Exhibit 10.2


		
			EXECUTION COPY
		

		
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			CREDIT AGREEMENT
		

		
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			dated as of February 18, 2022 among
		

		
			PRICESMART, INC.,
		

		
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			The LENDERS Party Hereto, and
		

		
			CITIBANK, N.A.,
		

		
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			as Administrative Agent CITIBANK, N.A.,
		

		
			as Arranger and Bookrunner
		

		
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						TABLE OF CONTENTS

				
	
					
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						Page

				
	
					
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						ARTICLE I 
DEFINITIONS

					
					
						 

				
	
					
						﻿SECTION 1.01

					
					
						Defined Terms

					
					
						6

				
	
					
						﻿SECTION 1.02

					
					
						Terms Generally

					
					
						20

				
	
					
						﻿SECTION 1.03

					
					
						Accounting Terms; Changes in GAAP

					
					
						21

				
	
					
						﻿SECTION 1.04

					
					
						Rates

					
					
						21

				
	
					
						﻿SECTION 1.05

					
					
						Divisions

					
					
						22

				
	
					
						ARTICLE II 
COMMITMENTS AND BORROWINGS

					
					
						 

				
	
					
						﻿SECTION 2.01

					
					
						Commitments

					
					
						22

				
	
					
						﻿SECTION 2.02

					
					
						Advances and Borrowings

					
					
						22

				
	
					
						﻿SECTION 2.03

					
					
						Borrowing Requests

					
					
						22

				
	
					
						﻿SECTION 2.04

					
					
						Funding of Borrowings

					
					
						23

				
	
					
						﻿SECTION 2.05

					
					
						Interest Elections

					
					
						23

				
	
					
						﻿SECTION 2.06

					
					
						Prepayments

					
					
						24

				
	
					
						﻿SECTION 2.07

					
					
						Termination or Reduction of Commitments

					
					
						25

				
	
					
						﻿SECTION 2.08

					
					
						Repayment of Advances

					
					
						25

				
	
					
						﻿SECTION 2.09

					
					
						Interest

					
					
						25

				
	
					
						﻿SECTION 2.10

					
					
						Fees.

					
					
						26

				
	
					
						﻿SECTION 2.11

					
					
						Evidence of Debt

					
					
						26

				
	
					
						﻿SECTION 2.12

					
					
						Payments Generally; Several Obligations of Lenders

					
					
						27

				
	
					
						﻿SECTION 2.13

					
					
						Sharing of Payments

					
					
						28

				
	
					
						﻿SECTION 2.14

					
					
						Compensation for Losses

					
					
						28

				
	
					
						﻿SECTION 2.15

					
					
						Increased Costs

					
					
						29

				
	
					
						﻿SECTION 2.16

					
					
						Taxes

					
					
						30

				
	
					
						﻿SECTION 2.17

					
					
						Inability to Determine Rates

					
					
						33

				
	
					
						﻿SECTION 2.18

					
					
						Illegality

					
					
						34

				
	
					
						﻿SECTION 2.19

					
					
						Mitigation Obligations; Replacement of Lenders

					
					
						34

				
	
					
						﻿SECTION 2.20

					
					
						Benchmark Replacement Setting

					
					
						35

				
	
					
						﻿SECTION 2.21

					
					
						Extension of Commitment Termination Date

					
					
						36

				
	
					
						﻿SECTION 2.22

					
					
						Increases in Commitments

					
					
						38

				
	
					
						﻿SECTION 2.23

					
					
						Designated Subsidiaries

					
					
						39

				
	
					
						﻿SECTION 2.24

					
					
						Defaulting Lenders

					
					
						40

				
	
					
						ARTICLE III 
CONDITIONS

					
					
						 

				
	
					
						﻿SECTION 3.01

					
					
						Effective Date

					
					
						41

				
	
					
						﻿SECTION 3.02

					
					
						Initial Advance to Each Designated Subsidiary

					
					
						43

				
	
					
						﻿SECTION 3.03

					
					
						Conditions to All Borrowings

					
					
						44

				
	
					
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						REPRESENTATIONS AND WARRANTIES

					
					
						 

				
	
					
						﻿SECTION 4.01

					
					
						Representations and Warranties of the Company

					
					
						44

				
	
					
						ARTICLE V 
COVENANTS OF THE COMPANY

					
					
						 

				
	
					
						﻿SECTION 5.01

					
					
						Affirmative Covenants

					
					
						47

				
	
					
						﻿SECTION 5.02

					
					
						Negative Covenants

					
					
						50

				
	
					
						﻿SECTION 5.03

					
					
						Financial Covenants

					
					
						54

				
	
					
						ARTICLE VI 
EVENTS OF DEFAULT

					
					
						 

				
	
					
						﻿SECTION 6.01

					
					
						Events of Default

					
					
						54

				
	
					
						﻿SECTION 6.02

					
					
						Application of Payments

					
					
						56

				
	
					
						ARTICLE VII 
GUARANTY

					
					
						 

				
	
					
						﻿SECTION 7.01

					
					
						Unconditional Guaranty

					
					
						57

				
	
					
						﻿SECTION 7.02

					
					
						Guaranty Absolute

					
					
						57

				
	
					
						﻿SECTION 7.03

					
					
						Waivers and Acknowledgments

					
					
						58

				
	
					
						﻿SECTION 7.04

					
					
						Subrogation

					
					
						59

				
	
					
						﻿SECTION 7.05

					
					
						Continuing Guaranty; Assignments

					
					
						60

				
	
					
						ARTICLE VIII 
AGENCY

					
					
						 

				
	
					
						﻿SECTION 8.01

					
					
						Appointment and Authority

					
					
						60

				
	
					
						﻿SECTION 8.02

					
					
						Rights as a Lender

					
					
						60

				
	
					
						﻿SECTION 8.03

					
					
						Exculpatory Provisions

					
					
						60

				
	
					
						﻿SECTION 8.04

					
					
						Reliance by Administrative Agent

					
					
						61

				
	
					
						﻿SECTION 8.05

					
					
						Delegation of Duties

					
					
						62

				
	
					
						﻿SECTION 8.06

					
					
						Resignation of Administrative Agent

					
					
						62

				
	
					
						﻿SECTION 8.07

					
					
						Non-Reliance on Administrative Agent and Other Lenders

					
					
						63

				
	
					
						﻿SECTION 8.08

					
					
						No Other Duties

					
					
						63

				
	
					
						﻿SECTION 8.09

					
					
						Administrative Agent May File Proofs of Claim

					
					
						63

				
	
					
						﻿SECTION 8.10

					
					
						Certain ERISA Matters

					
					
						63

				
	
					
						﻿SECTION 8.11

					
					
						Erroneous Payments

					
					
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						MISCELLANEOUS

					
					
						 

				
	
					
						﻿SECTION 9.01

					
					
						Notices

					
					
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						﻿SECTION 9.02

					
					
						Waivers; Amendments

					
					
						69

				
	
					
						﻿SECTION 9.03

					
					
						Expenses; Indemnity; Damage Waiver

					
					
						70

				
	
					
						﻿SECTION 9.04

					
					
						Successors and Assigns

					
					
						72

				
	
					
						﻿SECTION 9.05

					
					
						Survival

					
					
						75

				
	
					
						﻿SECTION 9.06

					
					
						Counterparts; Integration; Effectiveness; Electronic Execution

					
					
						75

				
	
					
						﻿SECTION 9.07

					
					
						Severability

					
					
						76

				
	
					
						﻿SECTION 9.08

					
					
						Right of Setoff

					
					
						76

				
	
					
						﻿SECTION 9.09

					
					
						Governing Law; Jurisdiction; Etc.

					
					
						77

				
	
					
						﻿SECTION 9.10

					
					
						Headings

					
					
						77

				
	
					
						﻿SECTION 9.11

					
					
						Treatment of Certain Information; Confidentiality

					
					
						77

				
	
					
						﻿SECTION 9.12

					
					
						PATRIOT Act

					
					
						78

				
	
					
						﻿SECTION 9.13

					
					
						Payments Set Aside

					
					
						78

				
	
					
						﻿SECTION 9.14

					
					
						No Advisory or Fiduciary Responsibility

					
					
						79

				
	
					
						﻿SECTION 9.15

					
					
						Acknowledgement and Consent to Bail-In of Affected Financial Institutions

					
					
						79

				
	
					
						﻿SECTION 9.16

					
					
						Acknowledgement Regarding Any Supported QFCs

					
					
						80

				
	
					
						﻿SECTION 9.17

					
					
						WAIVER OF JURY TRIAL

					
					
						81

				



		
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			SCHEDULES
		

		
			SCHEDULE 2.01-Commitments and Lenders SCHEDULE 4.01(f)-Litigation
		

		
			SCHEDULE 5.02(a)-Existing Liens SCHEDULE 5.02(c)-Existing Subsidiary Debt
		

		
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			EXHIBITS
		

		
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			EXHIBIT A-Borrowing Request EXHIBIT B-Assignment and Assumption
		

		
			EXHIBIT C-Form of Designation Agreement EXHIBIT D-Form of Subsidiary Guaranty
		

		
			EXHIBIT E-1-Form of U.S. Tax Compliance Certificate EXHIBIT E-2-Form of U.S. Tax Compliance Certificate EXHIBIT E-3-Form of U.S. Tax Compliance Certificate EXHIBIT E-4-Form of U.S. Tax Compliance Certificate
		

		
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		CREDIT AGREEMENT dated as of February 18, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), among PRICESMART, INC., a Delaware corporation (the “Company”), the LENDERS party hereto, and CITIBANK, N.A. (“Citibank”), as Administrative Agent.
		

		
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			The Company has requested that the Lenders extend credit to the Borrowers (as defined below), and the Lenders are willing to do so on the terms and conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:
		

		
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			ARTICLE I DEFINITIONS
		

		
			SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
		

		
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			“Additional Commitment Lender” has the meaning specified in Section 2.21(d).
		

		
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			“Administrative Agency Fee Letter” means the fee letter dated February 18, 2022 between the Company and the Administrative Agent.
		

		
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			“Administrative Agent” means Citibank, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
		

		
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			“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth in Section 9.01, or such other address or account as the Administrative Agent may from time to time notify to the Company and the Lenders.
		

		
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			“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by or otherwise acceptable to the Administrative Agent.
		

		
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			“Advance” means a loan made by a Lender to any Borrower pursuant to this Agreement and refers to a Base Rate Advance or a SOFR Advance (each of which shall be a “Type” of Advance).
		

		
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			“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
		

		
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			“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.
		

		
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			“Agreement” has the meaning specified in introductory paragraph hereof.
		

		
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			“Agreement Value” means, for each Hedge Agreement, on any date of determination, the amount, if any, that would be payable by the Company or any of its Subsidiaries to its counterparty to such Hedge Agreement in accordance with its terms as if (i) such Hedge Agreement was being terminated early on such date of determination and (ii) the Company or such Subsidiary was the sole “affected party”.
		

		
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			“Anti-Corruption Laws” means all laws, rules, regulations and requirements of any jurisdiction concerning or relating to bribery or corruption, including, without limitation, the U.S. Foreign
		

		
			 
		


		

		

		 

 


		

			

		


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			Corrupt Practices Act of l 977, the U.K. Bribery Act of 2010 and all other applicable anti bribery and corruption laws.
		

		
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			“Anti-Money Laundering Laws” has the meaning specified in Section 4.01(l)(iii).
		

		
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			“Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.
		

		
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			“Applicable Percentage” means, with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments.
		

		
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			“Applicable Margin” means, for any day, as to any SOFR Advance, 1.35% per annum and as to any Base Rate Advance, 0.35% per annum.
		

		
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			“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.




		
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			“Arranger” means Citibank, in its capacity as lead arranger and bookrunner.
		

		
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			“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 9.04), and accepted by the Administrative Agent, in substantially the form of Exhibit B or any other form approved by the Administrative Agent.
		

		
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			“Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended August 31, 2021 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Company and its Subsidiaries.
		

		
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			“Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.20(d).
		

		
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			“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
		

		
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			“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms
		

		
			 
		


		

		

		 

 


		

			

		


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			or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
		

		
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			“Base Rate” means, for any day, a rate per annum equal to the highest of (a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank's base rate, (b) the Federal Funds Rate in effect on such day plus 0.50% and (c) the Term SOFR Reference Rate for a one-month tenor in effect on such day plus 1.00%.
		

		
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			“Base Rate Advance” means an Advance that bears interest based on the Base Rate.
		

		
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			“Base Rate Borrowing” means, as to any Borrowing, the Base Rate Advances comprising such Borrowing.
		

		
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			“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then- current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.20(a).
		

		
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			“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
		

		
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				 (a)
			

			
	
			
			Daily Simple SOFR; or




		
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			(bthe sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Company giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar- denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment.
		

		
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			If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
		

		
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			“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Company giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
		

		
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			“Benchmark Replacement Date” means a date and time determined by the Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:
		

		
			 
		


		

		

		 

 


		

			

		


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				 (a)
			in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or




		
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				 (b)
			in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non- representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.




		
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			For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
		

		
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			“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
		

		
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				 (a)
			a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);




		
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				 (b)
			a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or




		
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				 (c)
			a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.




		
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			For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
		

		
			 
		


		

		

		 

 


		

			

		


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			“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.20 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.20.
		

		
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			“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
		

		
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			“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
		

		
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			“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 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”.
		

		
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			“Borrowers” means, collectively, the Company and the Designated Subsidiaries from
		

		
			time to time.
		

		
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			“Borrowing” means a borrowing consisting of simultaneous Advances of the same Type and, in the case of a SOFR Borrowing, having the same Interest Period made by the Lenders.
		

		
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			“Borrowing Request” means a request for a Borrowing, in substantially the form of Exhibit A hereto or such other form as the Administrative Agent may approve.
		

		
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			“Business Day” means any day that is not a Saturday, Sunday or other day that is a legal holiday under the laws of the State of New York or is a day on which banking institutions in such state are authorized or required by Law to close.
		

		
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			“Capitalized Lease” means each lease that has been or is required to be, in accordance with GAAP, recorded as a capital or financing lease.
		

		
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			“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
		

		
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			“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
		

		
			 
		


		

		

		 

 


		

			

		


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			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 50% or more of the Equity Interests of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company 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 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company 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 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 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.
		

		
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			“Citibank” has the meaning specified in introductory paragraph hereof.
		

		
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			“Code” means the Internal Revenue Code of 1986.
		

		
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			“Commitment” means with respect to each Lender on any date, the commitment of such Lender on such date to make Advances in accordance with the terms of this Agreement, expressed as an amount representing the maximum principal of such Advance, as such commitment may be reduced or increased from time to time pursuant to Section 9.04 or reduced from time to time pursuant to
		

		
			Section 2.07 or 2.22. The initial amount of such Lender’s Commitment is set forth on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable.
		

		
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			“Commitment Termination Date” means February 17, 2023, subject to extension in accordance with Section 2.21 (except that, if such date is not a Business Day, the Commitment Termination Date shall be the next preceding Business Day).
		

		
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			“Communications” has the meaning specified in Section 9.01(d)(ii).
		

		
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			“Company” has the meaning specified in introductory paragraph hereof.
		

		
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			“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.14, the formula for calculating any successor rates identified pursuant to the definition of “Benchmark Replacement”, the formula, methodology or convention for applying the successor Floor to the successor Benchmark Replacement and other technical, administrative or operational matters) that the Administrative Agent decides, in consultation with the Company, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as
		

		
			 
		


		

		

		 

 


		

			

		


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			the Administrative Agent decides, in consultation with the Company, is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
		

		
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			“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.
		

		
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			“Consolidated” refers to the consolidation of accounts in accordance with GAAP.
		

		
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			“Consolidated EBITDAR” means, for any period, Consolidated Net Income for such period plus, without duplication and to the extent deducted in determining Consolidated Net Income for such period, the sum of (a) interest expense, (b) tax expense for franchise taxes and taxes based on income, profits or capital gains, (c) depreciation expense, (d) amortization expense, (e) rent expense, (f) losses from currency exchange transactions, (g) charges, losses or expenses to the extent indemnified or insured or reimbursed by an unaffiliated third party to the extent such indemnification, insurance or reimbursement is actually received in cash for such period, or is reasonably expected to be so paid or reimbursed within 365 days after the end of such period, (h) unusual, extraordinary or non-recurring charges, expenses or losses and (i) other non-cash charges, expenses or losses (excluding any such non- cash charge to the extent it represents an accrual or reserve for potential cash charge in any future period or amortization of a prepaid cash charge that was paid in a prior period), minus, to the extent included in determining Consolidated Net Income for such period, the sum of (i) any non-cash income or gains increasing Consolidated Net Income for such period (excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for potential cash charge in any prior period), (ii) gains from currency exchange transactions and (iii) any gains realized from the disposition of property outside of the ordinary course of business, all as determined on a consolidated basis, in each case of the Company and its Subsidiaries on a Consolidated basis. For the purpose of calculating Consolidated EBITDAR for any period, if during such period the Company or any Subsidiary shall have consummated a Material Acquisition or a Material Disposition, Consolidated EBITDAR for such period shall be calculated after giving pro forma effect thereto as if such Material Acquisition or such Material Disposition occurred on the first day of such period.
		

		
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			“Consolidated Lease Adjusted Total Debt” means, as of any date of determination, the aggregate stated balance sheet amount of all Funded Debt plus total operating lease liabilities, in each case, of the Company and its Subsidiaries on a consolidated basis on such date.
		

		
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			“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDAR for the period of the four fiscal quarters most recently ended to (b) the sum of (i) interest expense and (ii) rent expense, in each case of the Company and its Subsidiaries on a Consolidated basis for such period.
		

		
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			“Consolidated Lease Adjusted Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Lease Adjusted Total Debt as of such date to (b) Consolidated EBITDAR for the period of the four fiscal quarters most recently ended.
		

		
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			“Consolidated Net Income” means, for any period, the consolidated net income (or loss) of the Company and its Subsidiaries on a Consolidated basis; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is merged into or consolidated with the Company or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the Company) in which the Company or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Company or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the Company to the extent that the declaration or payment of dividends or similar
		

		
			 
		


		

		

		 

 


		

			

		


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			distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or requirement of Law applicable to such Subsidiary.
		

		
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			“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.
		

		
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			“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 analogous thereto.
		

		
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			“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
		

		
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			“Debt” means, as to any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than 120 days incurred in the ordinary course of such Person's business or to the extent that any of such overdue trade payables are being disputed in good faith and by appropriate measures), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under Capitalized Leases, (f) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all obligations of such Person in respect of Hedge Agreements (which with respect to each Hedge Agreement shall be deemed to be equal to the Agreement Value of each such Hedge Agreement), (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below and other payment obligations (collectively, "Guaranteed Debt") guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Guaranteed Debt or to advance or supply funds for the payment or purchase of such Guaranteed Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Guaranteed Debt or to assure the holder of such Guaranteed Debt against loss, to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to in clauses (a) through (h) above (including Guaranteed Debt) secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt.
		

		
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			“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
		

		
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			“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.
		

		
			 
		


		

		

		 

 


		

			

		


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			“Default Rate” means an interest rate (before as well as after judgment) equal to (a) with respect to overdue principal, the applicable interest rate plus 2.00% per annum (provided that, with respect to a SOFR Advance, the determination of the applicable interest rate is subject to Section 2.05(e) to the extent that Advances may not be converted to, or continued as, SOFR Advances, pursuant thereto) and (b) with respect to any other overdue amount (including overdue interest), the interest rate applicable to Base Rate Advances in the case of overdue interest or fee plus 2.00% per annum.
		

		
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			“Defaulting Lender” means, subject to Section 2.24(b), any Lender that (a) has failed to
		

		
			(i) fund all or any portion of its Advances within two Business Days of the date such Advances were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company 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 or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Company or the Administrative Agent 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 an Advance 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 Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company 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 Company), 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 shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.24(b)) upon delivery of written notice of such determination to the Company and each Lender.
		

		
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			“Designated Subsidiary” means any direct or indirect wholly-owned Subsidiary of the Company designated for borrowing privileges under this Agreement pursuant to Section 2.23.
		

		
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			“Designation Agreement” means, with respect to any Designated Subsidiary, an agreement substantially in the form of Exhibit C hereto signed by such Designated Subsidiary and the Company.
		

		
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			“Dollar” and “$” mean the lawful money of the United States.
		

		
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			“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution
		

		
			 
		


		

		

		 

 


		

			

		


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			described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
		

		
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			“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
		

		
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			“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.
		

		
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			“Effective Date” means the first date all the conditions precedent in Section 3.01 are satisfied or waived in accordance with Section 9.02.
		

		
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			“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 9.04(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 9.04(b)(iii)).
		

		
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			“Environmental Laws” means any and all federal, state, local, and foreign statutes, Laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions, including all common law, relating to pollution or the protection of health, safety or the environment or the release of any materials into the environment, including those related to Hazardous Materials, air emissions, discharges to waste or public systems and health and safety matters.
		

		
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			“Environmental Liability” means any liability or obligation, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly, resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment, disposal or permitting or arranging for the disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the 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.
		

		
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			“Equity Interests” means, as 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.
		

		
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			“ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and regulations promulgated thereunder.
		

		
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			“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 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 or Section 302 of ERISA).
		

		
			 
		


		

		

		 

 


		

			

		


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			“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure by the Company or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules or the filing of an application for the waiver of the minimum funding standards under the Pension Funding Rules; (c) the incurrence by the Company or any ERISA Affiliate of any liability pursuant to Section 4063 or 4064 of ERISA or a cessation of operations with respect to a Pension Plan within the meaning of Section 4062(e) of ERISA; (d) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent (within the meaning of Title IV of ERISA); (e) the filing of a notice of intent to terminate a Pension Plan under, or the treatment of a Pension Plan amendment as a termination under, Section 4041 of ERISA;
		

		
			(f) the institution by the PBGC of proceedings to terminate a Pension Plan; (g) any event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (h) the determination that any Pension Plan is in at-risk status (within the meaning of Section 430 of the Code or Section 303 of ERISA) or that a Multiemployer Plan is in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 of ERISA);
		

		
			(i) the imposition or incurrence of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate; (j) the engagement by the Company or any ERISA Affiliate in a transaction that could be subject to
		

		
			Section 4069 or Section 4212(c) of ERISA; (k) the imposition of a lien upon the Company pursuant to Section 430(k) of the Code or Section 303(k) of ERISA; or (l) the making of an amendment to a Pension Plan that could result in the posting of bond or security under Section 436(f)(1) of the Code.
		

		
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			“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.
		

		
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			“Event of Default” has the meaning specified in Article VII.
		

		
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			“Excluded Taxes” means any of the following Taxes imposed on or with respect to a 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 applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of 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 an Advance or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Advance or Commitment (other than pursuant to an assignment request by the Company under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.16, 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 2.16(g) and (d) any withholding Taxes imposed under FATCA.
		

		
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			“Existing Commitment Termination” has the meaning specified in Section 2.21(a).
		

		
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			“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
		

		
			 
		


		

		

		 

 


		

			

		


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			“Federal Funds Rate” means, for any day, the greater of (a) the rate calculated by the Federal Reserve Bank of New York based on such day’s Federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the Federal funds effective rate and (b) 0%.
		

		
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			“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States.
		

		
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			“Financial Officer” means, as to any Person, the chief financial officer, principal accounting officer, treasurer or controller of such Person.
		

		
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			“Floor” means a rate of interest equal to 0.00%.
		

		
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			“Foreign Lender” means any Lender that is not a U.S. Person.
		

		
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			“Foreign Plan” means any employee pension benefit plan, program, policy, arrangement or agreement maintained or contributed to by the Company or any Subsidiary with respect to employees employed outside the United States (other than any governmental arrangement).
		

		
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			“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, bonds and similar extensions of credit in the ordinary course of its activities.
		

		
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			“Funded Debt” means, as of any date of determination, without duplication, the sum of all Debt on such date referred to in clauses (a), (b) (solely to the extent currently due and payable), (c), (e), (f) (solely to the extent, and in respect of amounts under, such acceptances, letters of credit or similar extensions of credit as are drawn and payable on such date) or (h) (to the extent such underlying Debt would qualify as Funded Debt if it were incurred by the guarantor thereof) of the definition of “Debt”.
		

		
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			“GAAP” means, subject to Section 1.03, United States generally accepted accounting principles as in effect as of the date of determination thereof.
		

		
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			“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
		

		
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			“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, and other substances or wastes of any nature regulated under or with respect to which liability or standards of conduct are imposed pursuant to any Environmental Law.
		

		
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			“Hedge Agreements” means any of the following: (i) a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction,
		

		
			 
		


		

		

		 

 


		

			

		


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			buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions) or (ii) a transaction which is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets (including terms and conditions incorporated by reference in such agreement) and which is a forward, swap, future, option or other derivative on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made.
		

		
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			“Immaterial Subsidiary” shall mean any Subsidiary or group of Subsidiaries of any Loan Party or Subsidiary thereof whose business and operations represent, individually and in the aggregate, not more than five percent (5%) of EBITDAR as of the most recent financial statements delivered to the Agent pursuant to Section 5.01(a).
		

		
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			“Incremental Commitment” has the meaning specified in Section 2.22(a).
		

		
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			“Incremental Commitment Effective Date” has the meaning specified in Section 2.22(c).
		

		
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			“Incremental Lender” has the meaning specified in Section 2.22(b).
		

		
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			“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
		

		
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			“Indemnitee” has the meaning specified in Section 9.03(b).
		

		
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			“Information” has the meaning specified in Section 9.11.
		

		
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			“Interest Election Request” means a request by any Borrower to convert or continue a Borrowing made to it in accordance with Section 2.05, which shall be in such form as the Administrative Agent may approve in its reasonable discretion.
		

		
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			“Interest Payment Date” means (a) as to any Base Rate Advance, the last Business Day of each March, June, September and December and the Commitment Termination and (b) as to any SOFR Advance, the last day of each Interest Period therefor and the Commitment Termination.
		

		
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			“Interest Period” means, as to any Borrowing, the period commencing on the date of such Advance or Borrowing and ending on the numerically corresponding day in the calendar month that is one month thereafter; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, (iii) no Interest Period shall extend beyond the Commitment Termination and (iv) no tenor that has been removed from this definition pursuant to Section 2.20(d) shall be available for specification in such Borrowing Request or Interest Election Request. For purposes hereof, the date of an Advance or Borrowing initially shall be the date on which such Advance or Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Advance or Borrowing.
		

		
			 
		


		

		

		 

 


		

			

		


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			“IRS” means the United States Internal Revenue Service.
		

		
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			“Joinder Agreement” means a joinder or similar agreement entered into by any Person (including any Lender) under Section 2.22 pursuant to which such Person shall provide an Incremental Commitment hereunder and (if such Person is not then a Lender) shall become a Lender party hereto.
		

		
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			“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.
		

		
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			“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
		

		
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			“Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, 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).
		

		
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			“Loan Documents” means, collectively, this Agreement, any promissory notes issued pursuant to Section 2.11(b), each Desigantion Agreement, each Subsidiary Guaranty, the Administrative Agency Fee Letter and any other documents entered into in connection herewith.
		

		
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			“Loan Parties” means, collectively, each Borrower and each Subsidiary Guarantor.
		

		
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			“Margin Stock” means margin stock within the meaning of Regulations T, U and X.
		

		
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			“Material Acquisition” means, as to any Person, the purchase or other acquisition (in one transaction or a series of transactions, including through a merger) of all of the equity interests of another Person or all or substantially all of the property, assets or business of another Person or of the assets constituting a business unit, line of business or division of another Person, in each case, having an aggregate consideration of $1,000,000 or more.
		

		
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			“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect on, the results of operations, business, properties, liabilities or financial condition of the Company and its Subsidiaries taken as a whole; or (b) a material adverse effect on (i) the ability of any Loan Party to perform its Obligations, (ii) the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party or (iii) the rights, remedies and benefits available to, or conferred upon, the Administrative Agent or any Lender under any Loan Document.
		

		
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			“Material Disposition” means the sale, transfer, license, lease or other disposition of all of the equity interests of another Person or all or substantially all of the property, assets or business of another Person or of the assets constituting a business unit, line of business or division of another Person (including any sale and leaseback transaction and any issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, in each case, having an aggregate consideration of $1,000,000 or more.
		

		
			 
		


		

		

		 

 


		

			

		


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			“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, during the preceding five plan years has made or been obligated to make contributions, or has any liability.
		

		
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			“Multiple Employer Plan” means a Plan with respect to which the Company or any ERISA Affiliate is a contributing sponsor, and that has two or more contributing sponsors at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
		

		
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			“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all or all affected Lenders in accordance with the terms of Section 9.02 and (b) has been approved by the Required Lenders.
		

		
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			“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender
		

		
			at such time.
		

		
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			“Non-Extending Lender” has the meaning specified in Section 2.21(b).
		

		
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			“Notice Date” has the meaning specified in Section 2.21(b).
		

		
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			“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, each Loan Party arising under any Loan Document or otherwise with respect to any Advance, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against such Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the foregoing, the Obligations include (a) the obligation to pay principal, interest, charges, expenses, fees, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of the Loan Parties to reimburse any amount in respect of any of the foregoing that the Administrative Agent or any Lender, in each case in its sole discretion, may elect to pay or advance on behalf of the Loan Parties.
		

		
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			“Organizational Documents” means (a) as 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) as to any limited liability company, the certificate or articles of formation or organization and operating or limited liability agreement and (c) as to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
		

		
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			“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 Advance or Loan Document).
		

		
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			“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,
		

		
			 
		


		

		

		 

 


		

			

		


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			performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19(b)).
		

		
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			“Outstanding Amount” means, with respect to Advances on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Advances occurring on such date.
		

		
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			“Participant” has the meaning specified in Section 9.04(d).
		

		
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			“Participant Register” has the meaning specified in Section 9.04(d).
		

		
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			“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
		

		
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			“PBGC” means the Pension Benefit Guaranty Corporation.
		

		
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			“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards and minimum required contributions (including any installment payment thereof) to Pension Plans and Multiemployer Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
		

		
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			“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan, but excluding a Multiemployer Plan) that is maintained or is contributed to by the Company or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
		

		
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			“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
		

		
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			“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, maintained for employees of the Company or any Subsidiary, or any such plan to which the Company or any Subsidiary is required to contribute on behalf of any of its employees or with respect to which the Company has any liability.
		

		
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			“Platform” means DebtDomain, Intralinks, Syndtrak, DebtX or a substantially similar electronic transmission system.
		

		
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			“Prepayment Notice” means a notice by any Borrower to prepay Advances, which shall be in such form as the Administrative Agent may approve in its reasonable discretion.
		

		
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			“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.
		

		
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			“Recipient” means (a) the Administrative Agent or (b) any Lender, as applicable.
		

		
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			“Register” has the meaning specified in Section 9.04(c).
		

		
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			“Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
		

		
			 
		


		

		

		 

 


		

			

		


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			“Regulation T” means Regulation T of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
		

		
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			“Regulation U” means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
		

		
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			“Regulation X” means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
		

		
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			“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
		

		
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			“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
		

		
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			“Removal Effective Date” has the meaning specified in Section 8.06(b).
		

		
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			“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
		

		
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			“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.
		

		
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			“Resignation Effective Date” has the meaning specified in Section 8.06(a).
		

		
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			“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
		

		
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			“Responsible Officer” means (a) the chief executive officer, president, executive vice president or a Financial Officer of a Loan Party, (b) solely for purposes of the delivery of incumbency certificates and certified Organizational Documents and resolutions pursuant to Section 3.01, any vice president, secretary or assistant secretary of such Loan Party and (c) solely for purposes of Borrowing Requests, prepayment notices and notices for Commitment terminations or reductions given pursuant to Article II, any other officer or employee of the applicable Borrower so designated from time to time by one of the officers described in clause (a) in a notice to the Administrative Agent (together with evidence of the authority and capacity of each such Person to so act in form and substance satisfactory to 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 or other action on the part of a Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
		

		
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			“Sanctioned Jurisdiction” means, at any time, a country or territory that is, or whose government is, the subject of Sanctions.
		

		
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			“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list maintained by any Sanctions Authority, (b) any Person located, organized, or resident in a Sanctioned Jurisdiction, or (c) any other subject of Sanctions, including, without limitation, any Person controlled or
		

		
			 
		


		

		

		 

 


		

			

		


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			50 percent or more owned in the aggregate, directly or indirectly, by, or acting on behalf of, or at the direction of, any such Person or Persons described in the foregoing clauses (a) or (b).
		

		
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			“Sanctions” means economic, trade, or financial sanctions, requirements, or embargoes imposed, administered, or enforced from time to time by any Sanctions Authority.
		

		
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			”Sanctions Authority” means the United States (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State), the United Kingdom (including, without limitation, Her Majesty's Treasury), the European Union and any EU member state, the United Nations Security Council, and any other relevant sanctions authority.
		

		
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			“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
		

		
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			“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
		

		
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			“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
		

		
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			“SOFR Borrowing” means, as to any Borrowing, the SOFR Advances comprising such
		

		
			Borrowing.
		

		
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			“SOFR Advance” means an Advance that bears interest at a rate based on Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.
		

		
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			“Subsidiary” of a Person means a corporation, partnership, limited liability company, association or joint venture or other business entity of which a majority of the Equity Interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time owned or the management of which is controlled, directly, or indirectly through one or more intermediaries, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
		

		
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			“Subsidiary Guarantor” means each of Prismar de Costa Rica Sociedad Anonima, Pricesmart Panama SA, Pricesmart (Guatemala) SA, Pricesmart Clubs (TT) LTD, Pricesmart Dominicana SRL, Pricesmart El Salvador SA De Capital Variable, Pricesmart Jamaica Limited and, without duplication, each Designated Subsidiary.
		

		
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			“Subsidiary Guaranty” means, collectively, each Guaranty made by the Subsidiary Guarantors in favor of the Lenders, substantially in the form of Exhibit D, together with each other guaranty and guaranty supplement delivered pursuant to Section 3.02.
		

		
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			“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.
		

		
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			“Term SOFR” means,
		

		
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				 (a)
			for any calculation with respect to a SOFR Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term




		
			 
		


		

		

		 

 


		

			

		


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			SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S.
		

		
			Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
		

		
			﻿
		

			
	
			
				 (b)
			for any calculation with respect to a Base Rate Advance on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding




		
			U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate SOFR Determination Day;
		

		
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			provided,  further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
		

		
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			“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
		

		
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			“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
		

		
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			“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and the aggregate principal amount of the outstanding Advances of such Lender at such time.
		

		
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			“Type”, when used in reference to any Advance or Borrowing, refers to whether the rate of interest on such Advance, or on the Advances comprising such Borrowing, is determined by reference to Term SOFR or Base Rate.
		

		
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			“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
		

		
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			“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
		

		
			 
		


		

		

		 

 


		

			

		


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			“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
		

		
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			“United States” and “U.S.” mean the United States of America.
		

		
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			“U.S. Borrower” means any Borrower that is a U.S. Person.
		

		
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			“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
		

		
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			“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
		

		
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			“U.S. Tax Compliance Certificate” has the meaning specified in Section 2.16(g).
		

		
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			“Wholly-Owned” means, as to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (a) director’s qualifying shares and (b) shares issued to foreign nationals to the extent required by Applicable Law) are owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
		

		
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			“Withholding Agent” means the Borrowers and the Administrative Agent.
		

		
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			“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
		

		
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			SECTION 1.02 Terms Generally. 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.” The word “or” is not exclusive. The word “year” shall refer (i) in the case of a leap year, to a year of three hundred sixty-six (366) days, and (ii) otherwise, to a year of three hundred sixty-five (365) days. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to
		

		
			 
		


		

		

		 

 


		

			

		


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			time, (f) 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, (g) when any provision of any Loan Document refers to the knowledge, or analogous phrase, of any Person, such words are intended to signify that such Person has actual knowledge or awareness of a particular fact or circumstance or that such Person, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance and (h) as used herein, “ordinary course of business” means the ordinary course of business of any Person, as undertaken by such Person in accordance with past practices or reasonable extensions of such past practices, as applicable, or otherwise undertaken by such Person in good faith and not for purposes of evading any covenant or restriction in any Loan Document.
		

		
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			SECTION 1.03 Accounting Terms; Changes in GAAP.
		

		
			﻿
		

			
	
			
				 (a)
			Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall be construed in conformity with GAAP. Financial statements and other information required to be delivered by the Company to the Lenders pursuant to Section 5.01(a) shall be prepared in accordance with GAAP as in effect at the time of such preparation. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Debt of the Company and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded.




			
	
			
				 (b)
			Changes in GAAP. If the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.




		
			SECTION 1.04 Rates. The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to Base Rate, the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of Base Rate, the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to any Loan Party, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
		

		
			 
		


		

		

		 

 


		

			

		


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			SECTION 1.05 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
		

		
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			ARTICLE II COMMITMENTS AND BORROWINGS
		

		
			SECTION 2.01 Commitments. Subject to the terms and conditions set forth herein, each Lender severally agrees to make Advances in Dollars to any Borrower from time to time on any Business Day during the period from the Effective Date until the Commitment Termination Date in an aggregate principal amount that will not result in (a) the Outstanding Amount of such Lender’s Advances exceeding such Lender’s Commitment or (b) the aggregate Outstanding Amount of Advances exceeding the total Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Advances. Advances may be Base Rate Advances or SOFR Advances, as further provided herein.
		

		
			﻿
		

		
			SECTION 2.02 Advances and Borrowings.
		

		
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				 (a)
			Borrowings. Each Advance shall be made as part of a Borrowing consisting of Advances of the same Type made by the Lenders ratably in accordance with their respective Commitments.




		
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				 (b)
			Type of Advances. Subject to Section 2.17, each Borrowing shall be comprised entirely of Base Rate Advances or SOFR Advances as the applicable Borrower may request in accordance herewith. Each Lender at its option may make any Advance by causing any domestic or foreign branch or Affiliate of such Lender to make such Advance; provided that any exercise of such option shall not affect the obligation of any Borrower to repay such Advance in accordance with the terms of this Agreement.




		
			﻿
		

			
	
			
				 (c)
			Minimum Amounts; Limitation on Number of Borrowings. Each SOFR Borrowing shall be in an aggregate amount of $2,500,000 or a larger multiple of $100,000. Each Base Rate Borrowing shall be in an aggregate amount equal to $500,000 or a larger multiple of $100,000; provided that a Base Rate Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Commitments. Borrowings of more than one Type may be outstanding at the same time; provided that there shall not be more than a total of six SOFR Borrowings outstanding at any time.




		
			SECTION 2.03 Borrowing Requests.
		

		
			﻿
		

			
	
			
				 (a)
			Notice by Borrower. Each Borrowing shall be made upon the applicable Borrower’s irrevocable notice to the Administrative Agent. Each such notice shall be in the form of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of the applicable Borrower, or may be given by telephone to the Administrative Agent (if promptly confirmed by such a written Borrowing Request consistent with such telephonic notice) and must be received by the Administrative Agent not later than 11:00 a.m. (New York City time) (i) in the case of a SOFR Borrowing, three U.S. Government Securities Business Days prior to the date of the requested Borrowing or (ii) in the case of a Base Rate Borrowing, on the date of the requested Borrowing.




		
			 
		


		

		

		 

 


		

			

		


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				 (b)
			Content of Borrowing Requests. Each Borrowing Request for a Borrowing pursuant to this Section shall specify the following information in compliance with Section 2.02: (i) the aggregate amount of the requested Borrowing; (ii) the date of such Borrowing (which shall be a Business Day); (iii) whether such Borrowing is to be a Base Rate Borrowing or a SOFR Borrowing; and (iv) the location and number of the applicable Borrower’s account to which funds are to be disbursed.




			
	
			
				 (c)
			Notice by Administrative Agent to Lenders. Promptly following receipt of a Borrowing Request, the Administrative Agent shall advise each applicable Lender of the details thereof and the amount of such Lender’s Advance to be made as part of the requested Borrowing.




			
	
			
				 (d)
			Failure to Elect Type. If no election as to the Type of a Borrowing is specified in the applicable Borrowing Request, then the requested Borrowing shall be a Base Rate Borrowing. If no Interest Period is specified with respect to any requested SOFR Borrowing, the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.




		
			SECTION 2.04 Funding of Borrowings.
		

		
			﻿
		

			
	
			
				 (a)
			Funding by Lenders. Each Lender shall make the amount of each Borrowing to be made by it hereunder available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 2: 00 p.m. (New York City time) on the proposed date thereof. The Administrative Agent will make all such funds so received available to the applicable Borrower in like funds, by wire transfer of such funds in accordance with the instructions provided in the applicable Borrowing Request.




			
	
			
				 (b)
			Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender (x) in the case of Base Rate Advances, two hours prior to the proposed time of such Borrowing and (y) otherwise, prior to the proposed date of any 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 2.04(a) and may, in reliance upon such assumption, make available to the applicable 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 applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at




			
	
			
				 (i)
			in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) in the case of a payment to be made by a Borrower, the interest rate applicable to Base Rate Advances. If the applicable 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 such Borrower the amount of such interest paid by such 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 Advance included in such Borrowing. Any payment by a Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.




		
			SECTION 2.05 Interest Elections.
		

		
			﻿
		

			
	
			
				 (a)
			Elections by Borrower for Borrowings. The Advances comprising each Borrowing initially shall be of the Type specified in the applicable Borrowing Request. Thereafter, the applicable Borrower may elect to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of a SOFR Borrowing, may




		
			 
		


		

		

		 

 


		

			

		


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			elect the Interest Period therefor, all as provided in this Section. The applicable Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Advances comprising such Borrowing, and the Advances comprising each such portion shall be considered a separate Borrowing.
		

			
	
			
				 (b)
			Notice of Elections. Each such election pursuant to this Section shall be made upon the applicable Borrower’s irrevocable notice to the Administrative Agent. Each such notice shall be in the form of a written Interest Election Request, appropriately completed and signed by a Responsible Officer of the applicable Borrower, or may be given by telephone to the Administrative Agent (if promptly confirmed in writing by delivery of such a written Interest Election Request consistent with such telephonic notice) and must be received by the Administrative Agent not later than the time that a Borrowing Request would be required under Section 2.03 if such Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.




			
	
			
				 (c)
			Content of Interest Election Requests. Each Interest Election Request pursuant to this Section shall specify the following information in compliance with Section 2.02:




			
	
			
				 (i)
			the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




			
	
			
				 (ii)
			the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day; and




			
	
			
				 (iii)
			whether the resulting Borrowing is to be a Base Rate Borrowing or SOFR Borrowing.




			
	
			
				 (d)
			Notice by Administrative Agent to Lenders. Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and such Lender’s portion of each resulting Borrowing.




			
	
			
				 (e)
			Failure to Make an Interest Election Request; Events of Default. If the applicable Borrower fails to deliver a timely and complete Interest Election Request with respect to a SOFR Borrowing prior to the end of the Interest Period therefor, then, unless such SOFR Borrowing is repaid as provided herein, such Borrower shall be deemed to have selected that such SOFR Borrowing shall automatically be converted to a Base Rate Borrowing at the end of such Interest Period. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Company, then, so long as such Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a SOFR Borrowing and (ii) unless repaid as provided herein, each SOFR Borrowing shall automatically be converted to a Base Rate Borrowing at the end of the Interest Period therefor.




		
			SECTION 2.06 Prepayments.
		

		
			﻿
		

			
	
			
				 (a)
			Optional Prepayments. Any Borrower may, upon notice to the Administrative Agent, at any time and from time to time prepay any Borrowing made to it in whole or in part without premium or penalty, subject to the requirements of this Section.




			
	
			
				 (b)
			Notices. Each such notice pursuant to this Section shall be in the form of a written Prepayment Notice, appropriately completed and signed by a Responsible Officer of the applicable Borrower, or may be given by telephone to the Administrative Agent (if promptly confirmed by such a written Prepayment Notice consistent with such telephonic notice) and must be received by the




		
			 
		


		

		

		 

 


		

			

		


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			Administrative Agent (i) in the case of prepayment of a SOFR Borrowing, not later than 11:00 a.m. (New York City time) three U.S. Government Securities Business Days before the date of prepayment or (ii) in the case of prepayment of a Base Rate Borrowing, not later than 11:00 a.m. (New York City time) one Business Day before the date of prepayment. Each Prepayment Notice shall specify (x) the prepayment date and (y) the principal amount of each Borrowing or portion thereof to be prepaid. Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each Prepayment Notice shall be irrevocable.
		

			
	
			
				 (c)
			Amounts; Application. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be applied ratably to the Advances included in such Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.09, together with any additional amounts required pursuant to Section 2.14.




		
			SECTION 2.07 Termination or Reduction of Commitments.
		

			
	
			
				 (a)
			Optional. The Company may, upon notice to the Administrative Agent, terminate the unused portion of the Commitments, or from time to time ratably reduce the unused Commitments; provided that (a) each such notice shall be in writing and must be received by the Administrative Agent at least three Business Days prior to the effective date of such termination or reduction, and shall be irrevocable (provided that a notice of termination of the Commitments may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied), (b) any such partial reduction shall be in an aggregate amount of $5,000,000 or a larger multiple of $1,000,000 and (c) the Company shall not terminate or reduce the Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the total Outstanding Amount of the Advances would exceed the total Commitments. Unless previously terminated, the Commitments shall automatically terminate on the Commitment Termination Date.




			
	
			
				 (b)
			Application of Commitment Reductions. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Commitments pursuant to this Section. Upon any reduction of unused Commitments, the Commitment of each Lender shall be reduced by such Lender’s ratable share of the amount of such reduction.




		
			SECTION 2.08 Repayment of Advances. Each Borrower shall repay to the Administrative Agent for the ratable account of the Lenders on the Commitment Termination Date the aggregate principal amount of all Advances made to it outstanding on such date
		

		
			﻿
		

		
			SECTION 2.09 Interest.
		

		
			﻿
		

			
	
			
				 (a)
			Interest Rates. Subject to paragraph (b) of this Section, (i) each Base Rate Advance shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin; and




			
	
			
				 (ii)
			each SOFR Advance shall bear interest at a rate per annum equal to Term SOFR for the Interest Period therefor plus the Applicable Margin.




			
	
			
				 (b)
			Default Interest. If any amount payable by any Loan Party under this Agreement or any other Loan Document (including principal of any Advance, interest, fees and other amount) is not paid when due, whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a rate per annum equal to the applicable Default Rate. Upon the request of the Required Lenders, while any Event of Default exists, each Borrower shall pay interest on the principal amount of all Advances made to it outstanding hereunder at a rate per annum equal to the applicable Default Rate.




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

			
	
			
				 (c)
			Payment Dates. Accrued interest on each Advance shall be payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein; provided that (i) interest accrued pursuant to paragraph (b) of this Section shall be payable on demand,




		
			(ii) in the event of any repayment or prepayment of any Advance (other than a prepayment of a Base Rate Advance prior to the Commitment Termination Date), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any SOFR Borrowing prior to the end of the Interest Period therefor, accrued interest on such Borrowing shall be payable on the effective date of such conversion.
		

			
	
			
				 (d)
			Interest Computation. All interest hereunder shall be computed on the basis of a year of 360 days (or in the case of interest computed by reference to the Base Rate at times when the Base Rate is based on the Citibank’s base rate, such interest shall be computed on the basis of a year of




		
			365 days (or 366 days in a leap year)), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The Base Rate or Term SOFR shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
		

		
			﻿
		

			
	
			
				 (e)
			Term SOFR Conforming Changes. In connection with the use or administration of Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will promptly notify the Company and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR.




		
			SECTION 2.10 Fees.
		

		
			﻿
		

			
	
			
				 (a)
			Commitment Fees. The Company agrees to pay to the Administrative Agent for the account of each Lender a commitment fee on the average daily unused amount of the Commitment of such Lender, which shall accrue at a rate of 0.25% per annum during the period from and including the Effective Date to but excluding the Commitment Termination Date. Accrued commitment fees shall be payable in arrears on the last Business Day of each March, June, September and December, commencing on the first such date to occur after the date hereof, and on the Commitment Termination Date.




			
	
			
				 (b)
			Administrative Agent Fees. The Company agrees to pay to the Administrative Agent for its own account the fees payable in the amounts and at the times agreed pursuant to the Administrative Agency Fee Letter or otherwise in writing between the Company and the Administrative Agent.




		
			﻿
		

			
	
			
				 (c)
			Fee Computation. All fees payable under this Section shall be computed on the basis of a year of 360 days and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). Each determination by the Administrative Agent of a fee hereunder shall be conclusive absent manifest error.




		
			SECTION 2.11 Evidence of Debt.
		

		
			﻿
		

			
	
			
				 (a)
			Maintenance of Records. Each Lender shall maintain in accordance with its usual practice records evidencing the indebtedness of each Borrower to such Lender resulting from each Borrowing made by such Lender. The Administrative Agent shall maintain the Register in accordance with Section 9.04(c). The entries made in the records maintained pursuant to this paragraph (a) shall be prima facie evidence absent manifest error of the existence and amounts of the obligations recorded therein. Any failure of any Lender or the Administrative Agent to maintain such records or make any




		
			 
		


		

		

		 

 


		

			

		


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			entry therein or any error therein shall not in any manner affect the obligations of any Loan Party under this Agreement and the other Loan Documents. In the event of any conflict between the records maintained by any Lender and the records maintained by the Administrative Agent in such matters, the records of the Administrative Agent shall control in the absence of manifest error.
		

			
	
			
				 (b)
			Promissory Notes. Upon the request of any Lender made through the Administrative Agent, each Borrower shall prepare, execute and deliver to such Lender a promissory note of such Borrower payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and a form approved by the Administrative Agent, which shall evidence such Lender’s Advance in addition to such records.




		
			SECTION 2.12 Payments Generally; Several Obligations of Lenders.
		

		
			﻿
		

			
	
			
				 (a)
			Payments by Borrower. All payments to be made by any Loan Party hereunder and the other Loan Documents shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all such payments 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 immediately available funds not later than 12:00 noon (New York City time) on the date specified herein. All amounts received by the Administrative Agent after such time on any date shall be deemed to have been received on the next succeeding Business Day and any applicable interest or fees shall continue to accrue. The Administrative Agent will promptly distribute to each Lender its ratable share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable lending office (or otherwise distribute such payment in like funds as received to the Person or Persons entitled thereto as provided herein). If any payment to be made by any Loan Party shall fall due on a day that is not a Business Day, payment shall be made on the next succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such next succeeding Business Day would fall after the Commitment Termination Date, payment shall be made on the immediately preceding Business Day. All payments hereunder or under any other Loan Document shall be made in Dollars.




			
	
			
				 (b)
			Application of Insufficient Payments. Subject to Section 6.02, if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest, fees and other amounts then due hereunder, such funds shall be applied (i) first, to pay interest, fees and other amounts then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest, fees and other amounts then due to such parties, and (ii) second, to pay principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.




			
	
			
				 (c)
			Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, 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.




			
	
			
				 (d)
			Deductions by Administrative Agent. If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04, 2.13 or 9.03(c), then the Administrative




		
			 
		


		

		

		 

 


		

			

		


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			Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent to satisfy such Lender’s obligations to the Administrative Agent until all such unsatisfied obligations are fully paid or (ii) hold any such amounts in a segregated account as cash collateral for, and for application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
		

			
	
			
				 (e)
			Several Obligations of Lenders. The obligations of the Lenders hereunder to make Advances and to make payments pursuant to Section 9.03(c) are several and not joint. The failure of any Lender to make any Advance or to make any such payment 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 Advance or to make its payment under Section 9.03(c).




		
			SECTION 2.13 Sharing of Payments. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Advances or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Advances and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Advances and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Advances and other amounts owing them; provided that:
		

		
			﻿
		

			
	
			
				 (i)
			if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and




			
	
			
				 (ii)
			the provisions of this paragraph shall not be construed to apply to (x) any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Advances to any assignee or participant, other than to the Company or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).




		
			Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
		

		
			﻿
		

		
			SECTION 2.14 Compensation for Losses. In the event of (a) the payment of any principal of any SOFR Advance other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any SOFR Advance other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (c) the failure to borrow, convert, continue or prepay any SOFR Advance on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.07(a) and is revoked in accordance therewith), or (d) the assignment of any SOFR Advance other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 2.19(b), then, in any such event, the applicable Borrower shall compensate each Lender for any loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees payable. A certificate of any Lender setting forth any amount or amounts that
		

		
			 
		


		

		

		 

 


		

			

		


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			such Lender is entitled to receive pursuant to this Section shall be delivered to the Company and shall be conclusive absent manifest error. The applicable Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
		

		
			﻿
		

		
			SECTION 2.15 Increased Costs.
		

		
			﻿
		

			
	
			
				 (a)
			

			
	
			
			Increased Costs Generally. If any Change in Law shall:




			
	
			
				 (i)
			impose, modify or deem applicable any reserve (including pursuant to regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement)), 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;




			
	
			
				 (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 any other condition, cost or expense (other than Taxes) affecting this Agreement or Advances made by such Lender;




		
			and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Advance or of maintaining its obligation to make any such Advance, or to increase the cost to such Lender, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender or other Recipient (solely to the extent such request is consistent with the treatment of similarly situated customers of such Lender or other Recipient under agreements having provisions similar to this Section 2.15), the Company will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
		

		
			﻿
		

			
	
			
				 (b)
			Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’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 capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Advances made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time, upon written request of such Lender (solely to the extent such request is consistent with the treatment of similarly situated customers of such Lender under agreements having provisions similar to this Section 2.15), the Company will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.




			
	
			
				 (c)
			Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Company, shall be conclusive absent manifest error. The Company shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.




		
			 
		


		

		

		 

 


		

			

		


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				 (d)
			Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Company shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender notifies the Company of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).




		
			SECTION 2.16 Taxes.
		

		
			﻿
		

			
	
			
				 (a)
			Defined Terms. For purposes of this Section, the term “Applicable Law” includes FATCA.




			
	
			
				 (b)
			Payments Free 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 Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.




			
	
			
				 (c)
			Payment of Other Taxes by Borrowers. 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)
			Indemnification by Borrowers. Each of the Loan Parties shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Loan Party 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.




			
	
			
				 (e)
			Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) 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),




			
	
			
				 (ii)
			any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan




		
			 
		


		

		

		 

 


		

			

		


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			Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
		

			
	
			
				 (f)
			Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section, the Company shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.




			
	
			
				 (g)
			Status of Lenders. (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 Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company 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 Company or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (A), (B) and (D) of Section 2.16(g)(ii)) 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 any Borrower is a U.S. Borrower,




			
	
			
				 (A)
			any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company 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 Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about 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 Company 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 or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
		

		
			﻿
		

			
	
			
				 (2)
			

			
	
			
			executed copies of IRS Form W-8ECI;




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

			
	
			
				 (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 E-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 any Borrower within the meaning of




		
			Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to any Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
		

		
			﻿
		

			
	
			
				 (4)
			to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W- 8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3, IRS Form W- 9, or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner;




		
			﻿
		

			
	
			
				 (C)
			any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about 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 Company or the Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Company 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 Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company 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 Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.




		
			﻿
		

		
			Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.
		

		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

			
	
			
				 (h)
			Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of- pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this




		
			paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the 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 paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
		

			
	
			
				 (i)
			Survival. Each party’s obligations under this Section shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.




		
			SECTION 2.17 Inability to Determine Rates. Subject to Section 2.20, if, on or prior to the first day of any Interest Period for any SOFR Advance:
		

		
			﻿
		

			
	
			
				 (a)
			the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof, or




		
			﻿
		

			
	
			
				 (b)
			the Required Lenders determine that for any reason in connection with any request for a SOFR Advance or a conversion thereto or a continuation thereof that Term SOFR for any requested Interest Period with respect to a proposed SOFR Advance does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Advance, and the Required Lenders have provided notice of such determination to the Administrative Agent,




		
			the Administrative Agent will promptly so notify the Company and each Lender.
		

		
			Upon notice thereof by the Administrative Agent to the Company, any obligation of the Lenders to make SOFR Advances, and any right of any Borrower to continue SOFR Advances or to convert Base Rate Advances to SOFR Advances, shall be suspended (to the extent of the affected SOFR Advances or affected Interest Periods) until the Administrative Agent (with respect to clause (b), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) any Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Advances (to the extent of the affected SOFR Advances or affected Interest Periods) or, failing that, the applicable Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Advances in the amount specified therein and (ii) any outstanding affected SOFR Advances will be deemed to have been converted into Base Rate Advances at the end of the applicable Interest Period.
		

		
			Upon any such conversion, the applicable Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.14. Subject to Section 2.20, if the Administrative Agent determines (which determination shall be conclusive and binding absent
		

		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

		
			manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Advances shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Base Rate” until the Administrative Agent revokes such determination.
		

		
			SECTION 2.18 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Advances whose interest is determined by reference to SOFR, the Term SOFR Reference Rate or Term SOFR, or to determine or charge interest based upon SOFR, the Term SOFR Reference Rate or Term SOFR, then, upon notice thereof by such Lender to the Company (through the Administrative Agent) (an “Illegality Notice”), (a) any obligation of the Lenders to make SOFR Advances, and any right of any Borrower to continue SOFR Advances or to convert Base Rate Advances to SOFR Advances, shall be suspended, and (b) the interest rate on which Base Rate Advances shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “Base Rate”, in each case until each affected Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist. Upon receipt of an Illegality Notice, the Borrowers shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all SOFR Advances to Base Rate Advances (the interest rate on which Base Rate Advances shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “Base Rate”), on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such SOFR Advances to such day, or immediately, if any Lender may not lawfully continue to maintain such SOFR Advances to such day, in each case until the Administrative Agent is advised in writing by each affected Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon SOFR, the Term SOFR Reference Rate or Term SOFR. Upon any such prepayment or conversion, the applicable Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.14.
		

		
			﻿
		

		
			SECTION 2.19 Mitigation Obligations; Replacement of Lenders
		

		
			﻿
		

			
	
			
				 (a)
			Designation of a Different Lending Office. If any Lender requests compensation under Section 2.15, or requires any Loan Party to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such Lender shall (at the request of the Company) use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.16, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.




		
			﻿
		

			
	
			
				 (b)
			

			
	
			
			Replacement of Lenders. If any Lender requests compensation under




		
			Section 2.15, or if any 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 2.16 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with paragraph (a) of this Section, or if any Lender is a Non-Consenting Lender, then the Company 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 9.04), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.14, Section 2.15 or Section 2.16) and obligations under this Agreement and the
		

		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

		
			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 Company shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 9.04;




			
	
			
				 (ii)
			such Lender shall have received payment of an amount equal to the outstanding principal of its 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 2.14) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts);




			
	
			
				 (iii)
			in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments thereafter;




			
	
			
				 (iv)
			

			
	
			
			such assignment does not conflict with Applicable Law; and




			
	
			
				 (v)
			in the case of any assignment resulting from a Lender becoming a Non- Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.




		
			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 Company to require such assignment and delegation cease to apply.
		

		
			﻿
		

		
			Notwithstanding anything in this Section to the contrary, the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 8.06.
		

		
			﻿
		

		
			SECTION 2.20 Benchmark Replacement Setting.
		

		
			﻿
		

			
	
			
				 (a)
			Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis.




		
			﻿
		

			
	
			
				 (b)
			Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time in consultation with the Company and,




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

		
			notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
		

			
	
			
				 (c)
			Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Company and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes. For the avoidance of doubt, any notice required to be delivered by the Administrative Agent as set forth in this Section 2.20 may be provided, at the option of the Administrative Agent (in its sole discretion) in one or more notices and may be delivered together with, or as part of any amendment which implements any Benchmark Replacement or Conforming Changes.  Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.20, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non- occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.20.




			
	
			
				 (d)
			Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.




			
	
			
				 (e)
			Benchmark Unavailability Period. Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrowers may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the applicable Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Advances. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.




		
			﻿
		

		
			SECTION 2.21 Extension of Commitment Termination Date.
		

		
			﻿
		

			
	
			
				 (a)
			Request for Extension. The Company may, by notice to the Administrative Agent (who shall promptly notify the Lenders) not earlier than 45 days and not later than 35 days prior to the Commitment Termination Date then in effect hereunder (the “Existing Commitment Termination Date”), request that each Lender extend its Commitment Termination Date for an additional 364 days from the Existing Commitment Termination Date.




		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

			
	
			
				 (b)
			Lender Elections to Extend. Each Lender, acting in its sole and individual discretion, shall, by notice to the Administrative Agent given not earlier than 30 days prior to the Existing Commitment Termination Date and not later than the date (the “Notice Date”) that is 20 days prior to the Existing Commitment Termination Date, advise the Administrative Agent whether or not such Lender agrees to such extension (and each Lender that determines not to so extend its Commitment Termination Date (a “Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly after such determination (but in any event no later than the Notice Date) and any Lender that does not so advise the Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Lender. The election of any Lender to agree to such extension shall not obligate any other Lender to so agree.




			
	
			
				 (c)
			Notification by Administrative Agent. The Administrative Agent shall notify the Company of each Lender’s determination under this Section no later than the date 15 days prior to the Existing Commitment Termination Date (or, if such date is not a Business Day, on the next preceding Business Day).




		
			﻿
		

			
	
			
				 (d)
			Additional Lenders. The Company shall have the right on or before the Existing Commitment Termination Date to replace each Non-Extending Lender with, and add as “Lenders” under this Agreement in place thereof, one or more Eligible Assignees (each, an “Additional Commitment Lender”) as provided in Section 9.04 each of which Additional Commitment Lenders shall have entered into an Assignment and Assumption pursuant to which such Additional Commitment Lender shall, effective as of the Existing Commitment Termination Date, undertake a Commitment (and, if any such Additional Commitment Lender is already a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder on such date).




			
	
			
				 (e)
			Minimum Extension Requirement. If (and only if) the total of the Commitments of the Lenders that have agreed so to extend their Commitment Termination Date and the additional Commitments of the Additional Commitment Lenders shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the Existing Commitment Termination Date, then, effective as of the Existing Commitment Termination Date, the Commitment Termination Date of each Extending Lender and of each Additional Commitment Lender shall be extended to the date falling




		
			364 days after the Existing Commitment Termination Date (except that, if such date is not a Business Day, such Commitment Date as so extended shall be the next preceding Business Day) and each Additional Commitment Lender shall thereupon become a “Lender” for all purposes of this Agreement.
		

			
	
			
				 (f)
			Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the extension of the Commitment Termination Date pursuant to this Section shall not be effective with respect to any Lender unless:




		
			﻿
		

			
	
			
				 (i)
			no Default shall have occurred and be continuing on the date of such extension and immediately after giving effect thereto;




			
	
			
				 (ii)
			the representations and warranties contained in this Agreement are true and correct on and as of the date of such extension and after giving effect thereto, as though made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date) in all material respects (except for those representations and warranties that are conditioned by materiality, which are true and correct in all respects); and




			
	
			
				 (iii)
			on or before the Commitment Termination Date, the applicable Borrower shall have (1) paid in full the principal of and interest on all of the Advances made by each Non- Extending Lender to such Borrower hereunder and (2) paid in full all other amounts owing to such Non-Extending Lender hereunder.




		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

			
	
			
				 (g)
			Amendment; Sharing of Payments. In connection with any extension of the Commitment Termination Date, the Company, the Administrative Agent and each extending Lender may make such amendments to this Agreement as the Administrative Agent reasonably determines to be necessary to evidence the extension. This Section shall supersede Sections 2.13 and 9.02.




		
			SECTION 2.22 Increases in Commitments.
		

		
			﻿
		

			
	
			
				 (a)
			Request for Increase. The Company may, by notice to the Administrative Agent (who shall promptly notify the Lenders), request an increase in the Commitments (each such increase, an “Incremental Commitment”) by an aggregate amount (for all such requests) not exceeding $25,000,000; provided that (i) any such request for an increase shall be in a minimum amount of the lesser of




			
	
			
				 (x)
			$10,000,000 (or such lesser amount as may be approved by the Administrative Agent) and (y) the entire remaining amount of increases available under this Section and (ii) the Company shall make no more than a total of three requests for increases of Commitments under this Section.




			
	
			
				 (b)
			Incremental Lenders. An Incremental Commitment may be provided by any existing Lender or other Person that is an Eligible Assignee (each such existing Lender or other Person that agrees to provide an Incremental Commitment, an “Incremental Lender”); provided that each Incremental Lender shall be subject to the consent (in each case, not to be unreasonably withheld or delayed) of the Administrative Agent. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section and any election to do so shall be in the sole discretion of such Lender.




			
	
			
				 (c)
			Terms of Incremental Commitments. The Administrative Agent and the Company shall determine the effective date for such increase pursuant to this Section (an “Incremental Commitment Effective Date”) and, if applicable, the final allocation of such increase among the Persons providing such increase; provided that such date shall be a Business Day at least ten Business Days after delivery of the request for such increase (unless otherwise approved by the Administrative Agent) and at least 30 days prior to the Commitment Termination Date then in effect.




		
			In order to effect such increase, the Company, the applicable Incremental Lender(s) and the Administrative Agent (but no other Lenders or Persons) shall enter into one or more Joinder Agreements, each in form and substance satisfactory to the Company and the Administrative Agent, pursuant to which the applicable Incremental Lender(s) will provide the Incremental Commitment(s).
		

		
			Effective as of the applicable Incremental Commitment Effective Date, subject to the terms and conditions set forth in this Section, each Incremental Commitment shall be a Commitment (and not a separate facility hereunder), each Incremental Lender providing such Incremental Commitment shall be, and have all the rights of, a Lender, and the Advances made by it on such Incremental Commitment Effective Date pursuant to paragraph (e) of this Section shall be Advances, for all purposes of this Agreement.
		

		
			﻿
		

			
	
			
				 (d)
			Conditions to Effectiveness. Notwithstanding the foregoing, the increase in the Commitments pursuant to this Section shall not be effective with respect to any Incremental Lender unless:




			
	
			
				 (i)
			no Default shall have occurred and be continuing on the Incremental Commitment Effective Date and immediately after giving effect to such increase;




			
	
			
				 (ii)
			the representations and warranties contained in this Agreement are true and correct on and as of the Incremental Commitment Effective Date and after giving effect to such increase, as though made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date) in all material




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

		
			respects (except for those representations and warranties that are conditioned by materiality, which are true and correct in all respects);
		

			
	
			
				 (iii)
			the Administrative Agent shall have received one or more Joinder Agreements contemplated above, providing for Incremental Commitments in the amount of such increase; and




		
			﻿
		

			
	
			
				 (iv)
			the Administrative Agent shall have received such legal opinions and other documents reasonably requested by the Administrative Agent in connection therewith.




		
			As of such Incremental Commitment Effective Date, upon the Administrative Agent’s receipt of the documents required by this paragraph (d), the Administrative Agent shall record the information contained in the applicable Joinder Agreement(s) in the Register and give prompt notice of the increase in the Commitments to the Company and the Lenders (including each Incremental Lender).
		

			
	
			
				 (e)
			Adjustments to Outstanding Amounts. On each Incremental Commitment Effective Date, if there are Advances then outstanding, the Borrowers shall prepay such Advances (and pay any additional amounts required pursuant to Section 2.14 in connection therewith), and borrow Advances from the Incremental Lender(s), as shall be necessary in order that, after giving effect to such prepayments and borrowings, all Advances will be held ratably by the Lenders (including the Incremental Lender(s)) in accordance with their respective Commitments after giving effect to the applicable Incremental Commitment(s).




		
			SECTION 2.23 Designated Subsidiaries.
		

		
			﻿
		

			
	
			
				 (a)
			Designation. The Company may at any time, and from time to time, upon not less than 15 Business Days’ notice, notify the Administrative Agent that the Company intends to designate a Subsidiary as a “Designated Subsidiary” for purposes of this Agreement. On or after the date that is 15 Business Days after such notice, upon delivery to the Administrative Agent and each Lender of a Designation Agreement duly executed by the Company and the respective Subsidiary and substantially in the form of Exhibit C hereto, such Subsidiary shall thereupon become a “Designated Subsidiary” for purposes of this Agreement and, as such, shall have all of the rights and obligations of a Borrower hereunder. The Administrative Agent shall promptly notify each Lender of the Company’s notice of such pending designation by the Company and the identity of the respective Subsidiary. Following the giving of any notice pursuant to this Section 2.23(a), if the designation of such Designated Subsidiary obligates the Administrative Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall, promptly upon the reasonable request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations.




		
			﻿
		

		
			If the Company shall designate as a Designated Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Subsidiary.
		

		
			As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Subsidiary, and in any event no later than five Business Days after the delivery of such notice, for a Designated Subsidiary that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof,
		

		
			 
		


		

		

		 

 


		

			

		


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			any Lender that either (i) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (ii) has internal policies in place that prohibit it from lending to, establishing credit for the account of and/or doing any business whatsoever with such Designated Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Subsidiary shall have the right to borrow hereunder, either (A) notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received payment of an amount equal to the outstanding principal of its Advances and/or Letter of Credit reimbursement obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the relevant Designated Subsidiary (in the case of all other amounts) or (B) cancel its request to designate such Subsidiary as a “Designated Subsidiary” hereunder.
		

			
	
			
				 (b)
			Termination. If so requested by the Company, upon the payment and performance in full of all of the indebtedness, liabilities and obligations under this Agreement (other than unasserted contingent obligations) of any Designated Subsidiary then, so long as at the time no Notice of Borrowing in respect of such Designated Subsidiary is outstanding, such Subsidiary’s status as a “Designated Subsidiary” shall terminate upon notice to such effect from the Administrative Agent to the Lenders (which notice the Administrative Agent shall give promptly, and only upon its receipt of a request therefor from the Company). Thereafter, the Lenders shall be under no further obligation to make any Advance hereunder to such Designated Subsidiary.




		
			SECTION 2.24 Defaulting Lenders.
		

		
			﻿
		

			
	
			
				 (a)
			Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:




			
	
			
				 (i)
			Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and Section 9.02(b).




			
	
			
				 (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 VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.08 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, as the Company may request (so long as no Default exists), to the funding of any Advance 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; third, if so determined by the Administrative Agent and the Company, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Advances under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its




		
			 
		


		

		

		 

 


		

			

		


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			obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advances in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made at a time when the conditions set forth in Section 3.03 were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Lender until such time as all Advances are held by the Lenders pro rata in accordance with the Commitments. 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
		

			
	
			
				 (iii)
			Commitment Fees. No Defaulting Lender shall be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Company shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).




			
	
			
				 (b)
			Defaulting Lender Cure. If the Company and the Administrative Agent 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, that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Advances to be held pro rata by the Lenders in accordance with the Commitments, 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 Borrowers 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.




		
			﻿
		

		
			ARTICLE III CONDITIONS
		

		
			SECTION 3.01 Effective Date. The obligation of each Lender to make Advances hereunder is subject to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions (and, in the case of each document specified in this Section to be received by the Administrative Agent, such document shall be in form and substance reasonably satisfactory to the Administrative Agent and each Lender):
		

		
			﻿
		

			
	
			
				 (a)
			Executed Counterparts. The Administrative Agent shall have received from (i) each party hereto a counterpart of this Agreement signed on behalf of such party (or written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page to this Agreement) that such party has signed a counterpart of this Agreement) and (ii) each Subsidiary Guarantor, a counterpart of the Subsidiary Guaranty signed on behalf of such Subsidiary Guarantor (or written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page to the Subsidiary Guaranty) that such party has signed a counterpart of the Subsidiary Guaranty).




			
	
			
				 (b)
			Certificates. The Administrative Agent shall have received such customary certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the




		
			 
		


		

		

		 

 


		

			

		


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			identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents;
		

			
	
			
				 (c)
			Corporate Documents. The Administrative Agent shall have received such other documents and certificates (including Organizational Documents and good standing certificates) as the Administrative Agent may reasonably request relating to the organization, existence and good standing of each Loan Party and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions contemplated thereby.




			
	
			
				 (d)
			Opinions of Counsel to Loan Parties. The Administrative Agent shall have received opinions of (i) Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Company with respect to Delaware and New York law, (ii) Zurcher, Odio & Raven, counsel to the Company with respect to Costa Rican law, (iii) Morgan & Morgan, counsel to the Company, with respect to the law of the Republic of Panama, (iv) Estrella & Tupete counsel to the Company with respect to Dominican Republic law, (v) Chancery Chambers counsel to the Company with respect to the law of Trinidad and Tobago, (vi) A.D. Sosa & Soto, counsel to the Company with respect to the law of Guatemala, (vi) Central Law, counsel to the Company with respect to the law of El Salvador and (vii) Nicholson Phillips, counsel to the Company with respect to the law of Jamaica, in each case, addressed to the Administrative Agent and the Lenders and dated the Effective Date, in form and substance reasonably satisfactory to the Administrative Agent.




			
	
			
				 (e)
			Fees and Expenses. The Company shall have paid all agreed fees and reasonable and documented costs and expenses (including reasonable and documented legal fees and expenses) agreed in writing to be paid by it to the Administrative Agent and the Lenders in connection herewith (including pursuant to the Administrative Agency Fee Letter) to the extent due (and, in the case of expenses (including legal fees and expenses), to the extent that statements for such expenses shall have been delivered to the Company at least one Business Day prior to the Effective Date).




			
	
			
				 (f)
			KYC Information. Upon the reasonable request of any Lender made at least ten days prior to the Effective Date, the Company shall have provided to such Lender (i) the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to the Effective Date, and (ii) a Beneficial Ownership Certification in relation to each Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation.




			
	
			
				 (g)
			Officer’s Certificate. The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Responsible Officer of the Company, confirming that:




			
	
			
				 (i)
			the representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and




		
			﻿
		

			
	
			
				 (ii)
			

			
	
			
			no event has occurred and is continuing that constitutes a Default.




		
			﻿
		

			
	
			
				 (h)
			Guatemala Consent. The Administrative Agent shall have received a copy of a written consent from Bank Industrial, S.A. to the entering into of the Subsidiary Guaranty by PriceSmart (Guatemala) SA and a waiver of the restriction on dividends and distributions contained in the mortgage and fiduciary loans funded by Bank Industrial, S.A. to PriceSmart (Guatemala) SA and identified with the numbers 1301669310030 and 3101669310040.




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

			
	
			
				 (i)
			Other Documents. The Administrative Agent shall have received such other documents as the Administrative Agent or the Required Lenders (through the Administrative Agent) may reasonably request.




		
			Without limiting the generality of Section 8.03(c), for purposes of determining satisfaction of the conditions specified in this Section, 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 unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
		

		
			﻿
		

		
			The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Advances hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m. (New York City time) on February 28, 2022 (and, in the event that such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
		

		
			﻿
		

		
			SECTION 3.02 Initial Advance to Each Designated Subsidiary. The obligation of each Lender to make Advances hereunder to any Designated Subsidiary is subject to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions (and, in the case of each document specified in this Section to be received by the Administrative Agent, such document shall be in form and substance satisfactory to the Administrative Agent and each Lender):
		

		
			﻿
		

			
	
			
				 (a)
			The Administrative Agent shall have received (i) a Designation Agreement signed on behalf of such Designated Subsidiary and the Company (or written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page to the Designation Agreement) that such party has signed a counterpart of the Designation Agreement) and (ii) if applicable, a Subsidiary Guaranty duly executed by such Designated Subsidiary (or written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page to the Subsidiary Guaranty).




		
			﻿
		

			
	
			
				 (b)
			The Administrative Agent shall have received such customary certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of such Designated Subsidiary as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Designated Subsidiary is a party approving Loan Documents to which such Designated Subsidiary is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Loan Documents to which such Designated Subsidiary is a party.




		
			﻿
		

			
	
			
				 (c)
			The Administrative Agent shall have received such other documents and certificates (including Organizational Documents and good standing certificates) as the Administrative Agent may reasonably request relating to the organization, existence and good standing of such Designated Subsidiary(with a certified English translation if the original thereof is not in English) and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions contemplated thereby.




		
			﻿
		

			
	
			
				 (d)
			The Administrative Agent shall have received customary opinions of counsel (which may be in-house counsel) to such Designated Subsidiary.




		
			 
		


		

		

		 

 


		

			

		


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				 (e)
			To the extent such Designated Subsidiary qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice to such Designated Subsidiary, a Beneficial Ownership Certification in relation to such Designated Subsidiary shall have received such Beneficial Ownership Certification.




		
			﻿
		

			
	
			
				 (f)
			The Administrative Agent shall have received such other approvals, opinions or documents as any Lender, through the Administrative Agent, may reasonably request.




		
			﻿
		

		
			The Administrative Agent shall notify the Company and the Lenders of the date upon which the conditions set forth in this Section 3.02 are satisfied (or waived in accordance with Section 9.02), and such notice shall be conclusive and binding.
		

		
			﻿
		

		
			SECTION 3.03 Conditions to All Borrowings. The obligation of each Lender to make an Advance (including its initial Advance) is additionally subject to the satisfaction of the following conditions:
		

		
			﻿
		

			
	
			
				 (a)
			the Administrative Agent shall have received a written Borrowing Request in accordance with the requirements hereof;




			
	
			
				 (b)
			the representations and warranties of each Loan Party set forth in this Agreement and in any other Loan Document shall be true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the date of such Borrowing (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date), and excluding, after the Effective Date, the representations and warranties set forth in Section 4.01(e)(ii) and Section 4.01(f)); and




			
	
			
				 (c)
			no Default shall have occurred and be continuing or would immediately result from such Borrowing or from the application of proceeds thereof.




		
			Each Borrowing Request by a Borrower hereunder and each Borrowing shall be deemed to constitute a representation and warranty by such Borrower on and as of the date of the applicable Borrowing as to the matters specified in clauses (b) and (c) above in this Section.
		

		
			﻿
		

		
			ARTICLE IV REPRESENTATIONS AND WARRANTIES
		

		
			SECTION 4.01 Representations and Warranties of the Company. The Company represents and warrants to the Administrative Agent and the Lenders that:
		

		
			﻿
		

			
	
			
				 (a)
			Existence, Qualification and Power. The Company and each Subsidiary (i) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (ii) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (A) own or lease its assets and carry on its business and (B) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (iii) 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 case referred to in clause (i) (other than with respect to a Loan Party), (ii)(A) or (iii), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

			
	
			
				 (b)
			Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which it is party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of its Organizational Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any material Contractual Obligation to which such Loan Party is a party or affecting such Loan Party or the properties of such Loan Party or any Subsidiary or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or any Subsidiary or its property is subject or (iii) violate any Law in any material respect.




			
	
			
				 (c)
			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 the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document to which it is a party, except for such approvals, consents, exemptions, authorizations, actions or notices that have been duly obtained, taken or made and in full force and effect.




			
	
			
				 (d)
			Execution and Delivery; 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 party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other Laws affecting creditors’ rights generally and by general principles of equity.




			
	
			
				 (e)
			

			
	
			
			Financial Statements; No Material Adverse Effect.




			
	
			
				 (i)
			Financial Statements. The Audited Financial Statements were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and fairly present in all material respects the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations and cash flows for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein. The unaudited consolidated balance sheet of the Company and its Subsidiaries and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on November 30, 2021 were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and fairly present in all material respects the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations and cash flows for the period covered thereby, subject to the absence of notes and to normal year-end audit adjustments.




			
	
			
				 (ii)
			No Material Adverse Change. Since the date of the Audited Financial Statements, there has been no event or circumstance that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.




			
	
			
				 (f)
			Litigation. There are no actions, suits, proceedings, claims, disputes or investigations including, without limitation, any Environmental Action, pending or, to the knowledge of the Company, threatened, at Law, in equity, in arbitration or before any Governmental Authority, by or against the Company or any Subsidiary or against any of their properties or revenues that (i) except as specifically disclosed in Schedule 4.01(f), could reasonably be expected to be adversely determined, and, if so determined, either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect or (ii) purport to affect or pertain to this Agreement or any other Loan Document or any of




		
			 
		


		

		

		 

 


		

			

		


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			the transactions contemplated hereby. There has been no change in the status, or financial effect on the Company or any Subsidiary, of the matters disclosed in Schedule 4.01(f) that, either individually or in the aggregate, has increased or could reasonably be expected to increase the likelihood that such matter(s) could have a Material Adverse Effect.
		

			
	
			
				 (g)
			No Material Adverse Effect; No Default. Neither the Company nor any Subsidiary thereof is in default under or with respect to any Contractual Obligation that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would immediately result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.




			
	
			
				 (h)
			Disclosure. The Company has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which the Company or any of its Subsidiaries is subject, and all other matters known to it, that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The reports, financial statements, certificates and other written information (other than projected or pro forma financial information) furnished by or on behalf of the Company 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, taken as a whole, do not contain any material misstatement of fact or omit to state any material fact necessary to make the statements therein (when taken as a whole), in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected or pro forma financial information, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation and delivery (it being understood that such projected information may vary from actual results and that such variances may be material).




			
	
			
				 (i)
			Foreign Plans. To the extent applicable, each Foreign Plan has been maintained in compliance with its terms and with the requirements of any and all applicable requirements of Law and has been maintained, where required, in good standing with applicable regulatory authorities, except to the extent that the failure so to comply could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect. Neither the Company nor any Subsidiary has incurred any material obligation in connection with the termination of or withdrawal from any Foreign Plan. The present value of the accrued benefit liabilities (whether or not vested) under each Foreign Plan that is funded, determined as of the end of the most recently ended fiscal year of the Company or Subsidiary, as applicable, on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the property of such Foreign Plan by a material amount, and for each Foreign Plan that is not funded, the obligations of such Foreign Plan are properly accrued.




			
	
			
				 (j)
			Margin Regulations. The Company is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no part of the proceeds of any Borrowing hereunder will be used to buy or carry any Margin Stock. Immediately following the application of the proceeds of each Borrowing, not more than 25% of the value of the assets (either of the Borrower thereof only or of such Borrower and its Subsidiaries on a consolidated basis) will be Margin Stock.




		
			﻿
		

			
	
			
				 (k)
			Investment Company Act. Neither the Company nor any of its Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.




		
			﻿
		

			
	
			
				 (l)
			

			
	
			
			Sanctions; Anti-Corruption.




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

			
	
			
				 (i)
			None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any director, officer, employee, agent, or affiliate of the Company or any of its Subsidiaries is a Sanctioned Person, or located, organized or resident in a Sanctioned Jurisdiction.




			
	
			
				 (ii)
			The Company and each Subsidiary are conducting its business in compliance with Anti-Corruption Laws. The Company and its Subsidiaries and their respective directors, officers and employees and, to the knowledge of the Company, the agents of the Company and its Subsidiaries, are in compliance with all applicable Anti-Corruption Laws and are not under investigation for or being charged with any violation of any applicable Anti- Corruption Laws, in each case. The Company and its Subsidiaries and their respective directors, officers and employees and, to the knowledge of the Company, the agents of the Company and its Subsidiaries, are in compliance with all applicable Sanctions. The Company and its Subsidiaries have instituted and maintain policies and procedures designed to promote and achieve continued compliance with Anti-Corruption Laws, anti-Money-Laundering Laws and Sanctions.




			
	
			
				 (iii)
			The operations of the Company and each Subsidiary are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, the applicable money laundering statutes of all jurisdictions where the Company and the Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or Governmental Authority or body or any arbitrator involving the Company or any of the Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company after due inquiry, threatened.




			
	
			
				 (m)
			Beneficial Ownership Certification. As of (i) the Effective Date, the information included in each Beneficial Ownership Certification delivered pursuant to Section 3.01(f)(ii) is true and correct in all respects and (ii) as of the date delivered, the information included in each Beneficial Ownership Certification delivered pursuant to Section 3.02 or 5.01(l) is true and correct in all respects.




		
			ARTICLE V COVENANTS OF THE COMPANY
		

		
			SECTION 5.01 Affirmative Covenants. Until the Commitments have expired or been terminated and all Obligations shall have been paid in full (other than unasserted contingent obligations), the Company covenants and agrees with the Administrative Agent and the Lenders that:
		

		
			﻿
		

			
	
			
				 (a)
			Financial Statements. The Company will furnish to the Administrative Agent and each Lender:




		
			﻿
		

			
	
			
				 (i)
			as soon as available, and in any event within 90 days after the end of each fiscal year of the Company (commencing with the fiscal year ended August 31, 2022), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, audited and accompanied by a report and opinion of independent public accountants of nationally recognized standing, 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, exception or explanatory paragraph or any qualification, exception or explanatory paragraph as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition, results of




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

		
			operations, shareholders’ equity and cash flows of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
		

			
	
			
				 (ii)
			as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company (commencing with the fiscal quarter ended February 28, 2022), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, certified by a Financial Officer of the Company as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject only to normal year-end audit adjustments and the absence of notes.




			
	
			
				 (b)
			Certificates; Other Information. The Company will deliver to the Administrative Agent and each Lender:




		
			﻿
		

			
	
			
				 (i)
			concurrently with the delivery of the financial statements referred to in Sections 5.01(a), a duly completed certificate signed by a Responsible Officer of the Company




			
	
			
				 (A)
			certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (B) setting forth reasonably detailed calculations demonstrating compliance with Section 5.03;




			
	
			
				 (ii)
			promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the shareholders of the Company, and copies of all annual, regular, periodic and special reports and registration statements that the Company or any Subsidiary may file or be required to file with the SEC or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, and not otherwise required to be delivered pursuant hereto;




			
	
			
				 (iii)
			promptly following any request therefor, (i) such other information regarding the results of operations, business, properties, liabilities or financial condition of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request in writing; or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws.




		
			Documents required to be delivered pursuant to Section 5.01(a) or Section 5.01(b)(iii) (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 (x) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (EDGAR); or (y) on which such documents are posted on the Company’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). The Administrative Agent shall have no obligation to request the delivery of or to maintain copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.
		

		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

		
			Lender of:
		

		
			
		

			
	
			
				 (c)
			

			
	
			
			Notices. The Company will promptly notify the Administrative Agent and each




		
			﻿
		

			
	
			
				 (i)
			

			
	
			
			the occurrence of any Default;




			
	
			
				 (ii)
			

			
	
			
			the filing or commencement of any action, suit, investigation or




		
			 
		


		
			proceeding by or before any arbitrator or Governmental Authority against or affecting the Company or any Affiliate thereof, including pursuant to any applicable Environmental Laws, that could reasonably be expected to be adversely determined, and, if so determined, could reasonably be expected to have a Material Adverse Effect;
		

			
	
			
				 (iii)
			any material change in accounting or financial reporting practices by the Company or any Subsidiary;




			
	
			
				 (iv)
			any matter or development that has had or could reasonably be expected to have a Material Adverse Effect; and




			
	
			
				 (v)
			any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or




			
	
			
				 (d)
			

			
	
			
			of such certification.




		
			Each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer of the Company setting forth the details of the occurrence requiring such notice and stating what action the Company has taken and proposes to take with respect thereto.
		

		
			﻿
		

			
	
			
				 (d)
			Preservation of Existence, Etc. The Company will, and will cause each of its Subsidiaries to, (i) 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 5.02(b); (ii) take all reasonable action to maintain all rights, licenses, permits, privileges 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 (iii) 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.




			
	
			
				 (e)
			Maintenance of Properties. The Company will, and will cause each of its Subsidiaries to, (i) maintain, preserve and protect all of its properties and equipment necessary in the operation of its business in good working order and condition (ordinary wear and tear excepted) and




			
	
			
				 (ii)
			make all necessary repairs thereto and renewals and replacements thereof, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.




			
	
			
				 (f)
			Maintenance of Insurance. The Company will, and will cause each of its Subsidiaries to, maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Company and its Subsidiaries) as are customarily carried under similar circumstances by such Persons.




		
			﻿
		

			
	
			
				 (g)
			Payment of Obligations. The Company will, and will cause each of its Subsidiaries to, pay, discharge or otherwise satisfy as the same shall become due and payable, all of its obligations and liabilities, including Tax liabilities, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being




		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

		
			maintained by the Company or such Subsidiary, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
		

			
	
			
				 (h)
			Compliance with Laws. The Company will, and will cause each of its Subsidiaries to (x) comply with (i) with all applicable Anti- Corruption Laws, (ii) with all Sanctions and




			
	
			
				 (iii)
			in all material respects, with all other Applicable Laws, such compliance to include, without limitation, compliance with Environmental Laws; and (y) implement, maintain and continue to maintain in effect, and enforce, policies and procedures to ensure compliance by the Company, the Subsidiaries, and their respective directors, officers, employees, Affiliates and agents with Anti-Corruption Laws, Anti- Money Laundering Laws and all applicable Sanctions.




			
	
			
				 (i)
			Books and Records. The Company will, and will cause each of its Subsidiaries to, 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 the Company or such Subsidiary, as the case may be.




			
	
			
				 (j)
			Inspection Rights. The Company will, and will cause each of its Subsidiaries to, 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 reasonable expense of the Company and at such reasonable times during normal business hours, upon no less than three Business Days’ written notice, and as often as may be reasonably requested in writing; provided that, other than with respect to such visits and inspections during the continuation of an Event of Default, the Administrative Agent and each Lender shall not exercise such rights more often than two times during any calendar year; provided further 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 under this Section at the expense of the Company and at any time during normal business hours and without advance notice. Notwithstanding anything to the contrary contained herein, no Loan Party shall be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (i) constitutes trade secrets or proprietary information, (ii) in respect of which disclosure is prohibited by Law or any binding agreement so long as such binding agreement was not entered into in contemplation of preventing such disclosure, inspection or examination or (iii) is subject to attorney-client or similar privilege or constitutes attorney work-product.




			
	
			
				 (k)
			Use of Proceeds. Each Borrower will, and will cause each of its Subsidiaries to, use the proceeds of the Advances for general corporate purposes of such Borrower and its Subsidiaries not in contravention of any Law or of any Loan Document.




			
	
			
				 (l)
			Additional Beneficial Ownership Certification. At least five (5) days prior to any Person becoming a Loan Party, if requested by any Lender in writing, the Company shall cause any such Person that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and has not previously delivered a Beneficial Ownership Certification to deliver a Beneficial Ownership Certification to the Administrative Agent and the Lenders.




		
			SECTION 5.02 Negative Covenants. Until the Commitments have expired or been terminated and all Obligations have been paid in full (other than unasserted contingent obligations), the Company covenants and agrees with the Administrative Agent and the Lenders that:
		

		
			﻿
		

			
	
			
				 (a)
			Liens. The Company will not, nor will it permit any Subsidiary to, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:




		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

			
	
			
				 (i)
			Liens existing on the date hereof and listed on Schedule 5.02(a) and any renewals or extensions thereof, provided that (A) the property covered thereby is not changed,




			
	
			
				 (B)
			the amount secured or benefited thereby is not increased and (C) the direct or any contingent obligor with respect thereto is not changed;




			
	
			
				 (ii)
			Liens for Taxes not yet due or that 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;




			
	
			
				 (iii)
			carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of more than 30 days or that 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;




		
			﻿
		

			
	
			
				 (iv)
			

			
	
			
			pledges or deposits in the ordinary course of business in connection with




			
	
			
				 (i)
			workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA, and (ii) public utility services provided to the Company or a Subsidiary;




		
			﻿
		

			
	
			
				 (v)
			deposits to secure the performance of bids, trade contracts and leases (other than Debt), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;




			
	
			
				 (vi)
			easements, rights-of-way, restrictions and other similar encumbrances affecting real property that, in the aggregate, are not substantial in amount, and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person, and any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries;




			
	
			
				 (vii)
			Liens securing judgments for the payment of money not constituting an Event of Default under Section 6.01(j);




			
	
			
				 (viii)
			purchase money Liens upon or in any real property or equipment acquired or held by the Company or any Subsidiary in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition of such property or equipment, or Liens existing on such property or equipment at the time of its acquisition (other than any such Liens created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided,  however, that no such Lien shall extend to or cover any properties of any character other than the real property or equipment being acquired, and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or replaced;




			
	
			
				 (ix)
			any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that




		
			(A) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (B) such Lien shall not apply to any other property or assets of the Company or any Subsidiary and (C) such Lien shall secure only those
		

		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

		
			obligations that it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
		

			
	
			
				 (x)
			Liens (A) of a collecting bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, and (B) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of setoff) that are customary in the banking industry;




			
	
			
				 (xi)
			Liens pursuant to Section 5-118 of the Uniform Commercial Code of any state (or any comparable provision of any foreign Law) in favor of the issuer or nominated person of letters of credit;




			
	
			
				 (xii)
			any interest or title of a lessor, sublessor, licensor or sublicensor under leases or licenses permitted by this Agreement that are entered into in the ordinary course of business;




		
			﻿
		

			
	
			
				 (xiii)
			leases, licenses, subleases or sublicenses granted to others in the ordinary course of business that do not (i) interfere in any material respect with the ordinary conduct of the business of the Company and its Subsidiaries, or (ii) secure any Debt;




			
	
			
				 (xiv)
			Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; and




			
	
			
				 (xv)
			other Liens securing Debt that, in aggregate with (but without duplication of) all Debt incurred in accordance with Section 5.02(c)(x) at any time outstanding, does not exceed




		
			$200,000,000.
		

			
	
			
				 (b)
			Fundamental Changes. The Company will not, nor will it permit any Subsidiary to, merge or consolidate with or into, or convey, transfer, lease or otherwise 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, any Person, except that (i) any Subsidiary (other than a Loan Party) may merge or consolidate with or into, or dispose of assets to, any other Subsidiary, (ii) any Subsidiary may merge into or dispose of assets to the Company, (iii) Company may merge with any other Person so long as the Company is the surviving corporation, (iv) any other Loan Party may merge with or into or dispose of assets to any other Loan Party and (v) any Subsidiary may dissolve, liquidate or wind up its affairs if it owns no material assets, engages in no business and otherwise has no activities other than activities related to the maintenance of its existence and good standing, provided, in each case, that no Default shall have occurred and be continuing at the time of such proposed transaction or would result therefrom.




			
	
			
				 (c)
			Subsidiary Debt. Permit any of its Subsidiaries that is not a Subsidiary Guarantor to create or suffer to exist, any Debt other than:




			
	
			
				 (i)
			

			
	
			
			Debt owed to the Company or to a wholly owned Subsidiary of the




		
			Company,
		

			
	
			
				 (ii)
			

			
	
			
			Debt existing on the Effective Date and described on Schedule 5.02(c)




		
			hereto (the “Existing Debt”), and any Debt extending the maturity of, or refunding or refinancing, in whole or in part, the Existing Debt, provided that the principal amount of such Existing Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing,
		

		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

			
	
			
				 (iii)
			

			
	
			
			Debt secured by Liens permitted by Section 5.02(a)(viii) or (ix),




			
	
			
				 (iv)
			endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business,




			
	
			
				 (v)
			Debt incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations,




			
	
			
				 (vi)
			Debt in respect of Hedging Agreements incurred in the ordinary course of business (and not for speculative purposes),




			
	
			
				 (vii)
			

			
	
			
			Debt consisting of customer deposits received in the ordinary course of




		
			business,
		

			
	
			
				 (viii)
			

			
	
			
			Debt consisting of unpaid insurance premiums (not in excess of one (1)




		
			years’ premiums) owing to insurance companies and insurance brokers incurred in connection with the financing of insurance premiums in the ordinary course of business,
		

			
	
			
				 (ix)
			Debt arising as a direct result of judgments, orders, awards or decrees against the Loan Parties, in each case not constituting an Event of Default, and




			
	
			
				 (x)
			other Debt that, in aggregate with (but without duplication of) all Debt secured by Liens permitted by Section 5.02(a)(xv), at any time outstanding does not exceed




		
			$200,000,000.
		

			
	
			
				 (d)
			Transactions with Affiliates. The Company will not, and will not permit any Subsidiary to, enter into any transaction of any kind with any Affiliate of the Company, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Company or such Subsidiary as would be obtainable by the Company or such Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate; provided that the foregoing restriction shall not apply to transactions between or among the Company and any of its Wholly-Owned Subsidiaries or between and among any Wholly-Owned Subsidiaries.




			
	
			
				 (e)
			Certain Restrictive Agreements. The Company will not, and will not permit any Subsidiary to, enter into any Contractual Obligation (other than this Agreement or any other Loan Document or any Existing Debt of Pricesmart Panama SA that, directly or indirectly, limits the ability of




			
	
			
				 (i)
			any Subsidiary to make dividends or other distributions in respect of its capital stock (whether through a covenant restricting dividends, a financial covenant or otherwise) to the Company or to otherwise transfer property to the Company, (ii) any Subsidiary to guarantee Debt of the Company or (iii) the Company or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person to secure the Obligations; provided that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of Debt permitted under Section 5.02(a)(viii) solely to the extent that any such negative pledge relates to the property financed by or the subject of such Debt.




			
	
			
				 (f)
			Changes in Nature of Business. The Company will not, and will not permit any Subsidiary to, engage to any material extent in any business other than those businesses conducted by the Company and its Subsidiaries on the date hereof or any business reasonably related or incidental thereto or representing a reasonable expansion thereof.




			
	
			
				 (g)
			Restriction on Use of Proceeds. The Borrowers will not use the proceeds of any Borrowing, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry Margin Stock, or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose.




		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

			
	
			
				 (h)
			Sanctions; Anti-Corruption Use of Proceeds. The Borrowers will not, directly or indirectly, use the proceeds of the Advances, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund or facilitate any activities or business of or with any Person that, at the time of such funding or facilitation, is a Sanctioned Person, (ii) to fund or facilitate any activities or business of or in any Sanctioned Jurisdiction, (iii) in any manner that would result in a violation by any Person (including any Person participating in the Advances, whether as Administrative Agent, Arranger, Lender or otherwise) of Sanctions, or (iv) in violation of applicable law, including, without limitation, Anti-Corruption Laws).




		
			SECTION 5.03 Financial Covenants. Until the Commitments have expired or been terminated and all Obligations shall have been paid in full (other than unasserted contingent obligations), the Company covenants and agrees with the Administrative Agent and the Lenders that:
		

		
			﻿
		

			
	
			
				 (a)
			Total Leverage Ratio. The Company will not permit the Consolidated Lease Adjusted Total Leverage Ratio to be greater than 2.50 to 1.00, calculated as of the last day of any fiscal quarter pursuant to the most recent financial statements delivered by the Company pursuant to Section 5.01(a).




		
			﻿
		

			
	
			
				 (b)
			Interest Coverage Ratio. The Company will not permit the Interest Coverage Ratio during any period of four fiscal quarters of the Company to be less than 2.00 to 1.00, calculated as of the last day of any fiscal quarter pursuant to the most recent financial statements delivered by the Company pursuant to Section 5.01(a).




		
			﻿
		

		
			ARTICLE VI EVENTS OF DEFAULT
		

		
			SECTION 6.01 Events of Default. If any of the following events (each, an “Event of Default”) shall occur:
		

		
			﻿
		

			
	
			
				 (a)
			the Company or any other Borrower shall fail to pay any principal of any Advance when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;




			
	
			
				 (b)
			the Company or any other Borrower shall fail to pay any interest on any Advance, or any fee or any other amount (other than an amount referred to in clause (a) of this Section) payable under this Agreement or under any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five or more days;




			
	
			
				 (c)
			any representation or warranty made or deemed made by or on behalf of any Loan Party in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or any waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or any waiver hereunder or thereunder, shall prove to have been incorrect in any material respect (or, in the case of any such representation or warranty under this Agreement or any other Loan Document already qualified by materiality, such representation or warranty shall prove to have been incorrect) when made or deemed made;




		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

			
	
			
				 (d)
			the Company shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(c)(i), Section 5.01(d) (with respect to the existence of any Loan Party) Section 5.02 or Section 5.03;




			
	
			
				 (e)
			the Company shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than those specified in clause (a), (b) or (d) of this Section) and such failure shall continue unremedied for a period of 30 or more days after notice thereof by the Administrative Agent to the Company;




			
	
			
				 (f)
			(i) the Company or any Subsidiary shall fail to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Debt (other than Debt under the Loan Documents) having an aggregate principal amount of more than $10,000,000 in each case beyond the applicable grace period with respect thereto, if any; or (ii) the Company or any Subsidiary shall fail to observe or perform any other agreement or condition relating to any such Debt 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 or beneficiary or beneficiaries of such Debt (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 Debt to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Debt to be made, prior to its stated maturity; provided that this




		
			clause (f)(ii) shall not apply to secured Debt that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Debt, if such sale or transfer is permitted hereunder and under the documents providing for such Debt and such Debt is repaid when required under the documents providing for such Debt;
		

			
	
			
				 (g)
			an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any of its Subsidiaries, other than any Immaterial Subsidiary, or its debts, or of a substantial part of its assets, under any Debtor Relief Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any of its Subsidiaries, other than any Immaterial Subsidiary, or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for a period of 60 or more days or an order or decree approving or ordering any of the foregoing shall be entered;




			
	
			
				 (h)
			the Company or any of its Subsidiaries, other than any Immaterial Subsidiary, shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (g) of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any of its Subsidiaries, other than any Immaterial Subsidiary, or for a substantial part of its assets,




			
	
			
				 (iv)
			file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;




			
	
			
				 (i)
			the Company or any of its Subsidiaries, other than any Immaterial Subsidiary, shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;




		
			﻿
		

			
	
			
				 (j)
			there is entered against the Company or any Subsidiary, other than any Immaterial Subsidiary (i) a final judgment or order for the payment of money in an aggregate




		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

		
			amount (as to all such judgments and orders) exceeding $10,000,000 (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and has not denied or failed to acknowledge coverage), or (ii) a non-monetary final judgment or order that, either individually or in the aggregate, has or could reasonably be expected to have 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
		

		
			30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
		

			
	
			
				 (k)
			an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that has resulted or could reasonably be expected to result in liability of the Company under




		
			Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $10,000,000;
		

			
	
			
				 (l)
			

			
	
			
			a Change of Control shall occur; or




			
	
			
				 (m)
			any material 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 (other than unasserted contingent obligations), ceases to be in full force and effect; or the Company or any other Loan Party contests in writing the validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document, or purports in writing to revoke, terminate or rescind any Loan Document;




		
			then, and in every such event, and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Company, take any or all of the following actions, at the same or different times:
		

		
			﻿
		

			
	
			
				 (i)
			terminate the Commitments, and thereupon the Commitments shall terminate immediately;




			
	
			
				 (ii)
			declare the Advances then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Advances so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower; and




		
			﻿
		

			
	
			
				 (iii)
			exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents and Applicable Law;




		
			provided that, in the event of an actual or deemed entry of an order for relief with respect to the Company or any other Borrower, the Commitments shall automatically terminate and the principal of the Advances then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower.
		

		
			﻿
		

		
			SECTION 6.02 Application of Payments. Notwithstanding anything herein to the contrary, following the occurrence and during the continuance of an Event of Default, and notice thereof to the Administrative Agent by the Company or the Required Lenders, all payments received on account of the Obligations shall be applied by the Administrative Agent as follows:
		

		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

			
	
			
				 (i)
			first, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees and disbursements and other charges of counsel payable under Section 9.03 and amounts payable under the Administrative Agency Fee Letter) payable to the Administrative Agent in its capacity as such;




			
	
			
				 (ii)
			second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees and disbursements and other charges of counsel payable under Section 9.03) arising under the Loan Documents, ratably among them in proportion to the respective amounts described in this clause (ii) payable to them;




			
	
			
				 (iii)
			third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Advances, ratably among the Lenders in proportion to the respective amounts described in this clause (iii) payable to them;




			
	
			
				 (iv)
			fourth, to payment of that portion of the Obligations constituting unpaid principal of the Advances ratably among the Lenders in proportion to the respective amounts described in this clause (iv) payable to them;




			
	
			
				 (v)
			fifth, to the payment in full of all other Obligations, in each case ratably among the Administrative Agent and the Lenders based upon the respective aggregate amounts of all such Obligations owing to them in accordance with the respective amounts thereof then due and payable; and




			
	
			
				 (vi)
			finally, the balance, if any, after all Obligations have been paid in full (other than unasserted contingent obligations), to the Borrowers or as otherwise required by Law.




		
			ARTICLE VII GUARANTY
		

		
			SECTION 7.01 Unconditional Guaranty. The Company hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations of each other Borrower now or hereafter existing under or in respect of this Agreement and each other Loan Document (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the “Guaranteed Obligations”), and agrees to pay any and all documented expenses (including, without limitation, reasonable, documented and invoiced fees and expenses of counsel) incurred by the Administrative Agent or any Lender in enforcing any rights under this Agreement. Without limiting the generality of the foregoing, the Company’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by such Borrower to the Administrative Agent or any Lender under or in respect of this Agreement and the Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such Borrower.
		

		
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			SECTION 7.02 Guaranty Absolute. The Company guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents, regardless of any law, regulation, decree or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any Lender with respect thereto.
		

		
			The obligations of the Company under or in respect of this Guaranty are independent of the Guaranteed
		

		
			 
		


		

		

		 

 


		

			

		


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			Obligations or any other obligations of any other Borrower under or in respect of this Agreement and the Notes, and a separate action or actions may be brought and prosecuted against the Company to enforce this Guaranty, irrespective of whether any action is brought against any Borrower or whether any Borrower is joined in any such action or actions. The liability of the Company under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Company hereby irrevocably waives any defenses (other than payment in full of the Guaranteed Obligations) it may now have or hereafter acquire in any way relating to, any or all of the following:
		

		
			﻿
		

			
	
			
				 (a)
			any lack of validity or enforceability of this Agreement, any Note or any agreement or instrument relating thereto;




			
	
			
				 (b)
			any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of any Loan Party under or in respect of this Agreement and the other Loan Documents, or any other amendment or waiver of or any consent to departure from this Agreement or any other Loan Documents, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Borrower or any of its Subsidiaries or otherwise;




			
	
			
				 (c)
			any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;




			
	
			
				 (d)
			any manner of application of any collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of any Borrower under this Agreement and the other Loan Documents or any other assets of any Borrower or any of its Subsidiaries;




			
	
			
				 (e)
			any change, restructuring or termination of the corporate structure or existence of any Borrower or any of its Subsidiaries;




			
	
			
				 (f)
			any failure of the Administrative Agent or any Lender to disclose to the Company any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any Borrower now or hereafter known to the Administrative Agent or such Lender (the Company waiving any duty on the part of the Administrative Agent and the Lenders to disclose such information);




			
	
			
				 (g)
			the failure of any Subsidiary to execute or deliver a Subsidiary Guaranty or any other guaranty or agreement or the release or reduction of liability of the Company or other guarantor or surety with respect to the Guaranteed Obligations; or




			
	
			
				 (h)
			any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Administrative Agent or any Lender that might otherwise constitute a defense available to, or a discharge of, any Borrower or any other guarantor or surety.




		
			This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Administrative Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as though such payment had not been made.
		

		
			﻿
		

		
			SECTION 7.03 Waivers and Acknowledgments. (a) The Company hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand
		

		
			 
		


		

		

		 

 


		

			

		


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			for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of Guaranteed Obligations and this Guaranty and any requirement that the Administrative Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Borrower or any other Person or any collateral.
		

			
	
			
				 (b)
			The Company hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.




			
	
			
				 (c)
			The Company hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by the Administrative Agent or any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of the Company or other rights of the Company to proceed against any Borrower, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the obligations of the Company hereunder.




			
	
			
				 (d)
			The Company hereby unconditionally and irrevocably waives any duty on the part of the Administrative Agent or any Lender to disclose to the Company any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any Borrower or any of its Subsidiaries now or hereafter known by the Administrative Agent or such Lender.




			
	
			
				 (e)
			The Company acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by this Agreement and the Notes and that the waivers set forth in Section 7.02 and this Section 7.03 are knowingly made in contemplation of such benefits.




		
			SECTION 7.04 Subrogation. The Company hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any Borrower or any other insider guarantor that arise from the existence, payment, performance or enforcement of the Company’s obligations under or in respect of this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Administrative Agent or any Lender against any Borrower or any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Borrower or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash (other than unasserted contingent obligations), all Letters of Credit shall have expired or been terminated and the Commitments shall have expired or been terminated. If any amount shall be paid to the Company in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the Termination Date and (c) the latest date of expiration or termination of all Letters of Credit, such amount shall be received and held in trust for the benefit of the Administrative Agent and the Lenders, shall be segregated from other property and funds of the Company and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of this Agreement and the Notes, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) the Company shall make payment to the Administrative Agent or any Lender of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable
		

		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

		
			under this Guaranty shall have been paid in full in cash (other than unasserted contingent obligations),
		

			
	
			
				 (iii)
			the Termination Date shall have occurred and (iv) all Letters of Credit shall have expired or been terminated, the Administrative Agent and the Lenders will, at the Company’s request and expense, execute and deliver to the Company appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Company of an interest in the Guaranteed Obligations resulting from such payment made by the Company pursuant to this Guaranty.




		
			﻿
		

		
			SECTION 7.05 Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and (ii) the Commitment Termination Date, (b) be binding upon the Company, its successors and permitted assigns and (c) inure to the benefit of and be enforceable by the Administrative Agent and the Lenders and their successors, permitted transferees and permitted assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, the Administrative Agent or any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Advances owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to the Administrative Agent or such Lender herein or otherwise, in each case as and to the extent provided in Section 9.04.
		

		
			﻿
		

		
			ARTICLE VIII AGENCY
		

		
			SECTION 8.01 Appointment and Authority. Each of the Lenders hereby irrevocably appoints Citibank 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 are solely for the benefit of the Administrative Agent and the Lenders, and the Borrowers shall not 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.
		

		
			﻿
		

		
			SECTION 8.02 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 branches and Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, the Company 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.
		

		
			﻿
		

		
			SECTION 8.03 Exculpatory Provisions.
		

		
			﻿
		

			
	
			
				 (a)
			The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

			
	
			
				 (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 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, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its branches or Affiliates in any capacity.




			
	
			
				 (b)
			The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 6.01 and 9.02), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent in writing by a Borrower or a Lender.




			
	
			
				 (c)
			The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.




		
			SECTION 8.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of an Advance that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Advance. The Administrative Agent may consult with legal counsel (who may be counsel for the Company), 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.
		

		
			 
		


		

		

		 

 


		

			

		


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			SECTION 8.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent. 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 nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
		

		
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			SECTION 8.06 Resignation of Administrative Agent.
		

		
			﻿
		

			
	
			
				 (a)
			The Administrative Agent may at any time give notice of its resignation to the Lenders and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, 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 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, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall any such 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)
			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 Company and such Person remove such Person as Administrative Agent and, in consultation with the Company, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.




			
	
			
				 (c)
			With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender 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 any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.




		
			 
		


		

		

		 

 


		

			

		


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			SECTION 8.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Arranger or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Arranger or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender 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 for the purpose of making, acquiring or holding commercial loans set forth herein as may be applicable to such Lender, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender agrees not to assert a claim in contravention of the foregoing. Each Lender represents and warrants that it is sophisticated with respect to decisions to make, acquire or hold commercial loans, as may be applicable to such Lender, and either it, or the Person exercising discretion in making its decision to make, acquire or hold such commercial loans, is experienced in making, acquiring or holding such commercial loans.
		

		
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			SECTION 8.08 No Other Duties. Anything herein to the contrary notwithstanding, neither the Arranger nor any other titled institution 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 or a Lender hereunder.
		

		
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			SECTION 8.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to a Loan Party, the Administrative Agent (irrespective of whether the principal of any Advance 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 any Loan Party) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
		

		
			﻿
		

			
	
			
				 (a)
			to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Advances and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 9.03) allowed in such judicial proceeding; and




		
			﻿
		

			
	
			
				 (b)
			to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;




		
			and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender 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, 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 Section 9.03.
		

		
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			SECTION 8.10 Certain ERISA Matters.
		

		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

			
	
			
				 (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 Company 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 for purposes of Title I of ERISA or Section 4975 of the Code) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Commitments or this Agreement,




			
	
			
				 (ii)
			the prohibited 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 so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the Advances, 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 Advances, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Advances, 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 Advances, 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) sub-clause (i) in the immediately preceding clause




		
			(a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further
		

			
	
			
				 (x)
			represents and warrants, as of the date such Person became a Lender party hereto, 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 Company 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 Advances, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).




		
			SECTION 8.11 Erroneous Payments.
		

		
			﻿
		

			
	
			
				 (a)
			If the Administrative Agent (x) notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender or other recipient (and each of their respective successors




		
			 
		


		

		

		 

 


		

			

		


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			and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 8.11 and held in trust for the benefit of the Administrative Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds 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 from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
		

		
			﻿
		

			
	
			
				 (b)
			Without limiting immediately preceding clause (a), each Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:




			
	
			
				 (i)
			it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and




			
	
			
				 (ii)
			such Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 8.11(b).




		
			For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.11(a) or on whether or not an Erroneous Payment has been made.
		

		
			 
		


		

		

		 

 


		

			

		


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				 (c)
			Each Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender under this Agreement or any other Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned under immediately preceding clause (a).




		
			﻿
		

			
	
			
				 (d)
			(i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Advances (but not Commitments) (the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Company) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an approved electronic platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Borrowers or the Administrative Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Administrative Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender, (D) the Administrative Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.




		
			(ii)Subject to Section 9.04 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Administrative Agent may, in its discretion, sell any Advances acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Advance (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Administrative Agent) and (y) may, in the sole discretion of the
		

		
			 
		


		

		

		 

 


		

			

		


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			Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
		

		
			﻿
		

			
	
			
				 (e)
			The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender) under this Agreement with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrowers’ Obligations in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations; provided that this Section 8.11 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from any Loan Party for the purpose of making such Erroneous Payment.




		
			﻿
		

			
	
			
				 (f)
			To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for value” or any similar doctrine.




		
			﻿
		

			
	
			
				 (g)
			Each party’s obligations, agreements and waivers under this Section 8.11 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under the Loan Documents.




		
			ARTICLE IX
		

		
			﻿
		

		
			MISCELLANEOUS
		

		
			﻿
		

		
			SECTION 9.01 Notices.
		

		
			﻿
		

			
	
			
				 (a)
			Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email as follows:




			
	
			
				 (i)
			if to the Company, to it at 9740 Scranton Road, San Diego, California 92121, Attention of Atul Patel (Telephone No. (858) 404-8831; Email: apatel@pricesmart.com), with a copy to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 44 Montgomery Street, 36th Floor, San Francisco, CA 94104, Attention: Robert Burwell, Esq., Email: REBurwell@mintz.com;




		
			 
		


		

		

		 

 


		

			

		


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		﻿
		

		
			﻿
		

			
	
			
				 (ii)
			if to the Administrative Agent, to Citibank at One Penns Way, Building Ops II, Floor 2, New Castle, Delaware 19720, Attention of Bilateral Team (Email:




		
			LoanOrigination.Team3@Citi.com), with a copy to GLOriginationOps@Citi.com; and
		

			
	
			
				 (iii)
			if to a Lender, to it at its address (or facsimile number or email address) set forth in its Administrative Questionnaire.




		
			Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).
		

		
			﻿
		

			
	
			
				 (b)
			Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail, FpML, and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or any Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.




		
			Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both
		

		
			clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
		

			
	
			
				 (c)
			Change of Address, etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.




			
	
			
				 (d)
			

			
	
			
			Platform.




			
	
			
				 (i)
			The Company agrees that the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the other Lenders by posting the Communications on the Platform.




			
	
			
				 (ii)
			The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non- infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications 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 Company, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses




		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

		
			(whether in tort, contract or otherwise) arising out of the Company’s or the Administrative Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Company pursuant to any Loan Document or the transactions contemplated therein that is distributed to the Administrative Agent or any Lender by means of electronic communications pursuant to this Section, including through the Platform.
		

		
			SECTION 9.02 Waivers; Amendments.
		

		
			﻿
		

			
	
			
				 (a)
			No Waiver; Remedies Cumulative; Enforcement. No failure or delay by the Administrative Agent or any Lender 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 such right, remedy, power or privilege, or any abandonment or discontinuance of steps to enforce such a right remedy, power or privilege, preclude any other or further exercise thereof or the exercise of any other right remedy, power or privilege. The rights, remedies, powers and privileges of the Administrative Agent and the Lenders hereunder and under the Loan Documents are cumulative and are not exclusive of any rights, remedies, powers or privileges that any such Person would otherwise have.




		
			﻿
		

		
			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 any Loan Party shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 6.01 for the benefit of all the Lenders; provided that the foregoing shall not prohibit (i) 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, (ii) any Lender from exercising setoff rights in accordance with Section 9.08 (subject to the terms of Section 2.13) or (iii) 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 Borrower under any Debtor Relief Law; provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (x) the Required Lenders shall have the rights otherwise provided to the Administrative Agent pursuant to Section 6.01 and (y) in addition to the matters set forth in clauses (ii) and (iii) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights or remedies available to it and as authorized by the Required Lenders.
		

		
			﻿
		

			
	
			
				 (b)
			Amendments, Etc. Except as otherwise expressly set forth in this Agreement (including Section 2.20), no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing executed by the Company and the Required Lenders, and acknowledged by the Administrative Agent, or by the Company and the Administrative Agent with the consent of the Required Lenders, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent shall:




		
			﻿
		

			
	
			
				 (i)
			extend or increase any Commitment of any Lender without the written consent of such Lender (it being understood that a waiver of any condition precedent set forth in Article IV or the waiver of any Default shall not constitute an extension or increase of any Commitment of any Lender);




		
			﻿
		

			
	
			
				 (ii)
			reduce the principal of, or rate of interest specified herein on, any Advance, or any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly and adversely affected thereby (provided that only the




		
			 
		


		

		

		 

 


		

			

		


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			consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive the obligation of the Borrowers to pay interest at the Default Rate);
		

		
			﻿
		

			
	
			
				 (iii)
			postpone any date scheduled for any payment of principal of, or interest on, any Advance, or any fees or other amounts payable hereunder or under any other Loan Document, or reduce the amount of, waive or excuse any such payment, without the written consent of each Lender directly and adversely affected thereby;




		
			﻿
		

			
	
			
				 (iv)
			waive any condition set forth in Section 3.01 without the written consent of each Lender; or




		
			﻿
		

		
			(vichange any provision of this Section or the percentage in the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
		

		
			﻿
		

		
			provided, further, that no such amendment, waiver or consent shall amend, modify or otherwise affect the rights or duties hereunder or under any other Loan Document of the Administrative Agent, unless in writing executed by the Administrative Agent, in each case in addition to the Company and the Lenders required above.
		

		
			﻿
		

		
			Notwithstanding anything herein to the contrary, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent that by its terms requires the consent of all the Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders, except that (x) the Commitment of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loan may not be extended, the rate of interest on any of its Advances may not be reduced and the principal amount of any of its Advances may not be forgiven, in each case without the consent of such Defaulting Lender and (y) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender.
		

		
			﻿
		

		
			In addition, notwithstanding anything in this Section to the contrary, if the Administrative Agent and the Company shall have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Company shall be permitted to amend such provision, and, in each case, such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders to the Administrative Agent within ten Business Days following receipt of notice thereof.
		

		
			﻿
		

		
			SECTION 9.03 Expenses; Indemnity; Damage Waiver.
		

		
			﻿
		

			
	
			
				 (a)
			Costs and Expenses. The Company shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent), in connection with 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), and (ii) all documented out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the reasonable and documented fees, charges and disbursements of any counsel for the Administrative Agent or any Lender) in connection with the enforcement or protection of its rights (A) in connection with this




		
			 
		


		

		

		 

 


		

			

		


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			Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Advances made hereunder, including all such documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Advances.
		

			
	
			
				 (b)
			Indemnification by the Company. The Company shall indemnify the Administrative Agent (and any sub-agent thereof) and each Lender, 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 documented losses, claims, damages, liabilities and related expenses (including the reasonable and documented fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Company) 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, (ii) any Advance or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Company or any of its Subsidiaries, or any Environmental Liability related in any way to the Company 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 Company, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses




			
	
			
				 (x)
			are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Company against an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder or under any other Loan Document, if the Company has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. Paragraph (b) of this Section 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 Company for any reason fails to pay any amount required under paragraph (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) 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 Applicable Percentage at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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), or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 2.12(e).




			
	
			
				 (d)
			Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, no Borrower shall assert, and each Borrower hereby waives, any claim against any Administrative Agent (or any sub-agent thereof) or any Lender, or any Related Party of any of the foregoing Persons (each such Person being called an “Lender-Related Party”), on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Advance, or the use of the proceeds thereof. No Lender-Related Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through




		
			 
		


		

		

		 

 


		

			

		


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			telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
		

			
	
			
				 (e)
			Payments. All amounts due under this Section shall be payable not later than five Business Days after demand therefor.




			
	
			
				 (f)
			Survival. Each party’s obligations under this Section shall survive the termination of the Loan Documents and payment of the obligations hereunder.




		
			SECTION 9.04 Successors and Assigns.
		

		
			﻿
		

			
	
			
				 (a)
			Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Borrower 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 any other attempted assignment or transfer by any party hereto shall be null and void), 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 paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (e) of this Section. 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 paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent 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 (including all or a portion of its Commitment and the Advances at the time owing to it); provided that any such assignment shall be subject to the following conditions:




			
	
			
				 (i)
			

			
	
			
			Minimum Amounts.




			
	
			
				 (A)
			in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment or the Advances at the time owing to it or contemporaneous assignments to or by related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and




		
			﻿
		

			
	
			
				 (B)
			in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Advances outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than




		
			$5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed).
		

		
			 
		


		

		

		 

 


		

			

		


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			﻿
		

			
	
			
				 (ii)
			Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Advance or the Commitment assigned.




			
	
			
				 (iii)
			Required Consents. No consent shall be required for any assignment except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:




			
	
			
				 (A)
			the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof; and




		
			﻿
		

			
	
			
				 (B)
			the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund.




		
			﻿
		

			
	
			
				 (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 of $3,500; provided 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 to




			
	
			
				 (A)
			the Company or any of the Company’s Affiliates or Subsidiaries or (B) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender or a Subsidiary thereof.




			
	
			
				 (vi)
			No Assignment to Natural Persons. No such assignment shall be made to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person).




			
	
			
				 (vii)
			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 other compensating actions, including funding, with the consent of the Company and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Advances in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.




		
			 
		


		

		

		 

 


		

			

		


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			Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03 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. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of this Section.
		

		
			﻿
		

			
	
			
				 (c)
			Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Advances 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 Company, 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 Company and any Lender, at any reasonable time and from time to time upon reasonable prior notice.




			
	
			
				 (d)
			Participations. Any Lender may at any time, without the consent of, or notice to, the Company 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, a natural person, or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights or obligations under this Agreement (including all or a portion of its Commitment or the Advances 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 Borrowers, the Administrative Agent and Lenders 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 9.03(b) with respect to any payments made by such Lender to its Participant(s).




		
			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, modification or waiver described in Section 9.02(b)(i) through (iii) that affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.14,
		

		
			2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.16(g) (it being understood that the documentation required under Section 2.16(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.16, with
		

		
			 
		


		

		

		 

 


		

			

		


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			respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to cooperate with the Company to effectuate the provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 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 Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances 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 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 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 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.




		
			SECTION 9.05 Survival. All covenants, agreements, representations and warranties made by the Loan Parties herein and in any Loan Document or other documents delivered in connection herewith or therewith or pursuant hereto or thereto shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery hereof and thereof and the making of the Borrowings hereunder, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long as any Advance or any other Obligation hereunder shall remain unpaid or unsatisfied and so long as the Commitments have not expired or been terminated. The provisions of Sections 2.14, 2.15, 9.03, 9.13 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the payment in full of the Obligations, the expiration or termination of the Commitments or the termination of this Agreement or any provision hereof.
		

		
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			SECTION 9.06 Counterparts; Integration; Effectiveness; Electronic Execution.
		

		
			﻿
		

			
	
			
				 (a)
			Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, 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 3.01, 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.




		
			 
		


		

		

		 

 


		

			

		


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			Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.
		

		
			﻿
		

			
	
			
				 (b)
			Electronic Execution of Loan Documents. The words “execution,” “signed,” “signature,” and words of like import in this Agreement and the other Loan Documents, including any Assignment and Assumption, shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.




		
			SECTION 9.07 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, if and to the extent that the enforceability of any provision of this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provision shall be deemed to be in effect only to the extent not so limited.
		

		
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			SECTION 9.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, and each of their respective branches and Affiliates is hereby authorized at any time and from time to time, 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 or any such branch or Affiliate, to or for the credit or the account of any Loan Party against any and all of the obligations of any Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or its respective branches or Affiliates, irrespective of whether or not such Lender, branch or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Loan Party may be contingent or unmatured or are owed to a branch office or Affiliate of such Lender different from the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.24 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and their respective branches and Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or its respective branches or Affiliates may have. Each Lender agrees to notify the Company 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.
		

		
			 
		


		

		

		 

 


		

			

		


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			SECTION 9.09 Governing Law; Jurisdiction; Etc..
		

		
			﻿
		

			
	
			
				 (a)
			Governing Law. This Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York.




			
	
			
				 (b)
			Jurisdiction. Each Borrower 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, 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 for the Southern District of New York sitting in New York County, 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 or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.
		

		
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				 (c)
			Waiver of Venue. Each Borrower 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 paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.




			
	
			
				 (d)
			Service of Process. Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by Applicable Law. Each Designated Subsidiary hereby agrees that service of process may be made upon the Company and each Designated Subsidiary hereby irrevocably appoints the Company its authorized agent to accept such service of process, and agrees that the failure of the Company to give any notice of any such service shall not impair or affect the validity of such service or of any judgment rendered in any action or proceeding based thereon. To the extent that each Designated Subsidiary has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each Designated Subsidiary hereby irrevocably waives such immunity in respect of its obligations under this Agreement.




		
			SECTION 9.10 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
		

		
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			SECTION 9.11 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and the Lenders agree to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its branches and Affiliates and to its Related Parties
		

		
			 
		


		

		

		 

 


		

			

		


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			(it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by Applicable Laws or by any subpoena or similar legal process;
		

			
	
			
				 (d)
			to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as (or no less restrictive than) those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to any Borrower and its obligations, this Agreement or payments hereunder; (g) on a confidential basis to (i) any rating agency in connection with rating the Company or its Subsidiaries or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to this Agreement; (h) with the consent of the Company; or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section, or (y) becomes available to the Administrative Agent, any Lender or any of their respective branches or Affiliates on a nonconfidential basis from a source other than the Company who did not acquire such information as a result of a breach of this Section. 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 or any Lender in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.




		
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			For purposes of this Section, “Information” means all information received from the Company or any of its Subsidiaries relating to the Company or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Company or any of its Subsidiaries; provided that, in the case of information received from the Company or any of its Subsidiaries 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 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.
		

		
			SECTION 9.12 PATRIOT Act. Each Lender subject to the PATRIOT Act hereby notifies the Borrowers that, pursuant to the requirements of the PATRIOT Act, it may be required to obtain, verify and record information that identifies each Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender to identify such Borrower in accordance with the PATRIOT Act.
		

		
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			SECTION 9.13 Payments Set Aside. To the extent that any payment by or on behalf of any Loan Party is made to the Administrative Agent or any Lender, or the Administrative Agent 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 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 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
		

		
			 
		


		

		

		 

 


		

			

		


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			at a rate per annum equal to the greater of the Federal Funds Rate from time to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
		

		
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			SECTION 9.14 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 Company acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) no fiduciary, advisory or agency relationship between the Company and its Subsidiaries and the Arranger, the Administrative Agent or any Lender is intended to be or has been created in respect of the transactions contemplated hereby or by the other Loan Documents, irrespective of whether the Arranger, the Administrative Agent, or any Lender has advised or is advising the Company or any Subsidiary on other matters, (ii) the arranging and other services regarding this Agreement provided by the Arranger, the Administrative Agent and the Lenders are arm’s-length commercial transactions between the Company and its Affiliates, on the one hand, and the Arranger, the Administrative Agent and the Lenders, on the other hand, (iii) the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent that it has deemed appropriate and (iv) the Company is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; and (b) (i) the Arranger, the Administrative Agent and the Lenders 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 Company or any of its Affiliates, or any other Person; (ii) none of the Arranger, the Administrative Agent and the Lenders has any obligation to the Company or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Arranger, the Administrative Agent and the Lenders and their respective branches and Affiliates may be engaged, for their own accounts or the accounts of customers, in a broad range of transactions that involve interests that differ from those of the Company and its Affiliates, and none of the Arranger, the Administrative Agent and the Lenders has any obligation to disclose any of such interests to the Company or its Affiliates. To the fullest extent permitted by Law, the Company hereby waives and releases any claims that it may have against any of the Arranger, the Administrative Agent and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
		

		
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			SECTION 9.15 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
		

		
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				 (a)
			the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder that may be payable to it by any party hereto that is an Affected Financial Institution; and




			
	
			
				 (b)
			

			
	
			
			the effects of any Bail-In Action on any such liability, including, if applicable:




			
	
			
				 (i)
			

			
	
			
			a reduction in full or in part or cancellation of any such liability;




			
	
			
				 (ii)
			a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or




		
			 
		


		

		

		 

 


		

			

		


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				 (iii)
			the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.




		
			SECTION 9.16 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts 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 or of the United States or any other state of the United States):
		

		
			﻿
		

			
	
			
				 (a)
			In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.




		
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				 (b)
			

			
	
			
			As used in this Section 9.16, the following terms have the following meanings:




		
			“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.
		

		
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			“Covered Entity” means any of the following:
		

		
			﻿
		

			
	
			
				 (i)
			a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b)




			
	
			
				 (ii)
			a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or




			
	
			
				 (iii)
			a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).




		
			“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.
		

		
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			“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).
		

		
			 
		


		

		

		 

 


		

			

		


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			“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, that 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.
		

		
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			SECTION 9.17 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.




		
			 
		


		
			 
		

		
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			r WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly c, ccutcd by their respective authorized officers as of the day and year first above wrillcn.
		

		
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			PRICESMART, INC.,
		

		
			as the Company
		

		
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			/s/ Francisco Javier Velasco
		

		
			Name: Francisco Javier Velasco
		

		
			Title: Secretary
		

		
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			CITIBANK, N.A.,
		

		
			as a Lender and as Administrative Agent
		

		
			By /s/ Robert Kane
		

		
			Name: Robert Kane
		

		
			Title: Managing Director
		


		

		

		 

 


		

			 

		




		Schedule 2.01
		

		
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			Commitments and Lenders
		

		
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						Name of Lender

					
					
						Commitment

				
	
					
						Citibank, N.A.

					
					
						$75,000,000

				
	
					
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						TOTAL

					
					
						$75,000,000

				



		
			 
		


		

		

		 

 


		

			 

		




		Schedule 4.01(f)
		

		
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			Litigation
		

		
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			None.
		

		
			 
		


		

		

		 

 


		

			

		


			Schedule 5.02(a)

		


		

			Schedule 5.02(a)

		


		



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			Existing Liens
		

		
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			BorrowerLenderOriginal loan amount in USD
		

			
					
						PriceSmart Panama, S.A.

					
					
						Scotiabank

					
					
						$4,000,000

				
	
					
						PriceSmart Panama, S.A.

					
					
						Scotiabank

					
					
						$2,833,333

				
	
					
						PriceSmart Panama, S.A.

					
					
						Scotiabank

					
					
						$9,375,000

				
	
					
						PriceSmart (Guatemala), S.A.

					
					
						Banco Industrial, Sociedad Anonima

					
					
						$20,782,352

				
	
					
						PriceSmart (Guatemala), S.A.

					
					
						Banco Industrial, Sociedad Anonima

					
					
						$16,812,809

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						Republic Bank Limited

					
					
						$3,000,000

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						First Caribbean International Bank (Trinidad & Tobago) Limited

					
					
						$10,000,000

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						First Caribbean International Bank (Trinidad & Tobago)

					
						Limited

					
					
						$3,565,200

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						JMMB Bank (T & T) Limited

					
					
						$1,000,000

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						Citibank, N.A.

					
					
						$25,000,000

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						Export – Import Bank of Trinidad & Tobago Limited

					
					
						$3,000,000

				



		
			 
		


		

		

		 

 


		

			

		


			Schedule 5.02(c)

		


		

			Schedule 5.02(c)

		


		



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			Existing Subsidiary Debt
		

		
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			BorrowerLenderOriginal loan amount in USD
		

			
					
						PriceSmart Panama, S.A.

					
					
						Scotiabank

					
					
						$4,000,000

				
	
					
						PriceSmart Panama, S.A.

					
					
						Scotiabank

					
					
						$2,833,333

				
	
					
						PriceSmart Panama, S.A.

					
					
						Scotiabank

					
					
						$9,375,000

				
	
					
						PriceSmart (Guatemala), S.A.

					
					
						Banco Industrial, Sociedad Anonima

					
					
						$20,782,352

				
	
					
						PriceSmart (Guatemala), S.A.

					
					
						Banco Industrial, Sociedad Anonima

					
					
						$16,812,809

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						Citibank, N.A.

					
					
						$12,000,000

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						Republic Bank Limited

					
					
						$3,000,000

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						First Caribbean International Bank (Trinidad & Tobago) Limited

					
					
						$10,000,000

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						First Caribbean International Bank (Trinidad & Tobago) Limited

					
					
						$3,565,200

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						JMMB Bank (T & T) Limited

					
					
						$1,000,000

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						Citibank, N.A.

					
					
						$25,000,000

				
	
					
						PriceSmart Clubs (TT) Ltd.

					
					
						Export – Import Bank of Trinidad & Tobago Limited

					
					
						$3,000,000

				
	
					
						PriceSmart Colombia S.A.S.

					
					
						Citibank, N.A.

					
					
						$7,875,000

				
	
					
						PriceSmart Colombia S.A.S.

					
					
						Citibank, N.A.

					
					
						$25,000,000

				
	
					
						PriceSmart Honduras, S.A. de C.V.

					
					
						Citibank, N.A.

					
					
						$13,500,000

				



		
			 
		


		

		

		 

 


		

			 

		




		EXHIBIT A
		

		
			FORM OF BORROWING REQUEST
		

		
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			Citibank, N.A., as Administrative Agent for the Lenders parties
		

		
			to the Credit Agreement referred to below
		

		
			One Penns Way, Building II, Floor 2 New Castle, Delaware 19720
		

		
			[Date]
		

		
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			Attention: Bilateral Team Ladies and Gentlemen:
		

		
			The undersigned, PRICESMART, INC., refers to the Credit Agreement, dated as of February 18, 2022 (as amended or modified from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the undersigned, certain Lenders parties thereto and Citibank, N.A., as Administrative Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.03(a) of the Credit Agreement:
		

		
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				 (i)
			

			
	
			
			The Business Day of the Proposed Borrowing is, 20 .




		
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				 (ii)
			The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [SOFR Advances].




		
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				 (iii)
			

			
	
			
			The aggregate amount of the Proposed Borrowing is $.




		
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			The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
		

		
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				 (A)
			the representations and warranties of each Loan Party set forth in any Loan Document are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the date of the Proposed Borrowing (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date), and excluding, after the Effective Date, the representations and warranties set forth in Section 4.01(e)(ii) and Section 4.01(f)); and




		
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				 (B)
			no event has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom, that constitutes a Default.




		
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			Very truly yours, PRICESMART, INC.
		

		
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			By Title:
		

		
			 
		


		

		

		 

 


		

			 

		




		EXHIBIT B
		

		
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			FORM OF ASSIGNMENT AND ASSUMPTION
		

		
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			This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
		

		
			For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including any letters of credit, guarantees, and swingline loans included in such facilities), and (ii) to the extent permitted to be assigned under Applicable Law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
		

			
	
			
				 1.
			

			
	
			
			Assignor[s]: 




		
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			1  For bracketed language here and elsewhere in this document relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
		

		
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			2  For bracketed language here and elsewhere in this document relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
		

		
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			3 Select as appropriate.
		

		
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			4 Include bracketed language if there are either multiple Assignors or multiple Assignees.
		

		
			 
		


		 

 


		

			

		


			-2-

		


		

			-2-

		


		



			
	
			
				 2.
			

			
	
			
			Assignee[s]: 




		
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			[Assignee is an [Affiliate][Approved Fund] of [identify Lender]]
		

		
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				 3.
			

			
	
			
			Borrower(s):PriceSmart, Inc.




		
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				 4.
			

			
	
			
			Administrative Agent: Citibank, N.A., as the administrative agent under the Credit Agreement




		
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				 5.
			

			
	
			
			Credit Agreement: The $75,000,000 Credit Agreement dated as of February 18, 2022 among PriceSmart, Inc , the Lenders parties thereto and Citibank, N.A., as Administrative Agent




		
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				 6.
			

			
	
			
			Assigned Interest[s]:




		
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						Assignor[s]5

					
					
						 

					
						 

					
						Assignee[s]6

					
					
						Aggregate Amount of Commitment/ Advances for all Lenders7

					
					
						Amount of Commitment/ Advances Assigned8

					
					
						Percentage Assigned of Commitment/ Advances8

					
					
						 

					
						 

					
						 

					
						CUSIP Number

				
	
					
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						$

					
					
						$

					
					
						%

					
					
						 

				
	
					
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						$

					
					
						$

					
					
						%

					
					
						 

				
	
					
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						$

					
					
						$

					
					
						%

					
					
						 

				



		
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			[7.Trade Date:
		

		
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			5 List each Assignor, as appropriate.
		

		
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			6 List each Assignee, as appropriate.
		

		
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			7  Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
		

		
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			8 Set forth, to at least 9 decimals, as a percentage of the Commitment/ Advances of all Lenders thereunder.
		

		
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			9  To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.
		

		
			 
		


		

		

		 

 


		

			

		


			-3-

		


		

			-3-

		


		



		Effective Date:, 20[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
		

		
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			The terms set forth in this Assignment and Assumption are hereby agreed to:
		

		
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			ASSIGNOR[S]10
		

		
			[NAME OF ASSIGNOR]
		

		
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			By: Title:
		

		
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			[NAME OF ASSIGNOR]
		

		
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			By: Title:
		

		
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			ASSIGNEE[S]11
		

		
			[NAME OF ASSIGNEE]
		

		
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			By: Title:
		

		
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			[NAME OF ASSIGNEE]
		

		
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			By: Title:
		

		
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			[Consented to and]12 Accepted:
		

		
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			[NAME OF ADMINISTRATIVE AGENT], as
		

		
			Administrative Agent
		

		
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			By:   
		

		
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			Title:
		

		
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			10 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable). 11 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable). 12 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
		

		
			 
		


		

		

		 

 


		

			

		


			-4-

		


		

			-4-

		


		



		[Consented to:]13
		

		
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			[NAME OF RELEVANT PARTY]
		

		
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			By:   
		

		
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			Title:
		

		
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			13 To be added only if the consent of the Company or other parties is required by the terms of the Credit Agreement.
		

		
			 
		


		

		

		 

 


		

			

		


			-5-

		


		

			-5-

		


		



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			ANNEX 1
		

		
			﻿
		

		
			STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION
		

			
	
			
				 1.
			

			
	
			
			Representations and Warranties.




			
	
			
				 1.1
			Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b)




		
			it assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents [or any collateral thereunder],
		

		
			(iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by any Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
		

		
			﻿
		

			
	
			
				 1.2
			Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 9.04 of the Credit Agreement (subject to such consents, if any, as may be required thereunder), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01(a) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.




			
	
			
				 2.
			Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves.




		
			 
		


		

		

		 

 


		

			

		


			-6-

		


		

			-6-

		


		



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				 3.
			General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.




		
			 
		


		

		

		 

 


		

			 

		




		EXHIBIT C
		

		
			FORM OF DESIGNATION AGREEMENT [DATE]
		

		
			To each of the Lenders
		

		
			parties to the Credit Agreement
		

		
			(as defined below) and to Citibank, N.A., As Administrative Agent for such Lenders
		

		
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			Ladies and Gentlemen:
		

		
			﻿
		

		
			Reference is made to the Credit Agreement dated as of February 18, 2022 (as amended or modified from time to time, the “Credit Agreement”) among PriceSmart. Inc., a Delaware corporation (the “Company”), the Lenders (as defined in the Credit Agreement) and Citibank, N.A., as administrative agent for the Lenders (the “Administrative Agent”). Terms defined in the Credit Agreement are used herein with the same meaning.
		

		
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			Please be advised that the Company hereby designates its undersigned Subsidiary,
		

		
			  (“Designated Subsidiary”), as a “Designated Subsidiary” under and for all purposes of the Credit Agreement.
		

		
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			The Designated Subsidiary, in consideration of each Lender’s agreement to extend credit to it under and on the terms and conditions set forth in the Credit Agreement, does hereby assume each of the obligations imposed upon a “Designated Subsidiary” and a “Borrower” under the Credit Agreement and agrees to be bound by the terms and conditions of the Credit Agreement. In furtherance of the foregoing, the Designated Subsidiary hereby represents and warrants to each Lender as follows:
		

		
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				 (a)
			The Designated Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of.




		
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				 (b)
			The execution, delivery and performance by the Designated Subsidiary of this Designation Agreement, the Credit Agreement and the other Loan Documents to be delivered by it are within the Designated Subsidiary’s corporate or other powers, have been duly authorized by all necessary corporate or other action and do not contravene (i) the Designated Subsidiary’s Organizational Documents or (ii) Law or any Contractual Obligation binding on or affecting the Designated Subsidiary. The Designation Agreement and the other Loan Documents delivered by it have been duly executed and delivered on behalf of the Designated Subsidiary.




		
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				 (c)
			No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any third party is required for the due execution, delivery and performance by the Designated Subsidiary of this Designation Agreement, the Credit Agreement or the other Loan Documents to be delivered by it.




		
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				 (d)
			This Designation Agreement is, and the other Loan Documents to be delivered by the Designated Subsidiary when delivered will be, legal, valid and binding obligations of the Designated Subsidiary enforceable against the Designated Subsidiary in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or law).




		
			 
		


		 

 


		

			 

		




			
	
			
				 (e)
			There is no pending or threatened action, suit, investigation or proceeding, including, without limitation, any Environmental Action, affecting the Designated Subsidiary or any of its Subsidiaries before any court, governmental agency or arbitrator that purports to affect the legality, validity or enforceability of this Designation Agreement, the Credit Agreement or any other Loan Documents of the Designated Subsidiary.




		
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			The Designated Subsidiary hereby agrees that service of process in any action or proceeding brought in any New York State court or in federal court may be made upon the Company at its offices at, Attention:(the “Process Agent”) and the Designated Subsidiary hereby irrevocably appoints the Process Agent to give any notice of any such service of process, and agrees that the failure of the Process Agent to give any notice of any such service shall not impair or affect the validity of such service or of any judgment rendered in any action or proceeding based thereon.
		

		
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			The Company hereby accepts such appointment as Process Agent and agrees with you that (i) the Company will maintain an office in San Diego, California through the Commitment Termination Date and will give the Administrative Agent prompt notice of any change of address of the Company, (ii) the Company will perform its duties as Process Agent to receive on behalf of the Designated Subsidiary and its property service of copies of the summons and complaint and any other process which may be served in any action or proceeding in any New York State or federal court sitting in New York City arising out of or relating to the Credit Agreement and (iii) the Company will forward forthwith to the Designated Subsidiary at its address ator, if different, its then current address, copies of any summons, complaint and other process which the Company received in connection with its appointment as Process Agent.
		

		
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			This Designation Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
		

		
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			Very truly yours, PRICESMART, INC.
		

		
			By Name:
		

		
			Title:
		

		
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			[THE DESIGNATED SUBSIDIARY]
		

		
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			By Name:
		

		
			Title:
		

		
			 
		


		

		

		 

 


		

			 

		




		EXHIBIT D
		

		
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			FORM OF SUBSIDIARY GUARANTY
		

		
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			SUBSIDIARY GUARANTY, dated as of February 18, 2022, (this “Guaranty”) made by
		

		
			 , a [Entity Type] organized and existing under the laws of(the “Guarantor”), in favor of the Administrative Agent and the Lenders (as defined in the Credit Agreement referred to below).
		

		
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			PRELIMINARY STATEMENT. PriceSmart, Inc., a Delaware corporation (the “Company”), and certain other Borrowers (as defined in the Credit Agreement referred to below) are parties to a Credit Agreement dated as of February 18, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined) with certain Lenders party thereto, and Citibank, N.A., as Administrative Agent for such Lenders (the Administrative Agent and the Lenders are, collectively, the “Guaranteed Parties”). The Guarantor may receive, directly or indirectly, a portion of the proceeds of the Advances under the Credit Agreement and will derive substantial direct and indirect benefits from the transactions contemplated by the Credit Agreement. It is a condition precedent to the making of Advances by the Lenders under the Credit Agreement from time to time that the Guarantor shall have executed and delivered this Guaranty.
		

		
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			NOW, THEREFORE, in consideration of the premises and in accordance with Section 3.01(a) of the Credit Agreement, the Guarantor hereby agrees as follows:
		

		
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				 1.
			Guaranty. The Guarantor absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment when due, whether upon maturity, scheduled payment date, by acceleration, early termination or otherwise, of all obligations (now or hereafter existing) of each other Loan Party to the Guaranteed Parties under or in connection with the Loan Documents, whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, expenses, costs, contract causes of action, settlement amounts, close-out amounts, indemnities, reimbursement amounts or otherwise, in each case strictly in accordance with the terms thereof, including without limitation, interest and other amounts that would accrue but for the commencement of bankruptcy, reorganization or insolvency proceedings (or other similar proceedings), whether or not allowed in such proceedings (all such obligations, the “Obligations”) (whether or not a claim for post-filing or post-petition interest is allowed under applicable law following the institution of a proceeding under bankruptcy, insolvency or similar laws and including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and




		
			§506(b) or other applicable laws of similar application); provided, that if any applicable law (including a law, rule or regulation (i) limiting or restricting the giving of financial assistance by way of guarantee to any other Loan Party, (ii) relating to fraudulent conveyance or fraudulent transfer or (iii) enforcing currency controls in any jurisdiction) limits the amount of financial assistance that the Guarantor is permitted to provide in favor of any other Loan Party, the Guarantor's liability under this Guaranty in respect of the relevant Obligations shall be limited to the maximum amount permitted under such applicable law; provided,  further, that, for the avoidance of doubt, such maximum amount shall in no event exceed the amount as will (i) render the Guarantor insolvent at the time of issuance of this Guaranty or (ii) result in the Guarantor’s liability under this Guaranty in respect of the relevant Obligations constituting a fraudulent transfer or conveyance; provided,  further, that the application of such limitation in any specific case (in respect of the Obligations) shall not restrict or limit the ability of the Guaranteed Parties to claim in full all amounts due under this Guaranty in respect of the Obligations of the other Loan Parties where there is no
		

		
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		law, rule or regulation which limits the amount of financial assistance that the Guarantor is permitted to provide in favor of such other Loan Party, or where there is an applicable exception to any limitation on the amount of financial assistance which the Guarantor is permitted to provide in favor of any other Loan Party. If any other Loan Party fails to pay any Obligation in full when due (whether at stated maturity, scheduled payment date, by acceleration, early termination or otherwise) strictly in accordance with the terms of the Loan Documents, including in the amounts, in the currency and at the place expressly agreed to thereunder, irrespective of and without giving effect to any law, order, decree or regulation in effect from time to time of the jurisdiction where such Loan Party or any other person or entity obligated on such Obligation is located, the Guarantor will promptly pay the same to the Administrative Agent for the benefit of the Guaranteed Parties. The Guarantor will also pay any and all documented costs and expenses (including without limitation, reasonable and documented legal fees and expenses) incurred by the Guaranteed Parties in enforcing its rights under this Guaranty or any other Loan Document. This Guaranty is a guaranty of payment and not merely of collection.
		

		
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				 2.
			Guaranty Absolute. The obligations of the Guarantor under or in respect of this Guaranty are independent of the Obligations or any other obligations of any other Loan Party, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against any other Loan Party or whether any other Loan Party is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be irrevocable, indefeasible, absolute and unconditional irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now or hereafter acquire in any way relating to, any or all of the following: (i) any illegality, lack of validity or unenforceability of any Obligation or any document, agreement or instrument relating thereto, (ii) any amendment, modification, waiver or consent to departure from the terms of any Obligation or any other Loan Document (including, without limitation, any renewal or extension of the time of payment or change in the manner or place of payment, any increase in the Obligations resulting from the extension of additional credit to any Borrower, and any acceleration of the maturity of any of the Obligations), (iii) any taking, exchange, substitution, release, non-perfection or impairment of any collateral securing payment of any Obligation, (iv) any manner of application of any collateral securing payment of any Obligation, or proceeds thereof, to all or any of the Obligations, or any manner of sale or other disposition of any collateral securing payment of any Obligation for all or any of the Obligations or any other assets of any other Loan Party, (v) any change in the corporate or other organizational existence, structure or ownership of any other Loan Party, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other Loan Party or its assets or any resulting release or discharge of any Obligation, (vi) the existence of any claim, set- off or other rights that the Guarantor may have at any time against any other Loan Party, the Guaranteed Parties, or any other corporation or person, whether in connection herewith or any unrelated transaction, provided that nothing herein will prevent the assertion of any such claim by separate suit or compulsory counterclaim, (vii) any law, regulation, decree or order of any jurisdiction, or any other event, affecting any term of any Obligation or the rights of the Guaranteed Parties with respect thereto, including, without limitation: (A) the application of any such law, regulation, decree or order, including any prior approval, that would prevent the exchange of a non-Contractual Currency (as defined below) for a Contractual Currency or the remittance of funds outside of such jurisdiction or the unavailability of a Contractual Currency in any legal exchange market in such jurisdiction in accordance with normal commercial practice; (B) a declaration of banking moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such jurisdiction or any governmental authority thereof of any moratorium on, required rescheduling or restructuring of, or required approval of payments on, any indebtedness in such jurisdiction; (C) any expropriation, confiscation, nationalization or requisition by such country or any governmental authority that directly or indirectly deprives any other Loan Party of any assets or their use or of the ability to operate its business or a material part thereof; or (D) any war (whether or not declared), insurrection, revolution, hostile act, civil strife or similar events occurring in such jurisdiction that have an effect similar to that of an event described in clause (A), (B) or (C) above, (viii) the failure of any other person to execute or deliver any other guaranty or agreement or the release or reduction of liability of any other guarantor or surety with




		
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		respect to the Obligations, (ix) any recovery by the Guaranteed Parties against the Guarantor of any deficiency after any foreclosure under any mortgage by nonjudicial sale and any defense or benefits that may be afforded by applicable law, (x) any failure of any Guaranteed Party to disclose to the Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known to any Guaranteed Party (the Guarantor waiving any duty on the part of the Guaranteed Parties to disclose such information), and (xi) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by any Guaranteed Party that might otherwise constitute a defense available to, or a legal or equitable discharge of, any other Loan Party or the Guarantor or any other guarantor or surety (other than payment in full of the Obligations).
		

		
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			Without limiting the generality of the foregoing, the Guarantor agrees, subject to Section 7, that it shall pay the Administrative Agent strictly in accordance with the terms of any Loan Document, including in the amounts, in the currency and at the place expressly agreed to thereunder, irrespective of and without giving effect to any law, order, decree or regulation in effect from time to time of the jurisdiction where the applicable Loan Party or any other person or entity obligated for such Obligation is located (such terms, the “Contractual Terms” and such currency, the “Contractual Currency”). This Guaranty relates to international credit transactions in which the specification of the Contractual Terms, including without limitation, the Contractual Currency, of any document or agreement evidencing any Obligation is of the essence.
		

		
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			It is the intent of this Section 2 that the Guarantor’s obligations hereunder are and shall be irrevocable, indefeasible, absolute and unconditional under any and all circumstances.
		

		
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				 3.
			Waiver. The Guarantor unconditionally and irrevocably waives promptness, diligence, notice of acceptance, notice of dishonor, notice of nonperformance, presentment, demand for performance, default, acceleration, protest and any other notice with respect to any Obligation and this Guaranty and any requirement that the Guaranteed Parties protect, perfect or insure any lien or any property subject thereto or exercise or exhaust any right or take any action against any other Loan Party or any collateral security or credit support. No failure on the part of the Guaranteed Parties to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.




		
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				 4.
			Reinstatement. This Guaranty will continue to be effective or be reinstated, as the case may be, if at any time any payment of any Obligation is rescinded or must otherwise be returned by the Guaranteed Parties upon the insolvency, bankruptcy or reorganization of any other Loan Party or otherwise, all as though such payment had not been made.




		
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				 5.
			Subrogation. The Guarantor hereby unconditionally and irrevocably agrees not to assert, enforce or otherwise exercise any rights that it may now have or hereafter acquire against any other Loan Party, any other guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other party (including, without limitation, by way of subrogation under this Guaranty, any right of reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Parties against any Loan Party or any other guarantor or any collateral or other collateral security or credit support securing payment of any Obligations, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any other Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner), by any payment made hereunder or otherwise or security on account of such claim, remedy or right, unless and until all of the Obligations (other than unasserted contingent obligations) and all other amounts payable under this Guaranty shall have been paid in full in cash in accordance with the terms of this Guaranty or the




		
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		Contractual Terms (as the case may be) and any and all agreements under which the Lenders are committed to provide extensions of credit have terminated. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Obligations and all other amounts payable under this Guaranty and (b) any and all agreements under which the Lenders are committed to provide extensions of credit have terminated, such amount shall be received and held in trust for the benefit of the Guaranteed Parties, shall be segregated from other property and funds of the Guarantor and shall immediately be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as collateral for any Obligations or other amounts payable under this Guaranty thereafter arising. If (i) the Guarantor shall make payment to the Administrative Agent for the benefit of the Guaranteed Parties of all or any part of the Obligations, (ii) all of the Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and (iii) any and all agreements under which the Lenders are committed to provide extensions of credit have terminated, the Administrative Agent will, at the Guarantor’s request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Obligations resulting from such payment made by the Guarantor pursuant to this Guaranty.
		

		
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				 6.
			Taxes. Any and all payments made to each Guaranteed Party hereunder will be made free and clear of and without deduction for any and all present or future taxes (including, without limitation, value added taxes and withholding taxes), levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding income or franchise taxes imposed on any the Guaranteed Party’s net income by the jurisdiction under the laws of which such Guaranteed Party is organized or any political subdivision thereof or by the jurisdiction of such Guaranteed Party’s lending office or any political subdivision thereof, and any U.S. federal withholding Taxes imposed under FATCA (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities, collectively, “Taxes”). If the Guarantor is required by law to deduct any Taxes from or in respect of any sum payable hereunder (i) the sum payable will be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section), such Guaranteed Party will receive an amount equal to the sum it would have received had no such deductions been made, (ii) the Guarantor will make such deductions, and (iii) the Guarantor will pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law. For purposes of this Section 6, “FATCA” means Sections 1471 through 1474 of the U.S. Internal Revenue Code, as of the date of this Guaranty (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.




		
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			In addition, the Guarantor will pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Guaranty or the Obligations (“Other Taxes”). The Guarantor will promptly furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. The Guarantor will indemnify each Guaranteed Party and hold such Guaranteed Party harmless for the full amount of Taxes or Other Taxes paid by such Guaranteed Party or any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted, within 30 days of such Guaranteed Party’s request therefor.  Within 30 days after the date of any payment of Taxes by or on behalf of the Guarantor, the Guarantor shall furnish to the Administrative Agent, at its address referred to in Section 14, the original or a certified copy of a receipt evidencing such payment. In the case of any payment hereunder by or on behalf of the Guarantor through an account or branch outside the United States or by or on behalf of the Guarantor by a payor that is not a United States person, if the Guarantor determines in its good faith interpretation of applicable law that no Taxes or Other Taxes are payable in respect thereof, or if any
		

		
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		Guaranteed Party and the Guarantor do not agree on a determination of the Taxes or Other Taxes payable in respect thereof, the Guarantor shall, at such Guaranteed Party’s request, furnish, or shall cause such payor to furnish, to such Guaranteed Party, an opinion of counsel acceptable to such Guaranteed Party supporting the Guarantor’s position, in any case notwithstanding the Guarantor’s obligations in respect of Taxes or Other Taxes as set forth in this Section 6. For purposes of this Section 6, the terms “United States” and “United States person” shall have the meanings specified in Section 7701 of the Internal Revenue Code. Without prejudice to the survival of any other agreement contained herein, the Guarantor’s agreements and obligations contained in this Section will survive the payment in full of the Obligations and any amounts due hereunder and any termination of this Guaranty.
		

		
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				 7.
			Place and Currency of Payment. The Guarantor will make each payment hereunder, at the Administrative Agent’s option, in U.S. Dollars and at such place as the Administrative Agent specifies to the Guarantor.




		
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				 8.
			Set-Off. If the Guarantor fails to pay any of its obligations hereunder when due and payable, each Guaranteed Party is authorized at any time and from time to time, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Guaranteed Party to or for the Guarantor’s credit or account against any and all of the Obligations, whether or not the Administrative Agent has made any demand under this Guaranty. Each Guaranteed Party will promptly notify the Guarantor after any such set-off and application, provided that the failure to give such notice will not affect the validity of such set-off and application. The rights of the Guaranteed Parties under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that the Guaranteed Parties may have.




		
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			Representations and Warranties. The Guarantor represents and warrants that:




		
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				 (i)
			this Guaranty is in proper legal form under the laws of [] to be valid, legal, effective, enforceable or admissible into evidence in the courts of [] except for (i) any official or certified translation into the national language of [] that may be required or (ii) any other procedural steps that have been taken or that can be taken at any time without significant expense or delay and without prejudice to any rights or remedies the Guaranteed Parties may have under this Guaranty;




		
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				 (ii)
			it is not necessary that this Guaranty or any other document be filed, registered or recorded with, or executed or notarized before, any court, public office or other authority in




		
			[] or that any registration charge or stamp or similar tax be paid on or in respect of this Guaranty or any other document in order to ensure the legality, validity, effectiveness, enforceability, priority or admissibility in evidence of this Guaranty;
		

		
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				 (iii)
			in any proceeding in [] to enforce this Guaranty governed by New York law, the choice of New York law as the governing law of this Guaranty will be recognized and applied, the irrevocable submission of it to the jurisdiction of 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 will be valid, legal, binding and enforceable, and any judgment obtained in such a court will be recognized and enforceable in [] without reconsideration as to the merits of such judgment;




		
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				 (iv)
			to its knowledge, no payments or other consideration provided to the Administrative Agent in satisfaction of or on account of the Obligations or of the obligations of the Guarantor hereunder were derived from criminal or other illegal activity.




		
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				 10.
			Covenants. So long as this Guaranty is in effect or any part of the Obligations or any amount payable under this Guaranty shall remain unpaid, the Guarantor will perform and observe, all of the terms, covenants and agreements set forth in the Credit on its or their part to be performed and observed or that the Company has agreed to cause its subsidiaries to perform or observe.




		
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				 11.
			

			
	
			
			[Reserved].




		
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				 12.
			Continuing Guaranty; Lender Assignments. This is a continuing guaranty that applies to all Obligations whenever arising. This Guaranty is irrevocable and shall (a) remain in full force and effect until the latest of (i) the payment in full in cash of all Obligations (other than unasserted contingent obligations) and all other amounts payable under this Guaranty in accordance with the terms of this Guaranty or the Contractual Terms (as the case may be), (ii) the expiration or termination of all letters of credit and similar instruments and (iii) the termination of all of the documents and agreements relating to the Obligations,




			
	
			
				 (b)
			be binding upon the Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Guaranteed Parties and their successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, each Guaranteed Party may assign or otherwise transfer all or any portion of its rights and obligations under this Guaranty.




		
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				 13.
			Amendments, Guarantor Assignments, Etc. No amendment of this Guaranty will be effective unless the same is in writing and signed by the Guarantor and the Administrative Agent on behalf of the Guaranteed Parties. No waiver of any provision of this Guaranty, and no consent to departure by the Guarantor herefrom, will in any event be effective unless the same is in writing and signed by Administrative Agent on behalf of the Guaranteed Parties, and then such waiver or consent will be effective only in the specific instance and for the specific purpose for which given. The Guarantor may not assign or otherwise transfer any of its obligations hereunder without the prior written consent of the Guaranteed Parties.




		
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				 14.
			Addresses. All notices and other communications provided for hereunder will be in writing (including telecopier communication), and mailed, telecopied or delivered to it, if to the Guarantor, at its address at 9740 Scranton Road, San Diego, California 92121, Attention: Atul Patel (Telephone No. (858 404-8831), and if to Administrative Agent, at its address c/o Citibank, N.A., One Penns Way, Building Ops II, Floor 2, New Castle, Delaware 19720, Attention of Bilateral Team, or, as to either party, at such other address as is designated by such party in a written notice to the other party. All such notices and other communications will, when mailed or telecopied, be effective when deposited in the mails or telecopied, respectively. Notices refused by the Guarantor shall nonetheless be deemed delivered.




		
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				 15.
			Guarantor’s Credit Decision, Etc. The Guarantor has, independently and without reliance on any Guaranteed Party and based on such documents and information as the Guarantor has deemed appropriate, made its own credit analysis and decision to enter into this Guaranty. The Guarantor has adequate means to obtain from each other Loan Party on a continuing basis information concerning the financial condition, operations and business of such other Loan Party, and the Guarantor is not relying on any Guaranteed Party to provide such information now or in the future. The Guarantor acknowledges that it will receive substantial direct and indirect benefit from the extensions of credit contemplated by this Guaranty and that the waivers set forth in Sections 2 and 3 are knowingly made in contemplation of such benefit.




		
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				 16.
			Severability. If any provision hereof is found by a court to be invalid or unenforceable, to the fullest extent permitted by applicable law, the Guarantor and the Administrative Agent on behalf of the Guaranteed Parties (by acceptance of this Guaranty) agree that such invalidity or unenforceability will not impair the validity or enforceability of any other provision hereof.




		
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				 17.
			Indemnification; Damage Waiver. (a) Without limitation on any other Obligations of the Guarantor or remedies of the Guaranteed Parties under this Guaranty, the Guarantor shall, to the fullest extent permitted by law, indemnify, defend and save and hold harmless each Guaranteed Party and each of its affiliates and its respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and against, and shall pay on demand, any and all documented claims, damages, losses, liabilities and expenses (including, without limitation, reasonable and documented fees and expenses of counsel) that may be incurred by or asserted or awarded against any Guaranteed Party in connection with or as a result of any failure of any Obligations to be the legal, valid and binding obligations of any other Loan Party enforceable against such other Loan Party in accordance with their terms; provided that such indemnity shall not, as to any Indemnified Party be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified Party or (y) result from a claim brought by the Guarantor against an Indemnified Party for breach in bad faith of such Indemnitee's obligations hereunder or under any other Loan Document, if the Guarantor has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.




		
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				 (b)
			The Guarantor hereby also agrees that none of the Guaranteed Parties or any of their respective affiliates and its respective officers, directors, employees, agents and advisors shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Guarantor or any of its affiliates or any of their respective officers, directors, employees, agents and advisors, and the Guarantor hereby agrees not to assert any claim against any such Person on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Credit Agreement, the actual or proposed use of the proceeds of the loans or credit extended thereunder.




		
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				 (c)
			Without prejudice to the survival of any of the other agreements of the Guarantor under this Guaranty or any other Loan Document, the agreements and obligations of the Guarantor contained in Section 1 (with respect to enforcement expenses), Section 4, Section 6 and this Section 17 shall survive the payment in full of the Obligations and all of the other amounts payable under this Guaranty.




		
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				 18.
			Governing Law. This Guaranty and any right, remedy, obligation, claim, controversy, dispute or cause of action (whether in contract, tort or otherwise) based upon, arising out of or relating to this Guaranty shall be governed by, and construed in accordance with, the law of the State of New York.




		
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				 19.
			Consent to Jurisdiction, Summary Procedure, Etc; Waiver of Immunities. (a) The Guarantor irrevocably and unconditionally (i) agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Guaranteed Party or any of its affiliates in any way relating to this Guaranty or the transactions relating hereto, 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, (ii) submits to the jurisdiction of 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 agrees that all claims in respect of 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, (iii) 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, (iv) 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 suit, action or proceeding arising out of or relating to this Guaranty in any court referred to in this Section, (v) 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 and (vi) consents to the service of any process, summons, notice or document in any such action, litigation or proceeding by registered mail addressed to the




		
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		Guarantor at its address specified in Section 14. As an alternative method of service, the Guarantor also irrevocably appoints the Company (the “Process Agent”) with an office on the date hereof at 9740 Scranton Road, San Diego, California 92121, United States, as its agent to receive on behalf of the Guarantor and its property service of copies of any process, summons, notice or document in any such action, litigation or proceeding. Such service may be made by mailing or delivering a copy of such process to the Guarantor in care of the Process Agent, and the Guarantor hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. Nothing herein shall affect any right that the Guaranteed Parties may otherwise have to bring any action or proceeding relating to this Guaranty against the Guarantor or its properties in the courts of any jurisdiction, including, without limitation, the courts sitting in []1.
		

		
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				 (b)
			The Guarantor hereby acknowledges that its guarantee constitutes an instrument for the payment of money only, and consents and agrees that the Administrative Agent, at its sole option, in the event of a dispute by the Guarantor in the payment of any moneys due hereunder, shall have the right to bring motion- action under Section 3213 of New York’s Civil Practice Law and Rules.




		
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				 (c)
			To the extent that the Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Guarantor hereby irrevocably and unconditionally waives such immunity in respect of its obligations under this Guaranty and, without limiting the generality of the foregoing, agrees that the waivers set forth in this subsection (d) shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act.




		
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				 20.
			Execution in Counterparts. This Guaranty and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and by different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this Guaranty.




		
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				 21.
			Judgment. If for the purposes of obtaining judgment in any court it is necessary to convert a sum payable hereunder in either the Contractual Currency or U.S. Dollars pursuant to Section 7 (the “Guaranty Currency”) into another currency (the “Other Currency”), the Guarantor agrees that the rate of exchange used will be that at which, in accordance with normal banking procedures, the Administrative Agent could purchase the Guaranty Currency with the Other Currency on the business day preceding that on which final judgment is given. The obligation of the Guarantor in respect of any sum due hereunder will, notwithstanding any judgment in the Other Currency, be discharged only to the extent that, on the date the Guarantor makes payment to the Administrative Agent of any sum adjudged to be so due in the Other Currency, the Administrative Agent may, in accordance with normal banking procedures, purchase the Guaranty Currency with the Other Currency; if the amount of the Guaranty Currency so purchased is less than the sum originally due to the Guaranteed Parties in the Guaranty Currency, the Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Guaranteed Parties against such loss.




		
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				 22.
			WAIVER OF JURY TRIAL. THE GUARANTOR IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF.




		
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			9
		

		
			 
		


		

		

		 

 


		

			 

		




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			EXHIBIT E-1
		

		
			﻿
		

		
			FORM OF
		

		
			﻿
		

		
			U.S. TAX COMPLIANCE CERTIFICATE
		

		
			(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
		

		
			﻿
		

		
			﻿
		

		
			Reference is hereby made to the Credit Agreement dated as of February 18, 2022 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among PriceSmart, Inc., each lender from time to time party thereto and Citibank, N.A., as Administrative Agent.
		

		
			﻿
		

		
			Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Advance(s) (as well as any Note(s) evidencing such Advance(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10 percent shareholder” of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to any Borrower as described in Section 881(c)(3)(C) of the Code.
		

		
			﻿
		

		
			The undersigned has furnished the Administrative Agent and the Company with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
		

		
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			Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
		

		
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			[NAME OF LENDER]
		

		
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			By: Name:
		

		
			Title:
		

		
			﻿
		

		
			Date:, 20[  ]
		

		
			 
		


		

		

		 

 


		

			

		


			EXHIBIT E-2

		


		

			EXHIBIT E-2

		


		

			FORM OF

		


		

			FORM OF

		


		

			U.S. TAX COMPLIANCE CERTIFICATE

		


		

			(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

		


		

			U.S. TAX COMPLIANCE CERTIFICATE

		


		

			(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

		


		



		﻿
		

		
			﻿
		

		
			Reference is hereby made to the Credit Agreement dated as of February 18, 2022 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among PriceSmart, Inc., each lender from time to time party thereto and Citibank, N.A., as Administrative Agent.
		

		
			﻿
		

		
			Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code,
		

		
			(iii) it is not a “10 percent shareholder” of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to any Borrower as described in Section 881(c)(3)(C) of the Code.
		

		
			﻿
		

		
			The undersigned has furnished its participating Lender with a certificate of its non-
		

		
			U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
		

		
			﻿
		

		
			Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
		

		
			﻿
		

		
			[NAME OF PARTICIPANT]
		

		
			﻿
		

		
			﻿
		

		
			By: Name:
		

		
			Title:
		

		
			﻿
		

		
			Date:, 20[  ]
		

		
			 
		


		

		

		 

 


		

			

		


			EXHIBIT E-3

		


		

			EXHIBIT E-3

		


		

			FORM OF

		


		

			FORM OF

		


		

			U.S. TAX COMPLIANCE CERTIFICATE

		


		

			(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

		


		

			U.S. TAX COMPLIANCE CERTIFICATE

		


		

			(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

		


		



		﻿
		

		
			﻿
		

		
			Reference is hereby made to the Credit Agreement dated as of February 18, 2022 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among PriceSmart, Inc., each lender from time to time party thereto and Citibank, N.A., as Administrative Agent.
		

		
			﻿
		

		
			Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “10 percent shareholder” of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to any Borrower as described in Section 881(c)(3)(C) of the Code.
		

		
			﻿
		

		
			The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W- 8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
		

		
			﻿
		

		
			Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
		

		
			﻿
		

		
			[NAME OF PARTICIPANT]
		

		
			﻿
		

		
			﻿
		

		
			By: Name:
		

		
			Title:
		

		
			﻿
		

		
			Date:, 20[  ]
		

		
			 
		


		

		

		 

 


		

			

		


			EXHIBIT E-4

		


		

			EXHIBIT E-4

		


		

			FORM OF

		


		

			FORM OF

		


		

			U.S. TAX COMPLIANCE CERTIFICATE

		


		

			(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

		


		

			U.S. TAX COMPLIANCE CERTIFICATE

		


		

			(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

		


		



		﻿
		

		
			﻿
		

		
			Reference is hereby made to the Credit Agreement dated as of February 18, 2022 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among PriceSmart, Inc., each lender from time to time party thereto and Citibank, N.A., as Administrative Agent.
		

		
			﻿
		

		
			Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Advance(s) (as well as any Note(s) evidencing such Advance(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Advance(s) (as well as any Note(s) evidencing such Advance(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “10 percent shareholder” of any Borrower within the meaning of
		

		
			Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to any Borrower as described in Section 881(c)(3)(C) of the Code.
		

		
			﻿
		

		
			The undersigned has furnished the Administrative Agent and the Company with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
		

		
			﻿
		

		
			Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
		

		
			﻿
		

		
			[NAME OF LENDER]
		

		
			﻿
		

		
			﻿
		

		
			By: Name:
		

		
			Title:
		

		
			﻿
		

		
			Date:, 20[  ]