall              be determined by the Borrower and the Lenders of the Incremental Term Loans;   provided further that, except as otherwise set forth herein, all of the other terms and conditions applicable  to such Incremental Term Loans shall be substantially consistent with the terms and conditions applicable  to the existing Term Loans, and to the extent that the terms and provisions of Incremental Term Loans are  not substantially consistent with the existing Term Loans (except to the extent permitted by clause (i), (ii)  or (iii) above) they shall be reasonably satisfactory to the Administrative Agent, the Lenders providing such  Incremental Term Loans and the Borrower.               (d)   Incremental  Revolving  Commitments.   The  terms  and  provisions  of  the        Incremental Revolving Commitment shall be identical to the Revolving Loans and the Revolving        Commitments and, for purposes of this Agreement and the other Loan Documents, all Revolving        Loans made under the Incremental Revolving Commitment shall be deemed to be Revolving Loans        of the same Class as the Revolving Loans under the Revolving Commitments. Without limiting the        generality  of  the  foregoing,  (A)  the  rate  of  interest  applicable  to  the  Incremental  Revolving        Commitment shall be the same as the rate of interest applicable to the existing Revolving Loans,        (B) commitment fees applicable to the Incremental Revolving Commitment shall be calculated        using  the  same  commitment  fees  applicable  to  the  existing  Revolving  Loans  and  (C)  the        Incremental  Revolving  Commitment  shall  share  ratably  in  any  mandatory prepayments  of  the        Revolving Loans.               (e)   Notice to Administrative Agent; Lender Elections.  Each notice from the Borrower        pursuant to this Section 2.16 shall be given in writing and shall set forth the requested amount and        proposed terms of the relevant Incremental Term Loans or Incremental Revolving Commitment,        including (x) the time period within which the Lenders are requested to respond (which shall in no        event be less than ten (10) Business Days from the date of delivery of such notice) and (y) the date        on which the Borrower proposes that the Incremental Commitments shall be effective.  Each Lender        shall notify the Administrative Agent within such time period of its Incremental Commitment, if        any.  Any Lender not responding within such time period shall be deemed to have declined to        provide an Incremental Commitment.                 (f)   Conditions  to  Effectiveness  of  Incremental  Commitments.   Commitments  in        respect  of  Incremental  Term  Loans  and  Incremental  Revolving  Commitments  shall  become        Commitments (or in the case of an Incremental Revolving Commitments to be provided by an        existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving        Commitment) under this Agreement pursuant to an amendment (an “Incremental Agreement”) to        this  Agreement  and,  as  appropriate,  the  other  Loan  Documents,  executed  by  the  Borrower,  the        Guarantors, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if        any, and the Administrative Agent, in form and substance reasonably satisfactory to each of them.         The Incremental Agreement may, subject to Section 2.16, without the consent of any other Lenders,        effect such amendments to this Agreement and the other Loan Documents as may be necessary, in        the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of                                          64 





 






this Section  2.16 (including,  in  connection  with  an  Incremental  Revolving  Commitment,  to  reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The  effectiveness  of  any  Incremental  Agreement,  and  the  occurrence  of  any  Credit  Extension  thereunder, shall be subject to the satisfaction on the date thereof (each, an “Incremental Effective  Date”) of such conditions as the parties thereto shall agree and as set forth below:                (i)   no Default shall have occurred and be continuing or would result from the        borrowings to be made on the Incremental Effective Date;               (ii)  the representations and warranties contained in Article V and the other        Loan Documents are true and correct in all respects (or in all material respects for such        representations and warranties that are not by their terms already qualified by materiality),        on and as of the Incremental Effective Date, and except that for purposes of this Section        2.16, the representations and warranties contained in clauses (a) and (b) of Section 5.05        shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and        (b), respectively, of Section 6.01;                (iii) on a pro forma basis (assuming all Incremental Commitments are fully        drawn), the Borrower shall be in compliance with each of the covenants set forth in Section        7.11 as  of  the  end  of  the latest  fiscal  quarter  for  which  financial  statements  have been        delivered pursuant to Section 6.01(a) or (b);               (iv)  the Borrower shall make any breakage payments in connection with any        adjustment of Revolving Loans pursuant to Section 2.16(g); and               (v)   the Borrower shall deliver or cause to be delivered officer’s certificates        and  legal opinions  of  the  type  delivered  on  the  Closing  Date  to  the  extent  reasonably        requested  by,  and  in  form  and  substance  reasonably  satisfactory  to, the  Administrative        Agent;         (g)   Reallocation.   Upon  each  Incremental  Revolving  Commitment  pursuant to  this  Section, each  Lender  with  a  Revolving  Commitment  immediately  prior  to  such  increase  will  automatically  and  without  further  act  be  deemed  to  have  assigned  to  each  Lender  providing  a  portion of the Incremental Revolving Commitment (each, an “Incremental Revolving Commitment  Lender”) in respect of such increase, and each such Incremental Revolving Commitment Lender  will automatically and without further act be deemed to have assumed, a portion of such Lender’s  participations  hereunder  in  outstanding  Letters  of  Credit  and  Swingline  Loans  such  that,  after  giving effect to each such deemed assignment and assumption of participations, the percentage of  the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations  hereunder in Swingline Loans held by each Lender with a Revolving Commitment (including each  such  Incremental  Revolving  Commitment  Lender)  will  equal  the  percentage  of  the  aggregate  Revolving Commitments of all Lenders represented by such Lender’s Revolving Commitment. If,  on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans  shall on or prior to the effectiveness of such Incremental Revolving Commitment be prepaid from  the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving  Commitments),  which  prepayment  shall  be  accompanied  by  accrued  interest  on  the  Revolving  Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05, to the  extent  necessary  to  maintain  the  pro  rata  exposures  among  the  Lenders  with  Revolving  Commitments.  The  Administrative  Agent  and  the  Lenders  hereby  agree  that  the  minimum  borrowing,  pro  rata  borrowing  and  pro  rata  payment  requirements  contained  elsewhere  in  this  Agreement  shall  not  apply  to  the  transactions  effected  pursuant  to  the  immediately  preceding                                    65 





 






sentence.  If there is a new borrowing of Revolving Loans on such Incremental Effective Date, the  Revolving  Lenders  after  giving  effect  to  such  Incremental  Effective  Date  shall  make  such  Revolving Loans in accordance with Section 2.01(b).         (h)   Making of New Incremental Term Loans.  On any Incremental Effective Date on  which  new  Incremental  Term  Commitments  are  effective,  subject  to  the  satisfaction  of  the  foregoing terms and conditions, each Lender of such new Incremental Term Commitments shall  make an Incremental Term Loan to the Borrower in an amount equal to its new Incremental Term  Commitment.         (i)   Equal  and  Ratable  Benefit.   The  Incremental Term Loans  and  Incremental  Commitments established pursuant to this Section 2.16 shall constitute Loans, Commitments and  Obligations under, and shall be entitled to all the benefits afforded by, this Agreement and the other  Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the  Guarantees.  The Borrower will use the proceeds of the Incremental Term Loans and Incremental  Revolving Commitments for any purpose not prohibited by this Agreement. This Section 2.16 shall  supersede any provisions in Section 2.13 or Section 11.01 to the contrary.                              ARTICLE III                                                TAXES, YIELD PROTECTION AND ILLEGALITY   3.01  Taxes.          (a)   Defined  Terms.  For  purposes  of  this Section  3.01,  the  term  “Applicable  Law”  includes FATCA and the term “Lender” includes any L/C Issuer.         (b)   Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.  Any  and  all  payments  by  or  on  account  of  any  obligation  of  any  Loan  Party  under  any  Loan  Document shall be made without deduction or withholding for any Taxes, except as required by  Applicable  Laws.  If  any  Applicable  Laws  (as  determined  in  the  good  faith  discretion  of  an  applicable Withholding Agent) require 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  any  required  withholding  or  the  making  of  all  required  deductions  (including  deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient  receives an amount equal to the sum it would have received had no such withholding or deduction  been made.         (c)   Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to  the relevant Governmental Authority in accordance with Applicable Law, or at the option of the  Administrative Agent timely reimburse it for the payment of, any Other Taxes.         (d)   Tax Indemnifications.               (i)   Each  of  the  Loan  Parties  shall,  and  does  hereby,  jointly  and  severally        indemnify each Recipient, and shall make payment in respect thereof within ten (10) days        after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified        Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01)                                    66 





 






      payable or paid by such Recipient or required to be withheld or deducted from a payment        to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or        with  respect  thereto,  whether  or  not  such  Indemnified  Taxes  were  correctly  or  legally        imposed or asserted by the relevant Governmental Authority. A certificate as to the amount        of such payment or liability delivered to the Borrower by a Lender (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. Each of the Loan Parties shall also, and        does hereby, jointly and severally indemnify the Administrative Agent, and shall make        payment  in  respect  thereof  within  ten  (10)  days  after demand  therefor,  for  any  amount        which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as        required pursuant to Section 3.01(d)(ii) below.               (ii)  Each Lender shall, and does hereby, severally indemnify and shall make        payment  in  respect  thereof  within  ten  (10)  days  after  demand  therefor,  (A)  the        Administrative Agent against any Indemnified Taxes attributable to such Lender (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),        (B) the  Administrative  Agent  and  the  Loan  Parties,  as  applicable,  against  any  Taxes        attributable  to such  Lender’s  failure  to  comply  with  the  provisions  of Section 11.06(d)        relating to the maintenance of a Participant Register and (C) the Administrative Agent and        the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender, in        each  case,  that  are  payable  or  paid  by  the  Administrative  Agent  or  a  Loan  Party  in        connection with any Loan Document, and any reasonable expenses arising therefrom or        with  respect  thereto,  whether  or  not  such  Taxes  were  correctly  or  legally  imposed  or        asserted by the relevant Governmental Authority. A certificate as to the amount of such        payment  or  liability  delivered  to  any  Lender  by  the  Administrative  Agent  shall  be        conclusive absent manifest error. Each Lender 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 clause (d)(ii).         (e)   Evidence of Payments. As soon as practicable after any payment of Taxes by any  Loan  Party  to  a  Governmental  Authority,  as  provided  in  this Section 3.01,  the  Borrower  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 any return reporting such payment or  other evidence of such payment reasonably satisfactory to the Administrative Agent.         (f)   Status of Lenders; Tax Documentation.               (i)   Any  Lender  that  is  entitled  to  an  exemption  from  or  reduction  of        withholding Tax with respect to payments made under any Loan Document shall deliver        to the Borrower and 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                                    67 





 






documentation (other than such documentation set forth in Section 3.01(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 Foreign Lender shall, to the extent it is legally entitled to do        so, deliver to the Borrower and the Administrative Agent (in such number of copies        as shall be requested by the recipient) on or prior to the date on which such Foreign        Lender becomes a Lender under this Agreement (and from time to time thereafter        upon  the  reasonable  request  of  the  Borrower  or  the  Administrative  Agent),        whichever of the following is applicable:                     (1)   in the case of a Foreign Lender claiming the benefits of              an income tax treaty to which the United States is a party (x) with respect              to payments of interest under any Loan Document, executed copies of IRS              Form W–8BEN–E (or W–8BEN, as applicable) establishing an exemption              from,  or  reduction  of,  U.S.  federal  withholding  Tax  pursuant  to  the              “interest”  article  of  such  tax  treaty  and  (y)  with  respect  to  any  other              applicable payments under any Loan Document, IRS Form W–8BEN–E              (or W–8BEN, as applicable) establishing an exemption from, or reduction              of,  U.S.  federal  withholding  Tax  pursuant  to  the  “business  profits”  or              “other income” article of such tax treaty;                     (2)   executed copies of IRS Form W–8ECI;                     (3)   in the case of a Foreign Lender claiming the benefits of              the exemption for portfolio interest under Section 881(c) of the Code, (x)              a certificate substantially in the form of Exhibit L–1 to the effect that such              Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A)              of  the  Code,  a  “10  percent  shareholder”  of  the  Borrower  within  the              meaning  of  Section  881(c)(3)(B)  of  the  Code,  or  a  “controlled  foreign              corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax              Compliance Certificate”) and (y) executed copies of IRS Form W–8BEN–             E (or W–8BEN, as applicable); or                     (4)   to the extent a Foreign Lender is not the beneficial owner,              executed copies of IRS Form W–8IMY, accompanied by IRS Form W–             8ECI, IRS Form W–8BEN–E (or W–8BEN, as applicable), a U.S. Tax              Compliance Certificate substantially in the form of Exhibit L–2 or Exhibit              L–3,  IRS  Form  W–9,  and/or  other  certification  documents  from  each                              68 





 






                  beneficial owner, as applicable; provided that if the Foreign Lender is a                    partnership and one or more direct or indirect partners of such Foreign                    Lender are claiming the portfolio interest exemption, such Foreign Lender                    may provide a U.S. Tax Compliance Certificate substantially in the form                    of Exhibit L–4 on behalf of each such direct and indirect partner;                     (C)   any Foreign Lender shall, to the extent it is legally entitled to do              so, deliver to the Borrower and the Administrative Agent (in such number of copies              as shall be requested by the recipient) on or prior to the date on which such Foreign              Lender becomes a Lender under this Agreement (and from time to time thereafter              upon  the  reasonable  request  of  the  Borrower  or  the  Administrative  Agent),              executed  copies  (or  originals,  as  required)  of  any  other  form  prescribed  by              Applicable  Law  as  a  basis  for  claiming  exemption  from  or  a  reduction  in  U.S.              federal  withholding  Tax,  duly  completed,  together  with  such  supplementary              documentation as may be prescribed by Applicable Law to permit the Borrower or              the Administrative Agent to determine the withholding or deduction required to be              made; and                     (D)   if a payment made to a Lender under any Loan Document would              be subject to U.S. federal withholding Tax imposed by FATCA if such Lender              were  to  fail  to  comply  with  the  applicable  reporting  requirements  of  FATCA              (including  those  contained  in  Section  1471(b)  or 1472(b)  of  the  Code,  as              applicable),  such  Lender  shall  deliver  to  the  Borrower  and  the  Administrative              Agent at the time or times prescribed by law and at such time or times reasonably              requested  by  the  Borrower or  the  Administrative  Agent  such  documentation              prescribed  by  Applicable  Law  (including  as  prescribed  by  Section              1471(b)(3)(C)(i)  of  the  Code)  and  such  additional  documentation  reasonably              requested by the Borrower or the Administrative Agent as may be necessary for              the Borrower and the Administrative Agent to comply with their obligations under              FATCA  and  to  determine  that  such  Lender  has  complied  with  such  Lender’s              obligations under FATCA or to determine the amount to deduct and withhold from              such payment. Solely for the purposes of this clause (f)(ii)(D) and clause (f)(iv)              below, “FATCA” shall include any amendments made to FATCA after the date of              this Agreement.               (iii) Each Lender agrees that if any form or certification it previously delivered        pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it        shall  update  such  form  or  certification  or  promptly  notify  the  Borrower  and  the        Administrative Agent in writing of its legal inability to do so.               (iv)  For purposes of determining withholding Taxes imposed under FATCA,        from and after the Closing Date, the Borrower and the Administrative Agent shall treat        (and  the  Lenders  hereby  authorize  the  Administrative  Agent  to treat)  the Loans as not        qualifying  as “grandfathered  obligations”  within  the  meaning  of  Treasury  Regulation        Section 1.1471–2(b)(2)(i).         (g)   Treatment of Certain Refunds. Unless required by Applicable Laws, at no time  shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a  Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted  from funds paid for the account of such Lender. If any Recipient determines, in its sole discretion  exercised  in  good  faith,  that  it  has  received  a refund  of  any  Taxes  as  to  which  it  has  been                                    69 





 






indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts  pursuant to this Section 3.01, it shall pay to such Loan Party an amount equal to such refund (but  only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party  under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket  expenses (including Taxes) incurred by such Recipient, as the case may be, and without interest  (other than any interest paid by the relevant Governmental Authority with respect to such refund),  provided that each Loan Party, upon the request of the Recipient, agrees to repay the amount paid  over  to  such  Loan Party  (plus  any  penalties,  interest or  other  charges  imposed  by  the  relevant  Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund  to such Governmental Authority. Notwithstanding anything to the contrary in this clause (g), in no  event will the applicable Recipient be required to pay any amount to such Loan Party pursuant to  this clause (g) the payment of which would place the Recipient in a less favorable net after-Tax  position than such Recipient would have been in if the Tax subject to indemnification and giving  rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification  payments or additional amounts with respect to such Tax had never been paid. This clause (g) shall  not be construed to require any Recipient to make available its tax returns (or any other information  relating to its Taxes that it deems confidential) to any Loan Party or any other Person.         (h)   Survival.  Each  party’s  obligations  under  this Section  3.01 shall  survive  the  resignation  or  replacement  of  the  Administrative  Agent  or  any  assignment  of  rights  by,  or  the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all other Obligations.   3.02  Illegality.         If any Lender determines that any Law has made it unlawful, or that any Governmental  Authority has asserted that it is unlawful, for any Lender or its Lending Office to make, maintain  or fund or charge interest with respect to any Credit Extension, or to determine or charge interest  rates  based  upon  the  Eurodollar  Rate,  or  any  Governmental  Authority  has  imposed  material  restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the  London interbank market, then, upon notice thereof by such Lender to the Borrower (through the  Administrative  Agent),  (i) any  obligation  of  such  Lender  to  make  or  continue  Eurodollar  Rate  Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such  notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate  on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest  rate  on  which  Base  Rate  Loans  of  such  Lender  shall,  if  necessary  to  avoid  such  illegality,  be  determined by the Administrative Agent without reference to the Eurodollar Rate component of  the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower  that  the  circumstances  giving  rise  to  such  determination  no  longer  exist.  Upon  receipt  of  such  notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative  Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate  Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such  illegality,  be  determined  by  the  Administrative  Agent  without  reference  to  the  Eurodollar Rate  component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender  may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such  Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (B) if such notice  asserts  the  illegality  of  such  Lender  determining  or  charging  interest  rates  based  upon  the  Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the  Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof  until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for  such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such                                    70 





 






prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid  or converted, together with any additional amounts required pursuant to Section 3.05.   3.03  Inability to Determine Rates.         (a)   If in connection with any request for a Eurodollar Rate Loan or a conversion to or  continuation thereof, (i) the Administrative Agent determines that (A) Dollar deposits are not being  offered to banks in the London interbank eurodollar market for the applicable amount and Interest  Period of such Eurodollar Rate Loan, or (B) (1) adequate and reasonable means do not exist for  determining  the  Eurodollar  Rate  for  any  requested  Interest  Period  with  respect  to  a  proposed  Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan and (2) the  circumstances described in Section 3.03(c)(i) do not apply (in each case with respect to this clause  (i), “Impacted Loans”), or (ii) the Administrative Agent or the Required Lenders determine that for  any reason Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar  Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the  Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the  obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to the  extent  of  the  affected  Eurodollar  Rate  Loans  or  Interest  Periods),  and  (y) in  the  event  of  a  determination described in the preceding sentence with respect to the Eurodollar Rate component  of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate  shall be suspended, in each case until the Administrative Agent (or, in the case of a determination  by the Required Lenders described in clause (ii) of this Section 3.03(a), until the Administrative  Agent upon instruction of the Required Lenders) revokes such notice. Upon receipt of such notice,  the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation  of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods)  or, failing that, will be deemed to have converted such request into a request for a Borrowing of  Base Rate Loans in the amount specified therein.         (b)   Notwithstanding  the  foregoing,  if  the  Administrative  Agent  has  made  the  determination  described  in clause  (a)(i)  of  this Section  3.03,  the  Administrative  Agent  in  consultation with the Borrower, may establish an alternative interest rate for the Impacted Loans,  in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until  (i) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under  clause (a)(i) of this Section 3.03, (ii) the Administrative Agent or the Required Lenders notify the  Administrative Agent and the Borrower that such alternative interest rate does not adequately and  fairly reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender determines  that  any  Law  has made  it  unlawful,  or  that  any  Governmental  Authority  has  asserted  that  it is  unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose  interest is determined by reference to such alternative rate of interest or to determine or charge  interest rates based upon such rate or any Governmental Authority has imposed material restrictions  on the authority of such Lender to do any of the foregoing and provides the Administrative Agent  and the Borrower written notice thereof.         (c)   Notwithstanding  anything to the  contrary  in  this  Agreement  or  any  other  Loan  Documents, but  without  limiting Sections  3.01(a)  and  (b)  above, if  the  Administrative  Agent  determines (which determination shall be conclusive and binding upon all parties hereto absent  manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the  case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as  applicable) have determined (which determination likewise shall be conclusive and binding upon  all parties hereto absent manifest error), that:                                    71 





 






            (i)   adequate and reasonable means do not exist for ascertaining LIBOR for        any requested Interest Period,  including, without limitation, because the LIBOR Screen        Rate is not available or published on a current basis and such circumstances are unlikely to        be temporary; or               (ii)  the administrator of the LIBOR Screen Rate or a Governmental Authority        having or purporting to have jurisdiction over the Administrative Agent has made a public        statement identifying a specific date after which LIBOR or the LIBOR Screen Rate shall        no longer be made available, or used for determining the interest rate of loans, provided        that, at the time of such statement, there is no successor administrator that is satisfactory to        the Administrative Agent, that will continue to provide LIBOR after such specific date        (such specific date, the “Scheduled Unavailability Date”); or               (iii) syndicated loans currently being executed, or that include language similar        to that contained in this Section 3.03, are being executed or amended (as applicable) to        incorporate or adopt a new benchmark interest rate to replace LIBOR,         then, reasonably promptly after such determination by the Administrative Agent or receipt  by  the  Administrative  Agent  of  such  notice,  as  applicable,  the  Administrative  Agent  and  the  Borrower may amend this Agreement to replace LIBOR with (x) one or more SOFR-Based Rates  or (y) another alternate benchmark rate giving due consideration to any evolving or then existing  convention  for  similar  U.S.  dollar  denominated  syndicated  credit  facilities  for  such  alternative  benchmarks and, in each case, including any mathematical or other adjustments to such benchmark  giving  due  consideration  to  any  evolving  or  then  existing  convention  for  similar  U.S.  dollar  denominated  syndicated  credit  facilities  for  such benchmarks which  adjustment or  method  for  calculating  such  adjustment  shall  be published  on  an information  service  as  selected  by  the  Administrative  Agent  from  time  to  time  in  its  reasonable  discretion and  may  be  periodically  updated (the “Adjustment;” and any such proposed rate, a “LIBOR Successor Rate”), and any such  amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative  Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior  to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent  written notice that such Required Lenders (A) in the case of an amendment to replace LIBOR with  a rate described in clause (x), object to the Adjustment; or (B) in the case of an amendment to  replace LIBOR with a rate described in clause (y), object to such amendment; provided that for the  avoidance of doubt, in the case of clause (A), the Required Lenders shall not be entitled to object  to any SOFR-Based Rate contained in any such amendment.  Such LIBOR Successor Rate shall be  applied in a manner consistent with market practice; provided that to the extent such market practice  is not administratively feasible for the Administrative Agent, such LIBOR Successor Rate shall be  applied in a manner as otherwise reasonably determined by the Administrative Agent.         (d)   If no LIBOR Successor Rate has been determined and the circumstances under  clause (c)(i)  above  exist  or  the Scheduled  Unavailability  Date  has  occurred  (as  applicable), the  Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (i) the  obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to the  extent  of  the  affected  Eurodollar  Rate  Loans  or  Interest  Periods),  and  (ii) the  Eurodollar  Rate  component shall no longer be utilized in determining the Base Rate. Upon receipt of such notice,  the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation  of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods)  or, failing that, will be deemed to have converted such request into a request for a Borrowing of  Base Rate Loans (subject to the foregoing clause (ii)) in the amount specified therein.                                    72 





 






      (e)   Notwithstanding anything else herein, any definition of LIBOR Successor Rate  shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of  this Agreement.         (f)   In  connection  with  the  implementation  of  a  LIBOR  Successor  Rate,  the  Administrative Agent will have the right to make LIBOR Successor Rate Conforming Changes  from  time  to  time  and,  notwithstanding  anything  to  the  contrary  herein  or  in  any  other  Loan  Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will  become effective without any further action or consent of any other party to this Agreement.         (g)   For purposes hereof:                (i)   “LIBOR Successor Rate Conforming Changes” means, with respect to any        proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate,        Interest Period, timing and frequency of determining rates and making payments of interest        and other technical, administrative or operational matters as may be appropriate, in the        discretion of the Administrative Agent, to reflect the adoption and implementation of such        LIBOR  Successor  Rate  and  to  permit  the  administration  thereof  by  the  Administrative        Agent in a manner substantially consistent with market practice (or, if the Administrative        Agent  determines  that  adoption  of  any  portion  of  such market  practice  is  not        administratively feasible or that no market practice for the administration of such LIBOR        Successor Rate exists, in such other manner of administration as the Administrative Agent        determines  is  reasonably  necessary  in  connection  with  the  administration  of  this        Agreement);               (ii)  “Relevant Governmental Body” means the Federal Reserve Board and/or        the Federal Reserve Bank of New York, or a committee officially endorsed or convened        by  the  Federal  Reserve  Board  and/or  the  Federal  Reserve  Bank  of  New  York  for  the        purpose of recommending a benchmark rate to replace LIBOR in loan agreements similar        to this Agreement;               (iii) “SOFR” with respect to any day means the secured overnight financing        rate published for such day by the Federal Reserve Bank of New York, as the administrator        of  the  benchmark  (or  a  successor  administrator)  on  the  Federal  Reserve  Bank  of  New        York’s website and that has been selected or recommended by the Relevant Governmental        Body;               (iv)  “SOFR-Based Rate” means SOFR or Term SOFR; and               (v)   “Term SOFR” means the forward-looking term rate for any period that is        approximately (as determined by the Administrative Agent) as long as any of the Interest        Period options set forth in the definition of “Interest Period” and that is based on SOFR        and that has been selected or recommended by the Relevant Governmental Body, in each        case as published on an information service as selected by the Administrative Agent from        time to time in its reasonable discretion.   3.04  Increased Costs; Reserves on Eurodollar Rate Loans.          (a)   Increased Costs Generally. If any Change in Law shall:                                    73 





 






            (i)   impose,  modify  or  deem  applicable  any  reserve,  special  deposit,        compulsory loan, insurance charge or similar requirement against assets of, deposits with        or  for  the  account  of,  or  credit  extended  or  participated  in  by,  any  Lender  (except  any        reserve requirement contemplated by Section 3.04(d)) or the L/C Issuer;               (ii)  subject  any  Recipient  to  any  Taxes  (other  than  (A) Indemnified  Taxes,        (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and        (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,        or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;        or               (iii) impose on any Lender or the L/C Issuer or the London interbank market        any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans        made by such Lender or any Letter of Credit or participation therein;   and  the  result  of  any  of  the  foregoing shall  be to  increase  the  cost  to  such  Lender  of  making,  converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any  such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or  maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any  Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the  L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of  such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case  may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as  the case may be, for such additional costs incurred or reduction suffered.         (b)   Capital Requirements. If any Lender or the L/C Issuer determines that any Change  in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such  Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements  has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s  capital  or  on  the  capital  of  such  Lender’s  or  the  L/C  Issuer’s  holding  company,  if  any,  as  a  consequence  of  this  Agreement,  the  Commitments  of  such  Lender  or  the  Loans  made  by,  or  participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit  issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s  or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into  consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the  L/C  Issuer’s  holding  company  with  respect  to  capital  adequacy),  then  from  time  to  time  the  Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or  amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s  holding company for any such reduction suffered.         (c)   Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer setting  forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding  company, as the case may be, as specified in clause (a) or (b) of this Section 3.04 and delivered to  the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the  L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10)  days after receipt thereof.         (d)   Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, (i) as  long  as  such  Lender  shall  be  required  to  maintain  reserves  with  respect  to  liabilities  or  assets  consisting  of  or  including  eurocurrency  funds  or  deposits  (currently  known  as  “Eurocurrency  liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal                                    74 





 






      to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such        Lender in good faith, which determination shall be conclusive), and (ii) as long as such Lender        shall be required to comply with any reserve ratio requirement or analogous requirement of any        central  banking  or  financial  regulatory  authority  imposed  in  respect  of  the  maintenance  of  the        Commitments or the funding of the Loans, such additional costs (expressed as a percentage per        annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual        costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in        good faith, which determination shall be conclusive), which in each case shall be due and payable        on each date on which interest is payable on such Loan, provided the Borrower shall have received        at least ten (10) days’ prior notice (with a copy to the Administrative Agent) of such additional        interest or costs from such Lender. If a Lender fails to give notice ten (10) days prior to the relevant        Interest Payment Date, such additional interest shall be due and payable ten (10) days from receipt        of such notice.               (e)   Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to        demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute        a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that        the  Borrower  shall  not  be  required  to  compensate  a  Lender  or  the  L/C  Issuer  pursuant  to  the        foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered        more than nine (9) months prior to the date that such Lender or the L/C Issuer, as the case may be,        notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of        such  Lender’s  or  the  L/C  Issuer’s  intention to  claim compensation  therefor  (except  that,  if  the        Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9)        month period referred to above shall be extended to include the period of retroactive effect thereof).         3.05  Compensation for Losses.         Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the  Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost  or expense incurred by it as a result of:               (a)   any continuation, conversion, payment or prepayment of any Loan other than a        Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether        voluntary, mandatory, automatic, by reason of acceleration, or otherwise);               (b)   any failure by the Borrower (for a reason other than the failure of such Lender to        make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the        date or in the amount notified by the Borrower; or               (c)   any assignment of a Eurodollar Rate Loan on a day other than the last day of the        Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;          including any loss of anticipated profits and any loss or expense arising from the liquidation or        reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the        deposits  from  which  such  funds  were  obtained.  The  Borrower  shall  also  pay  any  customary        administrative fees charged by such Lender in connection with the foregoing.         For purposes of calculating amounts payable by the Borrower to the Lenders under this Section  3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar  Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market                                          75 





 






for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in  fact so funded.         3.06  Mitigation Obligations; Replacement of Lenders.                (a)   Designation of a Different Lending Office. If any Lender requests compensation        under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts        to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the        L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then        at the request of the Borrower, such Lender or the L/C Issuer shall, as applicable, use reasonable        efforts to designate a different Lending Office for funding or booking its Loans hereunder or to        assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the        judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or        reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or        eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would        not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense        and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be.        The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or        the L/C Issuer in connection with any such designation or assignment.               (b)   Replacement of Lenders. If any Lender requests compensation under Section 3.04,        or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender        or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each        case, such Lender has declined or is unable to designate a different lending office in accordance        with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 11.13.         3.07  Survival.         All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate  Commitments, repayment of all other Obligations hereunder, resignation of the Administrative Agent and  the Facility Termination Date.                                    ARTICLE IV                                                          CONDITIONS PRECEDENT TO CREDIT EXTENSIONS         4.01  Conditions of Initial Credit Extension.         The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is  subject to satisfaction of the following conditions precedent:               (a)   Execution of Credit Agreement; Loan Documents. The Administrative Agent shall        have received (i) counterparts of this Agreement, executed by a Responsible Officer of each Loan        Party and a duly authorized officer of each Lender, (ii) for the account of each Lender requesting a        Note, a Note executed by a Responsible Officer of the Borrower, and (iii)  counterparts of any other        Loan  Document,  executed  by  a  Responsible  Officer  of  the  applicable  Loan  Party  and  a  duly        authorized officer of each other Person party thereto.               (b)   Officer’s Certificate. The Administrative Agent shall have received an officer’s        certificate dated the Closing Date, certifying as to the Organization Documents of each Loan Party        (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by                                          76 





 






such Governmental Authority), the resolutions of the governing body of each Loan Party, the good  standing, existence or its equivalent of each Loan Party and of the incumbency (including specimen  signatures) of the Responsible Officers of each Loan Party.         (c)   Legal  Opinions  of  Counsel.  The  Administrative  Agent  shall  have  received  an  opinion or opinions (including, if requested by the Administrative Agent, local counsel opinions)  of counsel for the Loan Parties, dated the Closing Date and addressed to the Administrative Agent  and the Lenders, in form and substance acceptable to the Administrative Agent.         (d)   Financial  Statements.  The  Administrative  Agent  and  the  Lenders  shall  have  received copies of the financial statements referred to in Section 5.05, each in form and substance  satisfactory to each of them.         (e)   Lien  Searches.  The  Administrative  Agent  shall  have  received,  in  form  and  substance satisfactory to the Administrative Agent: (A) searches of UCC filings in the jurisdiction  of incorporation or formation, as applicable, of each Loan Party, copies of the financing statements  on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax  lien, judgment and bankruptcy searches.         (f)   Liability, Casualty, Property, Terrorism and Business Interruption Insurance. The  Administrative  Agent  shall  have  received  declaration  pages or insurance  binders  evidencing  liability, casualty, property, terrorism and business interruption insurance meeting the requirements  set forth herein or as required by the Administrative Agent. The Loan Parties shall have delivered  to the Administrative Agent an Authorization to Share Insurance Information.         (g)   Solvency Certificate. The Administrative Agent shall have received a Solvency  Certificate signed by a Responsible Officer of the Borrower as to the financial condition, solvency  and related matters of the Borrower and its Subsidiaries, after giving effect to the initial Borrowings  under the Loan Documents and the other transactions contemplated hereby.         (h)   Financial Condition Certificate. The Administrative Agent shall have received a  certificate or certificates executed by a Responsible Officer of the Borrower as of the Closing Date,  in form and substance satisfactory to the Administrative Agent, certifying as to the Consolidated  forecasted balance sheet, statements of income and cash flows of the Borrower and its Subsidiaries,  prepared on a pro forma basis as of December 31, 2019 after giving effect to the Transactions, and  on annual basis thereafter for each year during the term of this Agreement.          (i)   Loan Notice. The Administrative Agent shall have received a Loan Notice with  respect to the Loans to be made on the Closing Date.         (j)   Existing Indebtedness of the Loan Parties.                (i)   All of the existing Indebtedness for borrowed money of the Borrower and        its Subsidiaries (other than Indebtedness permitted to exist pursuant to Section 7.02) shall        be repaid in full and all Liens and other security interests related thereto and all Liens and        other  security  interests  upon  Morbark  securing  Indebtedness  of  the  Sellers shall  be        terminated on or prior to the Closing Date.               (ii)  All amounts required to be repaid on the Closing Date pursuant to Section        11.22 with respect to the Existing Credit Agreement shall be repaid in full.                                    77 





 






            (k)   Anti-Money-Laundering; Beneficial Ownership. Upon the reasonable request of        any Lender, the Borrower shall have provided to such Lender, and such Lender shall be reasonably        satisfied with, the documentation and other information so requested in connection with applicable        “know  your  customer”  and  anti-money-laundering  rules  and  regulations,  including,  without        limitation, the Patriot Act, and any Loan Party that qualifies as a “legal entity customer” under the        Beneficial Ownership Regulation shall have delivered to each Lender that so requests, a Beneficial        Ownership Certification in relation to such Loan Party.               (l)   Consents.  The  Administrative  Agent  shall  have  received  evidence  that  all        members,  boards  of  directors,  governmental,  shareholder  and  material third  party  consents  and        approvals necessary in connection with the Transactions have been obtained.               (m)   Morbark  Acquisition.   The  Morbark  Acquisition  Agreement  (including  all        schedules and exhibits thereto) shall be in form and substance satisfactory to the Administrative        Agent and the Arrangers, and shall be in full force and effect.  The Morbark Acquisition shall have        been  consummated  or  shall  be  simultaneously  consummated  in  accordance  with  the  Morbark        Acquisition Related  Documents  for  an  aggregate  purchase  price  not in  excess  of  $352,000,000        (plus or minus working capital adjustments) payable on the Closing Date (without giving effect to        any amendment, modification or waiver that would be materially adverse to the Lenders without        the prior written consent of the Administrative Agent and the Arrangers, which consent shall not        be unreasonably withheld, delayed or conditioned), and in compliance in all material respects with        applicable Laws and regulatory approvals.               (n)   Acquisition Due  Diligence.   The  Administrative  Agent  and  the  Arrangers  shall        have  completed  a  due  diligence  investigation  of  the  Morbark  Acquisition,  Morbark  and  its        Subsidiaries in scope, and with results, satisfactory to the Administrative Agent and the Arrangers.               (o)   Litigation.  No action, suit, investigation or proceeding shall be pending or, to the        knowledge  of  the  Loan Parties,  threatened  in  any  court  or  before  any  Governmental  Authority        against any Loan Party that could reasonably be expected to have a Material Adverse Effect.               (p)   Fees and Expenses. The Administrative Agent, the Arrangers and the Lenders shall        have received all fees and expenses, if any, owing pursuant to the Fee Letters and Section 2.09, and        subject to the Fee Letters, all reasonable fees and expenses of Chapman and Cutler LLP and any        local counsel to the Administrative Agent, in each case as evidenced by an invoice provided to the        Borrower on or prior to the Closing Date.               (q)   Due Diligence. The Lenders shall have completed a due diligence investigation of        the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders.               (r)   Other  Documents.  All  other  documents  provided  for  herein  or  which  the        Administrative Agent or any other Lender may reasonably request or require.               (s)   Additional  Information.  Such  additional  information  and  materials  which  the        Administrative Agent and/or any Lender shall reasonably request or require.         Without limiting the generality of the provisions of Section 9.03(c), for purposes of determining  compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement  shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other  matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender                                          78 





 






unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing  Date specifying its objection thereto.         4.02  Conditions to all Credit Extensions.         The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other  than a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar  Rate Loans) is subject to the following conditions precedent:               (a)   Representations  and  Warranties.  The  representations  and  warranties  of  the        Borrower and each other Loan Party contained in Article II, Article V or any other Loan Document,        or which are contained in any document furnished at any time under or in connection herewith or        therewith,  shall  (i)  with  respect  to  representations  and  warranties  that  contain  a  materiality        qualification, be true and correct on and as of the date of such Credit Extension and (ii) with respect        to representations and warranties that do not contain a materiality qualification, be true and correct        in all material respects on and as of the date of such Credit Extension, and except that for purposes        of this Section 4.02, the representations and warranties contained in Sections 5.05(a) and (b) shall        be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b),        respectively.               (b)   Default.  No Default  or  Event  of Default  shall  exist, or  would  result  from  such        proposed Credit Extension or from the application of the proceeds thereof.               (c)   Request for Credit Extension. The Administrative Agent and, if applicable, the L/C        Issuer or the Swingline Lender shall have received a Request for Credit Extension in accordance        with the requirements hereof.               (d)   Alternative Currency. In the case of a Credit Extension to be denominated in an        Alternative Currency, such currency remains an Eligible Currency.         Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of Loans  to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed  to  be  a  representation  and  warranty that  the  conditions  specified  in Sections  4.02(a)  and (b)  have  been  satisfied on and as of the date of the applicable Credit Extension.                                    ARTICLE V                                                                REPRESENTATIONS AND WARRANTIES         Each Loan Party represents and warrants to the Administrative Agent and the Lenders, as of the  date made or deemed made, that:         5.01  Existence, Qualification and Power.         Each Loan Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and,  as  applicable, in good  standing  under the  Laws  of  the  jurisdiction  of  its  incorporation  or  organization,  (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents  and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform  its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed  and,  as  applicable,  in  good  standing  under  the  Laws of  each  jurisdiction  where  its  ownership,  lease  or  operation of properties or the conduct of its business requires such qualification or license; except in each                                          79 





 






case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to  have a Material Adverse Effect. The copy of the Organization Documents of each Loan Party provided to  the Administrative Agent pursuant to the terms of this Agreement is a true and correct copy of each such  document, each of which is valid and in full force and effect.         5.02  Authorization; No Contravention.         The execution, delivery and performance by each Loan Party of each Loan Document to which  such  Person  is  or  is  to  be  a  party  have  been  duly  authorized  by  all  necessary  corporate  or  other  organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization  Documents;  (b) conflict  with  or  result  in  any  breach  or  contravention  of,  or  the  creation  of  (or  the  requirement  to  create)  any  Lien  under,  or  require  any  payment  to  be  made under  (i) any  Contractual  Obligation to which such Person is a party or affecting such Person or the properties of such Person or any  of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral  award to which such Person or its property is subject; or (c) violate any Applicable Law in any material  respect.         5.03  Governmental Authorization; Other Consents.         No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any  Governmental Authority or any other Person is necessary or required in connection with (a) the execution,  delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan  Document or (b) the exercise by the Administrative Agent or any Lender of its rights or remedies under the  Loan Documents, other than authorizations, approvals, actions, notices and filings which have been duly  obtained.         5.04  Binding Effect.           This Agreement has been, and each other Loan Document, when delivered hereunder, will have  been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and  each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such  Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject  to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights  generally and subject to general principals of equity.         5.05  Financial Statements; No Material Adverse Effect.               (a)   Audited Financial Statements. The Audited Financial Statements (i) were prepared        in accordance with GAAP consistently applied throughout the period covered thereby, except as        otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower and its        Subsidiaries  as  of  the  date  thereof  and  their  results  of  operations,  cash  flows  and  changes  in        Shareholders’ Equity for the period covered thereby in accordance with GAAP consistently applied        throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show        all  material  indebtedness  and  other  liabilities,  direct  or  contingent,  of the  Borrower and  its        Subsidiaries  as  of  the  date  thereof,  including liabilities  for  taxes,  material  commitments  and        Indebtedness.               (b)   Quarterly Financial Statements. The unaudited Consolidated balance sheet of the        Borrower and  its  Subsidiaries  dated June  30,  2019,  and  the  related Consolidated  statements  of        income or operations, Shareholders’ Equity and cash flows for the fiscal quarter ended on that date        (i) were prepared in accordance with GAAP consistently applied throughout the period covered                                          80 





 






      thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition        of the Borrower and its Subsidiaries as of the date thereof and their results of operations, cash flows        and changes in Shareholders’ Equity for the period covered thereby, subject, in the case of clauses        (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.               (c)   Material  Adverse  Effect.  Since  the  date  of  the  balance  sheet  included  in  the        Audited Financial Statements (and, in addition, after delivery of the most recent annual audited        financial statements in accordance with the terms hereof, since the date of such annual audited        financial  statements),  there  has  been  no  event  or  circumstance,  either  individually  or  in  the        aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.               (d)   Forecasted Financials. The Consolidated forecasted balance sheet, statements of        income and cash flows of the Borrower and its Subsidiaries, prepared on a pro forma basis as of        December  31,  2019  after  giving  effect  to  the  Transactions,  and  on  an  annual  basis  thereafter,        delivered pursuant to Section 4.01 were prepared in good faith on the basis of the assumptions        stated therein, which assumptions were fair in light of the conditions existing at the time of delivery        of such forecasts, and represented, at the time of delivery, the Borrower’s good faith estimate of its        future financial condition and performance.               (e)   Morbark  Acquisition  Financials.   The  audited  Consolidated  balance  sheet  of        Morbark Holdings and its Subsidiaries for the fiscal year of Morbark Holdings ended December        31, 2018 and the related Consolidated statements of income or operations, shareholders’ equity and        cash flows for the fiscal year ended on that date the (i) were prepared in accordance with GAAP        consistently applied throughout the period covered thereby, except as otherwise expressly noted        therein; (ii) fairly present the financial condition of Morbark Holdings and its Subsidiaries as of the        date thereof and their results of operations, cash flows and changes in shareholders’ equity for the        period  covered  thereby  in  accordance  with  GAAP  consistently  applied  throughout  the  period        covered  thereby,  except  as  otherwise  expressly  noted  therein;  and  (iii) show  all  material        indebtedness and other liabilities, direct or contingent, of the Morbark Holdings and its Subsidiaries        as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.         5.06  Litigation.         There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the  Loan Parties after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration  or before any Governmental Authority, by or against any Loan Party or any Subsidiary or against any of  their properties, rights or revenues that (a) purport to affect or pertain to this Agreement or any other Loan  Document or any of the transactions contemplated hereby, or (b) either individually or in the aggregate  could reasonably be expected to have a Material Adverse Effect.         5.07  No Default.         Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to, or a party  to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to  have  a  Material  Adverse  Effect.  No  Default  has  occurred  and  is  continuing  or  would  result  from  the  consummation of the transactions contemplated by this Agreement or any other Loan Document.         5.08  Ownership of Property.         Each Loan Party and each of its Subsidiaries has good record and marketable title in fee simple to,  or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business,                                          81 





 






except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have  a Material Adverse Effect.         5.09  Environmental Matters.                (a)   Except as could not, individually or in the aggregate, reasonably be expected to        result  in  any  Material  Adverse  Effect  on  any  of  the  Loan  Parties  or  any  of  their  respective        subsidiaries:                     (i)   (A) None of the properties currently or formerly owned, leased or operated              by any Loan Party or any of its Subsidiaries is listed or formally proposed for listing on the              NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any              such property; (B) there are no, and to the best knowledge of the Loan Parties and their              Subsidiaries  never  have  been  any  underground  or  above-ground  storage  tanks  or  any              surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials              are being or have been treated, stored or disposed on any property currently owned, leased              or operated by any Loan Party or any of its Subsidiaries or, to the best knowledge of the              Loan Parties, on any property formerly owned, leased or operated by any Loan Party or              any  of  its  Subsidiaries;  (C)  there  is  no  and  never  has  been  any  asbestos  or  asbestos-             containing material on, at or in any property currently owned, leased or operated by any              Loan Party or any of its Subsidiaries; (D) Hazardous Materials have not been released on,              at, under or from any property currently or formerly owned, leased or operated by any Loan              Party or any of its Subsidiaries or any property by or on behalf, or otherwise arising from              the operations, of any Loan Party or any of its Subsidiaries; and (E) no Loan Party or any              of its Subsidiaries has become subject to any Environmental Liability or knows of any facts              or  circumstances  that  could  reasonably  be  expected  to  give  rise  to  any  Environmental              Liability;                     (ii)  (A) Neither any Loan Party nor any of its Subsidiaries is undertaking, and              has not completed, either individually or together with other potentially responsible parties,              any investigation or assessment or remedial or response action relating to any actual or              threatened  Release  of  Hazardous  Materials  at,  on,  under,  or  from  any  site,  location  or              operation, either voluntarily or pursuant to the order of any Governmental Authority or the              requirements of any Environmental Law; and (B) all Hazardous Materials generated, used,              treated, handled or stored at, or transported to or from, any property currently or formerly              owned, leased or operated by any Loan Party or any of its Subsidiaries have been disposed              of in a manner which could not reasonably expected to result in liability to any Loan Party              or any of its Subsidiaries;                     (iii) The Loan Parties and their respective Subsidiaries: (A) are, and within the              period of all applicable statutes of limitation have been, in compliance with all applicable              Environmental Laws; (B) hold all Environmental Permits (each of which is in full force              and  effect)  required  for  any  of  their  current  or  intended  operations  or  for  any  property              owned, leased, or otherwise operated by any of them; (C) are, and within the period of all              applicable statutes of limitation have been, in compliance with all of their Environmental              Permits;  (D)  to  the  extent  within  the  control  of  the  Loan  Parties  and  their  respective              Subsidiaries, will timely renew and comply with each of their Environmental Permits and              any additional Environmental permits that may be required of any of them without material              expense,  and  timely  comply  with  any  current,  future  or  potential  Environmental  Law              without material expense; and (E) are not aware of any requirements proposed for adoption              or implementation under any Environmental Law.                                          82 





 






            (b)   The Loan Parties and their respective Subsidiaries conduct in the ordinary course        of business a review of the effect of existing Environmental Laws and claims alleging potential        liability or responsibility for violation of any Environmental Law on their respective businesses,        operations and properties, and as a result thereof the Borrower has reasonably concluded that such        Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected        to have a Material Adverse Effect.         5.10  Insurance.         The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable  insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering  such risks as deemed appropriate by the Loan Parties in their commercially reasonable business judgment  in light of the businesses operated by the Loan Parties and their Subsidiaries.          5.11  Taxes.         Each Loan Party and its Subsidiaries have filed all federal, state and other material tax returns and  reports required to be filed, and have paid all federal, state and other material taxes, assessments, fees and  other governmental charges levied or imposed upon them or their properties, income or assets otherwise  due and payable, except those which are being contested in good faith by appropriate proceedings diligently  conducted and for which adequate reserves have been provided in accordance with GAAP. There is no  proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material  Adverse Effect, nor is there any tax sharing agreement applicable to the Borrower or any Subsidiary.         5.12  ERISA Compliance.                (a)   Each Plan is in compliance in all material respects with the applicable provisions        of ERISA, the Code and other federal or state laws. Each Pension Plan that is intended to be a        qualified plan under Section 401(a) of the Code has received a favorable determination letter or is        subject to a favorable opinion letter from the IRS to the effect that the form of such Plan is qualified        under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to        be exempt from federal income tax under Section 501(a) of the Code, or an application for such a        letter is currently being processed by the IRS. To the best knowledge of the Loan Parties, nothing        has occurred that would prevent or cause the loss of such tax-qualified status.               (b)   There are no pending or, to the best knowledge of the Loan Parties, threatened        claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that        could reasonably be expected to have a Material Adverse Effect. There has been no prohibited        transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted        or could reasonably be expected to result in a Material Adverse Effect.               (c)   (i) No ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is        aware of any fact, event or circumstance that could reasonably be expected to constitute or result        in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) as of the most        recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in        Section 430(d)(2) of the Code) is 60% or higher and no Loan Party nor any ERISA Affiliate knows        of  any  facts  or  circumstances  that  could  reasonably  be  expected  to  cause  the  funding  target        attainment percentage for any such plan to drop below 60% as of the most recent valuation date;        (iii) no Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for        the payment of premiums, and there are no premium payments which have become due that are        unpaid; (iv) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could                                          83 





 






      be  subject  to  Section 4069  or  Section  4212(c)  of  ERISA;  and  (v) no  Pension  Plan  has  been        terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has        occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings        under Title IV of ERISA to terminate any Pension Plan.               (d)   Neither the Borrower 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 5.12 hereto and (ii) thereafter, Pension        Plans not otherwise prohibited by this Agreement.               (e)   The Borrower represents and warrants as of the Closing Date that the Borrower is        not and will not be using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise)        of  one  or  more  Benefit  Plans  with  respect  to  the  Borrower’s  entrance  into,  participation  in,        administration of and performance of the Loans, the Letters of Credit, the Commitments or this        Agreement.          5.13  Margin Regulations; Investment Company Act.               (a)   Margin Regulations. Neither the Borrower nor any of its Subsidiaries is engaged        or will engage, principally or as one of its important activities, in the business of purchasing or        carrying margin stock (within the meaning of Regulation U), or extending credit for the purpose of        purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing        or drawing under each Letter of Credit, not more than twenty-five percent (25%) of the value of        the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated        basis)  subject  to  the  provisions  of Section  7.01 or Section 7.05 or  subject  to  any  restriction        contained in any agreement or instrument between the Borrower or any of its Subsidiaries and any        Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section        8.01(e) will be margin stock.               (b)   Investment  Company  Act.  None  of  the  Borrower,  any  Person  Controlling  the        Borrower, or any Subsidiary is or is required to be registered as an “investment company” under        the Investment Company Act of 1940.         5.14  Disclosure.         The  Borrower  has  disclosed  to  the  Administrative  Agent  and  the  Lenders  all  agreements,  instruments and corporate or other restrictions to which it or any of its Subsidiaries or any other Loan Party  is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be  expected  to  result  in  a  Material  Adverse  Effect.  No  report,  financial  statement,  certificate  or  other  information furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative  Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this  Agreement  or  delivered  hereunder  or  under  any  other  Loan  Document  (in  each  case  as  modified  or  supplemented by other information so furnished) contains any material misstatement of fact or omits to  state any material fact necessary to make the statements therein, in the light of the circumstances under  which they were made, not misleading; provided that, with respect to projected financial information, each  Loan  Party  represents  only  that  such  information  was  prepared  in  good  faith  based  upon  assumptions  believed to be reasonable at the time.                                          84 





 






      5.15  Compliance with Laws.         Each  Loan  Party  and  each  Subsidiary  thereof  is  in  compliance  with  the  requirements  of  all  Applicable Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in  such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested  in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either  individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.         5.16  Solvency.         Each Loan Party is, individually and together with its Subsidiaries on a Consolidated basis, Solvent.         5.17  Casualty, Etc.         Neither the businesses nor the properties of any Loan Party or any of its Subsidiaries are affected  by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake,  embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that,  either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.         5.18  Sanctions Concerns and Anti-Corruption Laws.               (a)   Sanctions Concerns. No Loan Party, nor any Subsidiary, nor, to the knowledge of        the  Loan  Parties  and  their  Subsidiaries,  any  director,  officer,  employee,  agent,  affiliate  or        representative thereof, is an individual or entity that is, or is owned or controlled by one or more        individuals or entities that are (i) currently the subject or target of any Sanctions, (ii) included on        OFAC’s List of Specially Designated Nationals or HMT’s Consolidated List of Financial Sanctions        Targets,  or  any  similar  list  enforced  by  any  other  relevant  sanctions  authority  or  (iii)  located,        organized  or  resident  in  a  Designated  Jurisdiction.  The  Borrower  and  its  Subsidiaries  have        conducted  their  businesses in  compliance  with  all  applicable  Sanctions  and  have  instituted  and        maintained  policies  and  procedures  designed  to  promote  and  achieve  compliance  with  such        Sanctions.               (b)   Anti-Corruption Laws. The Loan Parties and their Subsidiaries have conducted        their  business  in  compliance  in  all  material  respects  with  the  United  States  Foreign  Corrupt        Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in        other jurisdictions, and have instituted and maintained policies and procedures designed to promote        and achieve compliance with such laws.         5.19  Responsible Officers.         Set forth on Schedule 1.01(c) are Responsible Officers, holding the offices indicated next to their  respective names, as of the Closing Date and as of the last date such Schedule 1.01(c) was required to be  updated in accordance with Sections 6.02 and 6.13 and such Responsible Officers are the duly elected and  qualified  officers  of  such  Loan  Party  and  are  duly  authorized  to  execute  and  deliver,  on  behalf  of  the  respective Loan Party, this Agreement, the Notes and the other Loan Documents.         5.20  Subsidiaries; Equity Interests; Loan Parties.               (a)   Subsidiaries,  Joint  Ventures, Partnerships  and  Equity Investments.  Set  forth  on        Schedule 5.20(a), is the following information which is true and complete in all respects as of the        Closing Date and as of the last date such Schedule was required to be updated in accordance with                                          85 





 






      Sections 6.02 and 6.13:  (i) a  complete  and  accurate  list  of  all  Subsidiaries,  joint  ventures  and        partnerships and other equity investments of the Loan Parties as of the Closing Date and as of the        last date such Schedule was required to be updated in accordance with Sections 6.02 and 6.13,        (ii) the number of shares of each class of Equity Interests in each Subsidiary outstanding, (iii) the        number and percentage of outstanding shares of each class of Equity Interests owned by the Loan        Parties and their Subsidiaries and (iv) the class or nature of such Equity Interests (i.e., voting, non-       voting, preferred, etc.). The outstanding Equity Interests in all Subsidiaries are validly issued, fully        paid  and  non-assessable  and  are  owned  free  and  clear  of  all  Liens.  There  are  no  outstanding        subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock        options granted to employees or directors and directors’ qualifying shares) of any nature relating        to the Equity Interests of any Loan Party or any Subsidiary thereof, except as contemplated in        connection with the Loan Documents.               (b)   Loan Parties. Set forth on Schedule 5.20(b) is a complete and accurate list of all        Loan Parties, showing as of the Closing Date, or as of the last date such Schedule was required to        be updated in accordance with Sections 6.02 and 6.13, (as to each Loan Party) (i) the exact legal        name, (ii) any former legal names of such Loan Party in the four (4) months prior to the Closing        Date,  (iii) the  jurisdiction  of  its  incorporation  or  organization,  as  applicable,  (iv) the  type  of        organization, (v) the address of its chief executive office, (vi) the address of its principal place of        business, (vii) its U.S. federal taxpayer identification number or, in the case of any non-U.S. Loan        Party that does not have a U.S. taxpayer identification number, its unique identification number        issued  to  it  by  the  jurisdiction  of  its  incorporation  or  organization,  (viii) the  organization        identification number, (ix) ownership information (e.g., publicly held or if private or partnership,        the owners and partners of each of the Loan Parties) and (x) the industry or nature of business of        such Loan Party.         5.21  Intellectual Property.         The Borrower and each of its Subsidiaries own, or possess the right to use, all of the trademarks,  service marks, trade names, copyrights, patents, patent rights, trade secrets, know-how, franchises, licenses  and  other  intellectual  property  rights  that are  used  in and  material  to the  operation  of  their  respective  businesses, without conflict with the rights of any other Person. To the best knowledge of the Borrower,  neither the operation of the business, nor any product, service, process, method, substance, part or other  material now used, or now contemplated to be used, by the Borrower or any of its Subsidiaries infringes,  misappropriates or otherwise violates upon any rights held by any other Person. No claim or litigation  regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which,  either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. To  the best knowledge of the Borrower, there has been no unauthorized use, access, interruption, modification,  corruption  or  malfunction  of  any  information  technology  assets  or  systems  (or  any  information  or  transactions stored or contained therein or transmitted thereby) owned or used by the Borrower or any of  its Subsidiaries, which, either individually or in the aggregate, would reasonably be expected to have a  Material Adverse Effect.         5.22  EEA Financial Institutions.          No Loan Party is an EEA Financial Institution.         5.23  Covered Entities.         No Loan Party is a Covered Entity.                                          86 





 






      5.24  Beneficial Ownership Certification.         The  information  included  in  the  Beneficial  Ownership  Certification,  if  applicable,  is  true  and  correct in all respects.         5.25  Labor Matters         Except as set forth on Schedule 5.25, there are no collective bargaining agreements covering the  employees of the Borrower or any of its United States based Subsidiaries as of the Closing Date.  There are  no  Multiemployer  Plans  covering  the  employees  of  the  Borrower  or  any of  its United  States  based  Subsidiaries as of the Closing Date and neither the Borrower nor any Subsidiary has suffered any strikes,  walkouts,  work  stoppages  or  other  material labor  difficulty  within the last  five  (5)  years  preceding the  Closing Date.                                    ARTICLE VI                                                                     AFFIRMATIVE COVENANTS         Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until  the Facility Termination Date, such Loan Party shall, and with respect to Sections 6.04, 6.08 and 6.15, shall  cause each of its Subsidiaries to:         6.01  Financial Statements.          Deliver  to  the  Administrative  Agent  and  each  Lender,  in  form  and  detail  satisfactory  to  the  Administrative Agent and the Required Lenders:               (a)   Audited Financial Statements. As soon as available, but in any event within one        hundred twenty (120) days after the end of each fiscal year of the Borrower, a Consolidated balance        sheet  of the  Borrower and  its  Subsidiaries  as  at  the  end  of  such  fiscal  year,  and  the  related        Consolidated statements of income or operations, changes in Shareholders’ Equity and cash flows        for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal        year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by        a report and opinion of an independent certified public accountant of nationally recognized standing        reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in        accordance  with  generally  accepted  auditing  standards  and  shall  not  be  subject  to  any  “going        concern” or like qualification or exception or any qualification or exception as to the scope of such        audit.               (b)   Quarterly Financial Statements. As soon as available, but in any event within forty-       five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the        Borrower, a Consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such        fiscal  quarter,  and  the  related Consolidated  statements  of  income  or  operations,  changes  in        Shareholders’ Equity and cash flows for such fiscal quarter and for the portion of the Borrower’s        fiscal  year  then  ended,  setting  forth  in  each  case  in  comparative  form  the  figures  for  the        corresponding  fiscal  quarter  of  the  previous  fiscal  year  and  the  corresponding  portion  of  the        previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, certified by        the President, Vice President - Controller, or Vice President - Administration who is a Responsible        Officer  of the  Borrower as  fairly  presenting  the  financial  condition,  results  of  operations,        Shareholders’ Equity and cash flows of the Borrower and its Subsidiaries, subject only to normal        year-end audit adjustments and the absence of footnotes.                                          87 





 






As to any information contained in materials furnished pursuant to Section 6.02(e), the Borrower shall not  be separately required to furnish such information under Section 6.01(a) or (b) above, but the foregoing  shall  not  be  in  derogation  of  the  obligation  of the  Borrower to  furnish  the  information  and  materials  described in Sections 6.01(a) and (b) above at the times specified therein.         6.02  Certificates; Other Information.          Deliver  to  the  Administrative  Agent  and  each  Lender,  in  form  and  detail  satisfactory  to  the  Administrative Agent and the Required Lenders:               (a)   Compliance Certificate. Concurrently with the delivery of the financial statements        referred to in Sections 6.01(a) and (b) commencing with the delivery of the financial statements for        the fiscal year ended December 31, 2019, a duly completed Compliance Certificate signed by the        President, Vice President - Controller, or Vice President - Administration which is a Responsible        Officer of the Borrower. Unless the Administrative Agent or a Lender requests executed originals,        delivery of the Compliance Certificate may be by electronic communication including fax or email        and shall be deemed to be an original and authentic counterpart thereof for all purposes.               (b)   Updated Schedules. Concurrently with the delivery of the Compliance Certificate        referred to in Section 6.02(a), the following updated Schedules to this Agreement (which may be        attached to the Compliance Certificate) to the extent required to make the representation related to        such Schedule true and correct as of the date of such Compliance Certificate: Schedules 1.01(c),        5.20(a) and 5.20(b).               (c)   Changes  in  Entity  Structure.  Within  ten  (10)  days  prior  to  any  merger,        consolidation,  dissolution  or  other  change  in  entity  structure  of  any  Loan  Party  or  any  of  its        Subsidiaries  permitted  pursuant  to  the  terms  hereof,  provide  notice  of  such  change  in  entity        structure to the Administrative Agent, along with such other information as reasonably requested        by the Administrative Agent.               (d)   Audit  Reports;  Management  Letters;  Recommendations.  Promptly  after  any        request  by  the  Administrative  Agent  or  any  Lender,  copies  of  any  detailed  audit  reports,        management letters or recommendations submitted to the board of directors (or the audit committee        of the board of directors) of any Loan Party by independent accountants in connection with the        accounts or books of any Loan Party or any of its Subsidiaries, or any audit of any of them.               (e)   Annual Reports; Etc. Promptly after the same are available, copies of each annual        report, proxy or financial statement or other report or communication sent to the stockholders of        the  Borrower,  and  copies  of  all  annual, regular,  periodic  and  special  reports  and  registration        statements which the Borrower may file or be required to file with the SEC under Section 13 or        15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any        case not otherwise required to be delivered to the Administrative Agent pursuant hereto.               (f)   Debt  Securities  Statements  and  Reports.  Promptly  after  the  furnishing  thereof,        copies of any statement or report furnished to any holder of debt securities of any Loan Party or of        any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement        and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other        clause of this Section 6.02.               (g)   SEC  Notices.  Promptly,  and  in  any  event  within  five  (5)  Business  Days  after        receipt  thereof  by  any  Loan  Party  or  any  Subsidiary  thereof,  copies  of  each  notice  or  other                                          88 





 






correspondence  received  from  the  SEC  (or  comparable  agency  in  any  applicable  non-U.S.  jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency  regarding financial or other operational results of any Loan Party or any Subsidiary thereof.         (h)   Notices. Not later than five (5) Business Days after receipt thereof by any Loan  Party  or  any  Subsidiary  thereof,  copies  of  all  notices,  requests  and  other  documents  (including  amendments, waivers and other modifications) so received under or pursuant to any instrument,  indenture, loan or credit or similar agreement regarding or related to any breach or default by any  party thereto or any other event that could materially impair the value of the interests or the rights  of any Loan Party or otherwise have a Material Adverse Effect and, from time to time upon request  by the Administrative Agent, such information and reports regarding such instruments, indentures  and loan and credit and similar agreements as the Administrative Agent may reasonably request.         (i)   Environmental Notice. Promptly after the assertion or occurrence thereof, notice  of  any  action  or  proceeding  against  or  of  any noncompliance  by  any  Loan Party  or  any  of  its  Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be  expected to have a Material Adverse Effect or (ii) cause any material property to be subject to any  restrictions on ownership, occupancy, use or transferability under any Environmental Law.         (j)   Anti-Money-Laundering.  Promptly  following  any  request  therefor,  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, without limitation, the Patriot Act.          (k)   Beneficial Ownership.  To the extent any Loan Party qualifies as a “legal entity  customer”  under  the  Beneficial  Ownership  Regulation,  an  updated  Beneficial  Ownership  Certification  promptly  following  any  change  in  the  information  provided  in  the  Beneficial  Ownership Certification delivered to any Lender in relation to such Loan Party that would result in  a change to the list of beneficial owners identified in such certification.         (l)   Additional  Information.  Promptly,  such  additional  information  regarding  the  business,  financial,  legal  or  corporate  affairs  of  any  Loan  Party  or  any  Subsidiary  thereof,  or  compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may  from time to time reasonably request.   Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(e) (to the  extent any such documents are included in materials otherwise filed with the SEC) may be delivered  electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which  the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the  Internet at the website address listed on Schedule 1.01(a); or (ii) on which such documents are  posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender  and the Administrative Agent have access (whether a commercial, third-party website or whether  sponsored by the Administrative Agent); provided that: (x) the Borrower shall deliver paper copies  of such documents to the Administrative Agent or any Lender upon its request to the Borrower to  deliver such paper copies until a written request to cease delivering paper copies is given by the  Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent  and each Lender (by fax transmission or e-mail transmission) of the posting of any such documents  and provide to the Administrative Agent by e-mail electronic versions (i.e., soft copies) of such  documents.  The  Administrative  Agent  shall  have  no obligation  to  request  the delivery  of  or to  maintain  paper  copies  of  the  documents  referred  to  above,  and  in  any  event  shall  have  no  responsibility  to  monitor  compliance  by  the  Borrower  with  any  such  request  by  a  Lender  for                                    89 





 






      delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its        copies of such documents.         The Borrower hereby acknowledges that (i) the Administrative Agent and/or an Affiliate thereof        may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or        information  provided  by  or  on  behalf  of  the  Borrower  hereunder  (collectively,  “Borrower        Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially        similar  electronic  transmission system  (the  “Platform”)  and  (ii) certain  of  the  Lenders  (each,  a        “Public Lender”) may have personnel who do not wish to receive material non-public information        with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing,        and who may be engaged in investment and other market-related activities with respect to such        Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to        identify that portion of the Borrower Materials that may be distributed to the Public Lenders and        that (A) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which,        at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page        thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have        authorized the Administrative Agent, any Affiliate thereof, the Arrangers, the L/C Issuer and the        Lenders to treat such Borrower Materials as not containing any material non-public information        (although it may be sensitive and proprietary) with respect to the Borrower or its securities for        purposes of United States federal and state securities laws (provided, however, that to the extent        such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07);        (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion        of the Platform designated “Public Side Information;” and (D) the Administrative Agent and any        Affiliate thereof and the Arrangers shall be entitled to treat any Borrower Materials that are not        marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated        “Public  Side  Information.”  Notwithstanding  the  foregoing,  the  Borrower  shall  be  under  no        obligation to mark any Borrower Materials “PUBLIC”.         6.03  Notices.         Promptly, but in any event within two (2) Business Days, notify the Administrative Agent and each  Lender:               (a)   of the occurrence of any Default;               (b)   of  any  matter  that  has  resulted  or  could  reasonably  be  expected  to  result  in  a        Material Adverse Effect;               (c)   of the occurrence of any ERISA Event;               (d)   of any material change in accounting policies or financial reporting practices by        any Loan Party or any Subsidiary thereof, including any determination by the Borrower referred to        in Section 2.10(b); and               (e)   of any occurrence of any Disposition or Involuntary Disposition of property or        assets for which the Borrower is required to make a mandatory prepayment pursuant to Section        2.05(b)(i).         Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible  Officer  of  the  Borrower  setting  forth  details  of  the  occurrence  referred  to  therein  and  to  the  extent  applicable, stating what action the Borrower has taken and proposes to take with respect thereto. Each                                          90 





 






notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement  and any other Loan Document that have been breached.         6.04  Payment of Obligations.          Pay and discharge as the same shall become due and payable, all its obligations and liabilities,  including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or  assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted  and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary;  (b) all  lawful  claims  which,  if  unpaid,  would  by  law  become  a  Lien  upon  its  property;  and  (c) all  Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any  instrument or agreement evidencing such Indebtedness.         6.05  Preservation of Existence, Etc.               (a)   Preserve, renew and maintain in full force and effect its legal existence and good        standing under the Laws of the jurisdiction of its organization except in a transaction permitted by        Section 7.04 or 7.05;               (b)   take all reasonable action to maintain all rights, privileges, permits, licenses and        franchises necessary or desirable in the normal conduct of its business, except to the extent that        failure to do so could not reasonably be expected to have a Material Adverse Effect; and               (c)   preserve or renew all of its registered patents, trademarks, trade names and service        marks, the non-preservation of which could reasonably be expected to have a Material Adverse        Effect.         6.06  Maintenance of Properties.               (a)   Maintain,  preserve  and  protect  all  of  its  material  properties  and  equipment        necessary in the operation of its business in good working order and condition, ordinary wear and        tear excepted; and               (b)   make all necessary repairs thereto and renewals and replacements thereof except        where the failure to do so could not reasonably be expected to have a Material Adverse Effect.         6.07  Maintenance of Insurance.         Maintain with financially sound and reputable insurance companies not Affiliates of the Borrower,  insurance with respect to its properties and business against loss or damage consistent with past practices,  of such types and in such amounts consistent with past practices and as approved by the Administrative  Agent, which approval shall not be unreasonably denied.         6.08  Compliance with Laws.         Comply with the requirements of all Applicable Laws and all orders, writs, injunctions and decrees  applicable to it or to its business or property, except in such instances in which (a) such requirement of Law  or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently  conducted;  or  (b) the  failure  to  comply  therewith  could  not  reasonably  be  expected  to  have  a Material  Adverse Effect.                                          91 





 






      6.09  Books and Records.               (a)   Maintain proper books of record and account, in which full, true and correct entries        in  conformity  with  GAAP  consistently  applied  shall  be  made  of  all  financial  transactions  and        matters involving the assets and business of such Loan Party or such Subsidiary, as the case may        be; and               (b)   maintain  such  books  of  record  and  account in  material  conformity  with  all        applicable requirements of any Governmental Authority having regulatory jurisdiction over such        Loan Party or such Subsidiary, as the case may be.         6.10  Inspection Rights.         Permit representatives and independent contractors of the Administrative Agent and each Lender  to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make  copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors,  officers, and independent public accountants, all at the expense of the Borrower and at such reasonable  times during normal business hours and as often as may be reasonably desired, upon reasonable advance  notice to the Borrower; provided, however, that when an Event of Default exists the Administrative Agent  or any Lender (or any of their respective representatives or independent contractors) may do any of the  foregoing at the expense of the Borrower at any time during normal business hours and without advance  notice. Subject to Applicable Law, including laws regulating the supervision of Lenders, in general, Lenders  shall not communicate to others any trade secrets or proprietary information of the Borrower, except as  may occur in connection with any litigation or other legal proceedings or transfers of rights hereunder.         6.11  Use of Proceeds.          Use the proceeds of the Credit Extensions for general corporate purposes not in contravention of  any Law or of any Loan Document.         6.12  Material Contracts.         Comply in all material respects with all Material Contracts binding on it or affecting its properties  or business.         6.13  Covenant to Guarantee Obligations.          The Loan Parties will cause each of their Domestic Subsidiaries other than Subsidiaries with no  operating assets and that are either dormant or otherwise inactive, whether newly formed, after acquired or  otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary is formed or  acquired  (or  such  longer  period  of  time  as  agreed  to  by  the  Administrative  Agent  in  its  reasonable  discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement. In connection  therewith, the Loan Parties shall give notice to the Administrative Agent not less than ten (10) days prior  to creating a Subsidiary (or such shorter period of time as agreed to by the Administrative Agent in its  reasonable  discretion),  or  acquiring  the  Equity  Interests  of  any  other  Person.  In  connection  with  the  foregoing, the Loan Parties shall deliver to the Administrative Agent, with respect to each new Guarantor  to the extent applicable, substantially the same documentation required pursuant to Sections 4.01(b), (c),  (d) and (e) and such other documents or agreements as the Administrative Agent may reasonably request,  including without limitation, updated Schedules 1.01(c), 5.12, 5.20(a) and 5.20(b).                                          92 





 






      6.14  Compliance with Environmental Laws.         Comply, and cause all lessees and other Persons operating or occupying its properties to comply,  in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and  renew all Environmental Permits necessary for its operations and properties; and conduct any investigation,  study, sampling and testing, cleanup, removal, remedial or other action necessary to remove and clean up  all Hazardous Materials from any of its properties, in accordance with all Environmental Laws; provided,  however,  that  neither  the  Borrower  nor  any  of its Subsidiaries  shall  be  required to  undertake  any  such  cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in  good faith and by proper proceedings and appropriate reserves are being maintained with respect to such  circumstances in accordance with GAAP.         6.15  Anti-Corruption Laws; Sanctions.          Conduct its business in compliance in all material respects with the United States Foreign Corrupt  Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in other  jurisdictions and with all applicable Sanctions, and maintain policies and procedures designed to promote  and achieve compliance with such laws and Sanctions.                                    ARTICLE VII                                                                       NEGATIVE COVENANTS         Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until  the Facility Termination Date, no Loan Party shall, nor, with respect to Sections 7.14 and 7.15, shall it  permit any Subsidiary to, directly or indirectly:         7.01  Liens.         Create,  incur,  assume  or  suffer  to  exist  any  Lien  upon  any  of  its  property,  assets  or  revenues,  whether now owned or hereafter acquired, except for the following (the “Permitted Liens”):               (a)   Liens pursuant to any Loan Document;               (b)   Liens existing on the Closing Date and listed on Schedule 7.01 and any renewals        or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount        secured or benefited thereby is not increased except as contemplated by Section 7.02(b), (iii) the        direct  or  any  contingent  obligor  with  respect  thereto  is  not  changed,  and  (iv) any  renewal  or        extension of the obligations secured or benefited thereby is permitted by Section 7.02(b);               (c)   Liens for Taxes not yet due or which are being contested in good faith and by        appropriate  proceedings  diligently  conducted,  if  adequate  reserves  with  respect  thereto  are        maintained on the books of the applicable Person in accordance with GAAP;               (d)   statutory  Liens  such  as  carriers’,  warehousemen’s,  mechanics’,  materialmen’s,        repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for        a period of more than thirty (30) days or which are being contested in good faith and by appropriate        proceedings  diligently  conducted; provided that  adequate  reserves  with  respect  thereto  are        maintained on the books of the applicable Person;                                          93 





 






      (e)   pledges or deposits in the ordinary course of business in connection with workers’  compensation, unemployment insurance and other social security legislation, other than any Lien  imposed by ERISA;         (f)   deposits to secure the performance of bids, trade contracts and leases (other than  Indebtedness),  statutory  obligations,  surety  and  appeal  bonds,  performance  bonds  and  other  obligations of a like nature incurred in the ordinary course of business;         (g)   easements,  rights-of-way,  restrictions  and  other  similar  encumbrances  affecting  real property which, in the aggregate, are not substantial in amount, and which 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 applicable Person;         (h)   Liens  securing  judgments  for the payment  of money (or  appeal  or  other  surety  bonds  relating  to  such  judgments)  not  constituting  an  Event  of  Default  under Section  8.01(h),  provided the applicable Loan Party shall in good faith be prosecuting an appeal or proceedings for  review;         (i)   Liens  securing  Indebtedness  permitted  under Section 7.02(c); provided that  (i) such Liens do not at any time encumber any property other than the property financed by such  Indebtedness  and  (ii) the  Indebtedness secured  thereby  does  not  exceed  the  cost  or  fair  market  value, whichever is lower, of the property being acquired on the date of acquisition;         (j)   bankers’ Liens, rights of setoff and other similar Liens existing solely with respect  to cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower or  any of its Subsidiaries with any Lender, in each case in the ordinary course of business in favor of  the bank or banks with which such accounts are maintained, securing solely the customary amounts  owing  to  such  bank  with  respect  to  cash  management  and  operating  account  arrangements;  provided, that in no case shall any such Liens secure (either directly or indirectly) the repayment  of any Indebtedness;         (k)   any interest or title of a lessor, licensor or sublessor under any lease, license or  sublease entered into by any Loan Party in the ordinary course of business and covering only the  assets so leased, licensed or subleased;         (l)   Liens of a collection bank arising under Section 4–210 of the UCC on items in the  course of collection;         (m)   Liens in favor of customs and revenue authorities arising in the ordinary course of  business as a matter of law to secure payment of customs duties;         (n)   Liens on property of a Person existing at the time such Person is merged into or  consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the  Borrower; provided that  such  Liens  were  not  created  in  contemplation  of  such  merger,  consolidation or Investment and do not extend to any assets other than those of the Person merged  into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such  Subsidiary,  and  the  applicable  Indebtedness  secured  by  such  Lien  is  permitted  under  Section 7.02(f);          (o)   Liens  on  accounts  receivable  sold  in  accordance  with  the BTFG  Receivables  Facility;                                    94 





 






      (p)   protective Liens in the form of or relating to consignments of inventory from third- parties to one or more Loan Parties in an aggregate amount at any time not to exceed $10,000,000;  and         (q)   other Liens securing Indebtedness outstanding in an aggregate principal amount  not to exceed $40,000,000.   7.02  Indebtedness.   Create, incur, assume or suffer to exist any Indebtedness, except:         (a)   Indebtedness under the Loan Documents;         (b)   Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any  refinancings,  refundings,  renewals  or  extensions  thereof; provided that  the  amount  of  such  Indebtedness  is  not  increased  at  the  time  of  such  refinancing,  refunding,  renewal  or  extension  except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and  expenses reasonably incurred, in connection with such refinancing and by an amount equal to any  existing commitments unutilized thereunder and the direct or any contingent obligor with respect  thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or  extension;         (c)   Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and  purchase  money  obligations  for  fixed  or  capital  assets  within  the  limitations  set  forth  in  Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one  time outstanding shall not exceed $10,000,000;         (d)   Unsecured Indebtedness of a Subsidiary of the Borrower owed to the Borrower or  a Subsidiary of the Borrower, which Indebtedness shall (i) be on terms (including subordination  terms) reasonably acceptable to the Administrative Agent and (ii) be otherwise permitted under the  provisions of Section 7.03(d) (“Intercompany Debt”);         (e)   Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise  permitted hereunder of the Borrower or any other Guarantor;         (f)   Indebtedness of any Person that becomes a Subsidiary of the Borrower after the  date hereof in a transaction permitted hereunder in an aggregate principal amount not to exceed  $10,000,000; provided that  such  Indebtedness  is  existing  at  the  time  such  Person  becomes  a  Subsidiary  of  the Borrower  and  was  not  incurred  solely  in  contemplation  of  such  Person’s  becoming a Subsidiary of the Borrower;         (g)   obligations (contingent or otherwise) existing or arising under any Swap Contract,  provided that (i) such obligations are (or were) entered into by such Person in the ordinary course  of business for the purpose of directly mitigating risks associated with fluctuations in interest rates  or foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating  the non-defaulting party from its obligation to make payments on outstanding transactions to the  defaulting party;          (h)   to the extent constituting Indebtedness, the BTFG Receivables Facility; and                                    95 





 






      (i)   other Indebtedness in an aggregate principal amount not to exceed $40,000,000 at  any time outstanding; provided that (i) no Default or Event of Default shall have occurred and be  continuing both before and after giving effect to the incurrence of such Indebtedness and (ii) if such  Indebtedness (regardless of whether it is as a co-borrower, a guarantor, surety, etc.) is for the benefit  of a non-Loan Party Subsidiary, such Indebtedness must also comply with Section 7.03(d).   7.03  Investments.   Make or hold any Investments, except:         (a)   Investments held by the Borrower and its Subsidiaries in the form of cash or Cash  Equivalents;         (b)   advances to officers, directors and employees of the Loan Parties in an aggregate  amount not to exceed $250,000 at any time outstanding, for travel, entertainment, relocation and  analogous ordinary business purposes;         (c)   loans to officers, directors and employees pursuant to a stock option or retirement  plan not exceeding $1,000,000, in the aggregate at any time outstanding;         (d)   (i) Investments by the Loan Parties in their respective Subsidiaries outstanding on  the date hereof, (ii) additional Investments by the Loan Parties in other Loan Parties, and (iii) so  long as no Default has occurred and is continuing or would result from such Investment, additional  Investments by the Loan Parties in Subsidiaries that are not Loan Parties (A) in an aggregate amount  invested from the date hereof not to exceed $25,000,000, and (B) to the extent such Investment is  being  used  by  such  non-Loan Party Subsidiary  to  finance  an  Acquisition that  would otherwise  qualify as a “Permitted Acquisition” if made by a Loan Party, Investments in an aggregate amount  invested from the date hereof not to exceed $50,000,000;         (e)   Investments consisting of extensions of credit in the nature of accounts receivable  or notes receivable arising from the grant of trade credit in the ordinary course of business excluding  any trade advance to any Foreign Subsidiary that is more than one hundred eighty (180) days from  the  date  of  the  original  invoice  evidencing  such  trade  advance,  and  Investments  received  in  satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent  reasonably necessary in order to prevent or limit loss;         (f)   Guarantees permitted by Section 7.02;         (g)   Investments existing on the date hereof (other than those referred to in Section  7.03(d)(i)) and set forth on Schedule 7.03;         (h)   Permitted  Acquisitions  (other  than  of  CFCs  and  Subsidiaries  held  directly  or  indirectly by a CFC which Investments are covered by Section 7.03(d)(iii));         (i)   Investments  (including  debt  obligations)  received  in  connection  with  the  bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations  of, and other disputes with, customers and suppliers arising in the ordinary course of business;         (j)   the Morbark Acquisition; and                                    96 





 






            (k)   other Investments in an aggregate amount at any time outstanding not to exceed        $10,000,000, provided no Default or Event of Default shall have occurred and be continuing both        before and after giving effect to such Investment.         7.04  Fundamental Changes.         Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one  transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter  acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:               (a)   any Loan Party may merge with (i) the Borrower; provided that the Borrower shall        be the continuing or surviving Person, or (ii) any one or more other Loan Parties;               (b)   any Loan Party may Dispose of all or substantially all of its assets (upon voluntary        liquidation or otherwise) to the Borrower or to another Loan Party;               (c)   in connection with any Permitted Acquisition, any Subsidiary of the Borrower may        merge  into  or  consolidate  with  any  other  Person  or  permit  any  other  Person  to  merge  into  or        consolidate with it; provided that (i) the Person surviving such merger shall be a wholly-owned        Subsidiary of the Borrower and (ii) in the case of any such merger to which any Loan Party (other        than the Borrower) is a party, such Loan Party is the surviving Person; and               (d)   so long as no Default has occurred and is continuing or would result therefrom,        each of the Borrower and any of its Subsidiaries may merge into or consolidate with any other        Person or permit any other Person to merge into or consolidate with it; provided, however, that in        each case, immediately after giving effect thereto (i) in the case of any such merger to which the        Borrower is a party, the Borrower is the surviving Person and (ii) in the case of any such merger to        which any Loan Party (other than the Borrower) is a party, such Loan Party is the surviving Person.         7.05  Dispositions.         Make any Disposition or enter into any agreement to make any Disposition, except:               (a)   Permitted Transfers;               (b)   Dispositions of obsolete or worn out property, whether now owned or hereafter        acquired, in the ordinary course of business;               (c)   Dispositions of equipment or real property to the extent that (i) such property is        exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds        of such Disposition are reasonably promptly applied to the purchase price of such replacement        property;               (d)   Dispositions permitted by Section 7.04;                (e)   Dispositions pursuant to the BTFG Receivables Facility; and                (f)   other  Dispositions  so  long  as  (i) at  least  75%  of the  consideration  paid  in        connection  therewith  shall  be  cash  or  Cash  Equivalents  paid  contemporaneously  with        consummation of the transaction and shall be in an amount not less than the fair market value of        the property disposed of, (ii) such transaction does not involve the sale or other disposition of a                                          97 





 






      minority Equity Interests in any Subsidiary, (iii) such transaction does not involve a sale or other        disposition  of  receivables  other  than  receivables  owned  by  or  attributable  to  other  property        concurrently being disposed of in a transaction otherwise permitted under this Section 7.05, and        (iv) the aggregate net book value of all of the assets sold or otherwise disposed of by the Loan        Parties and their Subsidiaries in all such transactions in any fiscal year of the Borrower shall not        exceed $10,000,000.         7.06  Restricted Payments.         Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent  or otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at the time  of any action described below or would result therefrom:               (a)   each Subsidiary may make Restricted Payments to any Person that owns Equity        Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity        Interest in respect of which such Restricted Payment is being made;               (b)   the Borrower and each Subsidiary may declare and make dividend payments or        other distributions payable solely in common Equity Interests of such Person; and               (c)   the  Borrower  may  make  other  Restricted  Payments  in an  unlimited  amount,        provided that (i) no Default shall have occurred and be continuing, or would result therefrom, and        (ii) the Borrower shall deliver to the Administrative Agent a certificate demonstrating that after        giving pro forma effect to such Restricted Payment, the Borrower is in Pro Forma Compliance for        the most recently ended Measurement Period for which financial statements have been delivered        pursuant  to Section 6.01(a) or  (b).  Notwithstanding  the  foregoing,  no  such  certificate  shall  be        required to be delivered with respect to Restricted Payments which are the Borrower’s regularly        scheduled quarterly dividend.         7.07  Change in Nature of Business.         Engage  in  any  material  line  of  business  substantially  different  from  those  lines  of  business  conducted by the Borrower and its Subsidiaries on the date hereof or any business substantially related or  incidental thereto.         7.08  Transactions with Affiliates.         Enter into or permit to exist any transaction or series of transactions with any officer, director or  Affiliate of such Person other than (a) advances of working capital to any Loan Party, (b) transfers of cash  and  assets  to  any  Loan  Party,  (c) intercompany  transactions  expressly  permitted  by  this  Agreement,  (d) normal  and reasonable  compensation  and  reimbursement  of  expenses  of  officers  and  directors  and  (e) except as otherwise specifically limited in this Agreement, other transactions which are entered into in  the ordinary course of such Person’s business on fair and reasonable terms and conditions substantially as  favorable to such Person as would be obtainable by it in a comparable arm’s length transaction with a  Person other than an officer, director or Affiliate.         7.09  Burdensome Agreements.         Enter into, or permit to exist, any Contractual Obligation (except for this Agreement and the other  Loan Documents) that (a) encumbers or restricts the ability of any such Person to (i) to act as a Loan Party;  (ii) make Restricted Payments to any Loan Party, (iii) pay any Indebtedness or other obligation owed to                                          98 





 






any Loan Party, (iv) make loans or advances to any Loan Party, or (v) create any Lien upon any of their  properties or assets, whether now owned or hereafter acquired, except, in the case of clause (a)(v) only, for  any document or instrument governing Indebtedness incurred pursuant to Section 7.02(c); provided that  any such restriction contained therein relates only to the asset or assets constructed or acquired in connection  therewith or (b) requires the grant of any Lien on property for any obligation, except in connection with the  BTFG Receivables Facility with respect to receivables sold pursuant thereto.         7.10  Use of Proceeds.         Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately,  incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U) or to  extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness  originally incurred for such purpose.         7.11  Financial Covenants.                (a)   Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the        end of any Measurement Period ending as of the end of any fiscal quarter of the Borrower set forth        below to be greater than the ratio set forth below opposite such period:                                                       Maximum                    Measurement Period Ending       Consolidated                                                    Leverage Ratio               Closing Date through September 30, 2020 3.75 to 1.00               December 31, 2020 and each fiscal quarter                                                     3.25 to 1.00                           thereafter                                                                  provided, that (i) with respect to any fiscal quarter ending on or after December 31, 2020, and so        long as the Borrower has achieved a Consolidated Leverage Ratio not greater than 3.25 to 1.00 for        a Measurement Period ending prior to such fiscal quarter, the Borrower may, by written notice to        the Administrative Agent for distribution to the Lenders (such request to be made in writing by the        Borrower no later than the date on which a certificate is required to be delivered pursuant to Section        6.02(a) demonstrating the Consolidated Leverage Ratio for the fiscal quarter during which such        Material Acquisition occurred), elect to increase the maximum Consolidated Leverage Ratio set        forth above to 3.75 to 1.00 for a period of four (4) consecutive fiscal quarters (inclusive of the fiscal        quarter in which the Material Acquisition occurred) in connection with a Permitted Acquisition that        is a Material Acquisition occurring during the first of such four fiscal quarters (each such period,        an “Elevated Covenant Period”) and (ii) notwithstanding the foregoing clause (i), (A) the Borrower        may not elect an Elevated Covenant Period for at least one (1) full fiscal quarter following the end        of an Elevated Covenant Period before a new Elevated Covenant Period is available again pursuant        to the preceding clause (i) and (B) there shall be no more than two (2) Elevated Covenant Periods        during the term of this Agreement.               (b)   Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge        Coverage Ratio as of the end of any Measurement Period ending as of the end of any fiscal quarter        of the Borrower to be less than 1.25 to 1.00.         7.12  Amendments  of  Organization  Documents;  Fiscal  Year;  Legal  Name,  State  of  Formation; Form of Entity and Accounting Changes.                (a)   Amend any of its Organization Documents;                                          99 





 






            (b)   change its fiscal year;               (c)   without providing ten (10) days prior written notice to the Administrative Agent        (or such extended period of time as agreed to by the Administrative Agent), change its name, state        of formation, form of organization or principal place of business; or               (d)   make any change in accounting policies or reporting practices, except as required        by GAAP.         7.13  Sale and Leaseback Transactions.         Enter into any Sale and Leaseback Transaction.         7.14  Sanctions.         Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend,  contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to  any Person, to fund any activities of or business with any Person, that, at the time of such funding, is the  subject of Sanctions, or in any other manner that will result in a violation by any Person (including any  Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer,  Swingline Lender, or otherwise) of Sanctions.         7.15  Anti-Corruption Laws.         Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension for any  purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act  2010 and other anti-corruption legislation in other jurisdictions.         7.16  Negative Pledge.         Create  or  suffer  to  exist  any  mortgage,  pledge,  security  interest,  conditional  sale  or  other  title  retention agreement, charge, encumbrance or other Lien (whether such interest is based on common law,  statute, other law or contract) upon any of its property or assets including, but not limited to, Equity Interests  of the Domestic Subsidiaries of the Borrower, now owned or hereafter acquired, except for Permitted Liens,  and without limiting the provisions of Section 7.09, nor shall any Loan Party enter into any other negative  pledge agreements with any other Persons.         7.17  Morbark Acquisition Related Documents.         Cancel  or  terminate  any  Morbark  Acquisition  Related  Documents  or consent  to  or  accept any  cancellation or termination thereof or (x) amend, modify or change in any manner any term or condition of  any Morbark Acquisition Related Document, (y) give any consent, waiver or approval thereunder or (z)  take or fail to take any action thereunder, which, in any case of clause (x), (y) or (z), could be reasonably                                         100 





 






expected to have a Material Adverse Effect without the prior written consent of the Administrative Agent  and the Required Lenders.                                   ARTICLE VIII                                                                EVENTS OF DEFAULT AND REMEDIES         8.01  Events of Default.          Any of the following shall constitute an event of default (each, an “Event of Default”):               (a)   Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as        required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit        any funds as Cash Collateral in respect of L/C Obligations, or (ii) within five (5) days after the        same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder,        or any other amount payable hereunder or under any other Loan Document; or               (b)   Specific Covenants. Any Loan Party fails to perform or observe any term, covenant        or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.08, 6.10, 6.11, 6.12, 6.13, Article        VII or Article X; or               (c)   Other Defaults. Any Loan Party fails to perform or observe any other covenant or        agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its        part to be performed or observed and such failure continues for thirty (30) days; or               (d)   Representations  and  Warranties.  Any  representation,  warranty,  certification  or        statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party        herein,  in  any  other  Loan  Document,  or  in  any  document  delivered  in  connection  herewith  or        therewith  shall  be  incorrect  or  misleading in  any  material  respect  (except  as  to  any  such        representation or warranty that is already qualified by materiality, such representation or warranty        shall be incorrect or misleading in any respect) when made or deemed made; or               (e)   Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails to make any        payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or        otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and        Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn        committed or available amounts and including amounts owing to all creditors under any combined        or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or        perform  any  other  agreement  or  condition  relating  to  any  such  Indebtedness  or  Guarantee  or        contained in any instrument or agreement evidencing, securing or relating thereto, or any other        event occurs, the effect of which default or other event is to cause, or to permit the holder or holders        of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on        behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice        if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,        defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or        redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become        payable or Cash Collateral in respect thereof to be demanded; or (ii) there occurs under any Swap        Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any        event of default under such Swap Contract as to which a Loan Party or any Subsidiary thereof is        the  Defaulting  Party  (as  defined  in  such  Swap  Contract)  or  (B) any  Termination  Event  (as  so        defined)  under  such  Swap  Contract  as  to  which  a  Loan  Party  or  any  Subsidiary  thereof  is  an                                         101 





 






Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan  Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or         (f)   Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary thereof institutes  or  consents  to  the  institution  of  any  proceeding  under  any  Debtor  Relief  Law,  or  makes  an  assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver,  trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any  material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator  or  similar  officer  is  appointed  without  the  application  or  consent  of  such  Person  and  the  appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding  under any Debtor Relief Law relating to any such Person or to all or any material part of its property  is instituted without the consent of such Person and continues undismissed or unstayed for sixty  (60) calendar days, or an order for relief is entered in any such proceeding; or         (g)   Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof  becomes unable or admits in writing its inability or fails generally to pay its debts as they become  due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied  against all or any material part of the property of any such Person and is not released, vacated or  fully bonded within thirty (30) days after its issue or levy; or         (h)   Judgments.  There  is  entered  against  any  Loan  Party  or  any  Subsidiary  thereof  (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to  all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by  independent  third-party  insurance  as  to  which  the  insurer  is  rated  at  least  “A”  by  A.M.  Best  Company, has been notified of the potential claim and does not dispute coverage), or (ii) any one  or  more  non-monetary  final  judgments  that  have,  or  could  reasonably  be  expected  to  have,  individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement  proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period  of ten (10) consecutive days during which a stay of enforcement of such judgment, by reason of a  pending appeal or otherwise, is not in effect; or         (i)   ERISA.  (i) An  ERISA  Event  occurs  with  respect  to  a  Pension  Plan  or  Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any  Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an  aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate  fails to pay when due, after the expiration of any applicable grace period, any installment payment  with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan  in an aggregate amount in excess of the Threshold Amount; or         (j)   Invalidity of Loan Documents. Any provision of any Loan Document, at any time  after its execution and delivery and for any reason other than as expressly permitted hereunder or  thereunder or satisfaction in full of all Obligations arising under the Loan Documents, ceases to be  in full force and effect; or any Loan Party or any other Person contests in any manner the validity  or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any  or further liability or obligation under any provision of any Loan Document, or purports to revoke,  terminate or rescind any provision of any Loan Document; or it is or becomes unlawful for a Loan  Party to perform any of its obligations under the Loan Documents; or         (k)   Change of Control. There occurs any Change of Control.                                   102 





 






      Without  limiting  the  provisions  of Article  IX,  if  a  Default  shall  have  occurred  under  the  Loan  Documents,  then  such  Default  will  continue  to  exist  until  it  either  is  cured  (to  the  extent  specifically  permitted) in accordance with the Loan Documents or is otherwise expressly waived by Administrative  Agent  (with  the  approval  of  requisite  Appropriate  Lenders  (in  their  sole  discretion))  as  determined  in  accordance with Section 11.01; and once an Event of Default occurs under the Loan Documents, then such  Event of Default will continue to exist until it is expressly waived by the requisite Appropriate Lenders or  by the Administrative Agent with the approval of the requisite Appropriate Lenders, as required hereunder  in Section 11.01.         8.02  Remedies upon Event of Default.         If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of,  or may, with the consent of, the Required Lenders, take any or all of the following actions:               (a)   declare the Commitment of each Lender to make Loans and any obligation of the        L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and        obligation shall be terminated;               (b)   declare the unpaid principal amount of all outstanding Loans, all interest accrued        and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan        Document to be immediately due and payable, without presentment, demand, protest or other notice        of any kind, all of which are hereby expressly waived by the Borrower;               (c)   require that the Borrower Cash Collateralize the L/C Obligations (in an amount        equal to the Minimum Collateral Amount with respect thereto); and               (d)   exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies        available to it, the Lenders and the L/C Issuer under the Loan Documents or Applicable Law or        equity;   provided, however, that upon the occurrence of an event described in Section 8.01(f) with respect to the  Borrower, the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make  L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans  and  all  interest  and  other  amounts  as  aforesaid  shall  automatically  become  due  and  payable,  and  the  obligation  of  the  Borrower  to  Cash  Collateralize  the  L/C  Obligations  as aforesaid  shall  automatically  become effective, in each case without further act of the Administrative Agent or any Lender.         8.03  Application of Funds.               (a)   After the exercise of remedies provided for in Section 8.02 (or after the Loans have        automatically become immediately due and payable and the L/C Obligations have automatically        been required to be Cash Collateralized as set forth in the proviso to Section 8.02) or if at any time        insufficient  funds  are  received  by  and  available  to  the  Administrative  Agent  to  pay  fully  all        Specified Obligations  then  due  hereunder,  any  amounts  received  on  account  of  the Specified        Obligations  shall,  subject  to  the  provisions  of Sections  2.14 and 2.15,  be  applied by  the        Administrative Agent in the following order:               First, to payment of that portion of the Specified Obligations constituting fees, indemnities,        expenses  and  other  amounts  (including  fees,  charges  and  disbursements  of  counsel  to  the        Administrative Agent and amounts payable under Article III) payable to the Administrative Agent        in its capacity as such;                                         103 





 






      Second,  to  payment  of  that  portion  of  the Specified Obligations  constituting  fees,  indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to  the  Lenders and  the  L/C  Issuer  (including  fees,  charges  and  disbursements  of  counsel  to  the  respective Lenders and the L/C Issuer) arising under the Loan Documents and amounts payable  under Article III, ratably among them in proportion to the respective amounts described in this  Second clause payable to them;         Third, to payment of that portion of the Specified Obligations constituting accrued and  unpaid  Letter  of  Credit  Fees  and  interest  on  the  Loans,  L/C  Borrowings  and  other Specified  Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in  proportion to the respective amounts described in this Third clause payable to them;         Fourth,  to  payment  of  that  portion  of  the Specified Obligations  constituting  unpaid  principal  of the  Loans,  L/C  Borrowings  and Specified Obligations  then owing  under Specified  Hedge Agreements and Specified Cash Management Agreements and to the to the Administrative  Agent  for  the  account  of  the  L/C  Issuer, to  Cash  Collateralize  that  portion  of  L/C  Obligations  comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash  Collateralized by the Borrower pursuant to Sections 2.03 and 2.14, in each case ratably among the  Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management  Banks in proportion to the respective amounts described in this Fourth clause held by them; and         Last, the balance, if any, after all of the Specified Obligations have been indefeasibly paid  in full, to the Borrower or as otherwise required by Law.         (b)   Subject  to Sections  2.03(c)  and 2.14,  amounts  used  to  Cash  Collateralize  the  aggregate undrawn amount of Letters of Credit pursuant to the Fourth clause above shall be applied  to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as  Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining  amount shall be applied to the other Specified Obligations, if any, in the order set forth above.  Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received  from  such Guarantor or  its  assets,  but  appropriate  adjustments  shall  be  made  with  respect  to  payments from other Loan Parties to preserve the allocation to Specified Obligations otherwise set  forth above in this Section 8.03.         (c)   Notwithstanding  the  foregoing, Specified Obligations  arising  under Specified  Cash  Management  Agreements  and Specified Hedge  Agreements  shall  be  excluded  from  the  application  described  above  if  the  Administrative  Agent  has  not  received  a Specified Party  Designation Notice, together with such supporting documentation as the Administrative Agent may  request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each  Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice  contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged  and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for  itself and its Affiliates as if a “Lender” party hereto.                                   104 





 






                                 ARTICLE IX                                                                      ADMINISTRATIVE AGENT         9.01  Appointment and Authority.         Each of the Lenders and the L/C Issuer hereby irrevocably appoints, designates and authorizes  Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan  Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such  powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such  actions and powers as are reasonably incidental thereto. The provisions of this Article IX are solely for the  benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other  Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and  agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term)  with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or  express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a  matter of market custom, and is intended to create or reflect only an administrative relationship between  contracting parties.         9.02  Rights as a Lender.         The Person serving as the Administrative Agent hereunder shall have the same rights and powers  in  its  capacity  as  a  Lender  as  any  other  Lender  and  may  exercise  the  same  as  though  it  were  not  the  Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or  unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in  its  individual  capacity.  Such  Person  and  its  Affiliates  may  accept  deposits  from,  lend  money  to,  own  securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any  kind  of  banking,  trust,  financial,  advisory,  underwriting  or  other  business  with  any  Loan  Party  or  any  Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and  without any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with  respect thereto.         9.03  Exculpatory Provisions.               (a)   The Administrative Agent or the Arrangers, as applicable, shall not have any duties        or obligations except those expressly set forth herein and in the other Loan Documents, and its        duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing,        the Administrative Agent or the Arrangers, as applicable, and its Related Parties:                     (i)   shall not be subject to any fiduciary or other implied duties, regardless of              whether a Default has occurred and is continuing;                     (ii)  shall not have any duty to take any discretionary action or exercise any              discretionary  powers,  except  discretionary  rights  and  powers  expressly  contemplated              hereby  or  by  the  other  Loan  Documents  that  the  Administrative  Agent  is  required  to              exercise as directed in writing by the Required Lenders (or such other number or percentage              of the Lenders as shall be expressly provided for herein or in the other Loan Documents),              provided that the Administrative Agent shall not be required to take any action that, in its              opinion or the opinion of its counsel, may expose the Administrative Agent to liability or              that is contrary to any Loan Document or Applicable Law, including for the avoidance of              doubt any action that may be in violation of the automatic stay under any Debtor Relief                                         105 





 






            Law or that may effect a forfeiture, modification or termination of property of a Defaulting              Lender in violation of any Debtor Relief Law; and                     (iii) shall not have any duty or responsibility to disclose, and shall not be liable              for the failure to disclose, to any Lender or the L/C Issuer any credit or other information              concerning the business, prospects, operations, property, financial and other condition or              creditworthiness of any of the Loan Parties or any of their Affiliates that is communicated              to, or in the possession of, the Administrative Agent, Arrangers or any of their Related              Parties in any capacity, except for notices, reports and other documents expressly required              to be furnished to the Lenders by the Administrative Agent herein.               (b)   Neither the Administrative Agent nor any of its Related Parties shall be liable for        any  action  taken  or  not  taken  by  the  Administrative  Agent  under  or  in  connection  with  this        Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with        the consent or at the request of the Required Lenders (or such other number or percentage of the        Lenders as shall be necessary), or as the Administrative Agent shall believe in good faith shall be        necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii) in the absence        of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction        by  final  and  non-appealable  judgment.  The  Administrative  Agent  shall  be  deemed  not  to  have        knowledge of any Default unless and until notice describing such Default is given in writing to the        Administrative Agent by the Borrower, a Lender or the L/C Issuer.               (c)   Neither the Administrative Agent nor any of its Related Parties have any duty or        obligation to  any  Lender  or participant  or  any  other  Person  to  ascertain  or  inquire  into  (i) any        statement, warranty or representation made in or in connection with this Agreement or any other        Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder        or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of        the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence        of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement,        any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction        of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items        expressly required to be delivered to the Administrative Agent.         9.04  Reliance by Administrative Agent.         The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and  shall  not  incur  any  liability  for  relying  upon,  any  notice,  request,  certificate,  communication,  consent,  statement, instrument, document or other writing (including any electronic message, Internet or intranet  website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise  authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it  orally  or  by  telephone  and  believed  by  it  to  have  been  made  by  the  proper  Person,  and  shall  be  fully  protected in relying and shall not incur any liability for relying thereon. In determining compliance with  any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter  of  Credit,  that  by  its  terms  must  be  fulfilled  to  the  satisfaction  of  a  Lender  or the L/C  Issuer,  the  Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer  unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C  Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent  may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and  other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with  the advice of any such counsel, accountants or experts. For purposes of determining compliance with the  conditions specified in Section 4.01, each Lender that has signed this Agreement shall be deemed to have                                         106 





 






consented  to,  approved  or  accepted  or  to  be  satisfied  with,  each  document  or  other  matter  required  thereunder to  be  consented  to  or  approved  by  or  acceptable  or  satisfactory  to  a  Lender  unless  the  Administrative  Agent  shall  have  received  notice  from  such  Lender  prior  to  the  proposed  Closing  Date  specifying its objections.         9.05  Delegation of Duties.          The Administrative Agent may perform any and all of its duties and exercise its rights and powers  hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the  Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its  duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory  provisions  of  this Article  IX shall  apply  to  any such  sub-agent  and  to  the  Related  Parties  of  the  Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection  with the syndication of the Facilities as well as activities as Administrative Agent. The Administrative  Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that  a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative  Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.         9.06  Resignation of Administrative Agent.               (a)   Notice. The Administrative Agent may at any time give notice of its resignation to        the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the        Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor,        which shall be a bank with an office in the United States, or an Affiliate of any such bank with an        office in the United States. If no such successor shall have been so appointed by the Required        Lenders  and  shall  have  accepted  such  appointment  within  thirty  (30)  days  after  the  retiring        Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the        Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may        (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor        Administrative Agent meeting the qualifications set forth above; provided that in no event shall        any successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been        appointed,  such  resignation  shall  become  effective  in  accordance  with  such  notice  on  the        Resignation Effective Date.               (b)   Defaulting Lender. If the Person serving as Administrative Agent is a Defaulting        Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent        permitted by Applicable Law, by notice in writing to the Borrower and such Person remove such        Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no        such successor shall have been so appointed by the Required Lenders and shall have accepted such        appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders)        (the  “Removal  Effective  Date”),  then  such  removal  shall  nonetheless  become  effective  in        accordance with such notice on the Removal Effective Date.               (c)   Effect of Resignation or Removal. With effect from the Resignation Effective Date        or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent        shall be discharged from its duties and obligations hereunder and under the other Loan Documents        (except that in the case of any collateral security held by the Administrative Agent on behalf of the        Lenders or the L/C Issuer under any of the Loan Documents, the retiring or removed Administrative        Agent shall continue to hold such collateral security until such time as a successor Administrative        Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the        retiring  or  removed  Administrative  Agent, all  payments,  communications and  determinations                                         107 





 






      provided to be made by, to or through the Administrative Agent shall instead be made by or to each        Lender  and the L/C  Issuer  directly,  until  such  time,  if  any,  as  the  Required  Lenders  appoint  a        successor  Administrative  Agent  as  provided for  above.  Upon  the  acceptance  of  a  successor’s        appointment  as  Administrative  Agent  hereunder,  such  successor  shall  succeed  to  and  become        vested  with  all  of  the  rights,  powers,  privileges  and  duties  of  the  retiring  (or  removed)        Administrative  Agent  (other than  as  provided  in Section  3.01(g)  and  other  than  any  rights  to        indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of        the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or        removed Administrative Agent shall be discharged from all of its duties and obligations hereunder        or under the other Loan Documents (if not already discharged therefrom as provided above in this        Section 9.06). The fees payable by the Borrower to a successor Administrative Agent shall be the        same as those payable to its predecessor unless otherwise agreed between the Borrower and such        successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder        and under the other Loan Documents, the provisions of this Article XI and Section 11.04 shall        continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents        and their respective Related Parties in respect of any actions taken or omitted to be taken by any of        them (A) while the retiring or removed Administrative Agent was acting as Administrative Agent        and (B) after such resignation or removal for as long as any of them continues to act in any capacity        hereunder or under the other Loan Documents, including, without limitation, (1) acting as collateral        agent or otherwise holding any collateral security on behalf of any of the Specified Parties and (2)        in  respect  of  any  actions  taken  in  connection  with  transferring  the  agency  to  any  successor        Administrative Agent.               (d)   L/C Issuer and Swingline Lender. Any resignation or removal by Bank of America        as Administrative Agent pursuant to this Section 9.06 shall also constitute its resignation as L/C        Issuer and Swingline Lender. If Bank of America resigns as the L/C Issuer, it shall retain all the        rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit        outstanding as of the effective date of its resignation as the L/C Issuer and all L/C Obligations with        respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk        participations in Unreimbursed Amounts pursuant to Section 2.03(c). If Bank of America resigns        as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder        with  respect  to  Swingline  Loans  made  by  it  and  outstanding  as  of  the  effective  date  of  such        resignation,  including  the  right  to  require  the  Lenders  to  make  Base  Rate  Loans  or  fund  risk        participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment        by the Borrower of a successor L/C Issuer or Swingline Lender hereunder (which successor shall        in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and        become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or        Swingline  Lender,  as  applicable,  (ii) the  retiring  L/C  Issuer  and  Swingline  Lender  shall  be        discharged from all of their respective duties and obligations hereunder or under the other Loan        Documents, and (iii) the successor L/C Issuer shall issue Letters of Credit in substitution for the        Letters of Credit, if any, outstanding at the time of such succession or make other arrangements        satisfactory to Bank of America to effectively assume the obligations of Bank of America with        respect to such Letters of Credit.         9.07  Non-Reliance on Administrative Agent, the Arrangers and the Other Lenders.         Each Lender and the L/C Issuer expressly acknowledges that none of the Administrative Agent nor  any Arranger has made any representation or warranty to it, and that no act by the Administrative Agent or  any Arranger hereafter taken, including any consent to, and acceptance of any assignment or review of the  affairs  of  any  Loan  Party or any  Affiliate  thereof,  shall  be  deemed  to  constitute  any  representation  or  warranty by the Administrative Agent or any Arranger to any Lender or the L/C Issuer as to any matter,                                         108 





 






including whether the Administrative Agent or any Arranger have disclosed material information in their  (or their Related Parties’) possession.  Each Lender and the L/C Issuer represents to the Administrative  Agent and each Arranger that it has, independently and without reliance upon the Administrative Agent,  any Arranger, any  other  Lender  or  any  of  their  Related  Parties  and  based  on  such  documents  and  information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation  into, the business, prospects, operations, property, financial and other condition and creditworthiness of the  Loan  Parties  and  their  Subsidiaries,  and  all  applicable  bank  or  other  regulatory  Laws  relating  to  the  transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend  credit  to  the  Borrower  hereunder.  Each  Lender  and the L/C  Issuer  also  acknowledges  that  it  will,  independently and without reliance upon the Administrative Agent, any Arranger, any other Lender or any  of their Related Parties and based on such documents and information as it shall from time to time deem  appropriate, continue to make its own credit analysis, appraisals and 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, and to make such investigations as it deems necessary to inform itself  as to the business, prospects, operations, property, financial and other condition and creditworthiness of the  Loan Parties.  Each Lender and the L/C Issuer represents and warrants that (i) the Loan Documents set forth  the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial  loans in the ordinary course and is entering into this Agreement as a Lender or L/C Issuer for the purpose  of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be  applicable to such Lender or L/C Issuer, and not for the purpose of purchasing, acquiring or holding any  other  type  of  financial  instrument,  and  each  Lender  and the L/C  Issuer  agrees  not  to  assert  a  claim  in  contravention  of  the  foregoing.  Each  Lender  and the L/C  Issuer  represents  and  warrants  that  it  is  sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other  facilities set forth herein, as may be applicable to such Lender or such L/C Issuer, and either it, or the Person  exercising  discretion  in  making its  decision to make,  acquire  and/or  hold  such  commercial  loans  or  to  provide  such  other  facilities,  is  experienced  in making,  acquiring  or  holding  such  commercial loans  or  providing such other facilities.         9.08  No Other Duties, Etc.         Anything herein to the contrary notwithstanding, none of the titles listed on the cover page hereof  shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents,  except in its capacity, as applicable, as the Administrative Agent, an Arranger a Lender or the L/C Issuer  hereunder.         9.09  Administrative Agent May File Proofs of Claim.               (a)   In case of the pendency of any proceeding under any Debtor Relief Law or any        other  judicial  proceeding  relative  to  any  Loan Party, the  Administrative  Agent  (irrespective  of        whether  the principal  of  any  Loan  or  L/C  Obligation  shall  then  be  due  and  payable  as  herein        expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall        have made any demand on the Borrower) shall be entitled and empowered, by intervention in such        proceeding or otherwise:                     (i)   to file and prove a claim for the whole amount of the principal and interest              owing  and  unpaid  in  respect  of  the  Loans,  L/C  Obligations  and  all  other Specified              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, the L/C Issuer and the              Administrative  Agent  (including  any  claim  for  the  reasonable  compensation,  expenses,              disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent              and their respective agents and counsel and all other amounts due the Lenders, the L/C                                         109 





 






            Issuer and  the  Administrative  Agent  under Sections  2.03(h)  and  (i), 2.09, 2.10(b)              and 11.04) allowed in such judicial proceeding; and                     (ii)  to collect and receive any monies or other property payable or deliverable              on any such claims and to distribute the same;         and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in        any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such        payments to the Administrative Agent and, in the event that the Administrative Agent shall consent        to  the  making  of  such  payments  directly  to  the  Lenders  and  the  L/C  Issuer,  to  pay  to  the        Administrative Agent any amount due for the reasonable compensation, expenses, disbursements        and advances of the Administrative Agent and its agents and counsel, and any other amounts due        the Administrative Agent under Sections 2.09, 2.10(b) and 11.04.               (b)   Nothing contained herein shall be deemed to authorize the Administrative Agent        to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of        reorganization, arrangement, adjustment or composition affecting the Specified Obligations or the        rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of        the claim of any Lender or the L/C Issuer or in any such proceeding.         9.10  Guaranty Matters.                (a)   Each of the Lenders (including in its capacities as a potential Cash Management        Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize the Administrative        Agent, at its option and in its discretion, to release any Guarantor from its obligations under the        Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the        Loan Documents.               (b)   Upon request by the Administrative Agent at any time, the Required Lenders will        confirm  in  writing  the  Administrative  Agent’s  authority  to  release  any  Guarantor  from  its        obligations  under  the  Guaranty  pursuant  to  this Section  9.10.  In  each  case  as  specified  in  this        Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the        applicable Loan Party such documents as such Loan Party may reasonably request to release such        Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the        Loan Documents and this Section 9.10.         9.11  Specified Cash Management Agreements and Specified Hedge Agreements.         Except as otherwise expressly set forth herein or in any Guaranty, no Cash Management Bank or  Hedge Bank that obtains the benefit of the provisions of Section 8.03 or any Guaranty by virtue of the  provisions hereof shall have any right to notice of any action or to consent to, direct or object to any action  hereunder or under any other Loan Document or otherwise (or to notice of or to consent to any amendment,  waiver or modification of the provisions hereof or of the Guaranty) other than in its capacity as a Lender  and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other  provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the  payment of, or that other satisfactory arrangements have been made with respect to, Specified Obligations  arising  under Specified Cash Management  Agreements  and Specified Hedge  Agreements  except to  the  extent  expressly  provided  herein  and  unless  the  Administrative  Agent  has  received  a Specified Party  Designation  Notice  of such Specified Obligations,  together  with such  supporting  documentation  as  the  Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the  case  may  be.  The  Administrative  Agent  shall  not  be  required  to  verify  the  payment  of,  or  that  other                                         110 





 






satisfactory arrangements have been made with respect to, Specified Obligations arising under Specified  Cash Management Agreements and Specified Hedge Agreements in the case of a Facility Termination Date.         9.12  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 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:                     (i)   such  Lender  is  not  using  “plan  assets”  (within  the  meaning  of  Section              3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s              entrance into, participation in, administration of and performance of the Loans, the Letters              of Credit, the Commitments, or this Agreement,                     (ii)  the transaction exemption set forth in one or more PTEs, such as PTE 84–             14  (a  class  exemption  for  certain  transactions  determined  by  independent  qualified              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,                     (iii) (A)  such  Lender  is  an  investment  fund  managed  by  a  “Qualified              Professional  Asset  Manager”  (within  the meaning  of Part  VI  of  PTE  84–14),  (B)  such              Qualified  Professional  Asset  Manager  made  the  investment  decision  on  behalf  of  such              Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,              the  Commitments  and  this  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                     (iv)  such  other  representation,  warranty  and  covenant  as  may  be  agreed  in              writing between the Administrative Agent, in its sole discretion, and such Lender.               (b)   In addition, unless either (1) clause (i) in the immediately preceding clause (a) is        true with respect to a Lender or (2) a Lender has provided another representation, warranty and        covenant  in  accordance  with clause  (iv)  in  the  immediately  preceding clause  (a),  such  Lender        further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,        and (y) covenants, from the date such Person became a Lender party hereto to the date such Person        ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the        avoidance  of  doubt,  to  or  for  the  benefit  of  the  Borrower  or  any  other  Loan  Party,  that  the        Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such        Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters        of Credit, the Commitments and this Agreement (including in connection with the reservation or                                         111 





 






      exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or        any documents related hereto or thereto).                                    ARTICLE X                                                                      CONTINUING GUARANTY         10.01 Guaranty.          Each Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary  obligor and as a guaranty of payment and performance and not merely as a guaranty of collection, prompt  payment  when  due,  whether  at stated  maturity,  by  required  prepayment,  upon  acceleration,  demand or  otherwise, and at all times thereafter, of any and all Specified Obligations (for each Guarantor, subject to  the proviso in this sentence, its “Guaranteed Obligations”); provided that (a) the Guaranteed Obligations  of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor and (b) the  liability of each Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount  equal  to  the  largest  amount  that  would not  render  its obligations  hereunder  subject to  avoidance  under  Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable  state  law or  other  Applicable  Law.  Without  limiting  the  generality  of  the  foregoing,  the Guaranteed  Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may  be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under  any  proceeding  or case  commenced  by  or  against  any  debtor  under  any  Debtor  Relief  Laws. The  Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in  evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the  purpose of establishing the amount of the Specified Obligations. This Guaranty shall not be affected by the  genuineness,  validity,  regularity  or  enforceability  of  the Specified Obligations  or  any  instrument  or  agreement evidencing any Specified Obligations, or by the existence, validity, enforceability, perfection,  non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Specified  Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them,  under  this  Guaranty,  and  each  Guarantor  hereby  irrevocably  waives  any  defenses  it  may  now  have  or  hereafter acquire in any way relating to any or all of the foregoing.         10.02 Rights of Lenders.         Each Guarantor consents and agrees that the Specified Parties may, at any time and from time to  time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof:  (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or  the terms of the Specified Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release,  fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Specified  Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative  Agent, the L/C Issuer and the Lenders in their sole discretion may determine; and (d) release or substitute  one or more of any endorsers or other guarantors of any of the Specified Obligations. Without limiting the  generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which  might in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but  for this provision, might operate as a discharge of such Guarantor.         10.03 Certain Waivers.         Each Guarantor waives (a) any defense arising by reason of any disability or other defense of the  Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission  of any Specified Party) of the liability of the Borrower or any other Loan Party; (b) any defense based on                                         112 





 






any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower or  any  other  Loan  Party;  (c) the  benefit  of  any  statute  of  limitations  affecting  any  Guarantor’s  liability  hereunder; (d) any right to proceed against the Borrower or any other Loan Party, proceed against or exhaust  any security for the Specified Obligations, or pursue any other remedy in the power of any Specified Party  whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by any  Specified Party; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that  may be derived from or afforded by Applicable Law limiting the liability of or exonerating guarantors or  sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for  payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of  dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Specified  Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of  new or additional Specified Obligations.         10.04 Obligations Independent.         The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety,  and are independent of the Specified Obligations and the obligations of any other guarantor, and a separate  action may be brought against each Guarantor to enforce this Guaranty whether or not the Borrower or any  other person or entity is joined as a party.         10.05 Subrogation.         No Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or  similar  rights  with  respect  to  any  payments  it  makes  under  this  Guaranty  until  all  of  the Specified  Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in  full and the Commitments and the Facilities are terminated. If any amounts are paid to a Guarantor in  violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Specified  Parties and shall forthwith be paid to the Specified Parties to reduce the amount of the Specified Obligations,  whether matured or unmatured.         10.06 Termination; Reinstatement.          This  Guaranty  is  a  continuing  and  irrevocable  guaranty  of  all Specified Obligations  now  or  hereafter  existing  and  shall  remain  in  full  force  and  effect  until  the  Facility  Termination  Date.  Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the  case may be, if any payment by or on behalf of the Borrower or a Guarantor is made, or any of the Specified  Parties exercises its right of setoff, in respect of the Specified Obligations and such payment or the proceeds  of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set  aside or required (including pursuant to any settlement entered into by any of the Specified Parties in their  discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under  any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not  occurred and whether or not the Specified Parties are in possession of or have released this Guaranty and  regardless of any prior revocation, rescission, termination or reduction. The obligations of each Guarantor  under this Section 10.06 shall survive termination of this Guaranty.         10.07 Stay of Acceleration.          If acceleration of the time for payment of any of the Specified Obligations is stayed, in connection  with any case commenced by or against a Guarantor or the Borrower under any Debtor Relief Laws, or  otherwise,  all  such  amounts  shall  nonetheless  be  payable  by  each  Guarantor,  jointly  and  severally,  immediately upon demand by the Specified Parties.                                         113 





 






      10.08 Condition of Borrower.         Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate  means of, obtaining from the Borrower and any other guarantor such information concerning the financial  condition, business and operations of the Borrower and any such other guarantor as such Guarantor requires,  and that none of the Specified Parties has any duty, and such Guarantor is not relying on the Specified  Parties  at  any  time,  to  disclose  to  it  any  information  relating  to  the  business,  operations  or  financial  condition of the Borrower or any other guarantor (each Guarantor waiving any duty on the part of the  Specified Parties to disclose such information and any defense relating to the failure to provide the same).         10.09 Appointment of Borrower.         Each of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this  Agreement, the other Loan Documents and all other documents and electronic platforms entered into in  connection  herewith  and  agrees  that  (a) the  Borrower  may  execute  such documents  and  provide  such  authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and  each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed  on  its behalf, (b) any  notice  or  communication  delivered  by  the  Administrative  Agent,  L/C  Issuer  or  a  Lender to the Borrower shall be deemed delivered to each Loan Party and (c) the Administrative Agent,  L/C Issuer or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument  or agreement executed by the Borrower on behalf of each of the Loan Parties.         10.10 Right of Contribution.         The Guarantors agree among themselves that, in connection with payments made hereunder, each  Guarantor shall have contribution rights against the other Guarantors as permitted under Applicable Law.         10.11 Keepwell.          Each  Loan  Party  that is  a  Qualified  ECP  Guarantor  at  the  time  the  Guaranty  under  the  Loan  Documents,  in  each  case,  by  any  Specified  Loan  Party  becomes  effective  with  respect  to  any  Swap  Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide  such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be  needed  by  such  Specified  Loan  Party  from  time  to  time  to  honor  all  of  its  obligations  under  the  Loan  Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such  liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and  undertakings under this Article X voidable under Applicable Law relating to fraudulent conveyance or  fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified  ECP Guarantor under this Section 10.11 shall remain in full force and effect until the Specified Obligations  have been indefeasibly paid and performed in full. Each Loan Party intends this Section 10.11 to constitute,  and this Section 10.11 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell,  support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity  Exchange Act.                                         114 





 






                           ARTICLE XI                                                              MISCELLANEOUS   11.01 Amendments, Etc.         (a)   Subject  to Section  3.03(c)  and  the  last  paragraph  of  this Section  11.01,  no  amendment or waiver of any provision of this Agreement or any other Loan Document, and no  consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective  unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent  of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and  acknowledged by the Administrative Agent, and each such waiver or consent shall be effective  only in the specific instance and for the specific purpose for which given; provided, however, that  no such amendment, waiver or consent shall:               (i)   waive any condition set forth in Section 4.02 as to any Credit Extension        under a particular Facility without the written consent of the Required Revolving Lenders;               (ii)  extend  or  increase  the  Commitment  of  any  Lender  (or  reinstate  any        Commitment  terminated  pursuant  to Section  8.02)  without  the  written  consent  of  such        Lender (it being understood and agreed that a waiver of any condition precedent in Section        4.02 or of any Default or a mandatory reduction in Commitments is not considered an        extension or increase in Commitments of any Lender);               (iii) postpone any date fixed by this Agreement or any other Loan Document        for any payment (excluding mandatory prepayments) of principal, interest, fees or other        amounts due to the Lenders (or any of them) hereunder or under such other Loan Document        without the written consent of each Lender entitled to such payment;               (iv)  reduce the principal of, or the rate of interest specified herein on, any Loan        or L/C Borrowing, or (subject to clause (D) of the second proviso to this Section 11.01)        any fees or other amounts payable hereunder or under any other Loan Document without        the written consent of each Lender entitled to such amount; provided, however, that only        the  consent  of  the  Required  Lenders  shall  be  necessary  (i) to  amend  the  definition  of        “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit        Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined        term used therein) even if the effect of such amendment would be to reduce the rate of        interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;               (v)   change (i) Section 8.03 or Section 2.13 in a manner that would alter the        pro rata sharing of payments required thereby without the written consent of each Lender,        (ii) the order of application of any reduction in the Commitments or any prepayment of        Loans  among  the  Facilities  from  the  application  thereof  set  forth  in  the  applicable        provisions of Section 2.05(b) or 2.06(b), respectively, in any manner that materially and        adversely affects the Lenders under a Facility without the written consent of the Required        Revolving Lenders, Required Term Lenders or the Required Incremental Term Lenders,        as applicable or (iii) Section 2.12(f) in a manner that would alter the pro rata application        required thereby without the written consent of each Lender directly affected thereby;               (vi)  change  (i) any  provision  of  this Section  11.01 or  the  definition  of        “Required  Lenders”  or  “Required  Class  Lenders”  or  any  other  provision  of  any  Loan                                   115 





 






      Document specifying the number or percentage of Lenders required to amend, waive or        otherwise modify any rights hereunder or thereunder or make any determination or grant        any  consent  hereunder  (other  than  the  definitions  specified  in clause  (ii)  of  this clause        (a)(vi)),  without  the  written  consent  of  each  Lender or  (ii) the  definitions  of  “Required        Revolving Lenders”, “Required Term Lenders” or “Required Incremental Term Lenders”        as each relates to the related Facility (or the constituent definition therein relating to such        Facility) without the written consent of each Lender under such Facility;               (vii) release all or substantially all of the value of the Guaranty, without the        written consent of each Lender, except to the extent the release of any Subsidiary from the        Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made        by the Administrative Agent acting alone);                (viii) release the Borrower or permit the Borrower to assign or transfer any of        its rights or obligations under this Agreement or the other Loan Documents without the        consent of each Lender;               (ix)  impose any greater restriction on the ability of any Lender under a Facility        to  assign  any  of  its  rights  or  obligations  hereunder  without  the  written  consent  of  the        Required  Revolving  Lenders,  Required  Term  Lenders  or  Required  Incremental  Term        Lenders, as applicable;                (x)   directly  and  materially  adversely  affect  the  rights  of  Lenders  holding        Commitments  or  Loans  of  one  Class  differently  from  the  rights  of  Lenders  holding        Commitments or Loans of any other Class without the written consent of the applicable        Required Class Lenders; or               (xi)  amend Section 1.09 or the definition of “Alternative Currency” without        the written consent of the L/C Issuer;   and provided, further, that (A) no amendment, waiver or consent shall, unless in writing and signed  by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C  Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be  issued  by  it;  (B) no  amendment,  waiver  or  consent  shall,  unless  in  writing  and  signed  by  the  Swingline  Lender in  addition  to  the  Lenders  required  above,  affect  the  rights  or  duties  of  the  Swingline Lender under this Agreement; (C) no amendment, waiver or consent shall, unless in  writing and signed by the Administrative Agent in addition to the Lenders required above, affect  the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;  and (D) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing  executed only by the parties thereto.          (b)   Notwithstanding anything to the contrary herein, (i) no Defaulting Lender shall  have any right to approve or disapprove any amendment, waiver or consent hereunder (and any  amendment,  waiver  or  consent  which  by  its  terms  requires  the  consent  of  all  Lenders  or  each  affected Lender, or all Lenders or each affected Lender under a Facility, may be effected with the  consent of the applicable Lenders other than Defaulting Lenders), except that (A) the Commitment  of any Defaulting Lender may not be increased or extended without the consent of such Lender and  (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected  Lender,  or  all  Lenders  or  each  affected  Lender  under  a  Facility,  that  by  its  terms  affects  any  Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the  consent of such Defaulting Lender; (ii) each Lender is entitled to vote as such Lender sees fit on                                   116 





 






any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the  provisions  of  Section 1126(c)  of  the  Bankruptcy  Code  of  the  United  States  supersedes  the  unanimous  consent  provisions  set  forth  herein  and  (iii) the  Required  Lenders  shall  determine  whether  or  not  to  allow  a  Loan  Party to  use  cash  collateral  in  the  context  of  a  bankruptcy  or  insolvency proceeding and such determination shall be binding on all of the Lenders.         (c)   Notwithstanding anything to the contrary herein, this Agreement may be amended  and  restated  without  the  consent  of  any  Lender  (but with  the  consent of  the  Borrower  and  the  Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall  no longer be a party to this Agreement (as so amended and restated), the Commitments of such  Lender shall have terminated, such Lender shall have no other commitment or other obligation  hereunder and shall have been paid in full all principal, interest and other amounts owing to it or  accrued for its account under this Agreement.         (d)   Notwithstanding  any  provision  herein  to  the  contrary,  this  Agreement  may  be  amended with the written consent of the Administrative Agent, the L/C Issuer and the Borrower to  amend the definition of “Alternative Currency” or Section 1.09 solely to add additional currency  options solely to the extent permitted pursuant to Section 1.09.         (e)   Notwithstanding any provision herein to the contrary, if the Administrative Agent  and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or  other  defect  in  any  provision  of  this  Agreement  or  any  other  Loan  Document  (including  the  schedules and exhibits thereto), then the Administrative Agent and the Borrower shall be permitted  to  amend,  modify  or  supplement  such  provision  to  cure  such  ambiguity,  omission,  mistake,  typographical error or other defect, and such amendment shall become effective without any further  action or consent of any other party to this Agreement.   11.02 Notices; Effectiveness; Electronic Communications.          (a)   Notices  Generally.  Except  in  the  case  of  notices  and  other  communications  expressly  permitted  to be  given  by telephone  (and  except  as  provided in clause (b) below),  all  notices and other communications provided for herein shall be in writing and shall be delivered by  hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission  or e-mail transmission as follows, and all notices and other communications expressly permitted  hereunder to be given by telephone shall be made to the applicable telephone number, as follows:               (i)   if to the Borrower or any other Loan Party, the Administrative Agent, the        L/C Issuer or the Swingline Lender, to the address, fax number, e-mail address or telephone        number specified for such Person on Schedule 1.01(a); and               (ii)  if  to  any  other  Lender,  to  the  address,  fax  number,  e-mail  address  or        telephone number specified in its Administrative Questionnaire (including, as appropriate,        notices  delivered  solely  to  the  Person  designated  by  a  Lender  on  its  Administrative        Questionnaire then in effect for the delivery of notices that may contain material non-public        information relating to the Borrower).         Notices and other communications sent by hand or overnight courier service, or mailed by  certified or registered mail, shall be deemed to have been given when received; notices and other  communications sent by fax transmission shall be deemed to have been given when sent (except  that, if not given during normal business hours for the recipient, shall be deemed to have been given  at  the  opening  of  business  on  the  next  Business  Day  for  the  recipient).  Notices  and  other                                   117 





 






communications delivered through electronic communications to the extent provided in clause (b)  below shall be effective as provided in such clause (b).         This Agreement was prepared by:  Chapman and Cutler LLP                                      201 South College Street, Suite 1600                                      Charlotte, NC 28244                                      Attention: René LeBlanc-Allman                                      Phone: (980) 495-7301                                      E-mail: rleblanc@chapman.com          (b)   Electronic Communications.                (i)   Notices  and  other  communications  to  the  Administrative  Agent,  the        Lenders, the Swingline Lender and the L/C Issuer hereunder may be delivered or furnished        by electronic communication (including e-mail, FPML messaging, and Internet or intranet        websites) pursuant to an electronic communications agreement (or such other procedures        approved by the Administrative Agent in its sole discretion); provided that the foregoing        shall not apply to notices to any Lender, the Swingline Lender or the L/C Issuer pursuant        to Article II if such Lender, the Swingline Lender or the L/C Issuer, as applicable, has        notified  the  Administrative  Agent  that  it  is  incapable  of  receiving  notices  under  such        Article II by electronic communication. The Administrative Agent, the Swingline Lender,        the L/C Issuer or the Borrower may each, in its discretion, agree to accept notices and other        communications  to  it  hereunder  by  electronic  communications  pursuant  to  procedures        approved by it, provided that approval of such procedures may be limited to particular        notices or communications.               (ii)  Unless  the  Administrative  Agent  otherwise  prescribes,  (A)  notices  and        other communications sent to an e-mail address shall be deemed received upon the sender’s        receipt of an acknowledgment from the intended recipient (such as by the “return receipt        requested” function, as available, return e-mail or other written acknowledgement) and (B)        notices and other communications posted to an Internet or intranet website shall be deemed        received by the intended recipient upon the sender’s receipt of an acknowledgement from        the  intended  recipient  (such  as  by  the  “return  receipt requested”  function,  as  available,        return  e-mail  address  or  other  written  acknowledgement)  indicating  that  such  notice  or        communication is available and identifying the website address therefor; provided that for        both clauses (A) and (B), if such notice or other communication is not sent during the        normal  business  hours  of  the  recipient,  such  notice,  email  or  communication  shall  be        deemed to have been sent at the opening of business on the next Business Day for the        recipient.         (c)   The  Platform.  THE  PLATFORM  IS  PROVIDED  “AS  IS”  AND  “AS  AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY  OR  COMPLETENESS  OF  THE  BORROWER  MATERIALS  OR  THE  ADEQUACY  OF  THE  PLATFORM,  AND  EXPRESSLY  DISCLAIM  LIABILITY  FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF  ANY  KIND,  EXPRESS,  IMPLIED  OR  STATUTORY,  INCLUDING  ANY WARRANTY  OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT  OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,  IS  MADE  BY  ANY  AGENT  PARTY  IN  CONNECTION  WITH  THE  BORROWER  MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its  Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender,                                   118 





 






the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind  (whether  in  tort,  contract  or  otherwise)  arising  out  of  the  Borrower’s,  any  Loan Party’s  or  the  Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any  other electronic platform or electronic messaging service, or through the Internet.         (d)   Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C  Issuer and the Swingline Lender may change its address, fax number or telephone number or e- mail address for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, fax number or telephone number or e-mail address for  notices and other communications hereunder by notice to the Borrower, the Administrative Agent,  the L/C  Issuer  and the Swingline  Lender.  In  addition,  each  Lender  agrees  to  notify  the  Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an  effective address, contact name, telephone number, fax number and e-mail address to which notices  and  other  communications  may  be  sent  and  (ii) accurate  wire  instructions  for  such  Lender.  Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such  Public Lender to at all times have selected the “Private Side Information” or similar designation on  the content declaration screen of the Platform in order to enable such Public Lender or its delegate,  in accordance with such Public Lender’s compliance procedures and Applicable Law, including  United States federal and state securities Laws, to make reference to Borrower Materials that are  not made available through the “Public Side Information” portion of the Platform and that may  contain material non-public information with respect to the Borrower or its securities for purposes  of United States federal or state securities laws.         (e)   Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative  Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including,  without limitation, telephonic or electronic notices, Loan Notices, Letter of Credit Applications,  Notice of Loan Prepayment and Swingline Loan Notices) purportedly given by or on behalf of any  Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete  or were not preceded or followed by any other form of notice specified herein, or (ii) the terms  thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties  shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of  each of them from all losses, costs, expenses and liabilities resulting from the reliance by such  Person on each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to  and  other  telephonic  communications  with  the  Administrative  Agent  may  be  recorded  by  the  Administrative Agent, and each of the parties hereto hereby consents to such recording.   11.03 No Waiver; Cumulative Remedies; Enforcement.         (a)   No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise,  and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or  under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial  exercise of any right, remedy, power or privilege hereunder or under any other Loan Document  preclude any other or further exercise thereof or the exercise of any other right, remedy, power or  privilege. The rights, remedies, powers and privileges herein provided, and provided under each  other Loan  Document,  are  cumulative  and  not  exclusive  of  any  rights,  remedies,  powers  and  privileges provided by law.         (b)   Notwithstanding anything to the contrary contained herein or in any other Loan  Document,  the  authority  to  enforce  rights  and  remedies  hereunder and  under  the  other  Loan  Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions  and proceedings at law in connection with such enforcement shall be instituted and maintained                                   119 





 






exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the  Lenders  and  the  L/C  Issuer; provided, however,  that  the  foregoing  shall  not  prohibit  (a) the  Administrative Agent from exercising on its own behalf the rights and remedies that inure to its  benefit  (solely  in  its  capacity  as  Administrative  Agent)  hereunder  and  under  the  other  Loan  Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights and remedies  that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may  be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights  in accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from  filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a  proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if  at any time there is no Person acting as Administrative Agent hereunder and under the other Loan  Documents,  then  (i) the  Required  Lenders  shall  have  the  rights  otherwise  ascribed  to  the  Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses  (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the  consent of the Required Lenders, enforce any rights and remedies available to it and as authorized  by the Required Lenders.   11.04 Expenses; Indemnity; Damage Waiver.          (a)   Costs and Expenses. The Loan Parties shall pay (i) all reasonable out-of-pocket  expenses incurred by the Administrative Agent and its Affiliates (including, but not limited to, (A)  the reasonable fees, charges and disbursements of counsel for the Administrative Agent and its  Affiliates and (B) due diligence expenses) in connection with the syndication of the credit facilities  provided  for  herein, the  preparation,  negotiation, execution,  delivery  and  administration  of this  Agreement and the other Loan Documents or any amendments, modifications or waivers of the  provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall  be  consummated),  (ii) all  reasonable  out-of-pocket  expenses  incurred  by  the  L/C  Issuer  in  connection with the issuance, amendment, extension, reinstatement or renewal of any Letter of  Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the  Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements  of any counsel for the Administrative Agent, any Lender or the L/C Issuer), in connection with the  enforcement or protection of its rights (A) in connection with this Agreement and the other Loan  Documents, including its rights under this Section 11.04, or (B) in connection with Loans made or  Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any  workout, restructuring or negotiations in respect of such Loans or Letters of Credit.         (b)   Indemnification  by  the  Loan  Parties.  The  Loan  Parties  shall  indemnify  the  Administrative  Agent  (and  any  sub-agent  thereof),  each  Lender  and the L/C  Issuer,  and  each  Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)  against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities  and  related  expenses  (including  the  fees,  charges  and  disbursements  of  any  counsel  for  any  Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges  and  disbursements  for  attorneys  who  may  be  employees  of  any  Indemnitee,  incurred  by  any  Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other  Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this  Agreement, any other Loan Document or any agreement or instrument contemplated hereby or  thereby,  the  performance  by  the  parties  hereto  of  their  respective  obligations  hereunder  or  thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case  of  the  Administrative  Agent  (and  any  sub-agent  thereof)  and  its  Related  Parties  only,  the  administration  of  this  Agreement  and  the  other  Loan  Documents  (including  in  respect  of  any  matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of                                   120 





 






the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment  under a Letter of Credit if the documents presented in connection with such demand do not strictly  comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of  Hazardous Materials on or from any property owned, leased or operated by a Loan Party or any of  its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any of its  Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating  to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a  third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee  is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN  WHOLE OR IN  PART,  OUT OF THE  COMPARATIVE,   CONTRIBUTORY OR SOLE  NEGLIGENCE  OF  THE  INDEMNITEE;  provided that  such  indemnity  shall  not,  as  to  any  Indemnitee,  be  available  to  the  extent  that  such  losses,  claims,  damages,  liabilities  or  related  expenses (x) are  determined  by  a  court  of  competent  jurisdiction  by  final  and  non-appealable  judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or  (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for  a material breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan  Document, if the Borrower or such Loan Party has obtained a final and non-appealable judgment  in its favor on such claim as determined by a court of competent jurisdiction.  Without limiting the  provisions of Section 3.01(c), this Section 11.04(b) shall not apply with respect to Taxes other than  any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.         (c)   Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail  to indefeasibly pay any amount required under clauses (a) or (b) of this Section 11.04 to be paid by  it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline Lender or  any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative  Agent (or any such sub-agent), the L/C Issuer, the Swingline Lender or such Related Party, as the  case  may  be,  such  Lender’s  pro  rata  share  (determined  as  of  the  time  that  the  applicable  unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total  Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect  of a claim asserted by such Lender), such payment to be made severally among them based on such  Lender’s  Applicable  Percentage  (determined  as  of  the  time  that  the  applicable  unreimbursed  expense or indemnity payment is sought), provided, that the unreimbursed expense or indemnified  loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted  against the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender  in  its  capacity  as  such,  or  against  any  Related  Party  of  any  of  the  foregoing  acting  for  the  Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in connection  with such capacity. The obligations of the Lenders under this clause (c) are subject to the provisions  of Section 2.12(d).         (d)   Waiver  of  Consequential  Damages,  Etc.  To the  fullest  extent  permitted  by  Applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges  that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for  special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising  out of, in connection with, or as a result of, this Agreement, any other Loan Document or any  agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby,  any  Loan  or  Letter  of  Credit  or  the  use  of  the  proceeds  thereof.  No  Indemnitee  referred  to  in  clause (b) above shall be liable for any damages arising from the use by unintended recipients of  any information or other materials distributed to such unintended recipients by such Indemnitee  through telecommunications, electronic or other information transmission systems in connection  with  this  Agreement  or  the  other  Loan  Documents  or  the  transactions  contemplated  hereby  or  thereby.                                  121 





 






            (e)   Payments. All amounts due under this Section 11.04 shall be payable not later than        ten (10) Business Days after demand therefor.               (f)   Survival. The agreements in this Section 11.04 and the indemnity provisions of        Section 11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the        Swingline Lender, the replacement of any Lender, the termination of the Aggregate Commitments        and the repayment, satisfaction or discharge of all the other Obligations.         11.05 Payments Set Aside.          To the extent that any payment by or on behalf of the Borrower is made to the Administrative  Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises  its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently  invalidated,  declared  to  be  fraudulent  or  preferential,  set  aside  or  required  (including  pursuant  to  any  settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be  repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief  Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended  to be satisfied shall be revived and continued in full force and effect as if such payment had not been made  or such setoff had not occurred, and (b) each Lender  and the L/C Issuer severally agrees to pay to the  Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered  from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date  such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The  obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the  payment in full of the Obligations and the termination of this Agreement.         11.06 Successors and Assigns.               (a)   Successors and Assigns Generally. The provisions of this Agreement and the other        Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto        and their respective successors and assigns permitted hereby, except neither the Borrower nor any        other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without        the prior written consent of the Administrative Agent and each Lender and no Lender may assign        or  otherwise  transfer  any  of  its  rights  or  obligations  hereunder  except  (i) to  an  assignee  in        accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with        the provisions of Section 11.06(d), or (iii) by way of pledge or assignment of a security interest        subject to the restrictions of Section 11.06(e) (and any other attempted assignment or transfer by        any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be        construed to confer upon any Person (other than the parties hereto, their respective successors and        assigns permitted hereby, Participants to the extent provided in Section 11.06(d) and, to the extent        expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C        Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this        Agreement.               (b)   Assignments  by  Lenders.  Any  Lender  may  at  any  time  assign  to  one  or  more        assignees all or a portion of its rights and obligations under this Agreement and the other Loan        Documents (including all or a portion of its Commitment(s) and the Loans (including for purposes        of this clause (b), participations in L/C Obligations and in Swingline Loans) at the time owing to        it); provided that (in each case with respect to any Facility) any such assignment shall be subject to        the following conditions:                     (i)   Minimum Amounts.                                         122 





 






            (A)   in the case of an assignment of the entire remaining amount of the        assigning Lender’s Commitment under any Facility and/or the Loans at the time        owing  to  it  (in  each  case  with  respect  to  any  Facility)  or  contemporaneous        assignments  to  related  Approved  Funds  (determined after  giving  effect  to  such        assignments)  that  equal  at  least  the  amount  specified in clause  (b)(i)(B)  of  this        Section 11.06 in the aggregate or in the case of an assignment to a Lender, an        Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned;        and               (B)   in any case not described in clause (b)(i)(A) of this Section 11.06,        the aggregate amount of the Commitment (which for this purpose includes Loans        outstanding thereunder) or, if the Commitment is not then in effect, the principal        outstanding  balance  of  the  Loans  of  the  assigning  Lender  subject  to  each  such        assignment,  determined  as  of  the  date  the  Assignment  and  Assumption  with        respect to such assignment is delivered to the Administrative Agent or, if “Trade        Date” is specified in the Assignment and Assumption, as of the Trade Date, shall        not  be  less  than  $5,000,000,  in  the  case  of  any  assignment  in  respect  of  the        Revolving Facility, or $1,000,000, in the case of any assignment in respect of the        Term Facility, unless each of the Administrative Agent and, so long as no Event        of Default has occurred and is continuing, the Borrower otherwise consents (each        such consent not to be unreasonably withheld or delayed).         (ii)  Proportionate  Amounts.  Each  partial  assignment  shall  be  made  as  an  assignment of a proportionate part of all the assigning Lender’s rights and obligations under  this  Agreement  and  the  other  Loan  Documents  with  respect  to  the  Loans  and/or  the  Commitment assigned, except that this clause (b)(ii) shall not (A) apply to the Swingline  Lender’s rights and obligations in respect of Swingline Loans or (B) prohibit any Lender  from assigning all or a portion of its rights and obligations among separate Facilities on a  non-pro rata basis.         (iii) Required  Consents.  No  consent  shall  be  required  for  any  assignment  except to the extent required by clause (b)(i)(B) of this Section 11.06 and, in addition:               (A)   the consent of the Borrower (such consent not to be unreasonably        withheld or delayed) shall be required unless (1) an Event of Default has occurred        and is continuing at the time of such assignment or (2) such assignment is to a        Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower        shall be deemed to have consented to any such assignment unless it shall object        thereto by written notice to the Administrative Agent within five (5) Business Days        after having received written notice (which may be by e-mail or other electronic        communication) thereof;               (B)   the consent of the Administrative Agent (such consent not to be        unreasonably withheld or delayed) shall be required for assignments in respect of        (1) any  unfunded  Term  Commitment,  Incremental  Term  Commitment or  any        Revolving Commitment if such assignment is to a Person that is not a Lender with        a Commitment in respect of the applicable Facility, an Affiliate of such Lender or        an  Approved  Fund  with  respect  to  such  Lender  or  (2) any  Term  Loan or        Incremental Term Loan to a Person that is not a Lender, an Affiliate of a Lender        or an Approved Fund; and                             123 





 






            (C)   the consent of the L/C Issuer and the Swingline Lender shall be        required for any assignment in respect of the Revolving Facility.         (iv)  Assignment and Assumption. The parties to each assignment shall execute  and deliver to the Administrative Agent an Assignment and Assumption, together with a  processing  and  recordation  fee  in  the  amount  of  $3,500; provided, however,  that  the  Administrative  Agent  may,  in  its  sole  discretion,  elect  to  waive  such  processing  and  recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall  deliver to the Administrative Agent an Administrative Questionnaire.         (v)   No  Assignment  to  Certain  Persons.  No such  assignment  shall be  made  (A) to  the  Borrower  or  any  of  the  Borrower’s  Affiliates  or  Subsidiaries,  (B) to any  Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender  hereunder, would constitute any of the foregoing Persons described in this clause (B), or  (C) to a natural Person (or a holding company, investment vehicle or trust for, or owned  and operated by or for the primary benefit of one or more natural Persons).         (vi)  Certain Additional Payments. In connection with any assignment of rights  and obligations of any Defaulting Lender hereunder, no such assignment shall be effective  unless and until, in addition to the other conditions thereto set forth herein, the parties to  the assignment shall make such additional payments to the Administrative Agent in an  aggregate  amount  sufficient,  upon  distribution  thereof  as  appropriate  (which may  be  outright payment, purchases by the assignee of participations or sub-participations, or other  compensating  actions,  including  funding,  with  the  consent  of  the  Borrower  and  the  Administrative Agent, the applicable pro rata share of Loans previously requested but not  funded by the Defaulting Lender, to each of which the applicable assignee and assignor  hereby irrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed  by  such  Defaulting  Lender  to  the  Administrative  Agent, the L/C  Issuer  or  any  Lender  hereunder (and interest accrued thereon) and (B) acquire (and fund as appropriate) its full  pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in  accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event  that any assignment of rights and obligations of any Defaulting Lender hereunder shall  become effective under Applicable Law without compliance with the provisions of this  clause (b)(vi), then the assignee of such interest shall be deemed to be a Defaulting Lender  for all purposes of this Agreement until such compliance occurs.         (vii) Subject to acceptance and recording thereof by the Administrative Agent  pursuant to Section 11.06(c), from and after the effective date specified in each Assignment  and Assumption, the assignee thereunder shall be a party to this Agreement and, to the  extent of the interest assigned by such Assignment and Assumption, have the rights and  obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,  to the extent of the interest assigned by such Assignment and Assumption, be released from  its obligations under this Agreement (and, in the case of an Assignment and Assumption  covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of  Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior  to the  effective  date  of  such assignment); provided,  that  except to  the  extent  otherwise  expressly  agreed  by  the  affected  parties,  no  assignment  by  a  Defaulting  Lender  will  constitute  a  waiver  or  release  of  any  claim  of  any  party  hereunder  arising  from  that  Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense)  shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a                             124 





 






      Lender of rights or obligations under this Agreement that does not comply with this clause        (b)  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 Section 11.06(d).         (c)   Register.  The  Administrative  Agent,  acting  solely  for  this  purpose  as  a  non- fiduciary agent of the Borrower (and such agency being solely for Tax purposes), shall maintain at  the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or  the  equivalent  thereof  in  electronic  form)  and  a  register  for  the  recordation  of  the  names  and  addresses of the Lenders, and the Commitments of, and principal amounts (and interest amounts)  of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to  time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the  Borrower,  the  Administrative  Agent  and  the  Lenders  shall  treat  each  Person  whose  name  is  recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this  Agreement. The Register shall be available for inspection by the Borrower and any Lender (with  respect  to  such  Lender’s  interest  only),  at  any  reasonable  time  and  from  time  to  time  upon  reasonable prior notice.         (d)   Participations.                (i)   Any  Lender  may  at  any  time,  without  the  consent  of,  or notice  to,  the        Borrower  or  the  Administrative  Agent,  sell  participations  to  any  Person  (other  than  a        natural  Person,  or  a  holding  company,  investment  vehicle  or  trust  for,  or  owned  and        operated for the primary benefit of one or more natural Persons, a Defaulting Lender or the        Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all        or a portion of such Lender’s rights and/or obligations under this Agreement (including all        or a portion of its Commitment and/or the Loans (including such Lender’s participations        in L/C Obligations and/or Swingline 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 Lenders and the L/C Issuer shall continue        to deal solely and directly with such Lender in connection with such Lender’s rights and        obligations  under  this  Agreement.  For  the  avoidance  of  doubt,  each  Lender  shall  be        responsible for the indemnity under Section 11.04(c) without regard to the existence of any        participations.               (ii)  Any  agreement  or  instrument  pursuant  to  which  a  Lender  sells  such  a        participation  shall  provide  that  such  Lender  shall  retain  the  sole  right  to  enforce  this        Agreement and to approve any amendment, modification or waiver of any provision of this        Agreement; provided that such agreement or instrument may provide that such Lender will        not,  without  the  consent  of  the  Participant,  agree  to  any  amendment,  waiver  or  other        modification described in the first proviso to Section 11.01 that affects such Participant.        The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01,        3.04 and 3.05 (subject  to  the  requirements  and  limitations  therein,  including  the        requirements under Section 3.01(e) (it being understood that the documentation required        under Section 3.01(e) shall be delivered to the Lender who sells the participation)) to the        same extent as if it were a Lender and had acquired its interest by assignment pursuant to        clause (b) of this Section 11.06; provided that such Participant (A) shall be subject to the        provisions of Sections 3.06 and 11.13 as if it were an assignee under clause (b) of this        Section 11.06 and (B) shall not be entitled to receive any greater payment under Sections        3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the        applicable  participation  would  have  been  entitled  to  receive,  except  to  the  extent  such                                   125 





 






      entitlement to receive a greater payment results from a Change in Law that occurs after the        Participant  acquired  the  applicable  participation.  Each  Lender that  sells  a  participation        agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with        the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant.        To the extent permitted by law, each Participant also shall be entitled to the benefits of        Section 11.08 as  though  it  were  a  Lender; provided that  such  Participant  agrees  to  be        subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation        shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a        register  on  which  it  enters  the  name  and  address  of  each  Participant  and  the  principal        amounts  (and interest  amounts)  of  each  Participant’s  interest  in  the  Loans  or  other        obligations  under  the  Loan  Documents  (the  “Participant  Register”); provided that  no        Lender shall have any obligation to disclose all or any portion of the Participant Register        (including  the  identity  of  any Participant  or  any  information  relating  to  a  Participant’s        interest in any commitments, loans, letters of credit or its other obligations under any Loan        Document) to any Person except to the extent that such disclosure is necessary to establish        that such commitment, loan, letter of credit or other obligation is in registered form under        Section  5f.103–1(c)  of  the  United  States  Treasury  Regulations.  The  entries  in  the        Participant Register shall be conclusive absent manifest error, and such Lender shall treat        each  Person  whose  name  is  recorded  in  the  Participant  Register  as  the  owner  of  such        participation for all purposes of this Agreement notwithstanding any notice to the contrary.        For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative        Agent) shall have no responsibility for maintaining a Participant Register.         (e)   Certain Pledges. Any Lender may at any time pledge or assign a security interest  in all or any portion of its rights under this Agreement (including under its Note or Notes, if any)  to secure obligations of such Lender, including any pledge or assignment to secure obligations to a  Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from  any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a  party hereto.         (f)   Resignation as L/C Issuer or Swingline Lender after Assignment. Notwithstanding  anything  to  the  contrary  contained  herein,  if  at  any  time  Bank  of  America assigns  all  of  its  Revolving Commitment and Revolving Loans pursuant to clause (b) above, Bank of America may,  (i) upon thirty (30) days’ notice to the Administrative Agent, the Borrower and the Lenders, resign  as L/C Issuer and/or (ii) upon thirty (30) days’ notice to the Borrower, resign as Swingline Lender.  In the event of any such resignation as L/C Issuer or Swingline Lender, the Borrower shall be  entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender hereunder;  provided, however, that no failure by the Borrower to appoint any such successor shall affect the  resignation of Bank of America as L/C Issuer or Swingline Lender, as the case may be. If Bank of  America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C  Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its  resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require  the  Lenders  to  make  Base  Rate  Loans  or  fund  risk  participations  in  Unreimbursed  Amounts  pursuant to Section 2.03(c)). If Bank of America resigns as Swingline Lender, it shall retain all the  rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it  and  outstanding  as  of  the  effective  date  of  such  resignation,  including  the  right  to  require  the  Lenders  to  make  Base  Rate  Loans  or  fund  risk  participations  in  outstanding  Swingline  Loans  pursuant  to Section 2.04(c).  Upon  the  appointment  of  a  successor  L/C  Issuer  and/or Swingline  Lender,  (A) such  successor  shall  succeed  to  and  become  vested  with  all  of the  rights,  powers,  privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (B) the  successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,                                   126 





 






outstanding at the time of such succession or make other arrangements satisfactory to Bank of  America to effectively assume the obligations of Bank of America with respect to such Letters of  Credit.   11.07 Treatment of Certain Information; Confidentiality.          (a)   Treatment of Certain Information. Each of the Administrative Agent, the Lenders  and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below),  except that Information may be disclosed (i) to its Affiliates, its auditors and its Related Parties (it  being  understood  that  the  Persons  to  whom  such  disclosure  is  made  will  be  informed  of  the  confidential nature of such Information and instructed to keep such Information confidential), (ii) to  the extent required or requested by any regulatory authority purporting to have jurisdiction over  such Person or its Related Parties (including any self-regulatory authority, such as the National  Association  of  Insurance  Commissioners),  (iii) to  the  extent  required  by  Applicable  Laws  or  regulations  or  by  any  subpoena  or  similar  legal  process,  (iv) to  any  other  party  hereto,  (v) in  connection with the exercise of any remedies hereunder or under any other Loan Document or any  action or proceeding relating to this Agreement or any other Loan Document or the enforcement of  rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the  same as those of this Section 11.07, to (A) any assignee of or Participant in, or any prospective  assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible  Assignee invited to be a Lender pursuant to Section 2.16(b) or (B) any actual or prospective party  (or its Related Parties) to any swap, derivative or other transaction under which payments are to be  made by reference to the Borrower and its obligations, this Agreement or payments hereunder,  (vii) on a confidential basis to (A) any rating agency in connection with rating the Borrower or its  Subsidiaries or the credit facilities provided hereunder or (B) the provider of any Platform or other  electronic delivery service used by the Administrative Agent, the L/C Issuer and/or the Swingline  Lender to deliver Borrower Materials or notices to the Lenders or (viii) the CUSIP Service Bureau  or any similar agency in connection with the application, issuance, publishing and monitoring of  CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder,  or (ix) with the consent of the Borrower or to the extent such Information (x) becomes publicly  available other than as a result of a breach of this Section 11.07, (xi) becomes available to the  Administrative  Agent,  any  Lender, the L/C  Issuer  or  any  of  their  respective  Affiliates  on  a  nonconfidential basis from a source other than the Borrower or (xii) is independently discovered  or developed by a party hereto without utilizing any Information received from the Borrower or  violating the terms of this Section 11.07. For purposes of this Section 11.07, “Information” means  all  information  received  from  the  Borrower  or  any  Subsidiary  relating  to the  Borrower  or  any  Subsidiary or any of their respective businesses, other than any such information that is available  to  the  Administrative  Agent,  any  Lender  or the L/C Issuer  on a  nonconfidential  basis  prior  to  disclosure by the Borrower or any Subsidiary, provided that, in the case of information received  from the Borrower or any Subsidiary after the date hereof, such information is clearly identified at  the  time  of  delivery  as confidential.  Any  Person  required  to  maintain  the  confidentiality  of  Information  as  provided  in  this Section  11.07 shall  be  considered  to  have  complied  with  its  obligation  to  do  so  if  such  Person  has  exercised  the  same  degree  of  care  to  maintain  the  confidentiality  of  such  Information  as  such  Person  would  accord  to  its  own  confidential  information. In addition, the Administrative Agent and the Lenders may disclose the existence of  this Agreement and information about this Agreement to market data collectors, similar service  providers to the lending industry and service providers to the Administrative Agent and the Lenders  in  connection  with  the  administration  of  this  Agreement,  the  other  Loan  Documents  and  the  Commitments.                                   127 





 






            (b)   Non-Public Information. Each of the Administrative Agent, the Lenders and the        L/C  Issuer  acknowledges  that  (i) the  Information  may  include  material  non-public  information        concerning  a  Loan Party  or  a Subsidiary,  as  the  case  may  be,  (ii) it has  developed  compliance        procedures  regarding  the  use  of  material  non-public  information  and  (iii) it  will  handle  such        material  non-public  information  in  accordance  with  Applicable  Law,  including  United  States        federal and state securities Laws.               (c)   Press Releases. The Loan Parties and their Affiliates agree that they will not in the        future issue any press releases or other public disclosure using the name of the Administrative        Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the Loan        Documents without the prior written consent of the Administrative Agent, unless (and only to the        extent that) the Loan Parties or such Affiliate is required to do so under law and then, in any event        the Loan Parties or such Affiliate will consult with such Person before issuing such press release        or other public disclosure.               (d)   Customary Advertising Material. The Loan Parties consent to the publication by        the  Administrative  Agent  or  any  Lender  of  customary  advertising  material  relating  to  the        transactions contemplated hereby using the name, product photographs, logo or trademark of the        Loan Parties.         11.08 Right of Setoff.          If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each  of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior  written consent of the Required Lenders, to the fullest extent permitted by Applicable Law to set off and  apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency)  at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C  Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party  against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under  this Agreement or any other Loan Document to such Lender, the L/C Issuer or such Affiliates, irrespective  of  whether  or  not  such  Lender, the L/C  Issuer  or  Affiliate  shall  have  made  any  demand  under  this  Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party  may be contingent or unmatured, secured or unsecured, or are owed to a branch, office or Affiliate of such  Lender or the L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on  such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of  setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further  application  in  accordance  with  the  provisions  of Section 2.15 and,  pending  such  payment,  shall  be  segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the  Administrative Agent, the L/C Issuer and the Lenders, and (b) the Defaulting Lender shall provide promptly  to the Administrative Agent a statement describing in reasonable detail the Specified Obligations owing to  such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C  Issuer and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies  (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have  under  Applicable  Law.  Each  Lender  and the L/C  Issuer  agrees  to  notify  the  Borrower  and  the  Administrative Agent promptly after any such setoff and application, provided that the failure to give such  notice shall not affect the validity of such setoff and application.         11.09 Interest Rate Limitation.         Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or  agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest                                         128 





 






permitted  by  Applicable  Law  (the  “Maximum  Rate”).  If  the  Administrative  Agent  or  any  Lender  shall  receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the  principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining  whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds  the  Maximum  Rate,  such Person may,  to  the  extent  permitted  by  Applicable  Law,  (a) characterize  any  payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary  prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts  the total amount of interest throughout the contemplated term of the Obligations hereunder.         11.10 Counterparts; Integration; Effectiveness.          This Agreement and each of the other Loan Documents may be executed in counterparts (and by  different parties hereto in different counterparts), each of which shall constitute an original, but all of which  when taken together shall constitute a single contract. This Agreement, the other Loan Documents, and any  separate  letter  agreements  with  respect  to  fees  payable  to  the  Administrative  Agent  or the L/C  Issuer,  constitute the entire contract among the parties relating to the subject matter hereof and supersede any and  all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as  provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the  Administrative Agent and when the Administrative Agent shall have received counterparts hereof that,  when  taken  together,  bear  the  signatures  of  each  of  the  other  parties  hereto.  Delivery  of  an  executed  counterpart of a signature page of this Agreement or any other Loan Document, or any certificate delivered  thereunder, by fax transmission or e-mail transmission (e.g., “pdf” or “tif”) shall be effective as delivery of  a manually executed counterpart of this Agreement or such other Loan Document or certificate. Without  limiting the  foregoing,  to  the  extent  a manually  executed  counterpart  is  not  specifically  required  to  be  delivered under the terms of any Loan Document, upon the request of any party, such fax transmission or  e-mail transmission shall be promptly followed by such manually executed counterpart.         11.11 Survival of Representations and Warranties.          All  representations  and  warranties made  hereunder  and  in  any  other  Loan  Document  or  other  document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the  execution and delivery hereof and thereof. Such representations and warranties have been or will be relied  upon  by  the  Administrative  Agent  and  each  Lender,  regardless  of  any  investigation  made  by  the  Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent  or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and  shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain  unpaid or unsatisfied or any Letter of Credit shall remain outstanding.         11.12 Severability.         If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or  unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement  and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor  in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions  the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable  provisions.  The  invalidity  of  a  provision  in  a  particular  jurisdiction  shall  not  invalidate  or  render  unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this  Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to  Defaulting  Lenders  shall  be  limited  by  Debtor  Relief  Laws,  as  determined  in  good  faith  by  the  Administrative Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be  deemed to be in effect only to the extent not so limited.                                         129 





 






11.13 Replacement of Lenders.          (a)   If  the  Borrower  is entitled  to  replace  a  Lender  pursuant  to  the  provisions  of  Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other  circumstance  exists  hereunder  that  gives  the Borrower  the  right  to  replace  a  Lender  as  a  party  hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the  Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance  with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its  interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and  obligations under this Agreement and the related Loan Documents to an Eligible Assignee that  shall assume such obligations (which assignee may be another Lender, if a Lender accepts such  assignment), provided that:               (i)   the Borrower shall have paid to the Administrative Agent the assignment        fee (if any) specified in Section 11.06(b);               (ii)  such Lender shall have received payment of an amount equal to 100% of        the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued        fees and all other amounts payable to it hereunder and under the other Loan Documents        (including  any  amounts  under Section 3.05)  from  the  assignee  (to  the  extent  of  such        outstanding principal and accrued interest and fees) or the Borrower (in the case of all other        amounts);               (iii) in the case of any such assignment resulting from a claim for compensation        under Section 3.04 or  payments  required  to  be  made  pursuant  to Section 3.01,  such        assignment will result in a reduction in such compensation or payments thereafter;               (iv)  such assignment does not conflict with Applicable Laws; and               (v)   in the case of an assignment resulting from a Lender becoming a Non-       Consenting  Lender,  the  applicable  assignee  shall  have  consented  to  the  applicable        amendment, waiver or consent.         (b)   A Lender shall not be required to make any such assignment or delegation if, prior  thereto,  as  a  result  of  a  waiver  by  such  Lender  or  otherwise,  the  circumstances  entitling  the  Borrower to require such assignment and delegation cease to apply.         (c)   Each party hereto agrees that (i) an assignment required pursuant to this Section  11.13 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the  Administrative Agent and the assignee and (ii) the Lender required to make such assignment need  not be a party thereto in order for such assignment to be effective and shall be deemed to have  consented to and be bound by the terms thereof; provided, that, following the effectiveness of any  such assignment, the other parties to such assignment agree to execute and deliver such documents  necessary to evidence such assignment as reasonably requested by the applicable Lender, provided  further that any such documents shall be without recourse to or warranty by the parties thereto.         (d)   Notwithstanding anything in this Section 11.13 to the contrary, (A) the Lender that  acts  as the L/C  Issuer  may  not  be  replaced  hereunder  at  any  time  it  has  any  Letter  of  Credit  outstanding hereunder unless arrangements satisfactory to such Lender (including the furnishing of  a  backstop  standby  letter  of credit  in  form  and  substance,  and  issued  by  an  issuer,  reasonably  satisfactory to the L/C Issuer or the depositing of Cash Collateral into a Cash Collateral account in                                   130 





 






amounts and pursuant to arrangements reasonably satisfactory to the L/C Issuer) have been made  with respect to such outstanding Letter of Credit and (B) the Lender that acts as the Administrative  Agent may not be replaced hereunder except in accordance with the terms of Section 9.06.   11.14 Governing Law; Jurisdiction; Etc.          (a)   GOVERNING  LAW.  THIS  AGREEMENT  AND  THE  OTHER  LOAN  DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET  FORTH  THEREIN)  AND  ANY  CLAIMS,  CONTROVERSY,  DISPUTE  OR  CAUSE  OF  ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING  OUT  OF  OR  RELATING TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  (EXCEPT,  AS  TO  ANY  OTHER  LOAN  DOCUMENT,  AS  EXPRESSLY  SET  FORTH  THEREIN)  AND  THE  TRANSACTIONS  CONTEMPLATED  HEREBY  AND  THEREBY  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK.         (b)   SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER  LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT  COMMENCE  ANY  ACTION,  LITIGATION  OR  PROCEEDING  OF  ANY  KIND  OR  DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT  OR  OTHERWISE,  AGAINST  THE  ADMINISTRATIVE  AGENT,  ANY  LENDER,  THE  L/C  ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  OR  THE  TRANSACTIONS  RELATING  HERETO  OR  THERETO,  IN  ANY  FORUM  OTHER  THAN  THE COURTS  OF  THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED  STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE  COURT  FROM  ANY  THEREOF,  AND  EACH  OF  THE  PARTIES  HERETO  IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH  COURTS  AND  AGREES  THAT  ALL  CLAIMS  IN  RESPECT  OF  ANY  SUCH  ACTION,  LITIGATION  OR  PROCEEDING  MAY  BE  HEARD  AND  DETERMINED  IN  SUCH  NEW  YORK  STATE  COURT  OR,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A  FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE  CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE  JUDGMENT  OR  IN  ANY  OTHER  MANNER  PROVIDED  BY  LAW.  NOTHING  IN  THIS  AGREEMENT  OR  IN  ANY OTHER  LOAN  DOCUMENT  SHALL  AFFECT  ANY  RIGHT  THAT  THE  ADMINISTRATIVE  AGENT,  ANY  LENDER  OR THE  L/C  ISSUER  MAY  OTHERWISE  HAVE  TO  BRING  ANY  ACTION  OR  PROCEEDING  RELATING  TO  THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY  OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.         (c)   WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY  IRREVOCABLY  AND  UNCONDITIONALLY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW,  ANY  OBJECTION  THAT  IT  MAY  NOW  OR  HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT IN ANY COURT REFERRED TO IN    CLAUSE (b) OF THIS SECTION 11.14.  THE  BORROWER  AND  EACH  OTHER  LOAN  PARTY  IRREVOCABLY  AND  UNCONDITIONALLY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW,  THE  DEFENSE  OF  AN  INCONVENIENT  FORUM  TO  THE  MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.                                   131 





 






            (d)   SERVICE  OF  PROCESS.  EACH  PARTY  HERETO  IRREVOCABLY        CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN        SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY        PARTY  HERETO  TO  SERVE  PROCESS  IN  ANY  OTHER  MANNER  PERMITTED  BY        APPLICABLE LAW.         11.15 Waiver of Jury Trial.          EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY  LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED  HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY  OF  ANY  OTHER  PERSON  HAS  REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT SUCH  OTHER  PERSON  WOULD  NOT,  IN  THE  EVENT  OF  LITIGATION,  SEEK  TO  ENFORCE  THE  FOREGOING  WAIVER  AND  (b) ACKNOWLEDGES  THAT  IT  AND  THE  OTHER  PARTIES  HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS  IN THIS SECTION 11.15.         11.16 Subordination.         Each  Loan  Party  (a  “Subordinating  Loan  Party”)  hereby  subordinates  the  payment  of  all  obligations and indebtedness of any other Loan Party owing to it, whether now existing or hereafter arising,  including but not limited to any obligation of any such other Loan Party to the Subordinating Loan Party  as subrogee of the Specified Parties or resulting from such Subordinating Loan Party’s performance under  this Guaranty, to the indefeasible payment in full in cash of all Obligations. If the Specified Parties so  request, any such obligation or indebtedness of any such other Loan Party to the Subordinating Loan Party  shall be enforced and performance received by the Subordinating Loan Party as trustee for the Specified  Parties and the proceeds thereof shall be paid over to the Specified Parties on account of the Specified  Obligations, but without reducing or affecting in any manner the liability of the Subordinating Loan Party  under  this  Agreement. Without  limitation  of  the  foregoing,  so  long  as  no  Default  has  occurred  and  is  continuing, the Loan Parties may make and receive payments with respect to Intercompany Debt; provided,  that in the event that any Loan Party receives any payment of any Intercompany Debt at a time when such  payment is prohibited by this Section 11.16, such payment shall be held by such Loan Party, in trust for the  benefit of, and shall be paid forthwith over and delivered, upon written request, to the Administrative Agent.         11.17 No Advisory or Fiduciary Responsibility.          In connection with all aspects of each transaction contemplated hereby (including in connection  with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower  and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that:  (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the  Arranger and the Lenders and their respective Affiliates are arm’s-length commercial transactions between  the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative  Agent, the Arrangers and the Lenders and their respective Affiliates, on the other hand, (ii) each of the  Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to  the  extent  it  has  deemed  appropriate,  and  (iii) the  Borrower and  each  other  Loan  Party  is  capable  of  evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated  hereby and by the other Loan Documents; (b) (i) the Administrative Agent, the Arrangers and each Lender                                         132 





 






and  each  of  their  respective  Affiliates each  is  and  has  been  acting  solely  as  a  principal  and,  except  as  expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor,  agent or fiduciary, for the Borrower, any other Loan Party or any of their respective Affiliates, or any other  Person and (ii) neither the Administrative Agent, any Arranger, nor any Lender nor any of their respective  Affiliates has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with  respect to the transactions contemplated hereby except those obligations expressly set forth herein and in  the  other  Loan  Documents;  and  (c) the  Administrative  Agent,  the Arrangers and the  Lenders and  their  respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from  those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative  Agent, any Arranger, nor any Lender nor any of their respective Affiliates has any obligation to disclose  any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the  fullest extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases  any  claims  that  it  may  have  against  the  Administrative  Agent, the Arrangers, the Lenders  and  their  respective Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection  with any aspect of any transactions contemplated hereby.         11.18 Electronic Execution; Electronic Records.                (a)   The words “delivery,” “execute,” “execution,” “signed,” “signature,” and words        of like import in any Loan Document or any other document executed in connection herewith shall        be  deemed  to  include  electronic  signatures,  the  electronic  matching  of  assignment  terms  and        contract formations on electronic platforms approved by the Administrative Agent, or the keeping        of  records  in  electronic  form,  each  of  which  shall  be  of  the  same  legal  effect,  validity  or        enforceability as a manually executed signature, physical delivery thereof or the use of a paper-       based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable        Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New        York State Electronic Signatures and Records Act, or any other similar state laws based on the        Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein        to the contrary, the Administrative Agent is under no obligation to agree to accept electronic        signatures in any form or in any format unless expressly agreed to by the Administrative Agent        pursuant to procedures approved by it; provided, further, without limiting the foregoing, upon        the request of the Administrative Agent, any electronic signature shall be promptly followed by        such manually executed counterpart.               (b)   The Borrower hereby acknowledges the receipt of a copy of this Agreement and        all  other  Loan  Documents.  The  Administrative  Agent  and  each  Lender  may,  on  behalf  of  the        Borrower, create a microfilm or optical disk or other electronic image of this Agreement and any        or all of the other Loan Documents. The Administrative Agent and each Lender may store the        electronic image of this Agreement and the other Loan Documents in its electronic form and then        destroy the paper original as part of the Administrative Agent’s and each Lender’s normal business        practices, with the electronic image deemed to be an original and of the same legal effect, validity        and enforceability as the paper originals.         11.19 USA Patriot Act Notice.          Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and not on  behalf  of  any  Lender)  hereby  notifies  the  Borrower  and  the  other  Loan  Parties  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 and  each other Loan Party, which information includes the name and address of the Borrower and each other  Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable,                                         133 





 






to identify the Borrower and each other Loan Party in accordance with the Patriot Act. The Borrower and  each other Loan Party shall, promptly following a request by the Administrative Agent or any Lender,  provide  all  such  other  documentation  and  information  that  the  Administrative  Agent  or  such  Lender  requests in order to comply with its ongoing obligations under applicable “know your customer” and anti- money laundering rules and regulations, including the Patriot Act.         11.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.          Solely to the extent any Lender or L/C Issuer that is an EEA Financial Institution is a party to this  Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any liability of  any Lender or L/C Issuer that is an EEA Financial Institution arising under any Loan Document, to the  extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:               (a)   the application of any Write-Down and Conversion Powers by an EEA Resolution        Authority to any such liabilities arising hereunder which may be payable to it by any Lender or L/C        Issuer that is an EEA Financial Institution; and               (b)   the effects of any Bail-In Action on any such liability, including, if applicable:                     (i)   a reduction in full or in part or cancellation of any such liability;                     (ii)  a  conversion  of  all,  or  a  portion  of,  such  liability  into  shares  or  other              instruments of ownership in such EEA Financial Institution, its parent undertaking, or a              bridge institution that may be issued to it or otherwise conferred on it, and that such shares              or other instruments of ownership will be accepted by it in lieu of any rights with respect              to any such liability under this Agreement or any other Loan Document; or                     (iii) the variation of the terms of such liability in connection with the exercise              of the Write-Down and Conversion Powers of any EEA Resolution Authority.         11.21 Acknowledgement Regarding Any Supported QFCs.          To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any  Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”,  and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the  resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act  and  Title  II  of  the  Dodd-Frank  Wall  Street  Reform  and  Consumer  Protection  Act  (together  with  the  regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported  QFC  and  QFC  Credit  Support  (with  the  provisions  below  applicable  notwithstanding  that  the  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                                         134 





 






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.           11.22 Amendment and Restatement; No Novation.               (a)   This Agreement constitutes an amendment and restatement of the Existing Credit        Agreement, as amended, effective from and after the Closing Date.  The execution and delivery of        this Agreement shall not constitute a novation of any debt or other obligations owing to the Lenders        or the Administrative Agent under the Existing Credit Agreement or any other Loan Document        based on facts or events occurring or existing prior to the execution and delivery of this Agreement.         On the Closing Date, the credit facilities described in the Existing Credit Agreement, as amended,        shall  be  amended, supplemented,  modified  and  restated  in  their  entirety  by  the  credit  facilities        described herein, and all loans and other obligations of the Borrowers outstanding as of such date        under the Existing Credit Agreement, as amended, to the extent not repaid in accordance with the        terms herein, shall be deemed to be loans and obligations outstanding under the corresponding        facilities described herein, without any further action by any Person, except that the Administrative        Agent shall make such transfers of funds as are necessary in order that the outstanding balance of        such  Loans,  together with  any  Loans  funded  on  the  Closing  Date,  reflect  the  respective        Commitments of the Lenders hereunder.               (b)   On the Closing Date, (i) all outstanding loans under the Existing Credit Agreement        (“Existing Loans”) made by any Person that is a “Lender” under the Existing Credit Agreement        which  is  not  a  Lender  hereunder  (each,  an  “Exiting  Lender”)  shall  be  repaid  in  full  and  the        commitments and other obligations and rights (except as expressly set forth in the Existing Credit        Agreement)  of  such  Exiting  Lender  shall  be  terminated,  (ii)  all  outstanding  Existing  Loans        constituting Revolving Loans under the Existing Credit Agreement that are not being repaid under        clause (i) above shall be deemed Revolving Loans hereunder in accordance with Section 2.01(b)        and the Administrative Agent shall make such transfers of funds as are necessary in order that the        outstanding balance of such Revolving Loans, together with any Revolving Loans funded on the        Closing Date, are in accordance with the relevant Applicable Percentages of the Lenders hereunder,        (iii) there shall have been paid in cash in full all accrued but unpaid interest on the Existing Loans        to the Closing Date, (iv) there shall have been paid in cash in full all accrued but unpaid fees under        the Existing Credit Agreement due to the Closing Date and all other amounts, costs and expenses        then owing to any of the Exiting Lenders and/or Bank of America, as administrative agent under        the  Existing  Credit  Agreement,  (v)  all  outstanding  Letters  of  Credit  under  the Existing  Credit        Agreement shall be Letters of Credit hereunder and (vi) all outstanding promissory notes issued by        the  Borrower  to  the  Exiting  Lenders  under  the  Existing  Credit  Agreement  shall  be  promptly        returned  to  the  Administrative  Agent  which  shall  forward  such  notes  to  the  Borrower  for        cancellation and be replaced with amended and restated promissory notes.                                         135 





 






      11.23 Time of the Essence.         Time is of the essence of the Loan Documents.         11.24 ENTIRE AGREEMENT.         THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL  AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE  OF  PRIOR, CONTEMPORANEOUS,     OR  SUBSEQUENT  ORAL  AGREEMENTS  OF  THE  PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.                 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]                                        136 





 






                                                                                               IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed  as of the date first above written.   BORROWER:                                  ALAMO GROUP INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                                   Signature Page to                            Second Amended and Restated Credit Agreement                                      Alamo Group Inc. 





 






GUARANTORS:                                ALAMO ACQUISITION CORPORATION                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                               ALAMO GROUP (TX) INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              ALAMO GROUP (USA) INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              ALAMO GROUP BRAZIL I INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              ALAMO GROUP BRAZIL II INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              ALAMO GROUP MANAGEMENT INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                             Signature Page to                            Second Amended and Restated Credit Agreement                                      Alamo Group Inc. 





 






GUARANTORS:                                ALAMO GROUP SERVICES, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              ALAMO SALES CORP.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              BUSH HOG, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              GRADALL INDUSTRIES, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              HENKE MANUFACTURING CORPORATION                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              HERSCHEL PARTS, INC..                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                             Signature Page to                            Second Amended and Restated Credit Agreement                                      Alamo Group Inc. 





 






GUARANTORS:                                HOWARD P. FAIRFIELD, LLC                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              NITE-HAWK SWEEPERS, LLC                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              NP REAL ESTATE INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              OLD DOMINION BRUSH COMPANY, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              RHINOAG, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              SCHULTE (USA), INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                             Signature Page to                            Second Amended and Restated Credit Agreement                                      Alamo Group Inc. 





 






GUARANTORS:                                SCHWARZE INDUSTRIES, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              SUPER PRODUCTS LLC                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              TENCO INDUSTRIES, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              TERRAIN KING CORPORATION                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              TIGER CORPORATION                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              WAUSAU EQUIPMENT COMPANY, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                             Signature Page to                            Second Amended and Restated Credit Agreement                                      Alamo Group Inc. 





 






GUARANTORS:                                MORBARK HOLDINGS GROUP, LLC                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              MORBARK, LLC                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              MORBARK IC-DISC, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              RAYCO MANUFACTURING, LLC                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              RAYCO EXPORT, INC.                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                              STELLEX MORBARK SPLITTER, L.P.                                                                                          By: Alamo Acquisition Corporation,                                             Its general partner                                                                                          By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                            Signature Page to                            Second Amended and Restated Credit Agreement                                      Alamo Group Inc. 





 






GUARANTORS:                                STELLEX MORBARK BLOCKER, LLC                                              By:                                              Name:  Richard J. Wehrle                                             Title:    Vice President and Treasurer                                             Signature Page to                            Second Amended and Restated Credit Agreement                                      Alamo Group Inc. 





 






                  BANK OF AMERICA, N.A.,                    as Administrative Agent                     By:                     Name:                     Title:                       BANK OF AMERICA, N.A.,                    as a Lender, L/C Issuer and Swingline Lender                     By:                     Name:                     Title:                                    Signature Page to   Second Amended and Restated Credit Agreement             Alamo Group Inc. 





 






LENDERS:                                   WELLS FARGO BANK, NATIONAL                                            ASSOCIATION,                                             as a Lender                                              By:                                              Name:                                              Title:     LENDERS:                                   BBVA USA, an Alabama banking corporation (f/k/a                                            Compass Bank),                                             as a Lender                                              By:                                              Name:                                              Title:     LENDERS:                                   ZIONS BANCORPORATION, N.A. dba AMEGY                                            BANK,                                             as a Lender                                              By:                                              Name:                                              Title:     LENDERS:                                   COÖPERATIEVE RABOBANK U.A., NEW                                             YORK BRANCH,                                             as a Lender                                              By:                                              Name:                                              Title:                                                 By:                                              Name:                                              Title:                                              Signature Page to                            Second Amended and Restated Credit Agreement                                      Alamo Group Inc. 





 






LENDERS:                                   KEYBANK NATIONAL ASSOCIATION,                                             as a Lender                                              By:                                              Name:                                              Title:     LENDERS:                                   TD BANK, N.A.,                                             as a Lender                                              By:                                              Name:                                              Title:                                                        Signature Page to                            Second Amended and Restated Credit Agreement                                      Alamo Group Inc.