pncchesapeakecreditagree







      68576829_13       Published CUSIP Number: 16530HAA5      Revolving Credit CUSIP Number:    16530HAB3                 $150,000,000 REVOLVING CREDIT FACILITY      CREDIT AGREEMENT   by and among   CHESAPEAKE UTILITIES CORPORATION   and   THE LENDERS PARTY HERETO   and   PNC BANK, NATIONAL ASSOCIATION,    as Administrative Agent, Swing Loan Lender and Issuing Lender      PNC CAPITAL MARKETS LLC and MERRILL LYNCH, PIERCE, FENNER & SMITH   INCORPORATED,    as Joint Lead Arrangers and Joint Bookrunners      and      BANK OF AMERICA, N.A.,       as Syndication Agent         Dated as of October 8, 2015    





 







TABLE OF CONTENTS      Page       -i-       68576829_13   ARTICLE 1 CERTAIN DEFINITIONS ....................................................................................... 1   1.1 Certain Definitions ................................................................................................. 1   1.2 Construction ......................................................................................................... 27   1.3 Accounting Principles; Changes in GAAP .......................................................... 27   ARTICLE 2 REVOLVING CREDIT AND SWING LOAN FACILITIES ................................ 28   2.1 Revolving Credit Commitments. ......................................................................... 28   2.2 Nature of Lenders’ Obligations with Respect to Revolving Credit Loans .......... 28   2.3 Fees ...................................................................................................................... 29   2.4 Termination or Reduction of Revolving Credit Commitments ........................... 29   2.5 Revolving Credit Loan Requests; Conversions and Renewals; Swing Loan   Requests. .............................................................................................................. 30   2.6 Making Revolving Credit Loans and Swing Loans; Presumptions by the   Administrative Agent; Repayment of Revolving Credit Loans; Borrowings   to Repay Swing Loans. ........................................................................................ 30   2.7 Notes .................................................................................................................... 33   2.8 Reserved. .............................................................................................................. 33   2.9 Letter of Credit Subfacility. ................................................................................. 33   2.10 Defaulting Lenders............................................................................................... 40   2.11 Increase in Revolving Credit Commitments. ....................................................... 42   2.12 Extension of Expiration Date ............................................................................... 43   ARTICLE 3 RESERVED ............................................................................................................ 45   ARTICLE 4 INTEREST RATES ................................................................................................ 45   4.1 Interest Rate Options............................................................................................ 45   4.2 Interest Periods..................................................................................................... 46   4.3 Interest After Default ........................................................................................... 46   4.4 LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not   Available. ............................................................................................................. 47   4.5 Selection of Interest Rate Options ....................................................................... 48   ARTICLE 5 PAYMENTS; TAXES; YIELD MAINTENANCE ................................................ 48   5.1 Payments .............................................................................................................. 48   5.2 Pro Rata Treatment of Lenders ............................................................................ 49     





 







TABLE OF CONTENTS   (continued)   Page       -ii-       68576829_13   5.3 Sharing of Payments by Lenders ......................................................................... 49   5.4 Administrative Agent’s Clawback. ...................................................................... 50   5.5 Interest Payment Dates ........................................................................................ 50   5.6 Voluntary Prepayments. ....................................................................................... 50   5.7 Reserved. .............................................................................................................. 52   5.8 Increased Costs. ................................................................................................... 52   5.9 Taxes. ................................................................................................................... 54   5.10 Indemnity ............................................................................................................. 57   5.11 Settlement Date Procedures ................................................................................. 58   5.12 Cash Collateral ..................................................................................................... 59   ARTICLE 6 REPRESENTATIONS AND WARRANTIES ....................................................... 60   6.1 Organization and Qualification; Power and Authority; Compliance With   Laws; Title to Properties; Event of Default ......................................................... 60   6.2 Borrower; Subsidiaries and Owners; Investment Companies ............................. 60   6.3 Validity and Binding Effect ................................................................................. 61   6.4 No Conflict; Material Agreements; Consents ...................................................... 61   6.5 Litigation .............................................................................................................. 61   6.6 Financial Statements. ........................................................................................... 61   6.7 Margin Stock ........................................................................................................ 62   6.8 Full Disclosure ..................................................................................................... 62   6.9 Taxes .................................................................................................................... 63   6.10 Patents, Trademarks, Copyrights, Licenses, Etc .................................................. 63   6.11 Reserved ............................................................................................................... 63   6.12 Insurance .............................................................................................................. 63   6.13 ERISA Compliance. ............................................................................................. 63   6.14 Environmental Matters......................................................................................... 64   6.15 Solvency ............................................................................................................... 65   6.16 Anti-Terrorism Laws ........................................................................................... 65   ARTICLE 7 CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF   CREDIT ......................................................................................................... 65   7.1 Initial Loans and Letters of Credit. ...................................................................... 65     





 







TABLE OF CONTENTS   (continued)   Page       -iii-       68576829_13   7.2 Each Loan or Letter of Credit .............................................................................. 67   ARTICLE 8 AFFIRMATIVE COVENANTS............................................................................. 67   8.1 Preservation of Existence, Etc ............................................................................. 67   8.2 Payment of Liabilities, Including Taxes, Etc ....................................................... 68   8.3 Maintenance of Insurance .................................................................................... 68   8.4 Maintenance of Properties and Leases ................................................................. 68   8.5 Inspection Rights ................................................................................................. 68   8.6 Keeping of Records and Books of Account ......................................................... 68   8.7 Compliance with Laws; Use of Proceeds ............................................................ 69   8.8 Further Assurances............................................................................................... 69   8.9 Anti-Terrorism Laws; International Trade Law Compliance .............................. 69   8.10 Reserved. .............................................................................................................. 69   8.11 Reporting Requirements ...................................................................................... 69   8.12 Certificates; Notices; Additional Information. .................................................... 70   ARTICLE 9 NEGATIVE COVENANTS ................................................................................... 71   9.1 Indebtedness ......................................................................................................... 71   9.2 Liens; Lien Covenants ......................................................................................... 72   9.3 Loans and Investments ......................................................................................... 72   9.4 Line of Business ................................................................................................... 72   9.5 Liquidations, Mergers, Consolidations, Acquisitions .......................................... 72   9.6 Dispositions of Assets or Subsidiaries ................................................................. 72   9.7 Affiliate Transactions........................................................................................... 73   9.8 Maximum Funded Indebtedness to Total Adjusted Capitalization Ratio ............ 73   9.9 Limitation on Negative Pledges and Restrictive Agreements ............................. 73   ARTICLE 10 DEFAULT ............................................................................................................ 74   10.1 Events of Default ................................................................................................. 74   10.2 Consequences of Event of Default. ...................................................................... 76   10.3 Application of Proceeds ....................................................................................... 77   ARTICLE 11 THE ADMINISTRATIVE AGENT ..................................................................... 79   11.1 Appointment and Authority ................................................................................. 79     





 







TABLE OF CONTENTS   (continued)   Page       -iv-       68576829_13   11.2 Rights as a Lender ................................................................................................ 79   11.3 Exculpatory Provisions ........................................................................................ 79   11.4 Reliance by Administrative Agent ....................................................................... 80   11.5 Delegation of Duties ............................................................................................ 81   11.6 Resignation of Administrative Agent .................................................................. 81   11.7 Non-Reliance on Administrative Agent and Other Lenders ................................ 82   11.8 No Other Duties, Etc ............................................................................................ 82   11.9 Administrative Agent’s Fee ................................................................................. 82   11.10 Administrative Agent May File Proofs of Claim ................................................. 82   11.11 Reserved ............................................................................................................... 83   11.12 No Reliance on Administrative Agent’s Customer Identification Program ........ 83   11.13 Lender Provided Interest Rate Hedges, Lender Provided Commodity   Hedges and Other Lender Provided Financial Service Products ......................... 83   ARTICLE 12 MISCELLANEOUS ............................................................................................. 84   12.1 Modifications, Amendments or Waivers ............................................................. 84   12.2 No Implied Waivers; Cumulative Remedies ....................................................... 85   12.3 Expenses; Indemnity; Damage Waiver. ............................................................... 85   12.4 Reserved. .............................................................................................................. 87   12.5 Holidays ............................................................................................................... 87   12.6 Notices; Effectiveness; Electronic Communication ............................................ 87   12.7 Severability .......................................................................................................... 88   12.8 Duration; Survival ................................................................................................ 88   12.9 Successors and Assigns........................................................................................ 89   12.10 Confidentiality. .................................................................................................... 93   12.11 Counterparts; Integration; Effectiveness. ............................................................. 94   12.12 Choice of Law Submission to Jurisdiction; Waiver of Venue; Service of   Process; Waiver of Jury Trail. ............................................................................. 95   12.13 USA Patriot Act Notice ....................................................................................... 96   12.14 No Advisory or Fiduciary Responsibility ............................................................ 96        





 







    -v-       68576829_13   LIST OF SCHEDULES AND EXHIBITS   SCHEDULES   SCHEDULE 1.1(B) - COMMITMENTS OF LENDERS AND ADDRESSES FOR   NOTICES   SCHEDULE 1.1(P) - PERMITTED LIENS   SCHEDULE 6.2 - SUBSIDIARIES   SCHEDULE 6.6(B) - INDEBTEDNESS AND LIABILITIES   SCHEDULE 9.1 - PERMITTED INDEBTEDNESS   EXHIBITS   EXHIBIT A - ASSIGNMENT AND ASSUMPTION AGREEMENT   EXHIBIT B - PERMITTED ACQUISITION CERTIFICATE   EXHIBIT C  - REVOLVING CREDIT NOTE   EXHIBIT D  - SWING LOAN NOTE   EXHIBIT E - REVOLVING CREDIT LOAN REQUEST   EXHIBIT F - SWING LOAN REQUEST   EXHIBIT G - NEW LENDER JOINDER   EXHIBIT H-1 - U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders   That Are Not Partnerships For U.S. Federal Income Tax Purposes)   EXHIBIT H-2 - U.S. TAX COMPLIANCE CERTIFICATE (For Foreign   Participants That Are Not Partnerships For U.S. Federal Income   Tax Purposes)   EXHIBIT H-3 - U.S. TAX COMPLIANCE CERTIFICATE (For Foreign   Participants That Are Partnerships For U.S. Federal Income Tax   Purposes)   EXHIBIT H-4  - U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders   That Are Partnerships For U.S. Federal Income Tax Purposes)   EXHIBIT I  - QUARTERLY COMPLIANCE CERTIFICATE         





 







   68576829_13   CREDIT AGREEMENT   THIS CREDIT AGREEMENT (as hereafter amended, the “Agreement”) is dated as of   October 8, 2015 and is made by and among CHESAPEAKE UTILITIES CORPORATION, a   Delaware corporation (the “Borrower”), the LENDERS (as hereinafter defined), and PNC BANK,   NATIONAL ASSOCIATION, in its capacity as administrative agent for the Lenders under this   Agreement (hereinafter referred to in such capacity as the “Administrative Agent”), Swing Loan   Lender and Issuing Lender.   The Borrower has requested the Lenders to provide a revolving credit facility to the   Borrower in an aggregate principal amount not to exceed $150,000,000, including therein a Swing   Loan subfacility and a Letter of Credit subfacility.  In consideration of their mutual covenants and   agreements hereinafter set forth and intending to be legally bound hereby, the parties hereto   covenant and agree as follows:   ARTICLE 1   CERTAIN DEFINITIONS   1.1 Certain Definitions.  In addition to words and terms defined elsewhere in this   Agreement, the following words and terms shall have the following meanings, respectively, unless   the context hereof clearly requires otherwise:   Acquisition shall mean any transaction, or any series of related transactions,   consummated on or after the date of this Agreement, by which the Borrower or any of its   Subsidiaries (a) acquires any ongoing business or all or substantially all of the assets of any firm,   corporation or limited liability company, or division thereof, whether through purchase of assets,   merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent   transaction in a series of transactions) at least a majority (in number of votes) of the securities of   a corporation which have ordinary voting power for the election of directors (other than securities   having such power only by reason of the happening of a contingency) or a majority (by percentage   or voting power) of the outstanding ownership interests of a partnership or limited liability   company.    Additional Commitment Lender shall have the meaning specified in   Section 2.12(d) [(Additional Commitment Lenders].   Administrative Agent shall mean PNC Bank, National Association, and its   successors and assigns, in its capacity as administrative agent hereunder.   Administrative Agent’s Fee shall have the meaning specified in Section 2.3(a)   [Fees].   Administrative Agent’s Letter shall have the meaning specified in Section 2.3(a)   [Fees].   Administrative Questionnaire shall mean an administrative questionnaire in a form   supplied by the Administrative Agent.      





 







   2   68576829_13   Affiliate shall mean, 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.      Alternate Source shall have the meaning specified in the definition of LIBOR Rate.   Anniversary Date shall have the meaning specified in Section 2.12(a) [Requests for   Extension].   Anti-Terrorism Laws shall mean any Laws relating to terrorism, trade sanctions   programs and embargoes, import/export licensing, money laundering or bribery, and any   regulation, order, or directive promulgated, issued or enforced pursuant to such Laws, all as   amended, supplemented or replaced from time to time.   Applicable Margin shall mean the corresponding percentages per annum as set forth   below based on the Total Indebtedness to Total Capitalization Ratio:       Revolving Credit Loans      Pricing   Level   Total   Indebtedness to   Total   Capitalization   Ratio   Commitment   Fee   Letter of   Credit    Fee   LIBOR + Base Rate +   I Equal to or less   than 35.0%   0.075% 0.875% 0.875% 0.000%   II Greater than   35.0% but equal   to or less than   50.0%   0.100% 1.000% 1.000% 0.000%   III Greater than   50.0% but equal   to or less than   60.0%   0.125% 1.125% 1.125% 0.125%   IV Greater than   60.0%   0.175% 1.250% 1.250% 0.250%           The Applicable Margin shall be determined and adjusted quarterly on the date on which the   Borrower is required to provide a Compliance Certificate pursuant to Section 8.12(a) [Certificates;   Notices; Additional Information] for the most recently ended fiscal quarter of the Borrower (each   such date, a “Calculation Date”); provided that (a) the Applicable Margin shall be based on   Pricing Level II until the Calculation Date related to the Compliance Certificate delivered for the   fiscal quarter ended September 30, 2015, and, thereafter the Pricing Level shall be determined by   reference to the Total Indebtedness to Total Capitalization Ratio as of the last day of the most   recently ended fiscal quarter of the Borrower preceding the applicable Calculation Date, and (b) if   the Borrower fails to provide any Compliance Certificate when due as required by Section 8.12(a)   [Certificates; Notices; Additional Information], the Applicable Margin from the date on which     





 







   3   68576829_13   such Compliance Certificate was required to have been delivered shall be based on Pricing Level   IV until such time as such Compliance Certificate is delivered, at which time the Pricing Level   shall be determined by reference to the Total Indebtedness to Total Capitalization Ratio as of the   last day of the most recently ended fiscal quarter of the Borrower preceding such Calculation Date.    The applicable Pricing Level shall be effective from one Calculation Date until the next   Calculation Date, except as provided in the preceding sentence.  Any adjustment in the Pricing   Level shall be applicable to all extensions of credit then existing or subsequently made or issued.   Notwithstanding the foregoing, in the event that any financial statement or Compliance Certificate   delivered pursuant to Section 8.11(a) or (b) [Reporting Requirements] or Section 8.12(a)   [Certificates; Notices; Additional Information] is shown to be inaccurate (regardless of whether   (i) this Agreement is in effect, (ii) any Commitments are in effect, or (iii) any Loan or Letter of   Credit Obligation is outstanding when such inaccuracy is discovered or such financial statement   or Compliance Certificate was delivered), and such inaccuracy, if corrected, would have led to the   application of a higher Applicable Margin for any period (an “Applicable Period”) than the   Applicable Margin applied for such Applicable Period, then (A) the Borrower shall immediately   deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period,   (B) the Applicable Margin for such Applicable Period shall be determined as if the Total   Indebtedness to Total Capitalization Ratio in the corrected Compliance Certificate were applicable   for such Applicable Period, and (C) the Borrower shall immediately and retroactively be obligated   to pay to the Administrative Agent (for the benefit of the applicable Lenders) the accrued   additional interest and fees owing as a result of such increased Applicable Margin for such   Applicable Period, which payment shall be promptly applied by the Administrative Agent in   accordance with Section 5.4 [Administrative Agent’s Clawback].  Nothing in this paragraph shall   limit the rights of the Administrative Agent and Lenders with respect to Section 5.1 [Payments] or   Section 10.2 [Consequences of Event of Default] nor any of their other rights under this Agreement   or any other Loan Document.  The Borrower’s obligations under this paragraph shall survive the   termination of the Commitments and the repayment of all other Obligations hereunder.    Approved Fund shall mean any Fund that is administered or managed by (a) a   Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or   manages a Lender.   Arrangers shall, collectively, mean PNC Capital Markets LLC and MLPFS.   Assignment and Assumption shall mean 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 12.9 [Successors and Assigns]), and accepted by the Administrative Agent, in substantially   the form of Exhibit A or any other form approved by the Administrative Agent.   Authorized Officer shall mean the Chief Executive Officer, President, Chief   Financial Officer, Treasurer or Assistant Treasurer of the Borrower, or such other individuals,   designated by written notice to the Administrative Agent from the Borrower, authorized to execute   notices, reports and other documents on behalf of the Borrower required hereunder.  The Borrower   may amend such list of individuals from time to time by giving written notice of such amendment   to the Administrative Agent.     





 







   4   68576829_13   BAML Fee shall have the meaning specified in Section 2.3(b) [Fees].    BAML Letter shall have the meaning specified in Section 2.3(b) [Fees].    Base Rate shall mean, for any day, a fluctuating per annum rate of interest equal to   the highest of (i) the Federal Funds Open Rate, plus 0.5%, (ii) the Prime Rate, and (iii) the Daily   LIBOR Rate, plus 1.00%).  Any change in the Base Rate (or any component thereof) shall take   effect at the opening of business on the day such change occurs.   Base Rate Option shall mean the option of the Borrower to have Loans bear interest   at the rate and under the terms set forth in Section 4.1(a)(i) [Revolving Credit Base Rate Options]   or Section 4.1(b) [Swing Loan Interest Rate], as applicable.   Borrower shall have the meaning specified in the introductory paragraph.   Borrowing Date shall mean, with respect to any Loan, the date of the making,   renewal or conversion thereof, which shall be a Business Day.   Borrowing Tranche shall mean specified portions of Revolving Credit Loans   outstanding as follows:  (i) any Revolving Credit Loans to which a LIBOR Rate Option applies   which become subject to the same Interest Rate Option under the same Revolving Credit Loan   Request by the Borrower and which have the same Interest Period shall constitute one Borrowing   Tranche, and (ii) all Revolving Credit Loans to which a Base Rate Option applies shall constitute   one Borrowing Tranche.   Business Day shall mean any day other than a Saturday or Sunday or a legal holiday   on which commercial banks are authorized or required to be closed, or are in fact closed, for   business in Pittsburgh, Pennsylvania (or, if otherwise, the Lending Office of the Administrative   Agent) and if the applicable Business Day relates to any Loan to which the LIBOR Rate Option   applies, such day must also be a day on which dealings are carried on in the London interbank   market.   Cash Collateralize shall mean to pledge and deposit with or deliver to the   Administrative Agent, for the benefit of one or more of the Issuing Lender or the Lenders, as   collateral for Letter of Credit Obligations or obligations of Lenders to fund participations in respect   of Letter of Credit Obligations, cash or deposit account balances or, if the Administrative Agent   and each applicable Issuing Lender shall agree in their sole discretion, other credit support, in each   case pursuant to documentation in form and substance satisfactory to the Administrative Agent   and each applicable Issuing Lender.  “Cash Collateral” shall have a meaning correlative to the   foregoing and shall include the proceeds of such cash collateral and other credit support.   Cash Equivalents shall, collectively, mean such items described in clauses (i), (ii),   (iii) and (iv) of the definition of Permitted Investments.   Cash Management Agreements shall have the meaning specified in Section 2.6(f)   [Swing Loans Under Cash Management Agreements].     





 







   5   68576829_13   Cash Management Bank shall mean any Person that, at the time it enters into an   Other Lender Provided Financial Service Product, is a Lender or an Affiliate of a Lender, in its   capacity as a party to such Other Lender Provided Financial Service Product.   CFTC shall mean the Commodity Futures Trading Commission.   Change in Law shall mean the occurrence, after the date of this Agreement, of any   of the following: (i) the adoption or taking effect of any Law, (ii) any change in any Law or in the   administration, interpretation, implementation or application thereof by any Official Body or   (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the   force of Law) by any Official Body; provided that notwithstanding anything herein to the contrary,   (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,   regulations, guidelines, interpretations or directives thereunder or issued in connection therewith   (whether or not having the force of Law) and (y) all requests, rules, regulations, guidelines,   interpretations 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 (whether or not having the force of Law), in each case pursuant to   Basel III, shall in each case be deemed to be a Change in Law regardless of the date enacted,   adopted, issued, promulgated or implemented.   Change of Control shall mean (a) any “person” or “group” (as such terms are used   in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange   Act”)), shall become, or obtain rights (whether by means or warrants, options or otherwise) to   become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),   directly or indirectly, of more than 35% of the Equity Interests of the Borrower; or (b) occupation   of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by   Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed   by directors so nominated.   CIP Regulations shall have the meaning specified in Section 11.12 [No Reliance   on Administrative Agent’s Customer Identification Program].   Closing Date shall mean October 8, 2015.     Code shall mean the Internal Revenue Code of 1986, as the same may be amended   or supplemented from time to time, and any successor statute of similar import, and the rules and   regulations thereunder, as from time to time in effect.   Commitment shall mean, as to any Lender, its Revolving Credit Commitment, and   Commitments shall mean the aggregate of the Revolving Credit Commitments of all of the   Lenders.  The term “Commitment” in reference to PNC only may also refer to its Swing Loan   Commitment as the context may require, but does not refer to the aggregate of its Revolving Credit   Commitment and its Swing Loan Commitment.   Commitment Fee shall have the meaning specified in Section 2.3 [Commitment   Fees].     





 







   6   68576829_13   Commodity Hedge shall mean commodity swaps, commodity options, forward   commodity contracts and any other similar transactions entered into by the Borrower in the   ordinary course of its business (only for hedging (rather than speculative) purposes) in order to   provide protection to, or minimize the impact upon, the Borrower of increasing prices of   commodities.   Commodity Hedge Bank shall mean any Person that, at the time it enters into a   Lender Provided Commodity Hedge, is a Lender or an Affiliate of a Lender, in its capacity as a   party to such Lender Provided Commodity Hedge.   Commodity Hedge Liabilities shall have the meaning assigned in the definition of   Lender Provided Commodity Hedge.   Compliance Certificate shall have the meaning specified in Section 8.12(a)   [Certificate of the Borrower].   Connection Income Taxes shall mean Other Connection Taxes that are imposed on   or measured by net income (however denominated) or that are franchise Taxes or branch profits   Taxes.   Consolidated Net Worth shall mean as of any date, the sum of the amounts that   would be shown on a consolidated balance sheet of the Borrower and its Subsidiaries at such date   for (a) capital stock, (b) capital surplus and (c) the other components of stockholders’ equity.   Consolidated Subsidiary shall mean with respect to any Person at any date any   Subsidiary of such Person or other entity the accounts of which would be consolidated with those   of such Person in its consolidated financial statements if such statements were prepared as of such   date in accordance with GAAP.   Consolidated Total Assets shall mean as of any date the aggregate amount at which   the assets of the Borrower and its Subsidiaries would be shown on a consolidated balance sheet at   such date.   Control shall mean the possession, directly or indirectly, of the power to direct or   cause the direction of the management or policies of a Person, whether through the ability to   exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings   correlative thereto.   Covered Entity shall mean (a) the Borrower and each of Borrower’s Subsidiaries   and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a)   above.  For purposes of this definition, control of a Person shall mean the direct or indirect (x)   ownership of, or power to vote, 25% or more of the issued and outstanding equity interests having   ordinary voting power for the election of directors of such Person or other Persons performing   similar functions for such Person, or (y) power to direct or cause the direction of the management   and policies of such Person whether by ownership of equity interests, contract or otherwise.   Current Indebtedness shall mean with respect to any Person, all Indebtedness for   borrowed money and all Indebtedness secured by any Lien existing on property owned by that     





 







   7   68576829_13   Person (whether or not such Indebtedness have been assumed) which, in either case, is payable on   demand or within one year from their creation, plus the aggregate amount of Guaranties by that   Person of all such Indebtedness of other Persons, except: (a) any Indebtedness which is renewable   or extendible at the option of the debtor to a date more than one year from the date of creation   thereof; (b) any Indebtedness which, although payable within one year, constitutes principal   payments on Indebtedness expressed to mature more than one year from the date of its creation   and (c) Revolving Credit Loans and Guaranties of Revolving Credit Loans.     Daily LIBOR Rate shall mean, for any day, the rate per annum determined by the   Administrative Agent by dividing (x) the Published Rate by (y) a number equal to 1.00 minus the   LIBOR Reserve Percentage on such day.  Notwithstanding the foregoing, if the Daily LIBOR Rate   as determined above would be less than zero (0.00), such rate shall be deemed to be zero (0.00)   percent for purposes of this Agreement.   Debtor Relief Laws shall mean 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.   Defaulting Lender shall mean, subject to Section 2.10(b) [Defaulting Lender Cure],   any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days   of the date such Loans were required to be funded hereunder unless such Lender notifies the   Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s   determination that one or more conditions precedent to funding (each of which conditions   precedent, together with any applicable default, shall be specifically identified in such writing) has   not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Lender, the Swing Loan   Lender or any other Lender any other amount required to be paid by it hereunder (including in   respect of its participation in Letters of Credit or Swing Loans) within two Business Days of the   date when due, (b) has notified the Borrower, the Administrative Agent, the Issuing Lender or the   Swing Loan Lender in writing that it does not intend to comply with its funding obligations   hereunder, or has made a public statement to that effect (unless such writing or public statement   relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based   on such Lender’s determination that a condition precedent to funding (which condition precedent,   together with any applicable default, shall be specifically identified in such writing or public   statement) cannot be satisfied), (c) has failed, within three Business Days after written request by   the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and   the Borrower that it will comply with its prospective funding obligations hereunder (provided that   such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such   written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or   indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief   Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee   for the benefit of creditors or similar Person charged with reorganization or liquidation of its   business or assets, including the Federal Deposit Insurance Corporation or any other state or   federal regulatory authority acting in such a capacity; provided that a Lender shall not be a   Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that   Lender or any direct or indirect parent company thereof by an Official Body so long as such   ownership interest does not result in or provide such Lender with immunity from the jurisdiction     





 







   8   68576829_13   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 Official Body) 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 2.10(b) [Defaulting Lender Cure]) upon delivery of written   notice of such determination to the Borrower, the Issuing Lender, the Swing Loan Lender and each   Lender.   Disqualified Institution shall mean the Persons identified by the Borrower in   writing to the Administrative Agent prior to the Closing Date, and, upon reasonable notice to the   Administrative Agent, those Persons that are competitors of the Borrower and its Subsidiaries (or   reasonably known, on the basis of their name, Affiliates of any such competitors (other than any   such Affiliate that is a bona fide fixed income fund)) that are specified in writing from time to time   by the Borrower on or after the Closing Date to the Administrative Agent.      Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of the   United States of America.   Drawing Date shall have the meaning specified in Section 2.9(c) [Disbursements,   Reimbursement].    Effective Date shall mean the date indicated in a document or agreement to be the   date on which such document or agreement becomes effective, or, if there is no such indication,   the date of execution of such document or agreement.   Eligible Assignee shall mean any Person that meets the requirements to be an   assignee under Section 12.9 [Successors and Assigns](b)(iii), (v) and (vi) (subject to such consents,   if any, as may be required under Section 12.9 [Successors and Assigns] (b)(iii)).      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 having the force of law relating to   pollution and the protection of the environment or the release of any Hazardous Materials into the   environment.   Environmental Liability shall mean any liability, contingent or otherwise (including   any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of   the Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (a)   violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,   treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d)   the release or threatened release of any Hazardous Materials into the environment or (e) any   contract, agreement or other consensual arrangement pursuant to which liability is assumed or   imposed with respect to any of the foregoing.   Equity Interests shall mean, with respect to any Person, all of the shares of capital   stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other     





 







   9   68576829_13   rights for the purchase or acquisition from such Person of shares of capital stock of (or other   ownership or profit interests in) such Person, all of the securities convertible into or exchangeable   for shares of capital stock of (or other ownership or profit interests in) such Person or warrants,   rights or options for the purchase or acquisition from such Person of such shares (or such other   interests), and all of the other ownership or profit interests in such Person (including partnership,   member or trust interests therein), whether voting or nonvoting, and whether or not such shares,   warrants, options, rights or other interests are outstanding on any date of determination.   ERISA shall mean the Employee Retirement Income Security Act of 1974, as the   same may be amended or supplemented from time to time, and any successor statute of similar   import, and the rules and regulations thereunder, as from time to time in effect.   ERISA Event shall mean (a) with respect to a Pension Plan, a reportable event under   Section 4043 of ERISA as to which event (after taking into account notice waivers provided for in   the regulations) there is a duty to give notice to the PBGC; (b) a withdrawal by Borrower or any   member of the ERISA Group from a Pension Plan subject to Section 4063 of ERISA during a plan   year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a   cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a   complete or partial withdrawal by Borrower or any member of the ERISA Group from a   Multiemployer Plan, notification that a Multiemployer Plan is in reorganization, or occurrence of   an event described in Section 4041A(a) of ERISA that results in the termination of a   Multiemployer Plan; (d) the filing of a notice of intent to terminate a Pension Plan in a distress   termination, the treatment of a Pension Plan amendment as a termination under Section 4041(e) of   ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan; (e) an   event or condition which constitutes grounds under Section 4042 of ERISA for the termination of,   or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the   determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or a plan   in endangered or critical status within the meaning of Sections 430.431 and 432 of the Code or   Sections 303, 304 and 305 of ERISA; or (g) the imposition of any liability under Title IV of   ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA,   upon Borrower or any member of the ERISA Group.   ERISA Group shall mean, at any time, the Borrower and all members of a   controlled group of corporations and all trades or businesses (whether or not incorporated) under   common control and all other entities which, together with the Borrower, are treated as a single   employer under Section 414 of the Code or Section 4001(b)(1) of ERISA.   Event of Default shall mean any of the events described in Section 10.1 [Events of   Default] and referred to therein as an “Event of Default.”   Excluded Taxes shall mean 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: (i) Taxes   imposed on or measured by net income (however denominated), franchise Taxes, and branch   profits Taxes, in each case, (a) 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 (b) that are   Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on     





 







   10   68576829_13   amounts payable to or for the account of such Lender with respect to an applicable interest in a   Loan or Commitment pursuant to a law in effect on the date on which (a) such Lender acquires   such interest in such Loan or Commitment (other than pursuant to an assignment request by the   Borrower under Section 5.6(b) [Replacement of a Lender]) or (b) such Lender changes its lending   office, except in each case to the extent that, pursuant to Section 5.9(g) [Status of Lenders],   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, (iii) Taxes attributable to such Recipient’s failure to comply with Section 5.9(g)   [Status of Lenders], and (iv) any U.S. federal withholding Taxes imposed under FATCA (except   to the extent imposed due to the failure of the Borrower to provide documentation or information   to the IRS).   Existing Expiration Date shall have the meaning specified in Section 2.12(a)   [Requests for Extension].   Expiration Date shall mean, with respect to the Revolving Credit Commitments,   October 8, 2020.   Facility shall mean the revolving loan facility provided pursuant to Article 2.   Facility Termination Date shall mean the date as of which all of the following shall   have occurred:  (a) the aggregate Commitments have terminated, (b) all Obligations have been   paid in full (other than (i) contingent indemnification obligations that are not yet due and (ii)   obligations and liabilities under any Lender Provided Interest Rate Hedge, Lender Provided   Commodity Hedge and any Other Lender Provided Financial Service Product (other than any such   obligations for which written notice has been received by the Administrative Agent that either (x)   amounts are currently due and payable under any such Lender Provided Interest Rate Hedge,   Lender Provided Commodity Hedge or Other Lender Provided Financial Service Product, as   applicable, or (y) no arrangements reasonably satisfactory to the applicable Cash Management   Bank, Commodity Hedge Bank or Interest Rate Hedge Bank, as applicable, have been made)), and   (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other   arrangements with respect thereto reasonably satisfactory to the Administrative Agent (to the   extent the Administrative Agent is a party to such arrangements) and the Issuing Lender, including   the provision of Cash Collateral, shall have been made).   FATCA shall mean Sections 1471 through 1474 of the Code, as of the date of this   Agreement (or any amended or successor version that is substantively comparable and not   materially more onerous to comply with), any current or future regulations or official   interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the   Code.   Federal Funds Effective Rate shall mean for any day the rate per annum (based on   a year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%)   announced by the Federal Reserve Bank of New York (or any successor) on such day as being the   weighted average of the rates on overnight federal funds transactions arranged by federal funds   brokers on the previous trading day, as computed and announced by such Federal Reserve Bank   (or any successor) in substantially the same manner as such Federal Reserve Bank computes and     





 







   11   68576829_13   announces the weighted average it refers to as the “Federal Funds Effective Rate” as of the date of   this Agreement; provided that if such Federal Reserve Bank (or its successor) does not announce   such rate on any day, the “Federal Funds Effective Rate” for such day shall be the Federal Funds   Effective Rate for the last day on which such rate was announced.   Federal Funds Open Rate shall mean for any day the rate per annum (based on a   year of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by   ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for   that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays   such rate), or as set forth on such other recognized electronic source used for the purpose of   displaying such rate as selected by the Administrative Agent (for purposes of this definition, an   “Open Rate Alternate Source”) (or if such rate for such day does not appear on the Bloomberg   Screen BTMM (or any substitute screen) or on any Open Rate Alternate Source, or if there shall   at any time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen)   or any Open Rate Alternate Source, a comparable replacement rate determined by the   Administrative Agent at such time (which determination shall be conclusive absent manifest   error); provided however, that if such day is not a Business Day, the Federal Funds Open Rate for   such day shall be the “open” rate on the immediately preceding Business Day.  If and when the   Federal Funds Open Rate changes, the rate of interest with respect to any advance to which the   Federal Funds Open Rate applies will change automatically without notice to the Borrower,   effective on the date of any such change.   Foreign Lender shall mean a Lender that is not a U.S. Person.   FPU Indebtedness means Florida Public Utilities Company’s 9.08% First Mortgage   Bonds due June 1, 2022, which FPU Indebtedness is described on Schedule 9.1.   Fronting Exposure shall mean, at any time there is a Defaulting Lender, (a) with   respect to the Issuing Lender, such Defaulting Lender’s Ratable Share of the outstanding Letter of   Credit Obligations with respect to Letters of Credit issued by such Issuing Lender other than Letter   of Credit Obligations as to which such Defaulting Lender’s participation obligation has been   reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b)   with respect to any Swing Loan Lender, such Defaulting Lender’s Ratable Share of outstanding   Swing Loans made by such Swing Loan Lender other than Swing Loans as to which such   Defaulting Lender’s participation obligation has been reallocated to other Lenders.      Fund shall mean 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.   Funded Indebtedness shall mean with respect to any Person, without duplication:   (a) its Indebtedness for borrowed money, other than Current Indebtedness; (b) its Indebtedness   secured by any Lien existing on property owned by the Person (whether or not such Indebtedness   have been assumed); (c) the aggregate amount of Guaranties of Indebtedness by the Person, other   than Guaranties which constitute Current Indebtedness; (d) its Indebtedness under capitalized   leases; (e) reimbursement obligations (contingent or otherwise) under any letter of credit   agreement and (f) Indebtedness under any Interest Rate Hedges; provided that the amount of such     





 







   12   68576829_13   Indebtedness under any such Interest Rate Hedges on any date shall be deemed to be the Hedge   Termination Value thereof as of such date.   Funded Indebtedness to Total Adjusted Capitalization Ratio shall mean the ratio of   (a) the aggregate principal amount of all outstanding secured and unsecured Funded Indebtedness   of the Borrower plus secured and unsecured Funded Indebtedness of Subsidiaries (excluding   Indebtedness owed by a Subsidiary to the Borrower or a Wholly-Owned Subsidiary) to (b) Total   Adjusted Capitalization.    GAAP shall mean U.S. generally accepted accounting principles as are in effect   from time to time, subject to the provisions of Section 1.3 [Accounting Principles; Changes in   GAAP], and applied on a consistent basis both as to classification of items and amounts.   Guaranty of any Person shall mean any obligation of such Person guaranteeing or   in effect guaranteeing any liability or obligation of any other Person in any manner, whether   directly or indirectly, including any agreement to indemnify or hold harmless any other Person,   any performance bond or other suretyship arrangement and any other form of assurance against   loss, except endorsement of negotiable or other instruments for deposit or collection in the ordinary   course of business.   Hazardous Materials shall mean any and all pollutants, toxic or hazardous   substances or other materials that have been determined by an Official Body to pose a hazard to   human health and safety, or are regulated as a pollutant, contaminant, petroleum product, coal   combustion residual, manufactured gas plant residual, toxic substance, hazardous substance,   hazardous material or hazardous waste including, but not limited to, asbestos, urea formaldehyde   foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint,   radon gas, or similar restricted or prohibited substances.    Hedge Termination Value shall mean, in respect of any one or more Interest Rate   Hedges, after taking into account the effect of any legally enforceable netting agreement relating   to such Interest Rate Hedges, (a) for any date on or after the date such Interest Rate Hedges have   been closed out and termination value(s) determined in accordance therewith, such termination   value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined   as the mark-to-market value(s) for such Interest Rate Hedges, as determined based upon one or   more mid-market or other readily available quotations provided by any recognized dealer in such   Interest Rate Hedges (which may include a Interest Rate Hedge Bank).     ICC shall have the meaning specified in Section 12.12(a) [Governing Law].   Increasing Lender shall have the meaning assigned to that term in Section 2.11(a)   [Increasing Lenders and New Lenders].   Indebtedness shall mean, as to any Person at any time, any and all indebtedness,   obligations or liabilities (whether matured or unmatured, liquidated or unliquidated, direct or   indirect, absolute or contingent, or joint or several) of such Person for or in respect of:  (i) borrowed   money, (ii) amounts raised under or liabilities in respect of any note purchase or acceptance credit   facility, (iii) reimbursement obligations (contingent or otherwise) under any letter of credit   agreement, (iv) obligations under any Commodity Hedges, Interest Rate Hedges,   currency swap     





 







   13   68576829_13   agreements or other similar agreements, (v) any other transaction (including forward sale or   purchase agreements, capitalized leases and conditional sales agreements) having the commercial   effect of a borrowing of money entered into by such Person to finance its operations or capital   requirements (but not including trade payables and accrued expenses incurred in the ordinary   course of business), or (vi) any Guaranty of Indebtedness for borrowed money.     Indemnified Taxes shall mean (i) Taxes, other than Excluded Taxes, imposed on or   with respect to any payment made by or on account of any obligation of the Borrower under any   Loan Document, and (ii) to the extent not otherwise described in the preceding clause (i), Other   Taxes.   Indemnitee shall have the meaning specified in Section 12.3(b) [Indemnification   by the Borrower].   Information shall mean all information received from the Borrower or any of its   Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their respective businesses,   other than any such information that is available to the Administrative Agent, any Lender or the   Issuing Lender on a non-confidential basis prior to disclosure by the Borrower or any of its   Subsidiaries, provided that, in the case of information received from the Borrower or any of its   Subsidiaries after the date of this Agreement, such information is clearly identified at the time of   delivery as confidential.   Insolvency Proceeding shall mean, with respect to any Person, (a) a case, action or   proceeding with respect to such Person (i) before any court or any other Official Body under any   bankruptcy, insolvency, reorganization or other similar Law now or hereafter in effect, or (ii) for   the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or   similar official) of the Borrower or otherwise relating to the liquidation, dissolution, winding-up   or relief of such Person, or (b) any general assignment for the benefit of creditors, composition,   marshaling of assets for creditors, or other, similar arrangement in respect of such Person’s   creditors generally or any substantial portion of its creditors; undertaken under any Law.   Interest Period shall mean the period of time selected by the Borrower in connection   with (and to apply to) any election permitted hereunder by the Borrower to have Revolving Credit   Loans bear interest under the LIBOR Rate Option.  Subject to the last sentence of this definition,   such period shall be one, two, three or six Months.  Such Interest Period shall commence on the   effective date of such Interest Rate Option, which shall be (i) the Borrowing Date if the Borrower   is requesting new Loans, or (ii) the date of renewal of or conversion to the LIBOR Rate Option if   the Borrower is renewing or converting to the LIBOR Rate Option applicable to outstanding   Loans.  Notwithstanding the second sentence hereof: (A) any Interest Period which would   otherwise end on a date which is not a Business Day shall be extended to the next succeeding   Business Day unless such Business Day falls in the next calendar month, in which case such   Interest Period shall end on the next preceding Business Day, and (B) the Borrower shall not select,   convert to or renew an Interest Period for any portion of the Loans that would end after the   Expiration Date.   Interest Rate Hedge shall mean an interest rate exchange, collar, cap, swap, floor,   adjustable strike cap, adjustable strike corridor, cross-currency swap or similar agreements entered     





 







   14   68576829_13   into by the Borrower in the ordinary course of its business (only for hedging (rather than   speculative) purposes) in order to provide protection to, or minimize the impact upon, the   Borrower of increasing floating rates of interest applicable to Indebtedness.   Interest Rate Hedge Bank shall mean any Person that, at the time it enters into a   Lender Provided Interest Rate Hedge, is a Lender or an Affiliate of a Lender, in its capacity as a   party to such Lender Provided Interest Rate Hedge.   Interest Rate Hedge Liabilities shall have the meaning assigned in the definition of   Lender Provided Interest Rate Hedge.   Interest Rate Option shall mean any LIBOR Rate Option or Base Rate Option or,   solely with respect to Swing Loans, the Daily LIBOR Rate.   Investment shall have the meaning specified in Section 9.3 [Loans and   Investments].   IRS shall mean the United States Internal Revenue Service.   ISP98 shall have the meaning specified in Section 12.12(a) [Governing Law].   Issuing Lender shall mean PNC, in its individual capacity as issuer of Letters of   Credit hereunder.    Law shall mean any law(s) (including common law), constitution, statute, treaty,   regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order,   injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or any   settlement arrangement, by agreement, consent or otherwise, with any Official Body, foreign or   domestic.   Lender Provided Commodity Hedge shall mean a Commodity Hedge that is   provided by a Commodity Hedge Bank to the Borrower or any Subsidiary the Borrower and with   respect to which such Commodity Hedge Bank confirms to the Administrative Agent in writing   prior to the execution thereof that it: (a) is documented in a Master Agreement or another   reasonable and customary manner and (b) is entered into for hedging (rather than speculative)   purposes.  The liabilities owing to the Commodity Hedge Bank providing any Lender Provided   Commodity Hedge (the “Commodity Hedge Liabilities”) by the Borrower shall, for purposes of   this Agreement and all other Loan Documents be “Obligations” of the Borrower and otherwise   treated as Obligations for purposes of the other Loan Documents.   Lender Provided Interest Rate Hedge shall mean an Interest Rate Hedge which is   entered into between the Borrower and any Interest Rate Hedge Bank and with respect to which   such Interest Rate Hedge Bank (or the Lender affiliated with such Interest Rate Hedge Bank)   confirms to Administrative Agent in writing prior to the execution thereof that it: (a) is documented   in a Master Agreement or another reasonable and customary manner and (b) is entered into for   hedging (rather than speculative) purposes.  The liabilities owing to the Interest Rate Hedge Bank   providing any Lender Provided Interest Rate Hedge (the “Interest Rate Hedge Liabilities”) by     





 







   15   68576829_13   the Borrower shall, for purposes of this Agreement and all other Loan Documents be “Obligations”   of the Borrower and otherwise treated as Obligations for purposes of the other Loan Documents.    Lenders shall mean the financial institutions named on Schedule 1.1(B) and their   respective successors and assigns as permitted hereunder, each of which is referred to herein as a   Lender.  Unless the context requires otherwise, the term “Lenders” includes the Swing Loan   Lender.   Lending Office shall mean, as to the Administrative Agent, the Issuing Lender or   any Lender, the office or offices of such Person described as such in such Lender’s Administrative   Questionnaire, or such other office or offices as such Person may from time to time notify the   Borrower and the Administrative Agent.   Letter of Credit shall have the meaning specified in Section 2.9(a) [Issuance of   Letters of Credit].    Letter of Credit Borrowing shall have the meaning specified in Section 2.9(c)   [Disbursements, Reimbursement].   Letter of Credit Fee shall have the meaning specified in Section 2.9(b) [Letter of   Credit Fees].   Letter of Credit Obligation shall mean, as of any date of determination, the   aggregate amount available to be drawn under all outstanding Letters of Credit on such date (if   any Letter of Credit shall increase in amount automatically in the future, such aggregate amount   available to be drawn shall currently give effect to any such future increase) plus the aggregate   Reimbursement Obligations and Letter of Credit Borrowings on such date.   Letter of Credit Sublimit shall have the meaning specified in Section 2.9(a)   [Issuance of Letters of Credit].   LIBOR Rate shall mean, with respect to the Loans comprising any Borrowing   Tranche to which the LIBOR Rate Option applies for any Interest Period, the interest rate per   annum determined by the Administrative Agent by dividing (the resulting quotient rounded   upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate which appears on the   Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which   US dollar deposits are offered by leading banks in the London interbank deposit market), or the   rate which is quoted by another source selected by the Administrative Agent as an authorized   information vendor for the purpose of displaying rates at which US dollar deposits are offered by   leading banks in the London interbank deposit market (an “Alternate Source”), at approximately   11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest   Period as the London interbank offered rate for U.S. Dollars for an amount comparable to such   Borrowing Tranche and having a borrowing date and a maturity comparable to such Interest Period   (or if there shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any   substitute page) or any Alternate Source, a comparable replacement rate determined by the   Administrative Agent at such time (which determination shall be conclusive absent manifest   error)), by (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage.  Notwithstanding the     





 







   16   68576829_13   foregoing, if the LIBOR Rate as determined under any method above would be less than zero   (0.00), such rate shall be deemed to be zero (0.00) for purposes of this Agreement.   The LIBOR Rate shall be adjusted with respect to any Loan to which the LIBOR   Rate Option applies that is outstanding on the effective date of any change in the LIBOR Reserve   Percentage as of such effective date.  The Administrative Agent shall give prompt notice to the   Borrower of the LIBOR Rate as determined or adjusted in accordance herewith, which   determination shall be conclusive absent manifest error.   LIBOR Rate Option shall mean the option of the Borrower to have Loans bear   interest at the rate and under the terms set forth in Section 4.1(a)(ii) [Revolving Credit LIBOR   Rate Option].   LIBOR Reserve Percentage shall mean as of any day the maximum percentage in   effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or   any successor) for determining the reserve requirements (including supplemental, marginal and   emergency reserve requirements) with respect to eurocurrency funding (currently referred to as   “Eurocurrency Liabilities”).   Lien shall mean any mortgage, deed of trust, pledge, lien, security interest, charge   or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or   involuntarily given, including any conditional sale or title retention arrangement, and any   assignment, deposit arrangement or lease intended as, or having the effect of, security and any   filed financing statement or other notice of any of the foregoing (whether or not a lien or other   encumbrance is created or exists at the time of the filing).   Loan Documents shall mean this Agreement, the Administrative Agent’s Letter,   the BAML Letter, the Notes and any other instruments, certificates or documents delivered in   connection herewith or therewith.   Loans shall mean collectively and Loan shall mean separately all Revolving Credit   Loans and Swing Loans or any Revolving Credit Loan or Swing Loan.   Master Agreement shall mean any form of master agreement published by the   International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master   Agreement, any North American Energy Standard Board Master Agreement, or any other master   agreement, including any related schedules and such obligations or liabilities thereunder.   Material Adverse Change shall mean any set of circumstances or events which   (a) has any material adverse effect whatsoever upon the validity or enforceability of this   Agreement or any other Loan Document, (b) is material and adverse to the business, properties,   assets, financial condition or results of operations of the Borrower and its Subsidiaries, taken as a   whole, (c) impairs materially the ability of the Borrower to duly and punctually pay or perform   any of the Obligations, or (d) impairs materially the ability of the Administrative Agent or any of   the Lenders, to the extent permitted, to enforce their legal remedies pursuant to this Agreement or   any other Loan Document.     





 







   17   68576829_13   Minimum Collateral Amount shall mean, at any time, (i) with respect to Cash   Collateral consisting of cash or deposit account balances, an amount equal to 102% of the Fronting   Exposure of the Issuing Lender with respect to Letters of Credit issued and outstanding at such   time and (ii) otherwise, an amount determined by the Administrative Agent and the Issuing Lender   in their sole discretion.   MLPFS shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated and its   successor and assigns.   Month, with respect to an Interest Period under the LIBOR Rate Option, shall mean   the interval between the days in consecutive calendar months numerically corresponding to the   first day of such Interest Period.  If any LIBOR Rate Interest Period begins on a day of a calendar   month for which there is no numerically corresponding day in the month in which such Interest   Period is to end, the final month of such Interest Period shall be deemed to end on the last Business   Day of such final month.   Multiemployer Plan shall mean any employee pension benefit plan which is a   “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA and to which the   Borrower or any member of the ERISA Group is then making or accruing an obligation to make   contributions or, within the preceding five plan years, has made or had an obligation to make such   contributions, or to which the Borrower or any member of the ERISA Group has any liability   (contingent or otherwise).   New Lender shall have the meaning assigned to that term in Section 2.11(a)   [Increasing Lenders and New Lenders].   Non-Consenting Lender shall mean any Lender that does not approve any consent,   waiver or amendment that (i) requires the approval of all or all affected Lenders in accordance   with the terms of Section 12.1 [Modifications, Amendments or Waivers] and (ii) has been   approved by the Required Lenders.      Non-Defaulting Lender shall mean, at any time, each Lender that is not a Defaulting   Lender at such time.      Non-Extending Lender shall have the meaning specified in Section 2.12(b) [Lender   Elections to Extend].   Non-Recourse Debt shall mean Indebtedness that is nonrecourse to the Borrower   or any Subsidiary or any asset of the Borrower or any Subsidiary.   Notes shall mean collectively, and Note shall mean separately, the promissory notes   in the form of Exhibit C evidencing the Revolving Credit Loans and in the form of Exhibit D   evidencing the Swing Loan.   Notice Date shall have the meaning specified in Section 2.12(b) [Lender Elections   to Extend].     





 







   18   68576829_13   Obligation shall mean any obligation or liability of the Borrower, howsoever   created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter   existing, or due or to become due, under or in connection with (i) this Agreement, the Notes, the   Letters of Credit, the Administrative Agent’s Letter or any other Loan Document whether to the   Administrative Agent, any of the Lenders or their Affiliates or other persons provided for under   such Loan Documents, (ii) any Lender Provided Interest Rate Hedge, (iii) any Lender Provided   Commodity Hedge and (iv) any Other Lender Provided Financial Service Product.     Official Body shall mean 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) and any group or body charged with setting financial accounting or regulatory   capital rules or standards (including the Financial Accounting Standards Board, the Bank for   International Settlements or the Basel Committee on Banking Supervision or any successor or   similar authority to any of the foregoing).    Order shall have the meaning specified in Section 2.9(i) [Liability for Acts and   Omissions].   Other Connection Taxes shall mean, with respect to any Recipient, Taxes imposed   as a result of a present or former connection between such Recipient (or an agent or affiliate   thereof) and the jurisdiction imposing such Tax (other than connections arising solely from such   Recipient having executed, delivered, become a party to, performed its obligations under, received   payments under, received or perfected a security interest under, engaged in any other transaction   pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan   Document).   Other Lender Provided Financial Service Product shall mean agreements or other   arrangements entered into between the Borrower and any Cash Management Bank that provides   any of the following products or services to the Borrower or any of its Subsidiaries: (a) credit   cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions,   or (f) cash management, including controlled disbursement, accounts or services.  The liabilities   owing to the Cash Management Bank providing any Other Lender Provided Financial Service   Products to the Borrower shall, for purposes of this Agreement and all other Loan Documents be   “Obligations” of the Borrower and otherwise treated as Obligations for purposes of the other Loan   Documents.    Other Taxes shall mean all present or future stamp, court or documentary,   intangible, recording, filing or similar Taxes that arise from any payment made under, from the   execution, delivery, performance, enforcement or registration of, from the receipt or perfection of   a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes   that are Other Connection Taxes imposed with respect to an assignment (other than an assignment   made pursuant to Section 5.6(b) [Replacement of a Lender]).   Participant shall have the meaning specified in Section 12.9(d) [Participations].     





 







   19   68576829_13   Participant Register shall have the meaning specified in Section 12.9(d)   [Participations].   Participation Advance shall have the meaning specified in Section 2.9(c)   [Disbursements, Reimbursement].   Payment Date shall mean the first day of each calendar quarter after the Closing   Date and on the Expiration Date, the applicable Specified Maturity Date or upon acceleration of   the Notes.   PBGC shall mean the Pension Benefit Guaranty Corporation established pursuant   to Subtitle A of Title IV of ERISA or any successor.   Pension Plan shall mean at any time an “employee pension benefit plan” (as such   term is defined in Section 3(2) of ERISA) (including a “multiple employer plan” as described in   Sections 4063 and 4064 of ERISA, but not a Multiemployer Plan) which is covered by Title IV of   ERISA or is subject to the minimum funding standards under Section 412 or Section 430 of the   Code and either (i) is sponsored, maintained or contributed to by any member of the ERISA Group   for employees of any member of the ERISA Group, (ii) has at any time within the preceding five   years been sponsored, maintained or contributed to by any entity which was at such time a member   of the ERISA Group for employees of any entity which was at such time a member of the ERISA   Group, or in the case of a “multiple employer” or other plan described in Section 4064(a) of   ERISA, has made contributions at any time during the immediately preceding five plan years or   (iii) or to which the Borrower or any member of the ERISA Group may have any liability   (contingent or otherwise).   Permitted Acquisition shall mean an Acquisition (the Person or division, line of   business or other business unit of the Person to be acquired in such Acquisition shall be referred   to herein as the “Target”), in each case that is a type of business (or assets used in a type of   business) permitted to be engaged in by the Borrower and its Subsidiaries pursuant to the terms of   this Agreement, in each case so long as:      (a) no Potential Default or Event of Default shall then exist or would exist after   giving effect thereto;      (b) the Administrative Agent shall have received not less than five (5) Business   Days prior to the consummation of any Permitted Acquisition (or such later date as   permitted by the Administrative Agent in its sole discretion), a Permitted Acquisition   Certificate, executed by an Authorized Officer of the Borrower certifying that such   Permitted Acquisition complies with the requirements of this Agreement and attaching (i)   the final forms of the acquisition and purchase documents and (ii) evidence to the   reasonable satisfaction of the Administrative Agent that, after giving effect to the   Acquisition on a pro forma basis (with such Acquisition deemed to have occurred as of the   first day of the applicable period of measurement), the Funded Indebtedness to Total   Adjusted Capitalization Ratio of the Borrower shall be in pro forma compliance with the   then applicable level set forth in Section 9.8 [Maximum Funded Indebtedness to Total   Adjusted Capitalization Ratio];      





 







   20   68576829_13      (c) (i) the Borrower is the surviving corporation after such Acquisition if it is   the constituent party thereto acquiring such Target, and (ii) if a Subsidiary is a party to such   Acquisition, the surviving Person after such Acquisition shall be a direct or indirect   Wholly-Owned Subsidiary; and      (d) such Acquisition shall not be a “hostile” Acquisition and shall have been   approved by the board of directors (or equivalent) and/or shareholders (or equivalent) of   the Borrower and the Target, in each case, to the extent required by applicable Law or such   Person’s organizational documents.        Permitted Acquisition Certificate shall mean a certificate substantially the form of   Exhibit B or any other form approved by the Administrative Agent.      Permitted Investments shall mean:   (i) direct obligations of the United States of America or any agency or   instrumentality thereof or obligations backed by the full faith and credit of the United States of   America maturing in twelve (12) months or less from the date of acquisition;   (ii) commercial paper maturing in 180 days or less rated not lower than A-1, by   Standard & Poor’s or P-1 by Moody’s Investors Service, Inc. on the date of acquisition;   (iii) demand deposits, time deposits or certificates of deposit maturing within   one year in commercial banks whose obligations are rated A-1, A or the equivalent or better by   Standard & Poor’s on the date of acquisition;   (iv) money market or mutual funds whose investments are limited to those types   of investments described in clauses (i)-(iii) above; and   (v) investments made under the Cash Management Agreements or under cash   management agreements with any other Lenders.   Permitted Liens shall mean:   (i) Liens for taxes, assessments, or similar charges, incurred in the ordinary   course of business and which are not yet due and payable;   (ii) Pledges or deposits made in the ordinary course of business to secure   payment of workmen’s compensation, or to participate in any fund in connection with workmen’s   compensation, unemployment insurance, old-age pensions or other social security programs;   (iii) Liens of mechanics, materialmen, warehousemen, carriers, suppliers or   other like Liens, securing obligations incurred in the ordinary course of business that are not yet   due and payable and Liens of landlords securing obligations to pay lease payments that are not yet   due and payable or in default;     





 







   21   68576829_13   (iv) Good-faith pledges or deposits made in the ordinary course of business to   secure performance of letters of credit, bids, tenders, contracts (other than for the repayment of   borrowed money or for Interest Rate Hedges or Commodity Hedges) or leases, not in excess of   the aggregate amount due thereunder or to secure statutory obligations, or surety, appeal,   indemnity, performance or other similar bonds required in the ordinary course of business;    (v) Encumbrances consisting of zoning restrictions, easements or other   restrictions on the use of real property, none of which materially impairs the use of such property   or the value thereof, and none of which is violated in any material respect by existing or proposed   structures or land use;   (vi) Lien existing on property of a Person immediately prior to its being   consolidated with or merged into the Borrower or a Subsidiary or its becoming a Subsidiary, or   any Lien existing on any property acquired by the Borrower or a Subsidiary at the time such   property is so acquired (whether or not the Indebtedness secured thereby shall have assumed),   provided that (i) any Indebtedness secured by such Liens is then permitted by Section 9.1(c)   [Indebtedness], (ii) no such Lien shall have been created in contemplation of such consolidation   or merger or such Person’s becoming a Subsidiary or such acquisition of property and (iii) no such   Lien shall extend to or cover any property not originally subject thereto, other than improvements   to the property originally subject thereto;    (vii) Any Lien existing on the date of this Agreement and described on Schedule   1.1(P), and any renewal, extension or refunding of any such Lien, provided that the principal   amount secured thereby is not hereafter increased, and no additional assets become subject to such   Lien;   (viii) Liens securing Indebtedness relating to purchase money security interests,   capitalized leases and first mortgage bonds permitted in Section 9.1(c)(i) [Indebtedness]; provided   that (i) any such Indebtedness secured by such Liens is then permitted by Section 9.1(c)(i)   [Indebtedness] and (ii) no such Lien shall extend to or cover any property not originally subject   thereto, other than improvements to the property originally subject thereto;   (ix) Liens on cash and Cash Equivalents in an aggregate amount not to exceed   $15,000,000 at any time to secure Indebtedness arising under Commodity Hedges which Liens are   granted pursuant to a Master Agreement or pursuant to the rules of a designated contract market;   provided that any such Indebtedness secured by such Liens is then permitted by Section 9.1(c)   [Indebtedness];    (x) Liens on property of a Subsidiary, provided that they secure only   Indebtedness owing to the Borrower or a Wholly-Owned Subsidiary that is permitted under   Section 9.1 [Indebtedness];   (xi) Non-exclusive licenses, leases or subleases granted to other Persons in the   ordinary course of business and not interfering in any material respect with the business of the   Borrower and its Subsidiaries;   (xii) customary bankers’ Liens and rights of setoff arising, in each case, by   operation of law and incurred on deposits made in the ordinary course of business;     





 







   22   68576829_13   (xiii) The following, (A) if the validity or amount thereof is being contested in   good faith by appropriate and lawful proceedings diligently conducted so long as levy and   execution thereon have been stayed and continue to be stayed or (B) if a final judgment is entered   and such judgment is discharged within thirty (30) days of entry, and in either case they do not, in   the aggregate, materially impair the ability of the Borrower to perform its Obligations hereunder   or under the other Loan Documents:   (1) claims or Liens for taxes, assessments or charges due and payable   and subject to interest or penalty; provided that the Borrower maintains such reserves or other   appropriate provisions as shall be required by GAAP and pays all such taxes, assessments or   charges forthwith upon the commencement of proceedings to foreclose any such Lien;   (2) claims, Liens or encumbrances upon, and defects of title to, real or   personal property, including any attachment of personal or real property or other legal process   prior to adjudication of a dispute on the merits;   (3) claims or Liens of mechanics, materialmen, warehousemen,   carriers, or other statutory nonconsensual Liens; or   (4) Liens resulting from final judgments or orders described in   Section 10.1(f) [Final Judgments or Orders]; and     (xiv) Other Liens not otherwise permitted pursuant to clauses (i) through (x)   above securing Indebtedness permitted in Section 9.1(c)(i) [Indebtedness]; provided that (i) any   such Indebtedness secured by such Liens is then permitted by Section 9.1(c)(i) [Indebtedness] and   (ii) no such Lien shall extend to or cover any property not originally subject thereto, other than   improvements to the property originally subject thereto.   Person shall mean any natural person, corporation, limited liability company, trust,   joint venture, association, company, partnership, Official Body or other entity.   Plan shall mean any employee benefit plan within the meaning of Section 3(3) of   ERISA (including a Pension Plan), maintained for employees of the Borrower or any member of   the ERISA Group or any such Plan to which the Borrower or any member of the ERISA Group is   required to contribute on behalf of any of its employees.   Platform shall mean Debt Domain, Intralinks, Syndtrak or a substantially similar   electronic transmission system.      PNC shall mean PNC Bank, National Association, its successors and assigns.   Potential Default shall mean any event or condition which with notice or passage   of time, or both, would constitute an Event of Default.   Prime Rate shall mean the interest rate per annum announced from time to time by   the Administrative Agent at its Principal Office as its then prime rate, which rate may not be the   lowest or most favorable rate then being charged commercial borrowers or others by the     





 







   23   68576829_13   Administrative Agent.  Any change in the Prime Rate shall take effect at the opening of business   on the day such change is announced.   Principal Office shall mean the main banking office of the Administrative Agent in   Pittsburgh, Pennsylvania.   Published Rate shall mean the rate of interest published each Business Day in The   Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates”   for a one month period: provided that if no such rate is published therein for any reason, then the   Published Rate shall be the rate at which U.S. dollar deposits are offered by leading banks in the   London interbank deposit market for a one month period either (i) as published in another   publication selected by the Administrative Agent or (ii) in an Alternate Source (or if there shall at   any time, for any reason, no longer exist any such reference or any Alternate Source, a comparable   replacement rate determined by the Administrative Agent at such time (which determination shall   be conclusive absent manifest error)).   Ratable Share shall mean with respect to a Lender’s obligation to make Revolving   Credit Loans, participate in Letters of Credit and other Letter of Credit Obligations, participate in   Swing Loans, and receive payments, interest, and fees related thereto and all other matters as to a   particular Lender, the percentage obtained by dividing (i) such Lender’s Revolving Credit   Commitment, by (ii) the sum of the aggregate amount of the Revolving Credit Commitments of   all Lenders; provided however that if the Revolving Credit Commitments have terminated or   expired, the computation in this clause shall be determined based upon the Revolving Credit   Commitments most recently in effect, giving effect to any assignments, and not on the current   amount of the Revolving Credit Commitments and provided further in the case of Section 2.10   [Defaulting Lenders] when a Defaulting Lender shall exist, “Ratable Share” shall mean the   percentage of the aggregate Revolving Credit Commitments (disregarding any Defaulting   Lender’s Revolving Credit Commitment) represented by such Lender’s Revolving Credit   Commitment.   Recipient shall mean (i) the Administrative Agent, (ii) any Lender and (iii) the   Issuing Lender, as applicable.   Reimbursement Obligation shall have the meaning specified in Section 2.9(c)   [Disbursements, Reimbursement].   Related Parties shall mean, with respect to any Person, such Person’s Affiliates and   the partners, directors, officers, employees, agents and advisors of such Person and of such   Person’s Affiliates.   Reportable Compliance Event shall mean that any Covered Entity becomes a   Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument,   arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate   crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it   is reasonably likely that any aspect of its operations is in actual or probable violation of any Anti-   Terrorism Law.     





 







   24   68576829_13   Required Lenders shall mean Lenders (other than any Defaulting Lender) having   more than 50% of the sum of the aggregate amount of the Revolving Credit Commitments of the   Lenders (excluding any Defaulting Lender) or, after the termination of the Revolving Credit   Commitments, the outstanding Revolving Credit Loans and Ratable Share of Letter of Credit   Obligations of the Lenders (excluding any Defaulting Lender).  The amount of any participation   in any Swing Line Loan and required but unreimbursed amounts in respect of Letters of Credit   that such Defaulting Lender has failed to fund that have not been reallocated to and funded by   another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or Issuing   Lender, as the case may be, in making such determination.   Required Share shall have the meaning assigned to such term in Section 5.11   [Settlement Date Procedures].   Revolving Credit Commitment shall mean, as to any Lender at any time, the amount   initially set forth opposite its name on Schedule 1.1(B) in the column labeled “Amount of   Commitment for Revolving Credit Loans,” as such Commitment is thereafter assigned or modified   and Revolving Credit Commitments shall mean the aggregate Revolving Credit Commitments of   all of the Lenders.   Revolving Credit Loan Request shall have the meaning specified in Section 2.5   [Revolving Credit Loan Requests; Swing Loan Requests].   Revolving Credit Loans shall mean collectively and Revolving Credit Loan shall   mean separately all Revolving Credit Loans or any Revolving Credit Loan made by the Lenders   or one of the Lenders to the Borrower pursuant to Section 2.1 [Revolving Credit Commitments]   or Section 2.9(c) [Disbursements, Reimbursement].   Revolving Facility Usage shall mean at any time the sum of the outstanding   Revolving Credit Loans, the outstanding Swing Loans, and the Letter of Credit Obligations.   Sanctioned Country shall mean a country subject to a sanctions program maintained   under any Anti-Terrorism Law.   Sanctioned Person shall mean any individual person, group, regime, entity or thing   listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person,   group, regime, entity or thing, or subject to any limitations or prohibitions (including but not   limited to the blocking of property or rejection of transactions) or sanctions, under any Anti-   Terrorism Law.   SEC shall mean the Securities and Exchange Commission.   Secured Parties shall mean, collectively, the Administrative Agent, the Lenders, the   Issuing Lender, Commodity Hedge Banks, Interest Rate Hedge Banks, Lenders or Affiliates   thereof that are owed Interest Rate Hedge Liabilities, Commodity Hedge Liabilities or obligations   under Other Lender Provided Financial Service Products, each co-agent or sub-agent appointed by   the Administrative Agent from time to time pursuant to Section 11.5, and the other Persons to   whom the Obligations are owing.     





 







   25   68576829_13   Settlement Date shall mean the Business Day on which the Administrative Agent   elects to effect settlement pursuant Section 5.11 [Settlement Date Procedures].   Solvent shall mean, with respect to any Person on any date of determination, taking   into account any right of reimbursement, contribution or similar right available to such Person   from other Persons, that on such date (i) the fair value of the property of such Person is greater   than the total amount of liabilities, including contingent liabilities, of such Person, (ii) the present   fair saleable value of the assets of such Person is not less than the amount that will be required to   pay the probable liability of such Person on its debts as they become absolute and matured,   (iii) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent   obligations and other commitments as they mature in the normal course of business, (iv) such   Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such   Person’s ability to pay as such debts and liabilities mature, and (v) such Person is not engaged in   business or a transaction, and is not about to engage in business or a transaction, for which such   Person’s property would constitute unreasonably small capital after giving due consideration to   the prevailing practice in the industry in which such Person is engaged.  In computing the amount   of contingent liabilities at any time, it is intended that such liabilities will be computed at the   amount which, in light of all the facts and circumstances existing at such time, represents the   amount that can reasonably be expected to become an actual or matured liability.    Specified Maturity Date shall have the meaning specified in Section 2.5(a)   [Revolving Credit Loan Requests; Conversions and Renewals].   Standard & Poor’s shall mean Standard & Poor’s Ratings Services and any   successor thereto.     Statements shall have the meaning specified in Section 6.6(a). [Historical   Statements].   Subsidiary of any Person at any time shall mean any corporation, trust, partnership,   limited liability company or other business entity (i) of which more than 50% of the outstanding   voting securities or other interests normally entitled to vote for the election of one or more directors   or trustees (regardless of any contingency which does or may suspend or dilute the voting rights)   is at such time owned directly or indirectly by such Person or one or more of such Person’s   Subsidiaries, or (ii)  which is controlled or capable of being controlled by such Person or one or   more of such Person’s Subsidiaries.   Subsidiary Equity Interests shall have the meaning specified in Section 6.1(b)   [Subsidiaries and Owners; Investment Companies].   Swing Loan Commitment shall mean PNC’s commitment to make Swing Loans to   the Borrower pursuant to Section 2.1(b) [Swing Loan Commitment] hereof in an aggregate   principal amount up to $15,000,000.   Swing Loan Lender shall mean PNC, in its capacity as a lender of Swing Loans.     





 







   26   68576829_13   Swing Loan Note shall mean the Swing Loan Note of the Borrower in the form of   Exhibit D evidencing the Swing Loans, together with all amendments, extensions, renewals,   replacements, refinancings or refundings thereof in whole or in part.   Swing Loan Request shall mean a request for Swing Loans made in accordance   with Section 2.5(b) [Swing Loan Requests] hereof.   Swing Loans shall mean collectively and Swing Loan shall mean separately all   Swing Loans or any Swing Loan made by PNC to the Borrower pursuant to Section 2.1(b) [Swing   Loan Commitment] hereof.   Taxes shall mean all present or future taxes, levies, imposts, duties, deductions,   withholdings (including backup withholding), assessments, fees or other charges imposed by any   Official Body, including any interest, additions to tax or penalties applicable thereto.   Total Adjusted Capitalization means at any date, the aggregate amount at that date,   as determined on a consolidated basis, of the Funded Indebtedness of the Borrower and its   Subsidiaries, plus Consolidated Net Worth.   Total Capitalization means at any date, the aggregate amount at that date, as   determined on a consolidated basis, of the Funded Indebtedness of the Borrower and its   Subsidiaries, plus (without duplication) Current Indebtedness of the Borrower and its Subsidiaries   plus Consolidated Net Worth.   Total Indebtedness to Total Capitalization Ratio shall mean, as of any date of   determination, the ratio of (a) Funded Indebtedness of the Borrower and its Subsidiaries plus   (without duplication) Current Indebtedness of the Borrower and its Subsidiaries on such date to   (b) Total Capitalization on such date.   UCP shall have the meaning specified in Section 12.12(a) [Governing Law].   USA Patriot Act shall mean the Uniting and Strengthening America by Providing   Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56,   as the same has been, or shall hereafter be, renewed, extended, amended or replaced.   U.S. Person shall mean any Person that is a “United States Person” as defined in   Section 7701(a)(30) of the Code.   U.S. Tax Compliance Certificate shall have the meaning specified in   Section 5.9(g)(ii)(B)(III) [Status of Lenders].   Wholly-Owned Subsidiary shall mean any Subsidiary whose financial results are   consolidated with the financial results of the Borrower, and all of the Equity Interests of which   (except director’s qualifying shares) are owned by the Borrower and/or one or more Wholly-   Owned Subsidiaries of the Borrower.   Withholding Agent shall mean the Borrower and the Administrative Agent.     





 







   27   68576829_13   1.2 Construction.  Unless the context of this Agreement otherwise clearly requires, the   following rules of construction shall apply to this Agreement and each of the other Loan   Documents: (i) references to the plural include the singular, the plural, the part and the whole and   the words “include,” “includes” and “including” shall be deemed to be followed by the phrase   “without limitation”; (ii) the word “will” shall be construed to have the same meaning and effect   as the word “shall”; (iii) the words “hereof,” “herein,” “hereunder,” “hereto” and similar terms in   this Agreement or any other Loan Document refer to this Agreement or such other Loan Document   as a whole; (iv) article, section, subsection, clause, schedule and exhibit references are to this   Agreement or other Loan Document, as the case may be, unless otherwise specified; (v) reference   to any Person includes such Person’s successors and assigns; (vi) reference to any agreement,   including this Agreement and any other Loan Document together with the schedules and exhibits   hereto or thereto, document or instrument means such agreement, document or instrument as   amended, modified, replaced, substituted for, superseded or restated (subject to any restrictions on   such amendments, supplements or modifications set forth herein); (vii) relative to the   determination of any period of time, “from” means “from and including,” “to” means “to but   excluding,” and “through” means “through and including”; (viii) 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 time (ix) 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; (x) whenever the   context may require, any pronoun shall include the corresponding masculine, feminine and neuter   forms; (xi) section headings herein and in each other Loan Document are included for convenience   and shall not affect the interpretation of this Agreement or such Loan Document, and (xii) unless   otherwise specified, all references herein to times of day shall constitute references to Eastern   Time.   1.3 Accounting Principles; Changes in GAAP.  Except as otherwise provided in this   Agreement, all computations and determinations as to accounting or financial matters and all   financial statements to be delivered pursuant to this Agreement shall be made and prepared in   accordance with GAAP (including principles of consolidation where appropriate), and all   accounting or financial terms shall have the meanings ascribed to such terms by GAAP; provided,   however, that all accounting terms used in Article 9 [Negative Covenants] (and all defined terms   used in the definition of any accounting term used in Article 9 [Negative Covenants]) shall have   the meaning given to such terms (and defined terms) under GAAP as in effect on the Closing Date   applied on a basis consistent with those used in preparing Statements referred to in Section 6.6(a)   [Historical Statements].  Notwithstanding the foregoing, if the Borrower notifies the   Administrative Agent in writing that the Borrower wishes to amend any financial covenant in   Article 9 [Negative Covenants]of this Agreement, any related definition and/or the definition of   the term Total Indebtedness to Total Capitalization Ratio for purposes of interest, Letter of Credit   Fee and Commitment Fee determinations to eliminate the effect of any change in GAAP occurring   after the Closing Date on the operation of such financial covenants and/or interest, Letter of Credit   Fee or Commitment Fee determinations (or if the Administrative Agent notifies the Borrower in   writing that the Required Lenders wish to amend any financial covenant in Article 9 [Negative   Covenants], any related definition and/or the definition of the term Total Indebtedness to Total   Capitalization Ratio for purposes of interest, Letter of Credit Fee and Commitment Fee   determinations to eliminate the effect of any such change in GAAP), then the Administrative   Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratios or     





 







   28   68576829_13   requirements to preserve the original intent thereof in light of such change in GAAP (subject to   the approval of the Required Lenders); provided that, until so amended, the Borrower’s compliance   with such covenants and/or the definition of the term Total Indebtedness to Total Capitalization   Ratio for purposes of interest, Letter of Credit Fee and Commitment Fee determinations shall be   determined on the basis of GAAP in effect immediately before the relevant change in GAAP   became effective, until either such notice is withdrawn or such covenants or definitions are   amended in a manner satisfactory to the Borrower and the Required Lenders, and the Borrower   shall provide to the Administrative Agent, when they deliver their financial statements pursuant to   Sections 8.11(b) [Quarterly Financial Statements] and 8.11(a) [Annual Financial Statements] of   this Agreement, such reconciliation statements as shall be reasonably requested by the   Administrative Agent.   ARTICLE 2   REVOLVING CREDIT AND SWING LOAN FACILITIES   2.1 Revolving Credit Commitments.   (a) Revolving Credit Loans.  Subject to the terms and conditions hereof and   relying upon the representations and warranties herein set forth, each Lender severally agrees to   make Revolving Credit Loans to the Borrower at any time or from time to time on or after the   Closing Date to the Expiration Date; provided that after giving effect to each such Loan (i) the   aggregate amount of Revolving Credit Loans from such Lender shall not exceed such Lender’s   Revolving Credit Commitment minus such Lender’s Ratable Share of the outstanding Swing   Loans and Letter of Credit Obligations and (ii) the Revolving Facility Usage shall not exceed the   Revolving Credit Commitments.  Within such limits of time and amount and subject to the other   provisions of this Agreement, the Borrower may borrow, repay and reborrow pursuant to this   Section 2.1.   (b) Swing Loan Commitment.  Subject to the terms and conditions hereof and   relying upon the representations and warranties herein set forth and the agreements of the other   Lenders set forth in Section 2.6 [Making Revolving Credit Loans and Swing Loans; Presumptions   by the Administrative Agent; Repayment of Revolving Credit Loans; Borrowings to Repay Swing   Loans] with respect to Swing Loans, and in order to facilitate loans and repayments between   Settlement Dates, PNC may, at its option, cancelable at any time for any reason whatsoever, make   swing loans (the “Swing Loans”) to the Borrower at any time or from time to time after the Closing   Date to, but not including, the Expiration Date, in an aggregate principal amount up to but not in   excess of $15,000,000, provided that after giving effect to such Swing Loan (i) the aggregate   amount of any Lender’s Revolving Credit Loans plus such Lender’s Ratable Share of the   outstanding Swing Loans and Letter of Credit Obligations shall not exceed such Lender’s   Revolving Credit Commitment and (ii) the Revolving Facility Usage shall not exceed the   aggregate Revolving Credit Commitments of the Lenders.  Within such limits of time and amount   and subject to the other provisions of this Agreement, the Borrower may borrow, repay and   reborrow pursuant to this Section 2.1(b).     2.2 Nature of Lenders’ Obligations with Respect to Revolving Credit Loans.  Each   Lender shall be obligated to fund each request for Revolving Credit Loans pursuant to Section 2.5   [Revolving Credit Loan Requests; Swing Loan Requests] in accordance with its Ratable Share.      





 







   29   68576829_13   The aggregate of each Lender’s Revolving Credit Loans outstanding hereunder to the Borrower at   any time shall never exceed its Revolving Credit Commitment minus its Ratable Share of the   outstanding Swing Loans and Letter of Credit Obligations.  The obligations of each Lender   hereunder are several.  The failure of any Lender to perform its obligations hereunder shall not   affect the Obligations of the Borrower to any other party nor shall any other party be liable for the   failure of such Lender to perform its obligations hereunder.  The Lenders shall have no obligation   to make Revolving Credit Loans hereunder on or after the Expiration Date.   2.3 Fees.     (a) Accruing at all times from the Closing Date until the Expiration Date (and   without regard to whether the conditions to making Revolving Credit Loans are then met), the   Borrower agrees to pay to the Administrative Agent for the account of each Lender according to   its Ratable Share, a nonrefundable commitment fee (the “Commitment Fee”) equal to the   Applicable Margin for Commitment Fee (computed on the basis of a year of 365 or 366 days, as   the case may be, and actual days elapsed) multiplied by the average daily difference between the   amount of (i) the Revolving Credit Commitments minus (ii) the Revolving Facility Usage   (provided however, that solely in connection with determining the share of each Lender in the   Commitment Fee, the Revolving Facility Usage with respect to the portion of the Commitment   Fee allocated to PNC shall include the full amount of the outstanding Swing Loans, and with   respect to the portion of the Commitment Fee allocated by the Administrative Agent to all of the   Lenders other than PNC, such portion of the Commitment Fee shall be calculated (according to   each such Lender's Ratable Share) as if the Revolving Facility Usage excludes the outstanding   Swing Loans); provided that no Defaulting Lender shall be entitled to receive any Commitment   Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be   required to pay any such Commitment Fee that otherwise would have been required to have been   paid to that Defaulting Lender).  Subject to the proviso in the directly preceding sentence, all   Commitment Fees shall be payable in arrears on each Payment Date.   (b) The Borrower shall pay to (a) the Administrative Agent a nonrefundable fee   (the “Administrative Agent’s Fee”) under the terms of a letter (the “Administrative Agent’s   Letter”) between the Borrower, PNC Capital Markets LLC and Administrative Agent, as amended   from time to time and (b) MLPFS a nonrefundable fee (the “BAML Fee”) under the terms of a   letter (the “BAML Letter”) among the Borrower, MLPFS and Bank of America, N.A., as   amended from time to time.   2.4 Termination or Reduction of Revolving Credit Commitments.  The Borrower shall   have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent, to   terminate the Revolving Credit Commitments or, from time to time, to reduce the aggregate   amount of the Revolving Credit Commitments (ratably among the Lenders in proportion to their   Ratable Shares); provided that no such termination or reduction of Revolving Credit Commitments   shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Credit   Loans made on the effective date thereof, the Revolving Facility Usage would exceed the   aggregate Revolving Credit Commitments of the Lenders.  Any such reduction shall be in an   amount equal to $5,000,000, or a whole multiple thereof, and shall reduce permanently the   Revolving Credit Commitments then in effect.  Any such reduction or termination shall be   accompanied by prepayment of the Notes, together with outstanding Commitment Fees, and the     





 







   30   68576829_13   full amount of interest accrued on the principal sum to be prepaid (and all amounts referred to in   Section 5.10 [Indemnity] hereof) to the extent necessary to cause the aggregate Revolving Facility   Usage after giving effect to such prepayments to be equal to or less than the Revolving Credit   Commitments as so reduced or terminated.  Any notice to reduce the Revolving Credit   Commitments under this Section 2.4 shall be irrevocable.   2.5 Revolving Credit Loan Requests; Conversions and Renewals; Swing Loan   Requests.   (a) Revolving Credit Loan Requests; Conversions and Renewals.  Except as   otherwise provided herein, the Borrower may from time to time prior to the Expiration Date request   the Lenders to make Revolving Credit Loans, or renew or convert the Interest Rate Option   applicable to existing Revolving Credit Loans pursuant to Section 4.2 [Interest Periods], by   delivering to the Administrative Agent, not later than 10:00 a.m., (i) three (3) Business Days prior   to the proposed Borrowing Date with respect to the making of Revolving Credit Loans to which   the LIBOR Rate Option applies or the conversion to or the renewal of the LIBOR Rate Option for   any Revolving Credit Loans; and (ii) the same Business Day of the proposed Borrowing Date with   respect to the making of a Revolving Credit Loan to which the Base Rate Option applies or the   last day of the preceding Interest Period with respect to the conversion to the Base Rate Option for   any Revolving Credit Loan, of a duly completed request therefor substantially in the form of   Exhibit E or a request by telephone immediately confirmed in writing by letter, facsimile or telex   in such form (each, a “Revolving Credit Loan Request”), it being understood that the   Administrative Agent may rely on the authority of any individual making such a telephonic request   without the necessity of receipt of such written confirmation.  Each Revolving Credit Loan Request   shall be irrevocable and shall specify (A) the aggregate amount of the proposed Loans comprising   each Borrowing Tranche, (B) if applicable, the Interest Period, which amounts shall be in (x)   integral multiples of $100,000 and not less than $1,000,000 for each Borrowing Tranche under the   LIBOR Rate Option, and (y) integral multiples of $100,000 and not less than $500,000 for each   Borrowing Tranche under the Base Rate Option and (C) if the Borrower so chooses, a term,   expressed as a number of days (which shall in no event end later than the Expiration Date), beyond   which such Borrowing Tranche may not be outstanding (the last day of such term the “Specified   Maturity Date”).   (b) Swing Loan Requests.  Except as otherwise provided herein, the Borrower   may from time to time prior to the Expiration Date request the Swing Loan Lender to make Swing   Loans by delivery to the Swing Loan Lender not later than 12:00 noon on the proposed Borrowing   Date of a duly completed request therefor substantially in the form of Exhibit N hereto or a request   by telephone immediately confirmed in writing by letter, facsimile or telex (each, a “Swing Loan   Request”), it being understood that the Administrative Agent may rely on the authority of any   individual making such a telephonic request without the necessity of receipt of such written   confirmation.  Each Swing Loan Request shall be irrevocable and shall specify the proposed   Borrowing Date and the principal amount of such Swing Loan, which shall be not less than   $100,000.   2.6 Making Revolving Credit Loans and Swing Loans; Presumptions by the   Administrative Agent; Repayment of Revolving Credit Loans; Borrowings to Repay Swing Loans.     





 







   31   68576829_13   (a) Making Revolving Credit Loans.  The Administrative Agent shall, promptly   after receipt by it of a Revolving Credit Loan Request pursuant to Section 2.5 [Revolving Credit   Loan Requests; Swing Loan Requests], notify the applicable Lenders of its receipt of such   Revolving Credit Loan Request specifying the information provided by the Borrower and the   apportionment among the Lenders of the requested Revolving Credit Loans as determined by the   Administrative Agent in accordance with Section 2.2 [Nature of Lenders’ Obligations with   Respect to Revolving Credit Loans].  Each Lender shall remit its apportioned share (as provided   to it by the Administrative Agent) of the principal amount of each Revolving Credit Loan to the   Administrative Agent such that the Administrative Agent is able to, and the Administrative Agent   shall, to the extent the Lenders have made funds available to it for such purpose and subject to   Section 7.2 [Each Loan or Letter of Credit], fund such Revolving Credit Loans to the Borrower in   U.S. Dollars and immediately available funds at the Principal Office prior to 2:00 p.m., on the   applicable Borrowing Date.   (b) Repayment of Swing Loans.   The Borrower shall repay the principal   amount of each Swing Loan no later than on the earlier of (i) the Expiration Date and (ii) the tenth   (10th) Business Day after the date such Swing Loan was advanced by the Swing Loan Lender.  A   Swing Loan may not be repaid with the proceeds from another Swing Loan.     (c) Making Swing Loans.  So long as PNC elects to make Swing Loans, Swing   Loan Lender shall, after receipt by it of a Swing Loan Request pursuant to Section 2.5(b), [Swing   Loan Requests] fund such Swing Loan to the Borrower in U.S. Dollars and immediately available   funds at the Principal Office prior to 4:00 p.m. on the Borrowing Date.  Immediately upon the   making of a Swing Loan, each Lender shall be deemed to, and hereby irrevocably and   unconditionally agrees to, purchase from the Swing Loan Lender a risk participation in such Swing   Loan in an amount equal to the product of such Lender’s Ratable Share times the amount of such   Swing Loan.   (d) Repayment of Revolving Credit Loans.  The Borrower shall repay the   principal amount of each Revolving Credit Loan no later than on the earlier of (i) the Expiration   Date and (ii) the applicable Specified Maturity Date, if any, specified pursuant to clause (C) of the   last sentence of Section 2.5(a) [Revolving Credit Loan Requests; Conversions and Renewals] in   the Revolving Credit Loan Request related to such Revolving Credit Loan.   (e) Borrowings to Repay Swing Loans.     (i) PNC may, at its option, exercisable at any time for any reason   whatsoever, demand repayment of any or all of the outstanding Swing Loans, and each   Lender shall make a Revolving Credit Loan in an amount equal to such Lender’s Ratable   Share of the aggregate principal amount of the outstanding Swing Loans with respect to   which repayment is demanded, plus, if PNC so requests, accrued interest thereon, provided   that no Lender shall be obligated in any event to make Revolving Credit Loans in excess   of its Revolving Credit Commitment minus its Ratable Share of Letter of Credit   Obligations and minus its Ratable Share of any Swing Loans not so being repaid.    Revolving Credit Loans made pursuant to the preceding sentence shall bear interest at the   Base Rate Option and shall be deemed to have been properly requested in accordance with   Section 2.5(a) [Revolving Credit Loan Requests] without regard to any of the requirements     





 







   32   68576829_13   of that provision.  PNC shall provide notice to the Lenders (which may be telephonic or   written notice by letter, facsimile or telex) that such Revolving Credit Loans are to be made   under this Section 2.6(e) and of the apportionment among the Lenders, and the Lenders   shall be unconditionally obligated to fund such Revolving Credit Loans (whether or not   the conditions specified in Section 2.5(a) [Revolving Credit Loan Requests] or in Section   7.2 [Each Loan or Letter of Credit] are then satisfied) by the time PNC so requests, which   shall not be earlier than 3:00 p.m. on the next succeeding Business Day following the date   the Lenders receive such notice from PNC.   (ii) With respect to any Swing Loan that is not refinanced into   Revolving Credit Loans in whole or in part as contemplated by Section 2.6(e)(i), because   of the Borrower’s failure to satisfy the conditions set forth in Section 7.2 [Each Loan or   Letter of Credit] other than any notice requirements, or for any other reason, each Lender   shall fund its risk participation in the applicable Swing Loan.  Each Lender’s payment to   the Swing Loan Lender pursuant to this Section 2.6(e)(ii) shall be deemed to be a payment   in respect of its risk participation in such Swing Loan from such Lender in satisfaction of   its risk participation obligation under Section 2.6(c) [Making Swing Loans].   (iii) If any Lender fails to make available to the Administrative Agent   for the account of PNC (as the Swing Loan Lender) any amount required to be paid by   such Lender pursuant to the foregoing provisions of this Section 2.6(e) by the time   specified in Section 2.6(e)(i), the Swing Loan Lender shall be entitled to recover from such   Lender (acting through the Administrative Agent), on demand, such amount with interest   thereon for the period from the date such payment is required to the date on which such   payment is immediately available to the Swing Loan Lender at a rate per annum equal to   the greater of the Federal Funds Effective Rate and a rate determined by the Administrative   Agent in accordance with banking industry rules on interbank compensation, plus any   administrative, processing or similar fees customarily charged by the Swing Loan Lender   in connection with the foregoing.  If such Lender pays such amount (with interest and fees   as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan or   funded participation, as applicable, with respect to such prepayment.  A certificate of the   Swing Loan Lender submitted to any Lender (through the Administrative Agent) with   respect to any amounts owing under this clause (ii) shall be conclusive absent manifest   error.   (f) Swing Loans Under Cash Management Agreements.  In addition to making   Swing Loans pursuant to the foregoing provisions of Section 2.6(c) [Making Swing Loans],   without the requirement for a specific request from the Borrower pursuant to Section 2.5(b) [Swing   Loan Requests], PNC as the Swing Loan Lender may make Swing Loans to the Borrower in   accordance with the provisions of the agreements between the Borrower and such Swing Loan   Lender relating to the Borrower’s deposit, sweep and other accounts at such Swing Loan Lender   and related arrangements and agreements regarding the management and investment of the   Borrower’s cash assets as in effect from time to time (the “Cash Management Agreements”) to   the extent of the daily aggregate net negative balance in the Borrower’s accounts which are subject   to the provisions of the Cash Management Agreements.  Swing Loans made pursuant to this   Section 2.6(f) in accordance with the provisions of the Cash Management Agreements shall (i) be   subject to the limitations as to aggregate amount set forth in Section 2.1(b) [Swing Loan     





 







   33   68576829_13   Commitment], (ii) not be subject to the limitations as to individual amount set forth in Section   2.5(b) [Swing Loan Requests], (iii) be payable by the Borrower, both as to principal and interest,   at the rates and times set forth in the Cash Management Agreements (but in no event later than the   Expiration Date), (iv) not be made at any time after such Swing Loan Lender has received written   notice of the occurrence of an Event of Default and so long as such shall continue to exist, or,   unless consented to by the Required Lenders, a Potential Default and so long as such shall continue   to exist, (v) if not repaid by the Borrower in accordance with the provisions of the Cash   Management Agreements, be subject to each Lender’s obligation pursuant to Section 2.6(e)   [Borrowings to Repay Swing Loans], and (vi) except as provided in the foregoing subsections (i)   through (v), be subject to all of the terms and conditions of this Section 2.   2.7 Notes.  The Obligation of the Borrower to repay the aggregate unpaid principal   amount of the Revolving Credit Loans and Swing Loans made to it by each Lender, together with   interest thereon, shall be evidenced, at the request of such Lender, by a Revolving Credit Note and   the Swing Loan Note each dated the Closing Date payable to the order of such Lender in a face   amount equal to the Revolving Credit Commitment or Swing Loan Commitment, as applicable, of   such Lender.   2.8 Reserved.   2.9 Letter of Credit Subfacility.   (a) Issuance of Letters of Credit.  The Borrower may at any time prior to the   Expiration Date request the issuance of a standby letter of credit (each a “Letter of Credit”) for   its own account or the account of any Subsidiary (in which case the Borrower and such Subsidiary   shall be co-applicants with respect to such Letter of Credit), or the amendment or extension of an   existing Letter of Credit, by delivering or transmitting electronically to the Issuing Lender (with a   copy to the Administrative Agent) a completed application for letter of credit, or request for such   amendment or extension, as applicable, in such form as the Issuing Lender may specify from time   to time by no later than 10:00 a.m. at least five (5) Business Days, or such shorter period as may   be agreed to by the Issuing Lender, in advance of the proposed date of issuance.  The Borrower   shall authorize and direct the Issuing Lender to name the Borrower or any Subsidiary as the   “Applicant” or “Account Party” of each Letter of Credit.  Promptly after receipt of any letter of   credit application, the Issuing Lender shall confirm with the Administrative Agent (by telephone   or in writing) that the Administrative Agent has received a copy of such Letter of Credit application   and if not, the Issuing Lender will provide the Administrative Agent with a copy thereof.    (i) Unless the Issuing Lender has received notice from any Lender, the   Administrative Agent or the Borrower, at least one day prior to the requested date of issuance,   amendment or extension of the applicable Letter of Credit, that one or more applicable conditions   in Section 7 [Conditions of Lending and Issuance of Letters of Credit] is not satisfied, then, subject   to the terms and conditions hereof and in reliance on the agreements of the other Lenders set forth   in this Section 2.9, the Issuing Lender or any of the Issuing Lender’s Affiliates will issue the   proposed Letter of Credit or agree to such amendment or extension, provided that each Letter of   Credit shall (A) have a maximum maturity of twelve (12) months from the date of issuance, and   (B) in no event expire later than the Expiration Date and provided further that in no event shall   (i) the Letter of Credit Obligations exceed, at any one time, $15,000,000 (the “Letter of Credit     





 







   34   68576829_13   Sublimit”) or (ii) the Revolving Facility Usage exceed, at any one time, the Revolving Credit   Commitments.  Each request by the Borrower for the issuance, amendment or extension of a Letter   of Credit shall be deemed to be a representation by the Borrower that it shall be in compliance   with the preceding sentence and with Section 7 [Conditions of Lending and Issuance of Letters of   Credit] after giving effect to the requested issuance, amendment or extension of such Letter of   Credit.  Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit   to the beneficiary thereof, the applicable Issuing Lender will also deliver to the Borrower and the   Administrative Agent a true and complete copy of such Letter of Credit or amendment.   (ii) Notwithstanding Section 2.9(a)(i), the Issuing Lender shall not be   under any obligation to issue any Letter of Credit if (i) any order, judgment or decree of any   Official Body or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from   issuing the Letter of Credit, or any Law applicable to the Issuing Lender or any request or directive   (whether or not having the force of law) from any Official Body with jurisdiction over the Issuing   Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of   credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with   respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing   Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose   upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the   Closing Date and which the Issuing Lender in good faith deems material to it, (ii) the issuance of   the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters   of credit generally or (iii) any Lender is at that time a Defaulting Lender, unless the Issuing Lender   has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Issuing   Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Issuer Lender’s   actual or potential Fronting Exposure (after giving effect to Section 2.10(a)(iv)) with respect to the   Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter   of Credit and all other Issuer Lender Obligations as to which the Issuing Lender has actual or   potential Fronting Exposure, as it may elect in its sole discretion.   (b) Letter of Credit Fees.  The Borrower shall pay (i) to the Administrative   Agent for the ratable account of the Lenders a fee (the “Letter of Credit Fee”) equal to the   Applicable Margin for Letters of Credit times the daily amount available to be drawn under each   Letter of Credit, and (ii) to the Issuing Lender for its own account a fronting fee equal to 0.125%   per annum on the daily amount available to be drawn under each Letter of Credit.  All Letter of   Credit Fees and fronting fees shall be computed on the basis of a year of 360 days and actual days   elapsed and shall be payable quarterly in arrears on each Payment Date following issuance of each   Letter of Credit.  The Borrower shall also pay to the Issuing Lender for the Issuing Lender’s sole   account the Issuing Lender’s then in effect customary fees and administrative expenses payable   with respect to the Letters of Credit as the Issuing Lender may generally charge or incur from time   to time in connection with the issuance, maintenance, amendment (if any), assignment or transfer   (if any), negotiation, and administration of Letters of Credit.   (c) Disbursements, Reimbursement.  Immediately upon the issuance of each   Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally   agrees to, purchase from the Issuing Lender a participation in such Letter of Credit and each   drawing thereunder in an amount equal to such Lender’s Ratable Share of the maximum amount   available to be drawn under such Letter of Credit and the amount of such drawing, respectively.     





 







   35   68576829_13   (i) In the event of any request for a drawing under a Letter of Credit by   the beneficiary or transferee thereof, the Issuing Lender will promptly notify the Borrower and the   Administrative Agent thereof.  Provided that it shall have received such notice, the Borrower shall   reimburse (such obligation to reimburse the Issuing Lender shall sometimes be referred to as a   “Reimbursement Obligation”) the Issuing Lender prior to 12:00 noon on each date that an   amount is paid by the Issuing Lender under any Letter of Credit (each such date, a “Drawing   Date”) by paying to the Administrative Agent for the account of the Issuing Lender an amount   equal to the amount so paid by the Issuing Lender.  In the event the Borrower fails to reimburse   the Issuing Lender (through the Administrative Agent) for the full amount of any drawing under   any Letter of Credit by 12:00 noon on the Drawing Date, the Administrative Agent will promptly   notify each Lender thereof, and the Borrower shall be deemed to have requested that Revolving   Credit Loans be made by the Lenders under the Base Rate Option to be disbursed on the Drawing   Date under such Letter of Credit, subject to the amount of the unutilized portion of the Revolving   Credit Commitment and subject to the conditions set forth in Section 7.2 [Each Loan or Letter of   Credit] other than any notice requirements.  Any notice given by the Administrative Agent or   Issuing Lender pursuant to this Section 2.9(c)(i)  may be oral if immediately confirmed in writing;   provided that the lack of such an immediate confirmation shall not affect the conclusiveness or   binding effect of such notice.   (ii) Each Lender shall upon any notice pursuant to Section 2.9(c)(i)   make available to the Administrative Agent for the account of the Issuing Lender an amount in   immediately available funds equal to its Ratable Share of the amount of the drawing, whereupon   the participating Lenders shall (subject to Section 2.9(c) [Disbursements; Reimbursement]) each   be deemed to have made a Revolving Credit Loan under the Base Rate Option to the Borrower in   that amount.  If any Lender so notified fails to make available to the Administrative Agent for the   account of the Issuing Lender the amount of such Lender’s Ratable Share of such amount by no   later than 2:00 p.m. on the Drawing Date, then interest shall accrue on such Lender’s obligation to   make such payment, from the Drawing Date to the date on which such Lender makes such payment   (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three (3) days   following the Drawing Date and (ii) at a rate per annum equal to the rate applicable to Revolving   Credit Loans under the Base Rate Option on and after the fourth day following the Drawing Date.    The Administrative Agent and the Issuing Lender will promptly give notice (as described in   Section 2.9(c)(i) above) of the occurrence of the Drawing Date, but failure of the Administrative   Agent or the Issuing Lender to give any such notice on the Drawing Date or in sufficient time to   enable any Lender to effect such payment on such date shall not relieve such Lender from its   obligation under this Section 2.9(c)(ii).   (iii) With respect to any unreimbursed drawing that is not converted into   Revolving Credit Loans under the Base Rate Option to the Borrower in whole or in part as   contemplated by Section 2.9(c)(i), because of the Borrower’s failure to satisfy the conditions set   forth in Section 7.2 [Each Loan or Letter of Credit] other than any notice requirements, or for any   other reason, the Borrower shall be deemed to have incurred from the Issuing Lender a borrowing   (each a “Letter of Credit Borrowing”) in the amount of such drawing.  Such Letter of Credit   Borrowing shall be due and payable on demand (together with interest) and shall bear interest at   the rate per annum applicable to the Revolving Credit Loans under the Base Rate Option.  Each   Lender’s payment to the Administrative Agent for the account of the Issuing Lender pursuant to   Section 2.9(c) [Disbursements, Reimbursement] shall be deemed to be a payment in respect of its     





 







   36   68576829_13   participation in such Letter of Credit Borrowing (each a “Participation Advance”) from such   Lender in satisfaction of its participation obligation under this Section 2.9(c).   (d) Repayment of Participation Advances.   (i) Upon (and only upon) receipt by the Administrative Agent for the   account of the Issuing Lender of immediately available funds from the Borrower (i) in   reimbursement of any payment made by the Issuing Lender under the Letter of Credit with respect   to which any Lender has made a Participation Advance to the Administrative Agent, or (ii) in   payment of interest on such a payment made by the Issuing Lender under such a Letter of Credit,   the Administrative Agent on behalf of the Issuing Lender will pay to each Lender, in the same   funds as those received by the Administrative Agent, the amount of such Lender’s Ratable Share   of such funds, except the Administrative Agent shall retain for the account of the Issuing Lender   the amount of the Ratable Share of such funds of any Lender that did not make a Participation   Advance in respect of such payment by the Issuing Lender.   (ii) If the Administrative Agent is required at any time to return to the   Borrower, or to a trustee, receiver, liquidator, custodian, or any official in any Insolvency   Proceeding, any portion of any payment made by the Borrower to the Administrative Agent for   the account of the Issuing Lender pursuant to this Section in reimbursement of a payment made   under any Letter of Credit or interest or fees thereon, each Lender shall, on demand of the   Administrative Agent, forthwith return to the Administrative Agent for the account of the Issuing   Lender the amount of its Ratable Share of any amounts so returned by the Administrative Agent   plus interest thereon from the date such demand is made to the date such amounts are returned by   such Lender to the Administrative Agent, at a rate per annum equal to the Federal Funds Effective   Rate in effect from time to time.   (e) Documentation.  The Borrower agrees to be bound by the terms of the   Issuing Lender’s application and agreement for letters of credit and the Issuing Lender’s written   regulations and customary practices relating to letters of credit, though such interpretation may be   different from the Borrower’s own.  In the event of a conflict between such application or   agreement and this Agreement, this Agreement shall govern.  It is understood and agreed that,   except in the case of gross negligence or willful misconduct, the Issuing Lender shall not be liable   for any error, negligence and/or mistakes, whether of omission or commission, in following the   Borrower’s instructions or those contained in the Letters of Credit or any modifications,   amendments or supplements thereto.   (f) Determinations to Honor Drawing Requests.  In determining whether to   honor any request for drawing under any Letter of Credit by the beneficiary thereof, the Issuing   Lender shall be responsible only to determine that the documents and certificates required to be   delivered under such Letter of Credit have been delivered and that they comply on their face with   the requirements of such Letter of Credit.   (g) Nature of Participation and Reimbursement Obligations.  Each Lender’s   obligation in accordance with this Agreement to make the Revolving Credit Loans or Participation   Advances, as contemplated by Section 2.9(c) [Disbursements, Reimbursement], as a result of a   drawing under a Letter of Credit, and the Obligations of the Borrower to reimburse the Issuing     





 







   37   68576829_13   Lender upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and   shall be performed strictly in accordance with the terms of this Section 2.9 under all circumstances,   including the following circumstances:   (i) any set-off, counterclaim, recoupment, defense or other right which   such Lender may have against the Issuing Lender or any of its Affiliates, the Borrower or any other   Person for any reason whatsoever, or which the Borrower may have against the Issuing Lender or   any of its Affiliates, any Lender or any other Person for any reason whatsoever;   (ii) the failure of the Borrower or any other Person to comply, in   connection with a Letter of Credit Borrowing, with the conditions set forth in Sections 2.1   [Revolving Credit Commitments], 2.5 [Revolving Credit Loan Requests; Swing Loan Requests],   2.6 [Making Revolving Credit Loans and Swing Loans; Etc.] or 7.2 [Each Loan or Letter of Credit]   or as otherwise set forth in this Agreement for the making of a Revolving Credit Loan, it being   acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing   and the obligation of the Lenders to make Participation Advances under Section 2.9(c)   [Disbursements, Reimbursement];   (iii) any lack of validity or enforceability of any Letter of Credit;   (iv) any claim of breach of warranty that might be made by the Borrower   or any Lender against any beneficiary of a Letter of Credit, or the existence of any claim, set-off,   recoupment, counterclaim, crossclaim, defense or other right which the Borrower or any Lender   may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any   Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be   acting), the Issuing Lender or its Affiliates or any Lender or any other Person, whether in   connection with this Agreement, the transactions contemplated herein or any unrelated transaction   (including any underlying transaction between the Borrower or Subsidiaries of the Borrower and   the beneficiary for which any Letter of Credit was procured);   (v) the lack of power or authority of any signer of (or any defect in or   forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency,   accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other   document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud   in connection with any Letter of Credit, or the transport of any property or provision of services   relating to a Letter of Credit, in each case even if the Issuing Lender or any of its Affiliates has   been notified thereof;   (vi) payment by the Issuing Lender or any of its Affiliates under any   Letter of Credit against presentation of a demand, draft or certificate or other document which does   not comply with the terms of such Letter of Credit;   (vii) the solvency of, or any acts or omissions by, any beneficiary of any   Letter of Credit, or any other Person having a role in any transaction or obligation relating to a   Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic   of any property or services relating to a Letter of Credit;     





 







   38   68576829_13   (viii) any failure by the Issuing Lender or any of its Affiliates to issue any   Letter of Credit in the form requested by the Borrower, unless the Issuing Lender has received   written notice from the Borrower of such failure within three Business Days after the Issuing   Lender shall have furnished the Borrower and the Administrative Agent a copy of such Letter of   Credit and such error is material and no drawing has been made thereon prior to receipt of such   notice;   (ix) any adverse change in the business, operations, properties, assets,   condition (financial or otherwise) or prospects of the Borrower or Subsidiaries of the Borrower;   (x) any breach of this Agreement or any other Loan Document by any   party thereto;   (xi) the occurrence or continuance of an Insolvency Proceeding with   respect to the Borrower;   (xii) the fact that an Event of Default or a Potential Default shall have   occurred and be continuing;   (xiii) the fact that the Expiration Date shall have passed or this Agreement   or the Commitments hereunder shall have been terminated; and   (xiv) any other circumstance or happening whatsoever, whether or not   similar to any of the foregoing.   (h) Indemnity.  The Borrower hereby agrees to protect, indemnify, pay and save   harmless the Issuing Lender and any of its Affiliates that has issued a Letter of Credit from and   against any and all claims, demands, liabilities, damages, taxes, penalties, interest, judgments,   losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of   counsel and allocated costs of internal counsel) which the Issuing Lender or any of its Affiliates   may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of   Credit, other than as a result of the gross negligence or willful misconduct of the Issuing Lender   as determined by a final non-appealable judgment of a court of competent jurisdiction.   (i) Liability for Acts and Omissions.  As between the Borrower and the Issuing   Lender, or the Issuing Lender’s Affiliates, the Borrower assumes all risks of the acts and omissions   of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.  In   furtherance and not in limitation of the foregoing, the Issuing Lender shall not be responsible for   any of the following, including any losses or damages to the Borrower or other Person or property   relating therefrom:  (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any   document submitted by any party in connection with the application for an issuance of any such   Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient,   inaccurate, fraudulent or forged (even if the Issuing Lender or its Affiliates shall have been notified   thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting   to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds   thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the   failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of   Credit may be transferred, to comply fully with any conditions required in order to draw upon such     





 







   39   68576829_13   Letter of Credit or any other claim of the Borrower against any beneficiary of such Letter of Credit,   or any such transferee, or any dispute between or among  the Borrower and any beneficiary of any   Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in   transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or   not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the   transmission or otherwise of any document required in order to make a drawing under any such   Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such   Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any   consequences arising from causes beyond the control of the Issuing Lender or its Affiliates, as   applicable, including any act or omission of any Official Body, and none of the above shall affect   or impair, or prevent the vesting of, any of the Issuing Lender’s or its Affiliates rights or powers   hereunder.  Nothing in the preceding sentence shall relieve the Issuing Lender from liability for   the Issuing Lender’s gross negligence or willful misconduct in connection with actions or   omissions described in such clauses (i) through (viii) of such sentence.  In no event shall the Issuing   Lender or its Affiliates be liable to the Borrower for any indirect, consequential, incidental,   punitive, exemplary or special damages or expenses (including attorneys’ fees), or for any damages   resulting from any change in the value of any property relating to a Letter of Credit.   Without limiting the generality of the foregoing, the Issuing Lender and each of its   Affiliates (i) may rely on any oral or other communication believed in good faith by the Issuing   Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a   Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face   substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may   honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was   pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise,   and shall be entitled to reimbursement to the same extent as if such presentation had initially been   honored, together with any interest paid by the Issuing Lender or its Affiliate; (iv) may honor any   drawing that is payable upon presentation of a statement advising negotiation or payment, upon   receipt of such statement (even if such statement indicates that a draft or other document is being   delivered separately), and shall not be liable for any failure of any such draft or other document to   arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or   negotiating bank claiming that it rightfully honored under the laws or practices of the place where   such bank is located; and (vi) may settle or adjust any claim or demand made on the Issuing Lender   or its Affiliate in any way related to any order issued at the applicant’s request to an air carrier, a   letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”)   and honor any drawing in connection with any Letter of Credit that is the subject of such Order,   notwithstanding that any drafts or other documents presented in connection with such Letter of   Credit fail to conform in any way with such Letter of Credit.   In furtherance and extension and not in limitation of the specific provisions set forth   above, any action taken or omitted by the Issuing Lender or its Affiliates under or in connection   with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if   taken or omitted in good faith, shall not put the Issuing Lender or its Affiliates under any resulting   liability to the Borrower or any Lender.   (j) Issuing Lender Reporting Requirements.  Each Issuing Lender shall, on the   first Business Day of each month, provide to Administrative Agent and Borrower a schedule of     





 







   40   68576829_13   the Letters of Credit issued by it, in form and substance satisfactory to Administrative Agent,   showing the date of issuance of each Letter of Credit, the account party, the original face amount   (if any), and the expiration date of any Letter of Credit outstanding at any time during the preceding   month, and any other information relating to such Letter of Credit that the Administrative Agent   may request.   2.10 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.   (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 10 [Default] or   otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section   10.2(b) [Set-Off] shall be applied at such time or times as may be determined by the Administrative   Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the   Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing   by such Defaulting Lender to any Issuing Lender or Swing Loan Lender hereunder; third, to Cash   Collateralize the Issuing Lender’s Fronting Exposure with respect to such Defaulting Lender in   accordance with Section 5.12 [Cash Collateral]; fourth, as the Borrower may request (so long as   no Potential Default or Event of Default exists), to the funding of any Loan in respect of which   such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as   determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and   the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such   Defaulting Lender’s potential future funding obligations with respect to Loans under this   Agreement and (y) Cash Collateralize the Issuing Lender’s future Fronting Exposure with respect   to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in   accordance with Section 5.12 [Cash Collateral]; sixth, to the payment of any amounts owing to the   Lenders, the Issuing Lender or Swing Loan Lender as a result of any judgment of a court of   competent jurisdiction obtained by any Lender, the Issuing Lender or Swing Loan Lender against   such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this   Agreement; seventh, so long as no Potential Default or Event of Default exists, to the payment of   any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction   obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's   breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as   otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a   payment of the principal amount of any Loans or Letter of Credit Borrowing in respect of which   such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made   or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.2   [Each Loan or Letter of Credit] were satisfied or waived, such payment shall be applied solely to   pay the Loans of, and Letter of Credit Borrowings owed to, all Non-Defaulting Lenders on a pro     





 







   41   68576829_13   rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Borrowing   owed to, such Defaulting Lender until such time as all Loans and funded and unfunded   participations in Letter of Credit Obligations and Swing Loans are held by the Lenders pro rata in   accordance with the Commitments under the Facility without giving effect to Section 2.10(a)(iv)   [Reallocation of Participations to Reduce Fronting Exposure]. Any payments, prepayments or   other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts   owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.10(a)(i)   [Defaulting Lender Waterfall] shall be deemed paid to and redirected by such Defaulting Lender,   and each Lender irrevocably consents hereto.   (iii) Certain Fees.    (A) No Defaulting Lender shall be entitled to receive any   Commitment Fee for any period during which that Lender is a Defaulting Lender (and the   Borrower shall not be required to pay any such fee that otherwise would have been required to   have been paid to that Defaulting Lender).     (B) Each Defaulting Lender shall be entitled to receive Letter of   Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent   allocable to its Ratable Share of the stated amount of Letters of Credit for which it has provided   Cash Collateral pursuant to Section 5.12 [Cash Collateral].     (C) With respect to any Commitment Fee or Letter of Credit Fee   not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower   shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such   Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit   Obligations or Swing Loans that has been reallocated to such Non-Defaulting Lender pursuant to   clause (iv) below, (y) pay to each Issuing Lender and Swing Loan Lender, as applicable, the   amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such   Issuing Lender’s or Swing Loan Lender’s Fronting Exposure to such Defaulting Lender, and (z)   not be required to pay the remaining amount of any such fee.   (iv) Reallocation of Participations to Reduce Fronting Exposure.  All or   any part of such Defaulting Lender’s participation in Letter of Credit Obligations and Swing Loans   shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Ratable   Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent   that such reallocation does not cause the aggregate Revolving Facility Usage of any Non-   Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment.  No   reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder   against a Defaulting Lender arising from that Lender having become a Defaulting Lender,   including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s   increased exposure following such reallocation.   (v) Cash Collateral, Repayment of Swing Loans.  If the reallocation   described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without   prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swing   Loans in an amount equal to the Swing Loan Lender’s Fronting Exposure and (y) second, Cash     





 







   42   68576829_13   Collateralize the Issuing Lender’s Fronting Exposure in accordance with the procedures set forth   in Section 5.12 [Cash Collateral].   (b) Defaulting Lender Cure.  If the Borrower, the Administrative Agent, Swing   Loan Lender and Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender,   the Administrative Agent will so notify the parties hereto, whereupon as of the effective date   specified in such notice and subject to any conditions set forth therein (which may include   arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable,   purchase at par that portion of outstanding Loans of the other Lenders or take such other actions   as the Administrative Agent may determine to be necessary to cause the Loans and funded and   unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Lenders in   accordance with the Commitments under the Facility (without giving effect to Section 2.10 (a)(iv)   [Reallocation of Participations to Reduce Fronting Exposure], whereupon such Lender will cease   to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to   fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting   Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected   parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release   of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.   (c) New Swing Loans/Letters of Credit.  So long as any Lender is a Defaulting   Lender, (i) the Swing Loan Lender shall not be required to fund any Swing Loans unless it is   satisfied that it will have no Fronting Exposure after giving effect to such Swing Loan and (ii) no   Issuing Lender shall be required to issue, extend, renew or increase any Letter of Credit unless it   is satisfied that it will have no Fronting Exposure after giving effect thereto.   2.11 Increase in Revolving Credit Commitments.   (a) Increasing Lenders and New Lenders.  The Borrower may, at any time,   request that (1) the current Lenders increase their Revolving Credit Commitments (any current   Lender which elects to increase its Revolving Credit Commitment shall be referred to as an   “Increasing Lender”) or (2) one or more new lenders (each a “New Lender”) join this Agreement   and provide a Revolving Credit Commitment hereunder, subject to the following terms and   conditions:    (i) No Obligation to Increase.  No current Lender shall be obligated to   increase its Revolving Credit Commitment and any increase in the Revolving Credit Commitment   by any current Lender shall be in the sole discretion of such current Lender;    (ii) Defaults.  There shall exist no Events of Default or Potential Default   on the effective date of such increase and after giving effect to such increase;   (iii) Aggregate Revolving Credit Commitments.  After giving effect to   such increase, the total Revolving Credit Commitments shall not exceed $200,000,000;    (iv) Minimum Revolving Credit Commitments.  After giving effect to   such increase, the amount of the Revolving Credit Commitments provided by each of the New   Lenders and each of the Increasing Lenders shall be at least $15,000,000, unless such amount is   greater than the then remaining increase available under Section 2.11(a)(iii);      





 







   43   68576829_13   (v) Resolutions; Opinion.  The Borrower shall deliver to the   Administrative Agent on or before the effective date of such increase the following documents in   a form reasonably acceptable to the Administrative Agent: (1) certifications of their corporate   secretaries with attached resolutions certifying that the increase in the Revolving Credit   Commitment has been approved by the Borrower, and (2) an opinion of counsel addressed to the   Administrative Agent and the Lenders addressing the authorization and execution of the Loan   Documents by, and enforceability of the Loan Documents against, the Borrower;   (vi) Notes.  The Borrower shall execute and deliver (1) to each   Increasing Lender to whom a Note was previously issued a replacement revolving credit Note   reflecting the new amount of such Increasing Lender's Revolving Credit Commitment after giving   effect to the increase (and the prior Note, if any, issued to such Increasing Lender shall be deemed   to be terminated) and (2) to each New Lender requesting a Note a revolving credit Note reflecting   the amount of such New Lender's Revolving Credit Commitment;    (vii) Approval of New Lenders.  Any New Lender shall be subject to the   approval of the Administrative Agent, the Issuing Lender and the Swing Loan Lender, not to be   unreasonably withheld or delayed;    (viii) Increasing Lenders.  Each Increasing Lender shall confirm its   agreement to increase its Revolving Credit Commitment pursuant to an acknowledgement in a   form acceptable to the Administrative Agent, signed by it and the Borrower and delivered to the   Administrative Agent at least five (5) days before the effective date of such increase; and    (ix) New Lenders--Joinder.  Each New Lender shall execute a lender   joinder in substantially the form of Exhibit G pursuant to which such New Lender shall join and   become a party to this Agreement and the other Loan Documents with a Revolving Credit   Commitment in the amount set forth in such lender joinder.    (b) Treatment of Outstanding Loans and Letters of Credit.     (i) Borrowing of New Loans.  Each of the Lenders shall participate in   any new Loans made on or after such date in accordance with their respective Ratable Shares after   giving effect to the increase in Revolving Credit Commitments contemplated by this Section 2.11.   (ii) Outstanding Letters of Credit and Loans.  On the effective date of   such increase, each Increasing Lender and each New Lender (x) will be deemed to have purchased   a participation in each then outstanding Letter of Credit equal to its Ratable Share of such Letter   of Credit and the participation of each other Lender in such Letter of Credit shall be adjusted   accordingly and (y) will acquire, (and will pay to the Administrative Agent, for the account of each   Lender, in immediately available funds, an amount equal to) its Ratable Share of all outstanding   Participation Advances.   2.12 Extension of Expiration Date.    (a) Requests for Extension.  The Borrower may extend the Expiration Date then   in effect hereunder (the “Existing Expiration Date”) for up to two (2) additional one-year periods,   by written notice to the Administrative Agent (who shall promptly notify the Lenders) not earlier     





 







   44   68576829_13   than 45 days and not later than 30 days prior to any anniversary of the Closing Date (each such   anniversary, the “Anniversary Date”), by requesting that each Lender extend such Lender’s   Expiration Date for an additional 364 days from the Existing Commitment Termination Date.   (b) Lender Elections to Extend.  Each Lender, acting in its sole and individual   discretion, shall, by written notice to the Administrative Agent given not earlier than 30 days prior   to the applicable Anniversary Date and not later than the date (the “Notice Date”) that is 20 days   prior to the applicable Anniversary Date, advise the Administrative Agent whether or not such   Lender agrees to such extension (and each Lender that determines not to so extend its Expiration   Date (a “Non-Extending Lender”) shall notify the Administrative Agent in writing 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 Borrower in writing of each Lender’s determination under this Section 2.12 no later than   the date 15 days prior to the applicable Anniversary Date (or, if such date is not a Business Day,   on the next Business Day).   (d) Additional Commitment Lenders.  The Borrower shall have the right on or   before the Existing Expiration Date to replace each Non-Extending Lender with, and add as   “Lenders” under this Agreement in place thereof, one or more Eligible Assignees, which may be   a then existing Lender (each, an “Additional Commitment Lender”) with the approval of the   Administrative Agent, Swing Loan Lender and the Issuing Lender (which approvals shall not be   unreasonably withheld), each of which Additional Commitment Lenders shall have entered into   an agreement in form and substance satisfactory to the Borrower and the Administrative Agent   pursuant to which such Additional Commitment Lender shall, effective as of the Existing   Expiration Date, undertake a Revolving Credit Commitment (and, if any such Additional   Commitment Lender is already a Lender, its Revolving Credit Commitment shall be in addition to   such Lender’s Revolving Credit Commitment hereunder on such date).   (e) Minimum Extension Requirement.  If (and only if) the total of the   Revolving Credit Commitments of the Lenders that have agreed so to extend their Expiration Date   and the additional Revolving Credit Commitments of the Additional Commitment Lenders shall   be more than 50% of the aggregate amount of the Revolving Credit Commitments in effect   immediately prior to the Existing Expiration Date, then, effective as of the Existing Expiration   Date, the Expiration Date of each Extending Lender and of each Additional Commitment Lender   shall be extended to the date falling 364 days after the Existing Expiration Date (except that, if   such date is not a Business Day, such Expiration Date as so extended shall be the 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 Expiration Date pursuant to this Section shall not be effective with respect to   any Lender unless:     





 







   45   68576829_13   (i) as of the date of such extension of the Expiration Date and after   giving effect thereto, the representations and warranties of the Borrower shall be true and correct   in all material respects (unless qualified by materiality or reference to the absence of a Material   Adverse Change, in which event shall be true and correct), except to the extent that such   representations and warranties specifically refer to an earlier date, in which case they shall be true   and correct as of such earlier date, and except that for purposes of this Section, the representations   and warranties contained in Section 6.6 [Financial Statements] shall be deemed to refer to the most   recent statements furnished pursuant to Section 8.11 [Reporting Requirements];    (ii) no Event of Default or Potential Default shall have occurred and be   continuing on the date of such extension of the Expiration Date and after giving effect thereto; and   (iii) on or before the Expiration Date of each Non-Extending Lender, (x)   the Borrower shall have paid in full the principal of and interest on all of the Loans made by such   Non-Extending Lender to the Borrower hereunder and (y) the Borrower shall have paid in full all   other Obligations owing to such Lender hereunder and under the other Loan Documents (it being   understood that after giving effect to this clause (iii) with respect to any Non-Extending Lender,   such Non-Extending Lender’s Commitment shall be deemed terminated on the Existing Expiration   Date and such Non-Extending Lender shall no longer be a “Lender” hereunder).   ARTICLE 3   RESERVED      ARTICLE 4   INTEREST RATES   4.1 Interest Rate Options.  The Borrower shall pay interest in respect of the outstanding   unpaid principal amount of the Loans as selected by it from the Base Rate Option, the LIBOR Rate   Option or the Daily LIBOR Rate set forth below applicable to the Revolving Credit Loans or the   Swing Loans, respectively, it being understood that, subject to the provisions of this Agreement,   the Borrower may select different Interest Rate Options and different Interest Periods to apply   simultaneously to the Revolving Credit Loans comprising different Borrowing Tranches and may   convert to or renew one or more Interest Rate Options with respect to all or any portion of the   Revolving Credit Loans comprising any Borrowing Tranche; provided that there shall not be at   any one time outstanding more than six (6) Borrowing Tranches of Revolving Credit Loans;   provided further that if an Event of Default or Potential Default exists and is continuing, the   Borrower may not request, convert to, or renew the LIBOR Rate Option for any Revolving Credit   Loans and the Required Lenders may demand that all existing Borrowing Tranches bearing interest   under the LIBOR Rate Option shall be converted immediately to the Base Rate Option, subject to   the obligation of the Borrower to pay any indemnity under Section 5.10 [Indemnity] in connection   with such conversion.  If at any time the designated rate applicable to any Loan made by any   Lender exceeds such Lender’s highest lawful rate, the rate of interest on such Lender’s Loan shall   be limited to such Lender’s highest lawful rate.   (a) Revolving Credit Interest Rate Options.  The Borrower shall have the right   to select from the following Interest Rate Options applicable to the Revolving Credit Loans:     





 







   46   68576829_13   (i) Revolving Credit Base Rate Option:  A fluctuating rate per annum   (computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed)   equal to the Base Rate plus the Applicable Margin, such interest rate to change automatically from   time to time effective as of the effective date of each change in the Base Rate; or   (ii) Revolving Credit LIBOR Rate Option:  A rate per annum (computed   on the basis of a year of 360 days and actual days elapsed) equal to the LIBOR Rate as determined   for each applicable Interest Period plus the Applicable Margin.   (b) Swing Loan Interest Rate.  Borrower shall have the right to select the Base   Rate Option applicable to Revolving Credit Loans or the Daily LIBOR Rate to apply to the Swing   Loans.   (c) Rate Quotations.  The Borrower may call the Administrative Agent on or   before the date on which a Revolving Credit Loan Request is to be delivered to receive an   indication of the rates then in effect, but it is acknowledged that such projection shall not be binding   on the Administrative Agent or the Lenders nor affect the rate of interest which thereafter is   actually in effect when the election is made.   4.2 Interest Periods.  At any time when the Borrower shall select, convert to or renew   a LIBOR Rate Option, the Borrower shall notify the Administrative Agent thereof at least three   (3) Business Days prior to the effective date of such LIBOR Rate Option by delivering a Revolving   Credit Loan Request.  The notice shall specify an Interest Period during which such Interest Rate   Option shall apply.  Notwithstanding the preceding sentence, the following provisions shall apply   to any selection of, renewal of, or conversion to a LIBOR Rate Option:   (a) Amount of Borrowing Tranche.  Each Borrowing Tranche of Loans under   the LIBOR Rate Option shall be in integral multiples of, and not less than, the respective amounts   set forth in Section 2.5(a) [Revolving Credit Loan Requests]; and   (b) Renewals.  In the case of the renewal of a LIBOR Rate Option at the end of   an Interest Period, the first day of the new Interest Period shall be the last day of the preceding   Interest Period, without duplication in payment of interest for such day.   4.3 Interest After Default.  To the extent permitted by Law, upon the occurrence of an   Event of Default as described in Section 10.1(a) [Payments Under Loan Documents] or Section   10.1(k) [Insolvency Proceedings, Solvency; Attachment] and at the discretion of the   Administrative Agent or upon written demand by the Required Lenders to the Administrative   Agent with respect to the occurrence of any other Event of Default and until such time such Event   of Default shall have been cured or waived:   (a) Letter of Credit Fees.  The Letter of Credit Fees pursuant to Section 2.9(b)   [Letter of Credit Fees] shall be increased by 2.0% per annum;   (b) Interest Rate.  Each Loan shall bear the rate of interest applicable to   Revolving Credit Loans under the Base Rate Option plus 2.0% per annum;     





 







   47   68576829_13   (c) Other Obligations.  Each other Obligation hereunder if not paid when due   shall bear interest at a rate per annum equal to the sum of the rate of interest applicable to Revolving   Credit Loans under the Base Rate Option plus an additional 2.0% per annum from the time such   Obligation becomes due and payable until the time such Obligation is paid in full; and   (d) Acknowledgment.  The Borrower acknowledges that the increase in rates   referred to in this Section 4.3 reflects, among other things, the fact that such Loans or other   amounts have become a substantially greater risk given their default status and that the Lenders   are entitled to additional compensation for such risk; and all such interest shall be payable by   Borrower upon demand by Administrative Agent.   4.4 LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available.   (a) Unascertainable.  If on any date on which a LIBOR Rate would otherwise   be determined, the Administrative Agent shall have determined that:   (i) adequate and reasonable means do not exist for ascertaining such   LIBOR Rate, or   (ii) a contingency has occurred which materially and adversely affects   the London interbank eurodollar market relating to the LIBOR Rate,   then the Administrative Agent shall have the rights specified in Section 4.4(c) [Administrative   Agent’s and Lender’s Rights].   (b) Illegality; Increased Costs; Deposits Not Available.  If at any time any   Lender shall have determined that:   (i) the making, maintenance or funding of any Loan to which a LIBOR   Rate Option applies has been made impracticable or unlawful by compliance by such Lender in   good faith with any Law or any interpretation or application thereof by any Official Body or with   any request or directive of any such Official Body (whether or not having the force of Law), or   (ii) such LIBOR Rate Option will not adequately and fairly reflect the   cost to such Lender of the establishment or maintenance of any such Loan, or   (iii) after making all reasonable efforts, deposits of the relevant amount   in Dollars for the relevant Interest Period for a Loan, or to banks generally, to which a LIBOR   Rate Option applies, respectively, are not available to such Lender with respect to such Loan, or   to banks generally, in the interbank eurodollar market,   then the Administrative Agent shall have the rights specified in Section 4.4(c) [Administrative   Agent’s and Lender’s Rights].   (c) Administrative Agent’s and Lender’s Rights.  In the case of any event   specified in Section 4.4(a) [Unascertainable] above, the Administrative Agent shall promptly so   notify the Lenders and the Borrower thereof, and in the case of an event specified in Section 4.4(b)   [Illegality; Increased Costs; Deposits Not Available] above, such Lender shall promptly so notify     





 







   48   68576829_13   the Administrative Agent and endorse a certificate to such notice as to the specific circumstances   of such notice, and the Administrative Agent shall promptly send copies of such notice and   certificate to the other Lenders and the Borrower.  Upon such date as shall be specified in such   notice (which shall not be earlier than the date such notice is given), the obligation of (A) the   Lenders, in the case of such notice given by the Administrative Agent, or (B) such Lender, in the   case of such notice given by such Lender, to allow the Borrower to select, convert to or renew a   LIBOR Rate Option shall be suspended until the Administrative Agent shall have later notified the   Borrower, or such Lender shall have later notified the Administrative Agent, of the Administrative   Agent’s or such Lender’s, as the case may be, determination that the circumstances giving rise to   such previous determination no longer exist.  If at any time the Administrative Agent makes a   determination under Section 4.4(a) [Unascertainable] and the Borrower has previously notified the   Administrative Agent of its selection of, conversion to or renewal of a LIBOR Rate Option and   such Interest Rate Option has not yet gone into effect, such notification shall be deemed to provide   for selection of, conversion to or renewal of the Base Rate Option otherwise available with respect   to such Loans.  If any Lender notifies the Administrative Agent of a determination under   Section 4.4(b) [Illegality; Increased Costs; Deposits Not Available], the Borrower shall, subject to   the Borrower’s indemnification Obligations under Section 5.10 [Indemnity], as to any Loan of the   Lender to which a LIBOR Rate Option applies, on the date specified in such notice either convert   such Loan to the Base Rate Option otherwise available with respect to such Loan or prepay such   Loan in accordance with Section 5.6 [Voluntary Prepayments].  Absent due notice from the   Borrower of conversion or prepayment, such Loan shall automatically be converted to the Base   Rate Option otherwise available with respect to such Loan upon such specified date.   4.5 Selection of Interest Rate Options.  If the Borrower fails to select a new Interest   Period to apply to any Borrowing Tranche of Loans under the LIBOR Rate Option at the expiration   of an existing Interest Period applicable to such Borrowing Tranche in accordance with the   provisions of Section 4.2 [Interest Periods], the Borrower shall be deemed to have converted such   Borrowing Tranche to the Base Rate Option, as applicable to Revolving Credit Loans,   commencing upon the last day of the existing Interest Period. If the Borrower provides any   Revolving Credit Loan Request related to a Loan at the LIBOR Rate Option but fails to identify   an Interest Period therefor, such Revolving Credit Loan Request shall be deemed to request an   Interest Period of one month.  Any Revolving Credit Loan Request that fails to select an Interest   Rate Option shall be deemed to be a request for the Base Rate Option.   ARTICLE 5   PAYMENTS; TAXES; YIELD MAINTENANCE   5.1 Payments.  All payments and prepayments to be made in respect of principal,   interest, Commitment Fees, Letter of Credit Fees, Administrative Agent’s Fee or other fees or   amounts due from the Borrower hereunder shall be payable prior to 11:00 a.m. on the date when   due without presentment, demand, protest or notice of any kind, all of which are hereby expressly   waived by the Borrower, and without set-off, counterclaim or other deduction of any nature, and   an action therefor shall immediately accrue.  Such payments shall be made to the Administrative   Agent at the Principal Office for the account of the Swing Loan Lender with respect to the Swing   Loans and for the ratable accounts of the Lenders with respect to the Revolving Credit Loans in   U.S. Dollars and in immediately available funds, and the Administrative Agent shall promptly   distribute such amounts to the Lenders in immediately available funds; provided that in the event     





 







   49   68576829_13   payments are received by 11:00 a.m. by the Administrative Agent with respect to the Loans and   such payments are not distributed to the Lenders on the same day received by the Administrative   Agent, the Administrative Agent shall pay the Lenders interest at the Federal Funds Effective Rate   with respect to the amount of such payments for each day held by the Administrative Agent and   not distributed to the Lenders.  The Administrative Agent’s and each Lender’s statement of   account, ledger or other relevant record shall, in the absence of manifest error, be conclusive as   the statement of the amount of principal of and interest on the Loans and other amounts owing   under this Agreement.   5.2 Pro Rata Treatment of Lenders.  Each borrowing of Revolving Credit Loans shall   be allocated to each Lender according to its Ratable Share, and each selection of, conversion to or   renewal of any Interest Rate Option and each payment or prepayment by the Borrower with respect   to principal, interest, Commitment Fees and Letter of Credit Fees (but excluding the   Administrative Agent’s Fee and the Issuing Lender’s fronting fee) shall (except as otherwise may   be provided with respect to a Defaulting Lender and except as provided in Sections 4.4(c)   [Administrative Agent’s and Lender’s Rights] in the case of an event specified in Section 4.4   [LIBOR Rate Unascertainable; Etc.], 5.6(b) [Replacement of a Lender] or 5.8 [Increased Costs])   be payable ratably among the Lenders entitled to such payment in accordance with the amount of   principal, interest, Commitment Fees and Letter of Credit Fees, as set forth in this Agreement.    Notwithstanding any of the foregoing, each borrowing or payment or prepayment by the Borrower   of principal, interest, fees or other amounts from the Borrower with respect to Swing Loans shall   be made by or to the Swing Loan Lender according to Section 2.6(e) [Borrowings to Repay Swing   Loans].   5.3 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of   setoff, counterclaim or banker’s lien, by receipt of voluntary payment, by realization upon security,   or by any other non-pro rata source, obtain payment in respect of any principal of or interest on   any of its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a   proportion of the aggregate amount of its Loans and accrued interest thereon or other such   obligations greater than the pro-rata share of the amount such Lender is entitled thereto, then the   Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact,   and (b) purchase (for cash at face value) participations in the Loans and 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 Loans 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, together with interest or other amounts, if any,   required by Law (including court order) to be paid by the Lender or the holder making such   purchase; and   (ii) the provisions of this Section 5.3 shall not be construed to apply to   (x) any payment made by the Borrower pursuant to and in accordance with the express terms of   the Loan Documents or (y) any payment obtained by a Lender as consideration for the assignment     





 







   50   68576829_13   of or sale of a participation in any of its Loans or Participation Advances to any assignee or   participant.   The 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 the Borrower rights of setoff and counterclaim with respect to such   participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such   participation.   5.4 Administrative Agent’s Clawback.   (a) Reserved.     (b) Payments by Borrower; Presumptions by Administrative Agent.  Unless the   Administrative Agent shall have received notice from the Borrower prior to the date on which any   payment is due to the Administrative Agent for the account of the Lenders or the Issuing Lender   hereunder that the Borrower will not make such payment, the Administrative Agent may assume   that the Borrower has made such payment on such date in accordance herewith and may, in reliance   upon such assumption, distribute to the Lenders or the Issuing Lender, as the case may be, the   amount due.  In such event, if the Borrower has not in fact made such payment, then each of the   Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative   Agent forthwith on demand the amount so distributed to such Lender or Issuing 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   Effective Rate and a rate determined by the Administrative Agent in accordance with banking   industry rules on interbank compensation.   5.5 Interest Payment Dates.  Interest on Loans to which the Base Rate Option applies   shall be due and payable in arrears on each Payment Date and the Expiration Date or the applicable   Specified Maturity Date.  Interest on Loans to which the LIBOR Rate Option applies shall be due   and payable on the last day of each Interest Period for those Loans and, if such Interest Period is   longer than three (3) Months, also on the 90th day of such Interest Period and the Expiration Date   or the applicable Specified Maturity Date.  Interest on the principal amount of each Loan or other   monetary Obligation shall be due and payable on demand after such principal amount or other   monetary Obligation becomes due and payable (whether on the stated Expiration Date, the   applicable Specified Maturity Date or upon acceleration or otherwise).    5.6 Voluntary Prepayments.   (a) Right to Prepay.  The Borrower shall have the right at its option from time   to time to prepay the Loans in whole or part without premium or penalty (except as provided in   Section 5.6(b) [Replacement of a Lender] below, in Section 5.8 [Increased Costs] and Section 5.10   [Indemnity]).  Whenever the Borrower desires to prepay any part of the Loans, it shall provide a   prepayment notice to the Administrative Agent by 1:00 p.m. at least one (1) Business Day prior to   the date of prepayment of the Revolving Credit Loans or no later than 1:00 p.m. on the date of   prepayment of Swing Loans, setting forth the following information:     





 







   51   68576829_13   (i) the date, which shall be a Business Day, on which the proposed   prepayment is to be made;   (ii) a statement indicating the application of the prepayment between the   Revolving Credit Loans and Swing Loans;   (iii) a statement indicating the application of the prepayment between   Loans to which the Base Rate Option applies and Loans to which the LIBOR Rate Option applies;   and   (iv) the total principal amount of such prepayment, which shall not be   less than the lesser of (i) the Revolving Facility Usage or (ii) $100,000 for any Swing Loan or   $5,000,000 for any Revolving Credit Loan.   All prepayment notices shall be irrevocable.  The principal amount of the Loans for   which a prepayment notice is given, together with interest on such principal amount, shall be due   and payable on the date specified in such prepayment notice as the date on which the proposed   prepayment is to be made.  Except as provided in Section 4.4(c) [Administrative Agent’s and   Lender’s Rights], if the Borrower prepays a Loan but fails to specify the applicable Borrowing   Tranche which the Borrower is prepaying, the prepayment shall be applied first to Loans to which   the Base Rate Option applies, then to Loans to which the LIBOR Rate Option applies.  Any   prepayment hereunder shall be subject to the Borrower’s Obligation to indemnify the Lenders   under Section 5.10 [Indemnity].   (b) Replacement of a Lender.  If any Lender requests compensation under   Section 5.8 [Increased Costs], or if the Borrower is required to pay any Indemnified Taxes or   additional amounts to any Lender or any Official Body for the account of any Lender pursuant to   Section 5.9 [Taxes] and, in each case, such Lender has declined or is unable to designate a different   lending office in accordance with Section 5.6(c), or if any Lender is a Defaulting Lender or a Non-   Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such   Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse   (in accordance with and subject to the restrictions contained in, and consents required by,   Section 12.9 [Successors and Assigns]), all of its interests, rights (other than its existing rights to   payments pursuant to Section 5.8 [Increased Cost] or Section 5.9 [Taxes]) and obligations under   this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such   obligations (which assignee may be another Lender, if a Lender accepts such assignment);   provided that:   (i) the Borrower shall have paid to the Administrative Agent the   assignment fee (if any) specified in Section 12.9 [Successors and Assigns];   (ii) such Lender shall have received payment of an amount equal to the   outstanding principal of its Loans and participations in Letter of Credit Borrowings, accrued   interest thereon, accrued fees and all other amounts payable to it hereunder and under the other   Loan Documents (including any amounts under Section 5.10 [Indemnity]) from the assignee (to   the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case   of all other amounts);     





 







   52   68576829_13   (iii) in the case of any such assignment resulting from a claim for   compensation under Section 5.8 [Increased Costs] or payments required to be made pursuant to   Section 5.9 [Taxes], 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   Borrower to require such assignment and delegation cease to apply.   (c) Designation of a Different Lending Office.  If any Lender requests   compensation under Section 5.8 [Increased Costs], or the Borrower is or will be required to pay   any Indemnified Taxes or additional amounts to any Lender or any Official Body for the account   of any Lender pursuant to Section 5.9 [Taxes], then such Lender shall (at the request of the   Borrower) use reasonable efforts to designate a different Lending Office for funding or booking   its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,   branches or affiliates, if, in the reasonable judgment of such Lender, such designation or   assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.8 [Increased   Costs] or Section 5.9 [Taxes], as the case may be, in the future, and (ii) would not subject such   Lender to any material unreimbursed cost or expense and would not otherwise be materially   disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and   expenses incurred by any Lender in connection with any such designation or assignment.   5.7 Reserved.   5.8 Increased Costs.   (a) Increased Costs Generally.  If any Change in Law shall:   (i) impose, modify or deem applicable any reserve, special deposit,   compulsory loan, insurance charge or similar requirement against assets of, deposits with or for   the account of, or credit extended or participated in by, any Lender (except any reserve requirement   reflected in the LIBOR Rate) or the Issuing Lender;   (ii) subject any Recipient to any Taxes (other than (A) Indemnified   Taxes, (B) Taxes described in clauses (ii) through (iv) 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, the Issuing Lender or the London interbank   market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans   made by such Lender or any Letter of Credit or participation therein;     





 







   53   68576829_13   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 Loan or of maintaining its   obligation to make any such Loan, or to increase the cost to such Lender, the Issuing Lender or   such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of   maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount   of any sum received or receivable by such Lender, the Issuing Lender or other Recipient hereunder   (whether of principal, interest or any other amount) then, upon request of such Lender, the Issuing   Lender or other Recipient, the Borrower will pay to such Lender, the Issuing Lender or other   Recipient, as the case may be, such additional amount or amounts as will compensate such Lender   or the Issuing Lender or other Recipient, as the case may be, for such additional costs incurred or   reduction suffered.   (b) Capital Requirements.  If any Lender or the Issuing Lender determines that   any Change in Law affecting such Lender or the Issuing Lender or any Lending Office of such   Lender or such Lender’s or the Issuing 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   or the Issuing Lender’s capital or on the capital of such Lender’s or the Issuing Lender’s holding   company, if any, as a consequence of this Agreement, the Commitments of such Lender or the   Loans made by, or participations in Letters of Credit or Swing Loans held by, such Lender, or the   Letters of Credit issued by the Issuing Lender, to a level below that which such Lender or the   Issuing Lender or such Lender’s or the Issuing Lender’s holding company could have achieved   but for such Change in Law (taking into consideration such Lender’s or the Issuing Lender’s   policies and the policies of such Lender’s or the Issuing Lender’s holding company with respect   to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender or   the Issuing Lender, as the case may be, such additional amount or amounts as will compensate   such Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding company for   any such reduction suffered.   (c) Certificates for Reimbursement; Repayment of Outstanding Loans;   Borrowing of New Loans.  A certificate of a Lender or the Issuing Lender setting forth the amount   or amounts necessary to compensate such Lender or the Issuing Lender or its holding company,   as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Borrower   shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the Issuing   Lender, as the case may be, the amount shown as due on any such certificate within ten (10) days   after receipt thereof.   (d) Delay in Requests.  Failure or delay on the part of any Lender or the Issuing   Lender to demand compensation pursuant to this Section shall not constitute a waiver of such   Lender’s or the Issuing Lender’s right to demand such compensation, provided that the Borrower   shall not be required to compensate a Lender or the Issuing Lender pursuant to this Section for any   increased costs incurred or reductions suffered more than nine (9) months prior to the date that   such Lender or the Issuing Lender, as the case may be, notifies the Borrower of the Change in Law   giving rise to such increased costs or reductions and of such Lender’s or the Issuing 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 nine (9) month period referred to above shall   be extended to include the period of retroactive effect thereof).     





 







   54   68576829_13   (e) Survival.  Each party’s obligations under this Section 5.8 [Increased Costs]   shall survive the resignation 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.   5.9 Taxes.   (a) Issuing Lender.  For purposes of this Section 5.9, the term “Lender”   includes the Issuing Lender and the term “applicable Law” includes FATCA.   (b) Payments Free of Taxes.  Any and all payments by or on account of any   obligation of the Borrower under any Loan Document shall be 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 Official Body in accordance with applicable Law and, if such   Tax is an Indemnified Tax, then the sum payable by the Borrower 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 5.9 [Taxes]) 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 the Borrower.  The Borrower shall timely pay   to the relevant Official Body 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 the Borrower.  The Borrower shall indemnify each   Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes   (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this   Section 5.9 [Taxes]) 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 Official Body.  A certificate as to the amount of such payment or liability delivered to the   Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent   on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.   (e) Indemnification by the Lenders.  Each Lender shall severally indemnify the   Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes   attributable to such Lender (but only to the extent that the Borrower has not already indemnified   the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the   Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the   provisions of Section 12.9(d) [Participations] 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 Official Body.  A certificate as to the amount of such payment     





 







   55   68576829_13   or liability delivered to any Lender by the Administrative Agent shall be conclusive absent   manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any   and all amounts at any time owing to such Lender under any Loan Document or otherwise payable   by the Administrative Agent to the Lender from any other source against any amount due to the   Administrative Agent under this Section 5.9(e) [Indemnification by the Lenders].   (f) Evidence of Payments.  As soon as practicable after any payment of Taxes   by the Borrower to an Official Body pursuant to this Section 5.9 [Taxes], the Borrower shall deliver   to the Administrative Agent the original or a certified copy of a receipt issued by such Official   Body 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   Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower   or the Administrative Agent, such properly completed and executed documentation reasonably   requested by the Borrower or the Administrative Agent as will permit such payments to be made   without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably   requested by the Borrower or the Administrative Agent, shall deliver such other documentation   prescribed by applicable Law or reasonably requested by the Borrower or the Administrative   Agent as will enable the Borrower or the Administrative Agent to determine whether or not such   Lender is subject to backup withholding or information reporting requirements.  Notwithstanding   anything to the contrary in the preceding two sentences, the completion, execution and submission   of such documentation (other than such documentation set forth in Section 5.9(g)(ii)(A), (ii)(B)   and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion,   execution or submission would subject such Lender to any material unreimbursed cost or expense   or would materially prejudice the legal or commercial position of such Lender.   (ii) Without limiting the generality of the foregoing, in the event that the   Borrower is a U.S. Person,   (A) any Lender that is a U.S. Person shall deliver to the Borrower   and the Administrative Agent on or prior to the date on which such Lender becomes a Lender   under this Agreement (and from time to time thereafter upon the reasonable request of the   Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such   Lender is exempt from U.S. federal backup withholding tax;   (B) any Foreign Lender shall, to the extent it is legally entitled   to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall   be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a   Lender under this Agreement (and from time to time thereafter upon the reasonable request of the   Borrower or the Administrative Agent), whichever of the following is applicable:   (I) in the case of a Foreign Lender claiming the benefits   of an income tax treaty to which the United States is a party (x) with respect     





 







   56   68576829_13   to payments of interest under any Loan Document, executed originals of   IRS Form W-8BEN-E (or W-8BEN if applicable)  establishing an   exemption from, or reduction of, U.S. federal withholding Tax pursuant to   the “interest” article of such tax treaty and (y) with respect to any other   applicable payments under any Loan Document, IRS Form W-8BEN-E (or   W-8BEN if applicable) establishing an exemption from, or reduction of,   U.S. federal withholding Tax pursuant to the “business profits” or “other   income” article of such tax treaty;   (II) executed originals of IRS Form W-8ECI;   (III) in the case of a Foreign Lender claiming the benefits   of the exemption for portfolio interest under Section 881(c) of the Code, (x)   a certificate substantially in the form of Exhibit H-1 to the effect that such   Foreign Lender is not (A) a “bank” within the meaning of Section   881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower   within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled   foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S.   Tax Compliance Certificate”) and (y) executed originals of IRS Form W-   8BEN-E (or W-8BEN if applicable); or   (IV) to the extent a Foreign Lender is not the beneficial   owner, executed originals of IRS Form W-8IMY, accompanied by IRS   Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN if applicable), a U.S.   Tax Compliance Certificate substantially in the form of Exhibit H-2 or   Exhibit H-3, IRS Form W-9, and/or other certification documents from each   beneficial owner, as applicable; provided that if the 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 H-4 on behalf of each such direct and indirect partner;   (C) any Foreign Lender shall, to the extent it is legally entitled   to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall   be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a   Lender under this Agreement (and from time to time thereafter upon the reasonable request of the   Borrower or the Administrative Agent), executed originals of any other form prescribed by   applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding   Tax, duly completed, together with such supplementary documentation as may be prescribed by   applicable Law to permit the Borrower or the Administrative Agent to determine the withholding   or deduction required to be made; and   (D) if a payment made to a Lender under any Loan Document   would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail   to comply with the applicable reporting requirements of FATCA (including those contained in   Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower   and the Administrative Agent at the time or times prescribed by law and at such time or times     





 







   57   68576829_13   reasonably requested by the Borrower or the Administrative Agent such documentation prescribed   by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such   additional documentation reasonably requested by the Borrower or the Administrative Agent as   may be necessary for the Borrower and the Administrative Agent to comply with their obligations   under FATCA and to determine that such Lender has complied with such Lender’s obligations   under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for   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 Borrower and the Administrative Agent in writing of its legal inability to do so.   (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 5.9 [Taxes] (including by the payment of additional amounts   pursuant to this Section 5.9 [Taxes]), 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 5.9 [Taxes]   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   Official Body with respect to such refund).  Such indemnifying party, upon the request of such   indemnified party incurred in connection with obtaining such refund, shall repay to such   indemnified party the amount paid over pursuant to this Section 5.9(h) [Treatment of Certain   Refunds] (plus any penalties, interest or other charges imposed by the relevant Official Body) in   the event that such indemnified party is required to repay such refund to such Official Body.    Notwithstanding anything to the contrary in this Section 5.9(h) [Treatment of Certain Refunds]),   in no event will the indemnified party be required to pay any amount to an indemnifying party   pursuant to this Section 5.9(h) [Treatment of Certain Refunds] 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 5.9 [Taxes] shall   survive the resignation 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.   5.10 Indemnity.  In addition to the compensation or payments required by Section 5.8   [Increased Costs] or Section 5.9 [Taxes], the Borrower shall indemnify each Lender against all   liabilities, losses or expenses (including loss of anticipated profits, any foreign exchange losses   and any loss or expense arising from the liquidation or reemployment of funds obtained by it to   maintain such Loan, from fees payable to terminate the deposits from which such funds were   obtained or from the performance of any foreign exchange contract) which such Lender sustains   or incurs as a consequence of any:     





 







   58   68576829_13   (i) payment, prepayment, conversion or renewal of any Loan to which   a LIBOR Rate Option applies on a day other than the last day of the corresponding Interest Period   (whether or not such payment or prepayment is mandatory, voluntary or automatic and whether or   not such payment or prepayment is then due); or   (ii) attempt by the Borrower to revoke (expressly, by later inconsistent   notices or otherwise) in whole or part any Revolving Credit Loan Requests under Section 2.5   [Revolving Credit Loan Requests; Swing Loan Requests] or Section 4.2 [Interest Periods] or   notice relating to prepayments under Section 5.6 [Voluntary Prepayments] or failure by the   Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow,   continue or convert any Loan other than a Loan under the Base Rate Option on the date or in the   amount notified by the Borrower, or   (iii) any assignment of a Loan under the LIBOR Rate Option on a day   other than the last day of the Interest Period therefor as a result of a request by the Borrower   pursuant to Section 5.6(b) [Replacement of a Lender].   If any Lender sustains or incurs any such loss or expense, it shall from time to time   notify the Borrower of the amount determined in good faith by such Lender (which determination   may include such assumptions, allocations of costs and expenses and averaging or attribution   methods as such Lender shall deem reasonable) to be necessary to indemnify such Lender for such   loss or expense.  Such notice shall set forth in reasonable detail the basis for such determination.    Such amount shall be due and payable by the Borrower to such Lender ten (10) Business Days   after such notice is given.   Each party’s obligations under this Section 5.10 [Indemnity] shall survive the resignation 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.      5.11 Settlement Date Procedures.  In order to minimize the transfer of funds between the   Lenders and the Administrative Agent, the Borrower may borrow, repay and reborrow Swing   Loans and the Swing Loan Lender may make Swing Loans as provided in Section 2.1(b) [Swing   Loan Commitment] hereof during the period between Settlement Dates.  The Administrative Agent   shall notify each Lender of its Ratable Share of the total of the Revolving Credit Loans and the   Swing Loans (each a “Required Share”).  On such Settlement Date, each Lender shall pay to the   Administrative Agent the amount equal to the difference between its Required Share and its   Revolving Credit Loans, and the Administrative Agent shall pay to each Lender its Ratable Share   of all payments made by the Borrower to the Administrative Agent with respect to the Revolving   Credit Loans.  The Administrative Agent shall also effect settlement in accordance with the   foregoing sentence on the proposed Borrowing Dates for Revolving Credit Loans and may at its   option effect settlement on any other Business Day.  These settlement procedures are established   solely as a matter of administrative convenience, and nothing contained in this Section 5.11 shall   relieve the Lenders of their obligations to fund Revolving Credit Loans on dates other than a   Settlement Date pursuant to Section 2.1(b) [Swing Loan Commitment].  The Administrative Agent   may at any time at its option for any reason whatsoever require each Lender to pay immediately     





 







   59   68576829_13   to the Administrative Agent such Lender’s Ratable Share of the outstanding Revolving Credit   Loans and each Lender may at any time require the Administrative Agent to pay immediately to   such Lender its Ratable Share of all payments made by the Borrower to the Administrative Agent   with respect to the Revolving Credit Loans.   5.12 Cash Collateral.  At any time that there shall exist a Defaulting Lender, within one   Business Day following the written request of the Administrative Agent or the Issuing Lender   (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize the Issuing   Lender’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect   to Section 2.10(a)(iv) [Reallocation of Participations to Reduce Fronting Exposure] and any Cash   Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral   Amount.   (a) Grant of Security Interest.  The Borrower, and to the extent provided by any   Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the   benefit of the Issuing Lender, and agrees to maintain, a first priority security interest in all such   Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect   of Letter of Credit Obligations, to be applied pursuant to clause (b) below.  If at any time the   Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person   other than the Administrative Agent and the Issuing Lender as herein provided, or that the total   amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will,   promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent   additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect   to any Cash Collateral provided by the Defaulting Lender).      (b) Application.  Notwithstanding anything to the contrary contained in this   Agreement, Cash Collateral provided under this Section 5.12 [Cash Collateral] or Section 2.10   [Defaulting Lender] in respect of Letters of Credit shall be applied to the satisfaction of the   Defaulting Lender’s obligation to fund participations in respect of Letter of Credit Obligations   (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such   obligation) for which the Cash Collateral was so provided, prior to any other application of such   property as may otherwise be provided for herein.      (c) Termination of Requirement.  Cash Collateral (or the appropriate portion   thereof) provided to reduce the Issuing Lender’s Fronting Exposure shall no longer be required to   be held as Cash Collateral pursuant to this Section 5.12 [Cash Collateral] following (i) the   elimination of the applicable Fronting Exposure (including by the termination of Defaulting   Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and   the Issuing Lender that there exists excess Cash Collateral; provided that, subject to Section 2.10   [Defaulting Lenders] the Person providing Cash Collateral and the Issuing Lender may agree that   Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations   and provided further that to the extent that such Cash Collateral was provided by the Borrower,   such Cash Collateral shall remain subject to the security interest granted pursuant to Section   5.12(a) [Grant of Security Interest] above.           





 







   60   68576829_13   ARTICLE 6   REPRESENTATIONS AND WARRANTIES   Representations and Warranties.  The Borrower represents and warrants to the   Administrative Agent and each of the Lenders as follows:   6.1 Organization and Qualification; Power and Authority; Compliance With Laws;   Title to Properties; Event of Default.  The Borrower and each of its Subsidiary (i) is a corporation,   partnership or limited liability company duly organized or formed, validly existing and in good   standing under the laws of its jurisdiction of organization, (ii) has all necessary lawful power and   authority, and all necessary licenses, approvals and authorizations to own or lease its properties   and to engage in the business it presently conducts or currently proposes to conduct, except, in the   cases of owning or leasing its properties and engaging in the business it presently conducts or   currently proposes to conduct, where the absence of such licenses, approvals or authorizations,   either individually or in the aggregate, would not reasonably be expected to result in a Material   Adverse Change, (iii) is duly licensed or qualified and in good standing in each jurisdiction where   the property owned or leased by it or the nature of the business transacted by it or both makes such   licensing or qualification necessary and the absence of such licensing or qualification would   reasonably be expected to result in a Material Adverse Change, (iv) has full power and authority   to enter into, execute, deliver and carry out this Agreement and the other Loan Documents to which   it is a party, to incur the Indebtedness contemplated by the Loan Documents and to perform its   Obligations, and all such actions have been duly authorized by all necessary action and   proceedings on its part, (v) is in compliance in all material respects with all applicable Laws (other   than Environmental Laws which are specifically addressed in Section 6.14 [Environmental   Matters]) in all jurisdictions in which the Borrower or Subsidiary of the Borrower is presently or   will be doing business except where (a) the failure to do so, either individually or in the aggregate,   would not reasonably be expected to constitute a Material Adverse Change and (b) any non-   compliance is being contested in good faith by appropriate proceedings diligently conducted, and   (vi) has good and marketable title to or valid leasehold interest in all properties, assets and other   rights which it purports to own or lease or which are reflected as owned or leased on its books and   records, free and clear of all Liens and encumbrances except Permitted Liens, except where the   failure to do so, either individually or in the aggregate, would not reasonably be expected to   constitute a Material Adverse Change.  No Event of Default or Potential Default has occurred and   is continuing or would result from the performance by the Borrower of its Obligations.   6.2 Borrower; Subsidiaries and Owners; Investment Companies. As of the Closing   Date,  Schedule 6.2 states (i) the name of each of the Borrower’s Subsidiaries, its jurisdiction of   organization and the amount, percentage and type of Equity Interests in such Subsidiary (the   “Subsidiary Equity Interests”), (ii) the name of each holder of Subsidiary Equity Interest in each   Subsidiary and the amount thereof and (iii) any options, warrants or other rights outstanding to   purchase any such Equity Interests referred to in clause (i) or (ii).  The Borrower and each   Subsidiary of the Borrower has good and marketable title to all of the Subsidiary Equity Interests   it then purports to own, free and clear in each case of any Lien and all such Subsidiary Equity   Interests have been duly authorized and validly issued, and are fully paid and nonassessable.    Neither the Borrower nor any Subsidiaries of the Borrower is an “investment company” registered   or required to be registered under the Investment Company Act of 1940 or under the “control” of     





 







   61   68576829_13   an “investment company” as such terms are defined in the Investment Company Act of 1940 and   shall not become such an “investment company” or under such “control.”   6.3 Validity and Binding Effect.  Each of this Agreement and each other Loan   Document has been (or when delivered will have been), (i) duly authorized, validly executed and   delivered by the Borrower, and (ii) constitutes, or will constitute, legal, valid and binding   obligations of the Borrower, enforceable against the Borrower in accordance with its terms.   6.4 No Conflict; Material Agreements; Consents.  Neither the execution and delivery   of this Agreement or the other Loan Documents by the Borrower nor the consummation of the   transactions herein or therein contemplated or compliance with the terms and provisions hereof or   thereof by the Borrower will conflict with, constitute a default under or result in any breach of   (i) the terms and conditions of the certificate of incorporation, bylaws, certificate of limited   partnership, partnership agreement, certificate of formation, limited liability company agreement   or other organizational documents of the Borrower or (ii) any Law or any material agreement or   instrument or order, writ, judgment, injunction or decree to which the Borrower or any of its   Subsidiaries is a party or by which it or any of its Subsidiaries is bound or to which it is subject or   by which it is affected, or result in the creation or enforcement of any Lien whatsoever upon any   property (now or hereafter acquired) of the Borrower or any of its Subsidiaries (other than Liens   granted under the Loan Documents).  There is no default under such material agreement (referred   to above) and neither the Borrower nor any of its Subsidiaries is bound by any contractual   obligation, or subject to any restriction in any organization document, or any requirement of Law   which would reasonably be likely to result in a Material Adverse Change.  No consent, approval,   exemption, order or authorization of, or a registration or filing with, or notice to, any Official Body   or any other Person is required by any Law or any agreement in connection with the execution,   delivery and performance by, or enforcement against, the Borrower of this Agreement and the   other Loan Documents except such as has been obtained or issued and which remains in full force   and effect; provided that any increase of the Commitments in accordance with Section 2.11   [Increase in Revolving Credit Commitments] or the extension of the Expiration Date in accordance   with Section 2.12 [Extension of Expiration Date] may require appropriate governmental or third   party authorization thereof prior to the effectiveness of such increase or such extension, as the case   may be.   6.5 Litigation.  There are no actions, suits, claims, proceedings or investigations   pending or, to the knowledge of the Borrower, threatened against the Borrower or any Subsidiary   of the Borrower or any of their properties at law or in equity before any Official Body which (i)   individually or in the aggregate would reasonably be expected to result in any Material Adverse   Change or (ii) state to affect, impact or restate this Agreement or any of the other Loan Documents   or the transactions contemplated hereby or thereby.  Neither the Borrower nor any Subsidiaries of   the Borrower is in violation of any order, writ, injunction or any decree of any Official Body which   would reasonably be expected to result in any Material Adverse Change.   6.6 Financial Statements.   (a) Historical Statements.  The Borrower has delivered to the Administrative   Agent copies of its audited consolidated year-end balance sheet, statement of income or operations,   shareholders’ equity and cash flows, for and as of the end of the fiscal year ended December 31,     





 







   62   68576829_13   2014.  In addition, the Borrower has delivered to the Administrative Agent copies of its unaudited   consolidated interim balance sheet, statement of income or operations, shareholders’ equity and   cash flows, for the fiscal year to date and as of the end of the fiscal quarter ended June 30, 2015   (all such annual and interim statements being collectively referred to as the “Statements”).  The   Statements (i) are correct and complete in all material respects, (ii) fairly present in all material   respects the consolidated financial condition of the Borrower and its Subsidiaries as of the   respective dates thereof and the results of operations for the fiscal periods then ended in accordance   with GAAP consistently applied throughout the period covered thereby, subject (in the case of the   interim statements) to normal year end audit adjustments utilized on a consistent basis and the   absence of footnotes and (iii) have been prepared in accordance with GAAP consistently applied   throughout the period covered thereby, subject (in the case of the interim statements) to normal   year-end audit adjustments utilized on a consistent basis and the absence of footnotes.   (b) Accuracy of Financial Statements.  Neither the Borrower nor any   Subsidiary of the Borrower has any indebtedness, liabilities, contingent or otherwise, or forward   or long-term commitments that are required to be disclosed in accordance with GAAP that are not   disclosed in the Statements or in the notes thereto or on Schedule 6.6(b), attached hereto and   incorporated herein by reference, and except as disclosed therein there are no unrealized losses   from any commitments of the Borrower or any Subsidiary of the Borrower which would   reasonably be expected to cause a Material Adverse Change.  Since December 31, 2014, no   Material Adverse Change has occurred.   6.7 Margin Stock.  Neither the Borrower nor any Subsidiaries of the Borrower engages   or intends to engage principally, or as one of its important activities, in the business of extending   credit for the purpose, immediately, incidentally or ultimately, of purchasing or carrying margin   stock (within the meaning of Regulation U, T or X as promulgated by the Board of Governors of   the Federal Reserve System).  No part of the proceeds of any Loan has been or will be used,   immediately, incidentally or ultimately, to purchase or carry any margin stock or to extend credit   to others for the purpose of purchasing or carrying any margin stock or which is inconsistent with   the provisions of the regulations of the Board of Governors of the Federal Reserve System.  Neither   the Borrower nor any Subsidiaries of the Borrower holds or intends to hold margin stock in such   amounts that more than 25% of the reasonable value of the assets of the Borrower or Subsidiary   of the Borrower are or will be represented by margin stock.   6.8 Full Disclosure.  Neither this Agreement nor any other Loan Document, nor any   certificate, report, statement, agreement or other documents or other information (written or oral)   furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection   herewith or therewith or the transactions contemplated hereby or thereby, contains any untrue   statement of a material fact or omits to state a material fact necessary in order to make the   statements contained herein and therein, in light of the circumstances under which they were made,   not misleading; provided that in connection with any financial projections, the Borrower represents   and warrants that such projections were prepared in good faith based upon assumptions believed   by it to be reasonable at the time when made.  There is no fact known to the Borrower which   materially adversely affects the business, property, assets, financial condition, results of operations   or prospects of the Borrower and its Subsidiaries, taken as a whole, which has not been set forth   in this Agreement or in the certificates, statements, agreements or other documents furnished in     





 







   63   68576829_13   writing to the Administrative Agent and the Lenders prior to or at the date hereof in connection   with the transactions contemplated hereby.   6.9 Taxes.  All federal, state, local and other tax returns required to have been filed   with respect to the Borrower and each Subsidiary of the Borrower have been filed, and payment   or adequate provision has been made for the payment of all taxes, fees, assessments and other   governmental charges which have or may become due pursuant to said returns or otherwise levied   or imposed upon them, their properties, income or assets which are due and payable, except to the   extent that such taxes, fees, assessments and other charges are being contested in good faith by   appropriate proceedings diligently conducted and for which such reserves or other appropriate   provisions, if any, as shall be required by GAAP shall have been made.   6.10 Patents, Trademarks, Copyrights, Licenses, Etc.  The Borrower and each   Subsidiary of the Borrower owns or possesses all the patents, trademarks, service marks, trade   names, copyrights, licenses, registrations, franchises, permits and rights necessary to own and   operate its properties and to carry on its business as presently conducted and planned to be   conducted by the Borrower or such Subsidiary, without known possible, alleged or actual conflict   with the rights of others, except where the failure to do so, either individually or in the aggregate,   would not reasonably be expected to constitute a Material Adverse Change.   6.11 Reserved.     6.12 Insurance.  The properties of the Borrower and each of its Subsidiaries are insured   pursuant to policies and other bonds which are valid and in full force and effect and which provide   adequate coverage from reputable and financially sound insurers which are not Affiliates of the   Borrower (except to the extent customarily self-insured or such Affiliates are otherwise acceptable   to the Administrative Agent) in amounts sufficient to insure the assets and risks of the Borrower   and each Subsidiary in accordance with prudent business practice in the industry of the Borrower   and its Subsidiaries in the locations where the Borrower or the applicable Subsidiary conducts   business.   6.13 ERISA Compliance.   (a) Each Plan is in compliance in all material respects with the applicable   provisions of ERISA, the Code and other federal or state Laws.  Each Plan that is intended to   qualify under Section 401(a) of the Code has received from the IRS a favorable determination or   opinion letter, which has not by its terms expired or, in the case of a determination letter, is from   the most recent available cycle for which such letters were issuable for such Plan, that such Plan   is so qualified, or such Plan is entitled to rely on an IRS advisory or opinion letter with respect to   an IRS-approved master and prototype or volume submitter plan,  or a timely application for such   a determination or opinion letter is currently being processed by the IRS with respect thereto; and,   to the best knowledge of Borrower, nothing has occurred which would prevent, or cause the loss   of, such qualification.  Borrower and each member of the ERISA Group have made all required   contributions to each Pension Plan subject to Sections 412 or 430 of the Code, and no application   for a funding waiver or an extension of any amortization period pursuant to Sections 412 or 430   of the Code has been made with respect to any Pension Plan.     





 







   64   68576829_13   (b) There are no pending or, to the best knowledge of Borrower, threatened   claims, actions or lawsuits, or action by any Official Body, with respect to any Plan that could   reasonably be expected to have a Material Adverse Change.  There has been no prohibited   transaction or violation of the fiduciary responsibility rules with respect to any Plan that has   resulted or could reasonably be expected to result in a Material Adverse Change.   (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii)   the Borrower and each ERISA Affiliate has met all applicable requirements under the rules of the   Code and ERISA regarding minimum required contributions (including any installment payment   thereof) as set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303,   304 and 305 of ERISA with respect to each Pension Plan, and no waiver has been applied for or   obtained; (iii) neither Borrower nor any member of the ERISA Group has incurred, or reasonably   expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other   than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither Borrower nor   any member of the ERISA Group has incurred, or reasonably expects to incur, any liability (and   no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result   in such liability) under Section 4201 of ERISA, with respect to a Multiemployer Plan; (v) neither   Borrower nor any member of the ERISA Group has received notice pursuant to Section   4242(a)(1)(B) of ERISA that a Multiemployer Plan is in reorganization and that additional   contributions are due to the Multiemployer Plan pursuant to Section 4243 of ERISA; (vi) neither   Borrower nor any member of the ERISA Group has engaged in a transaction that could be subject   to Sections 4069 or 4212(c) of ERISA; and (vii) no Pension Plan or Multiemployer Plan has been   terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has   occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings   under Title IV of ERISA to terminate any Pension Plan or Multiemployer Plan.   6.14 Environmental Matters.    (a) Neither the Borrower nor any Subsidiary has actual knowledge of any claim   or has received any notice of any claim and no proceeding has been instituted asserting any claim   against the Borrower or any of its Subsidiaries or any of their respective real properties or other   assets now or formerly owned, leased or operated by any of them, alleging any damage to the   environment or violation of any Environmental Laws, except, in each case, such as would not   reasonably be expected to result in a Material Adverse Change.   (b) Neither the Borrower nor any Subsidiary has actual knowledge of any facts   which would reasonably be expected to give rise to any claim, public or private, of violation of   Environmental Laws or damage to the environment emanating from, occurring on or in any way   related to real properties now or formerly owned, leased or operated by any of them or to other   assets or their use, except, in each case, such as would not, individually or in the aggregate,   reasonably be expected to result in a Material Adverse Change.   (c) Neither the Borrower nor any Subsidiary has stored any Hazardous   Materials on real properties now or formerly owned, leased or operated by any of them in a manner   which is contrary to any Environmental Law that would, individually or in the aggregate,   reasonably be expected to result in a Material Adverse Change.      





 







   65   68576829_13   (d) Neither the Borrower nor any Subsidiary has disposed of any Hazardous   Materials in a manner which is contrary to any Environmental Law that would, individually or in   the aggregate, reasonably be expected to result in a Material Adverse Change.   (e) All buildings on all real properties now owned, leased or operated by the   Borrower or any Subsidiary are in compliance with applicable Environmental Laws, except where   failure to comply could not, individually or in the aggregate, reasonably be expected to result in a   Material Adverse Change.   6.15 Solvency.  On the Closing Date and after giving effect to the initial Loans   hereunder, the Borrower is Solvent.   6.16 Anti-Terrorism Laws.  No Covered Entity is a Sanctioned Person, and (ii) no   Covered Entity, either in its own right or through any third party, (a) has any of its assets in a   Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of   any Anti-Terrorism Law, (b) does business in or with, or derives any of its income from   investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of   any Anti-Terrorism Law; or (c) engages in any dealings or transactions prohibited by any Anti-   Terrorism Law.   ARTICLE 7   CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT   The obligation of each Lender to make Loans and of the Issuing Lender to issue Letters of   Credit hereunder is subject to the performance by the Borrower of its Obligations to be performed   hereunder at or prior to the making of any such Loans or issuance of such Letters of Credit and to   the satisfaction of the following further conditions:   7.1 Initial Loans and Letters of Credit.   (a) Deliveries.  On the Closing Date, the Administrative Agent shall have   received each of the following in form and substance satisfactory to the Administrative Agent and   each of which (unless otherwise specified) shall be original copies or telecopies promptly followed   by original copies:   (i) A certificate of the Borrower signed by an Authorized Officer, dated   the Closing Date stating that (v) the Borrower is in compliance with each of the covenants and   conditions hereunder, (w) no Material Adverse Change has occurred since the date of the last   audited financial statements of the Borrower delivered to the Administrative Agent, (x) the   conditions stated in both Section 7.1 and 7.2 have been satisfied, (y) there has been no material   adverse change from any certificate, report, statement, agreement or other document or other   written information previously supplied to the Administrative Agent and the Arrangers furnished   by or on behalf of the Borrower in connection with the transactions contemplated by this   Agreement or the other Loan Documents and (z) all material consents, licenses and approvals   required for the delivery and performance by the Borrower of any Loan Document and the   enforceability of any Loan Document against the Borrower is in full force and effect and none   other is so required or necessary; provided that any increase of the Commitments in accordance   with Section 2.11 [Increase in Revolving Credit Commitments] or the extension of the Expiration     





 







   66   68576829_13   Date in accordance with Section 2.12 [Extension of Expiration Date] may require appropriate   governmental or third party authorization thereof prior to the effectiveness of such increase or such   extension, as the case may be;    (ii) A certificate dated the Closing Date and signed by the Secretary or   an Assistant Secretary of the Borrower, certifying as appropriate as to: (a) all action taken by the   Borrower to validly authorize, duly execute and deliver this Agreement and the other Loan   Documents and attaching copies of such resolution or other corporate or organizational action; (b)   the names, authority and capacity of the Authorized Officers authorized to sign the Loan   Documents and their true signatures; and (c) copies of its organizational documents as in effect on   the Closing Date certified as of a sufficiently recent date prior to the Closing Date by the   appropriate state official where such documents are filed in a state office together with certificates   from the appropriate state officials as to due organization and the continued valid existence, good   standing and qualification to engage in its business of the Borrower in the state of its organization   and in each state where conduct of business or ownership or lease of properties or assets requires   such qualification, except to the extent that the failure to be so qualified could not reasonably be   expected to result in a Material Adverse Change;   (iii) This Agreement and each of the other Loan Documents signed by   an Authorized Officer in a sufficient number of counterparts for delivery to each Lender and the   Administrative Agent;   (iv) A written opinion of counsel for the Borrower, dated the Closing   Date addressed to the Administrative Agent and each Lender and in form and substance   satisfactory to the Administrative Agent;   (v) Evidence that adequate insurance required to be maintained under   this Agreement is in full force and effect, with additional insured endorsement attached thereto in   form and substance satisfactory to the Administrative Agent and its counsel naming the   Administrative Agent and the Secured Parties as additional insureds;   (vi) A duly completed Compliance Certificate as of the last day of the   fiscal quarter of Borrower most recently ended prior to the Closing Date calculating the Funded   Indebtedness to Total Adjusted Capitalization Ratio and the Total Indebtedness to Total   Capitalization Ratio on a pro form basis after giving effect to the transactions contemplated hereby   and the initial Loans borrowed on the Closing Date, signed by an Authorized Officer of Borrower;   (vii) A Lien search in acceptable scope and with acceptable results; and   (viii) Such other documents in connection with such transactions as the   Administrative Agent or its counsel may reasonably request.   (b) Payment of Fees.  The Borrower shall have paid all fees and expenses   payable on or before the Closing Date as required by this Agreement, the Administrative Agent’s   Letter, the BAML Letter or any other Loan Document.     





 







   67   68576829_13   (c) Material Adverse Change.   There has been no event or circumstance since   the date of the Audited Financial Statements that has had or could be reasonably expected to have,   either individually or in the aggregate, a Material Adverse Change.   Without limiting the generality of the provisions of the last paragraph of Section 11.3   [Exculpatory Provisions], for purposes of determining compliance with the conditions specified   in this Section 7.1, 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 Closing Date specifying its objection thereto.   7.2 Each Loan or Letter of Credit.  At the time of making any Loans or issuing,   extending or increasing any Letters of Credit and after giving effect thereof: (i) the representations   and warranties of the Borrower shall then be true and correct in all material respects (unless   qualified by materiality or reference to the absence of a Material Adverse Change, in which event   they shall be true and correct), except to the extent that such representations and warranties   specifically refer to an earlier date, in which case they shall be true and correct as of such earlier   date, and except that for purposes of this Section 7.2, the representations and warranties contained   in Section 6.6 [Financial Statements] shall be deemed to refer to the most recent statements   furnished pursuant to Section 8.11 [Reporting Requirements], (ii) no Event of Default or Potential   Default shall have occurred and be continuing or would result from such Loan or Letter of Credit   or the application of the proceeds thereof, (iii) the making of the Loans or issuance, extension or   increase of such Letter of Credit shall not contravene any Law applicable to the Borrower or   Subsidiary of the Borrower or any of the Lenders, and (iv) the Borrower shall have delivered to   the Administrative Agent a duly executed and completed Revolving Credit Loan Request, Swing   Loan Request or to the Issuing Lender an application for a Letter of Credit, as the case may be.    Each Revolving Credit Loan Request, Swing Loan Request and Letter of Credit application shall   be deemed to be a representation that the conditions set forth in Sections 7.1 and 7.2 have been   satisfied on or prior to the date thereof.    ARTICLE 8   AFFIRMATIVE COVENANTS   The Borrower hereby covenants and agrees that until the Facility Termination Date, it will,   and will cause each of its Subsidiaries to, comply at all times with the following covenants:   8.1 Preservation of Existence, Etc.  The Borrower shall, and shall cause each of its   Subsidiaries to, (i) maintain its legal existence as a corporation, limited partnership or limited   liability company, as applicable, and its license or qualification and good standing in each   jurisdiction in which its ownership or lease of property or the nature of its business makes such   license or qualification necessary, except as otherwise expressly permitted in Section 9.5   [Liquidations, Mergers, Etc.] (ii) maintain all licenses, consents, permits, franchises, rights and   qualifications necessary for the standard operation of its business, except where the maintenance   thereof could not reasonably be expected to result in a Material Adverse Change, and (iii) maintain   and preserve all intellectual properties, including without limitation trademarks, trade names,   patents, copyrights and other marks, registered and necessary for the standard operation of its     





 







   68   68576829_13   business except where the maintenance thereof could not reasonably be expected to result in a   Material Adverse Change.   8.2 Payment of Liabilities, Including Taxes, Etc.  The Borrower shall, and shall cause   each of its Subsidiaries to, duly pay and discharge (i) all liabilities to which it is subject or which   are asserted against it, promptly as and when the same shall become due and payable, including   all taxes, assessments and governmental charges upon it or any of its properties, assets, income or   profits, prior to the date on which penalties attach thereto, except to the extent that such liabilities,   including taxes, assessments or charges, are being contested in good faith and by appropriate and   lawful proceedings diligently conducted and for which such reserve or other appropriate   provisions, if any, as shall be required by GAAP shall have been made and (ii) all lawful and valid   claims which, if unpaid, would result in the attachment of a Lien on its property as a matter of law   or contract, other than Liens permitted under clause (xiii) of the definition of “Permitted Lien”.   8.3 Maintenance of Insurance.  The Borrower shall, and shall cause each of its   Subsidiaries to, insure its properties and assets against loss or damage by fire and such other   insurable hazards and against other risks as such assets are commonly insured in such amounts as   similar properties and assets are insured by prudent companies in similar circumstances carrying   on similar businesses, and with reputable and financially sound insurers which are not Affiliates   of the Borrower, (except to the extent customarily self-insured or such Affiliates are otherwise   acceptable to the Administrative Agent).     8.4 Maintenance of Properties and Leases.  The Borrower shall, and shall cause each   of its Subsidiaries to, maintain in good repair, working order and condition (ordinary wear and tear   excepted) in accordance with the general practice of other businesses of similar character and size,   all of those properties useful or necessary to its business, and from time to time, the Borrower will   make or cause to be made all necessary and appropriate repairs, renewals or replacements thereof,   except where the failure to do so would not reasonably be expected to result in a Material Adverse   Change.   8.5 Inspection Rights.  The Borrower shall, and shall cause each of its Subsidiaries to,   permit any of the officers or authorized employees or representatives of the Administrative Agent   or any of the Lenders to visit and inspect any of its properties and to examine and make excerpts   from its books and records and discuss its business affairs, finances and accounts with its officers,   directors and independent accountants, all in such detail and at such times and as often as any of   the Lenders may reasonably request, provided that each Lender shall provide the Borrower and the   Administrative Agent with reasonable notice prior to any visit or inspection.  In the event any   Lender desires to conduct an audit of the Borrower, such Lender shall make a reasonable effort to   conduct such audit contemporaneously with any audit to be performed by the Administrative   Agent and further provided that any such visit and inspection shall be limited to once per year   except when an Event of Default has occurred and is continuing.   8.6 Keeping of Records and Books of Account.  The Borrower shall, and shall cause   each Subsidiary of the Borrower to, maintain and keep books of record and account which enable   the Borrower and its Subsidiaries to issue financial statements in accordance with GAAP   consistently applied and as otherwise required by applicable Laws of any Official Body having     





 







   69   68576829_13   jurisdiction over the Borrower or any Subsidiary of the Borrower, and in which full, true and   correct entries shall be made in all material respects of all financial transactions.   8.7 Compliance with Laws; Use of Proceeds.  The Borrower shall, and shall cause each   of its Subsidiaries to, comply in all material respects with all applicable Laws, including all   Environmental Laws, in all respects; except (i) where such compliance with any law is being   contested in good faith by appropriately proceedings diligently conducted, and (ii) that it shall not   be deemed to be a violation of this Section 8.7 if any failure to comply with any Law would not   result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which in the   aggregate would constitute a Material Adverse Change.  The Borrower will use the Letters of   Credit and the proceeds of the Loans only to fund ongoing working capital, capital expenditures   and other general corporate purposes and as permitted by applicable Law.   8.8 Further Assurances.  The Borrower shall do such acts and things as the   Administrative Agent in its sole discretion may deem necessary or advisable from time to time in   order to preserve, perfect and protect the Administrative Agent’s and other Secured Parties’ rights   granted hereunder and under the other Loan Documents and to exercise and enforce its rights and   remedies hereunder and thereunder.   8.9 Anti-Terrorism Laws; International Trade Law Compliance.  (a) No Covered Entity   will become a Sanctioned Person, (b) no Covered Entity, either in its own right or through any   third party, will (A) have any of its assets in a Sanctioned Country or in the possession, custody or   control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) do business in or with,   or derive any of its income from investments in or transactions with, any Sanctioned Country or   Sanctioned Person in violation of any Anti-Terrorism Law; (C) engage in any dealings or   transactions prohibited by any Anti-Terrorism Law or (D) use the Loans to fund any operations in,   finance any investments or activities in, or, make any payments to, a Sanctioned Country or   Sanctioned Person in violation of any Anti-Terrorism Law, (c) the funds used to repay the   Obligations will not be derived from any unlawful activity, (d) each Covered Entity shall comply   with  all Anti-Terrorism Laws, and (e) the Borrower shall promptly notify the Administrative   Agent in writing upon the occurrence of a Reportable Compliance Event.   8.10 Reserved.   8.11 Reporting Requirements.  The Borrower will furnish or cause to be furnished to the   Administrative Agent and each of the Lenders:   (a) Quarterly Financial Statements.  As soon as available but in any event no   later than the filing date required by the SEC (without giving effect to any permitted extension   thereof), financial statements of the Borrower (commencing with the financial statements for the   fiscal quarter ended September 30, 2015), consisting of (i) a consolidated balance sheet as of the   end of such fiscal quarter, (ii) related consolidated statements of income, stockholders’ equity for   the fiscal quarter then ended and the fiscal year through that date and (iii) related consolidated   statements of cash flows for the fiscal year through that date, in each case, all in reasonable detail   and certified (subject to normal year-end audit adjustments) by the Chief Executive Officer,   President or Chief Financial Officer of the Borrower as having been prepared in accordance with   GAAP (subject only to normal year-end audit adjustments and the absence of notes), consistently     





 







   70   68576829_13   applied, and setting forth in comparative form the respective financial statements for the   corresponding date and period in the previous fiscal year (all of which may be provided by means   of delivery of the applicable SEC Form 10-Q, which will be deemed delivered upon filing thereof).   (b) Annual Financial Statements.  As soon as available but in any event no  later   than the filing date required by the SEC (without giving effect to any permitted extension thereof),   financial statements of the Borrower consisting of a consolidated balance sheet as of the end of   such fiscal year, and related consolidated statements of income, stockholders’ equity and cash   flows for the fiscal year then ended, all in reasonable detail and prepared in accordance with GAAP   consistently applied and setting forth in comparative form the financial statements as of the end of   and for the preceding fiscal year, and audited and reported on by independent certified public   accountants of nationally recognized standing reasonably satisfactory to the Administrative Agent   (all of which may be provided by means of delivery of the applicable SEC Form 10-K, which will   be deemed delivered upon filing thereof).  The opinion or report of accountants shall be prepared   in accordance with reasonably acceptable auditing standards and shall be free of any qualification   (other than any consistency qualification that may result from a change in the method used to   prepare the financial statements as to which such accountants concur), including without limitation   as to the scope of such audit or status as a “going concern” of the Borrower or any Subsidiary.   8.12 Certificates; Notices; Additional Information.   (a) Certificate of the Borrower.  Concurrently with the financial statements of   the Borrower furnished to the Administrative Agent and to the Lenders pursuant to   Sections 8.11(a) [Quarterly Financial Statements] and 8.11(b) [Annual Financial Statements], a   certificate (each a “Compliance Certificate”) of the Borrower signed by the Chief Executive   Officer, President or Chief Financial Officer of the Borrower, in the form of Exhibit I.   (b) Default.  Promptly after any officer of the Borrower has learned of the   occurrence of an Event of Default or Potential Default, a certificate signed by an Authorized   Officer setting forth the details of such Event of Default or Potential Default and the action which   the Borrower proposes to take with respect thereto.   (c) Litigation.  Promptly after the commencement thereof, notice of all actions,   suits, proceedings or investigations before or by any Official Body or any other Person against the   Borrower or Subsidiary of the Borrower which involve a claim or series of claims in excess of   $15,000,000 or which if adversely determined would constitute a Material Adverse Change.   (d) ERISA Event.  Immediately upon the occurrence of any ERISA Event,   notice in writing setting forth the details thereof and the action which the Borrower proposes to   take with respect thereto.   (e) SEC Filings and other Material Reports. Promptly upon their becoming   available to the Borrower, public SEC filings and other material reports, including 8-K, registration   statements, proxies, prospectuses, financial statements and other shareholder communications,   filed by the Borrower with the SEC excluding any Form 3, Form 4 or Form 5 (all of which may   be provided by means of delivery of the applicable SEC Form or filing, and which will be deemed   delivered upon (i) the posting of such information on the Borrower’s website with written notice     





 







   71   68576829_13   of such posting to the Administrative Agent or (ii) the making of such information available on   any Platform).   (f) Other Information.  Such other reports and information as the   Administrative Agent or the Required Lenders may from time to time reasonably request.   ARTICLE 9   NEGATIVE COVENANTS   The Borrower hereby covenants and agrees that until the Facility Termination Date, it will   not, and will not permit any of its Subsidiaries to:     9.1 Indebtedness.  At any time create, incur, assume or suffer to exist any Indebtedness,   except:   (a) Indebtedness under the Loan Documents;   (b) Existing Indebtedness as set forth on Schedule 9.1 (including any   amendments, extensions, refinancings or renewals thereof; provided that before and immediately   after any such amendment, extension, refinancing or renewal of such Indebtedness (i) the Borrower   is in pro forma compliance with Section 9.8 [Maximum Funded Indebtedness to Total Adjusted   Capitalization Ratio], (ii) no Event of Default or Potential Default shall have occurred and be   continuing or would result therefrom and (iii) the aggregate principal committed amount of   unsecured Current Indebtedness shall not at any time exceed $200,000,000);   (c) (i) Secured Indebtedness incurred with respect to purchase money security   interests, capitalized leases, Commodity Hedges (secured only by the Liens described in clause   (ix) of the definition of “Permitted Liens”) and first mortgage bonds (other than such bonds relating   to the FPU Indebtedness as set forth in Schedule 9.1), such Indebtedness secured by the Liens   described in clause (vi) of the definition of “Permitted Liens” and any other secured Indebtedness   of the Borrower and its Subsidiaries described in clause (x) of the definition of “Permitted Liens”   and (ii) unsecured Current Indebtedness and Funded Indebtedness of the Borrower’s Subsidiaries;   provided that the sum of the aggregate amount of clause (i) plus the aggregate amount of clause   (ii) shall not exceed at any time 20% of Total Adjusted Capitalization;   (d) Indebtedness of a Subsidiary to another Subsidiary or to the Borrower;    (e) Any (i) Lender Provided Interest Rate Hedge or Lender Provided   Commodity Hedge, (ii) other Commodity Hedges or (iii) Indebtedness under any Other Lender   Provided Financial Services Product; and   (f) Other unsecured Indebtedness (other than any such Indebtedness incurred   with respect to any currency swap agreement or other similar agreement); provided that before and   immediately after the incurrence of such Indebtedness (i) the Borrower is in pro forma compliance   with Section 9.8 [Maximum Funded Indebtedness to Total Adjusted Capitalization Ratio] and (ii)   no Event of Default or Potential Default shall have occurred and be continuing or would result   therefrom.     





 







   72   68576829_13   9.2 Liens; Lien Covenants.  At any time create, incur, assume or suffer to exist any   Lien on any of its property or assets, tangible or intangible, now owned or hereafter acquired, or   agree or become liable to do so, except Permitted Liens.   9.3 Loans and Investments.  At any time make or suffer to remain outstanding any loan   or advance to, or purchase, acquire or own any stock, bonds, notes or securities of, or any   partnership interest (whether general or limited) or limited liability company interest in, or any   other investment or interest in, or make any capital contribution to, any other Person, or agree,   become or remain liable to do any of the foregoing (each, an “Investment”), except:   (a) trade credit extended on usual and customary terms in the ordinary course   of business;   (b) advances to employees to meet expenses incurred by such employees in the   ordinary course of business;   (c) Permitted Investments;    (d) Investments in Subsidiaries;    (e) to the extent not constituting Permitted Acquisitions, Investments in   Persons principally engaged in a field of enterprise engaged in by the Borrower and its Subsidiaries   on the date hereof and any other field of enterprise substantially related, ancillary or   complementary thereto, not exceeding $150,000,000 in the aggregate outstanding at any time; and   (f) Permitted Acquisitions.   9.4 Line of Business.  The Borrower will not, and will not permit any Subsidiary to,   engage in any business if, as a result, the general nature of the business in which the Borrower and   its Subsidiaries, taken as a whole, would then be engaged, would be substantially changed from   the general nature of the business in which the Borrower and its Subsidiaries, taken as a whole,   are engaged on the date of this Agreement.   9.5 Liquidations, Mergers, Consolidations, Acquisitions.  Dissolve, liquidate or wind-   up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or   otherwise all or substantially all of the assets or Equity Interests of any other Person except in the   case of acquisitions, Permitted Acquisitions.   9.6 Dispositions of Assets or Subsidiaries.  Sell, convey, assign, lease, abandon or   otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible   or intangible (including sale, assignment, discount or other disposition of accounts, contract rights,   chattel paper, equipment or general intangibles with or without recourse or of Equity Interests of   a Subsidiary), except:   (a) transactions involving the sale of inventory in the ordinary course of   business;     





 







   73   68576829_13   (b) any sale, transfer or lease of assets in the ordinary course of business which   are no longer necessary or required in the conduct of the Borrower’s or its Subsidiary’s business;   (c) any sale, transfer or lease of assets by any Subsidiary of the Borrower to the   Borrower or to another Subsidiary of the Borrower;   (d) any sale, transfer or lease of assets in the ordinary course of business which   are replaced by substitute assets acquired or leased; or   (e) any sale, transfer or lease of assets where the amount of such assets (valued   at net book value), together with all other assets of the Borrower and Subsidiaries previously   disposed of as permitted by this clause (e) during the fiscal year in which the disposition occurs   does not exceed 10% of Consolidated Total Assets as of the end of the fiscal year then most   recently ended; provided that assets, as so valued, may be sold in excess of 10% of Consolidated   Total Assets in any fiscal year if either (i) within one year of such sale, the proceeds from the sale   of such assets are used, or committed by the Borrower’s Board of Directors to be used, to acquire   other assets of at least equivalent value and earning power or (ii) with the written consent of the   Required Lenders, the proceeds from sale of such assets are used immediately upon receipt to   prepay senior Funded Indebtedness of the Borrower; and   (f) any sale, transfer or lease of assets, other than those specifically excepted   pursuant to clauses (a) through (e) above, which is approved by the Required Lenders.   9.7 Affiliate Transactions.    Enter into or carry out any transaction with any Affiliate   of the Borrower other than a Subsidiary of the Borrower (including purchasing property or services   from or selling property or services to any Affiliate of the Borrower other than a Subsidiary of the   Borrower) unless such transaction is not otherwise prohibited by this Agreement, is entered into   in the ordinary course of business upon fair and reasonable arm’s-length terms and conditions   which are fully disclosed to the Administrative Agent and is in accordance with all applicable Law;   provided that the foregoing restriction shall not apply to the payment or grant of reasonable   compensation, benefits and indemnities to any director or officer of the Borrower or any Subsidiary   and shall not restrict transactions with any Affiliate of the Borrower that have been approved by   or are entered into pursuant to any orders or decisions of any Official Body having jurisdiction   over the Borrower or any of its Subsidiaries.    9.8 Maximum Funded Indebtedness to Total Adjusted Capitalization Ratio.  Will not,   as of the last day of each fiscal quarter of the Borrower, permit the Funded Indebtedness to Total   Adjusted Capitalization Ratio to exceed 0.65:1.00.   9.9 Limitation on Negative Pledges and Restrictive Agreements.   Enter into, or permit   to exist, any contractual obligation (except for this Agreement and the other Loan Documents) that   (a) encumbers or restricts the ability of any such Person to (i) perform its obligations hereunder or   under any other Loan Document; (ii) make dividends or distribution to the Borrower, (iii) pay any   Indebtedness or other obligation owed to the Borrower, (iv) make loans or advances to the   Borrower, (v) create any Lien upon any of their properties or assets, whether now owned or   hereafter acquired (except, in the case of this clause (a)(v) only, (1) for any document or instrument   governing any purchase money Liens or capital lease obligations otherwise permitted hereby (in     





 







   74   68576829_13   which case, any prohibition or limitation shall only be effective against the assets financed   thereby), (2) customary provisions restricting assignment of any licensing agreement (in which the   Borrower or its Subsidiaries are the licensee) with respect to a contract entered into with the   Borrower or its Subsidiaries in the ordinary course of business, (3) customary provisions restricting   subletting, sublicensing or assignment of any intellectual property license or any lease governing   any leasehold interests of the Borrower and its Subsidiaries and (4) for any document or instrument   governing any Indebtedness permitted by Section 9.1(b) (but solely with respect to such   Indebtedness described in items 1 through 7, 9 and 12 on Schedule 9.1)) or (vi) Guaranty the   Obligations or (b) requires the grant of any Lien (other than a Permitted Lien or as may be required   pursuant to any document or instrument governing the Indebtedness described in items 1 and 12   on Schedule 9.1 or any other document or instrument pursuant to which Borrower may issue senior   notes ranking pari passu thereto solely to the extent such Indebtedness evidenced by such senior   notes is permitted under Section 9.1[Indebtedness] ) on property for any obligation if a Lien on   such property is given as security for the Obligations.   ARTICLE 10   DEFAULT   10.1 Events of Default.  An Event of Default shall mean the occurrence or existence of   any one or more of the following events or conditions (whatever the reason therefor and whether   voluntary, involuntary or effected by operation of Law):   (a) Payments Under Loan Documents.  The Borrower shall fail to pay (i) when   and as required to be paid herein, any principal of any Loan, Reimbursement Obligation or Letter   of Credit Obligation or (ii) within three (3) Business Days when and as required to be paid herein,   any interest on any Loan, Reimbursement Obligation or Letter of Credit Obligation or any fee or   other amount owing hereunder or under the other Loan Documents; or   (b) Breach of Warranty.  Any representation or warranty made at any time by   the Borrower in any Loan Document, or in any certificate, other instrument or statement furnished   pursuant to the provisions hereof or thereof, shall prove to have been false or misleading in any   material respect (or in the case of any representation or warranty qualified by materiality or   reference to the absence of a Material Adverse Change, in which event shall prove to have been   false or misleading in any respect) as of the time it was made, deemed made or furnished; or   (c) Breach of Certain Covenants.  The Borrower shall default in the observance   or performance of any covenant contained in Section 8.5 [Inspection Rights], Section 8.9 [Anti-   Terrorism Laws; International Trade Law Compliance] or Article 9 [Negative Covenants]; or   (d) Breach of Other Covenants.  The Borrower shall default in the observance   or performance of any other covenant, condition or provision hereof or of any other Loan   Document and such default shall continue unremedied for a period of thirty (30) days; or   (e) Defaults in Other Agreements or Indebtedness.  A breach, default or event   of default shall occur at any time under the terms of any other agreement involving borrowed   money or the extension of credit or any other Indebtedness under which the Borrower or Subsidiary   of the Borrower may be obligated as a borrower or guarantor in excess of $20,000,000 in the     





 







   75   68576829_13   aggregate, and such breach, default or event of default either (i) consists of the failure to pay   (beyond any period of grace permitted with respect thereto, whether waived or not) any such   Indebtedness when due (whether at stated maturity, by acceleration or otherwise) or (ii) causes, or   permits the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such   guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries)   to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due   or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to   repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity,   or such guarantee to become payable or cash collateral in respect thereof to be demanded; or   (f) Final Judgments or Orders.  Any final judgments or orders for the payment   of money in excess of $20,000,000 in the aggregate shall be entered against the Borrower by a   court having jurisdiction in the premises, and with respect to which either (i) enforcement   proceedings are commenced by any creditor upon such judgment or order, or (ii) there is a period   of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason   of a pending appeal or otherwise, is not in effect; or   (g) Loan Document Unenforceable.  Any of the Loan Documents shall cease to   be legal, valid and binding agreements enforceable against the party executing the same or such   party’s successors and assigns (as permitted under the Loan Documents) in accordance with the   respective terms thereof or shall in any way be terminated (except in accordance with its terms) or   become or be declared ineffective or inoperative or shall in any way be challenged or contested or   cease to give or provide the respective rights, titles, interests, remedies, powers or privileges   intended to be created thereby; or   (h) Uninsured Losses; Proceedings Against Assets.  There shall occur any   material uninsured damage to or loss, theft or destruction of any of property of the Borrower in   excess of $20,000,000  or assets of the Borrower in excess of $20,000,000  are attached, seized,   levied upon or subjected to a writ or distress warrant; or such come within the possession of any   receiver, trustee, custodian or assignee for the benefit of creditors and the same is not cured within   thirty (30) days thereafter; or   (i) Events Relating to Pension Plans and Multiemployer Plans.  An ERISA   Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could   reasonably be expected to result in liability of Borrower or any member of the ERISA Group under   Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount   in excess of $20,000,000, or Borrower or any member of the ERISA Group fails to pay when due,   after the expiration of any applicable grace period, any installment payment with respect to its   withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan, where the   aggregate amount of unamortized withdrawal liability is in excess of $20,000,000; or   (j) Change of Control.  A Change of Control shall occur; or   (k) Insolvency Proceedings; Solvency; Attachment.  Either (i) an Insolvency   Proceeding shall have been instituted against the Borrower or Subsidiary of the Borrower and such   Insolvency Proceeding shall remain undismissed or unstayed and in effect for a period of thirty   (30) consecutive days or such court shall enter a decree or order granting any of the relief sought     





 







   76   68576829_13   in such Insolvency Proceeding, (ii) the Borrower or Subsidiary of the Borrower institutes, or takes   any action in furtherance of, an Insolvency Proceeding, (iii) the Borrower or any Subsidiary of the   Borrower ceases to be Solvent or admits in writing its inability to pay its debts as they mature or   (iv) any writ or warrant of attachment or execution or similar process is issued or levied against   all or any material part of the property of the Borrower or any Subsidiary of the Borrower and is   not released, vacated or fully bonded within thirty (30) days after its issue or levy.   10.2 Consequences of Event of Default.   (a) Events of Default Other Than Bankruptcy, Insolvency or Reorganization   Proceedings.  If any Event of Default specified under Section 10.1 shall occur and be continuing,   the Lenders and the Administrative Agent shall be under no further obligation to make Loans and   the Issuing Lender shall be under no obligation to issue Letters of Credit and the Administrative   Agent may, and upon the request of the Required Lenders shall, take any or all of the following   actions:   (i) declare the commitment of each Lender to make Loans and any   obligation of the Issuing Lender to issue, amend or extend Letters of Credit to be   terminated, whereupon such commitments and obligation shall be terminated;   (ii) declare the unpaid principal amount of all outstanding Loans, all   interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or   under any other Loan Document to be immediately due and payable, without presentment,   demand, protest or other notice of any kind, all of which are hereby expressly waived by   the Borrower;   (iii) require the Borrower to, and the Borrower shall thereupon, deposit   in a non-interest-bearing account with the Administrative Agent, as Cash Collateral for its   Obligations under the Loan Documents, an amount equal to the Minimum Collateral   Amount for all outstanding Letters of Credit, and the Borrower hereby pledges to the   Administrative Agent and the Lenders, and grants to the Administrative Agent and the   Lenders a security interest in, all such Cash Collateral as security for such Obligations; and   (iv) exercise on behalf of itself, the Lenders and the Issuing Lender all   rights and remedies available to it, the Lenders and the Issuing Lender under the Loan   Documents;   provided that upon the occurrence of an actual or deemed entry of an order for relief with respect   to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to   make Loans and any obligation of the Issuing Lender to issue, amend or extend any Letter of Credit   shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest   and other amounts as aforesaid shall automatically become due and payable, and the obligation of   the Borrower to provide Cash Collateral as set forth in clause (iii) above shall automatically   become effective, in each case without further act of the Administrative Agent or any Lender.   (b) Set-off.  If an Event of Default shall have occurred and be continuing, each   Lender, the Issuing Lender, and each of their respective Affiliates and any participant of such   Lender or Affiliate which has agreed in writing to be bound by the provisions of Section 5.3     





 







   77   68576829_13   [Sharing of Payments by Lenders], after obtaining the prior written consent of the Administrative   Agent, 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, the Issuing Lender or any such Affiliate or participant   to or for the credit or the account of the Borrower against any and all of the Obligations now or   hereafter existing under this Agreement or any other Loan Document to such Lender, the Issuing   Lender, Affiliate or participant, irrespective of whether or not such Lender, Issuing Lender,   Affiliate or participant shall have made any demand under this Agreement or any other Loan   Document and although such Obligations of the Borrower may be contingent or unmatured or are   owed to a branch or office of such Lender or the Issuing Lender different from the branch or office   holding such deposit or obligated on such Indebtedness.  The rights of each Lender, the Issuing   Lender and their respective Affiliates and participants under this Section are in addition to other   rights and remedies (including other rights of setoff) that such Lender, the Issuing Lender or their   respective Affiliates and participants may have.  Each Lender and the Issuing Lender agrees to   notify the Borrower and the Administrative Agent promptly after any such setoff and application;   provided that the failure to give such notice shall not affect the validity of such setoff and   application; and   (c) Enforcement of Rights and Remedies.  Notwithstanding anything to the   contrary contained herein or in any other Loan Document, the authority to enforce rights and   remedies hereunder and under the other Loan Documents against the Borrower 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 this   Section 10.2 for the benefit of all the Lenders and the Issuing Lender and the other Secured Parties;   provided that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its   own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative   Agent) hereunder and under the other Loan Documents, (b) the Issuing Lender or the Swing Loan   Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as   the Issuing Lender or Swing Loan Lender, as the case may be) hereunder and under the other Loan   Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.2(b)   (subject to the terms of Section 5.3 [Sharing of Payments by Lenders]), or (d) any Lender from   filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of   a proceeding relative to the Borrower under any Insolvency Proceeding; and provided, further, that   if at any time there is no Person acting as Administrative Agent hereunder and under the other   Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the   Administrative Agent pursuant to this Section 10.2(c), and (ii) in addition to the matters set forth   in clauses (b), (c) and (d) of the preceding proviso and subject to Section 5.3 [Sharing of Payments   by Lenders]), any Lender may, with the consent of the Required Lenders, enforce any rights and   remedies available to it and as authorized by the Required Lenders.   10.3 Application of Proceeds.  From and after the date on which the Administrative   Agent has taken any action pursuant to Section 10.2 (or after the Loans have automatically become   immediately due and payable and the Letter of Credit Obligations have automatically been   required to be Cash Collateralized as set forth in the proviso to Section 10.2(a)) and until the   Facility Termination Date, any and all proceeds received on account of the Obligations shall   (subject to Sections 2.10 and 10.2(a)(iii)) be applied as follows:     





 







   78   68576829_13   (a) First, to payment of that portion of the Obligations constituting fees (other   than Letter of Credit Fees), indemnities, expenses and other amounts, including attorney fees,   payable to the Administrative Agent in its capacity as such, the Issuing Lender in its capacity as   such and the Swing Loan Lender in its capacity as such, ratably among the Administrative Agent,   the Issuing Lender and Swing Loan Lender in proportion to the respective amounts described in   this clause First payable to them;   (b) Second, to payment of that portion of the Obligations constituting fees,   indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to   the Lenders under the Loan Documents, including attorney fees, ratably among the Lenders in   proportion to the respective amounts described in this clause Second payable to them;   (c) Third, to payment of that portion of the Obligations constituting accrued   and unpaid Letter of Credit Fees and interest on the Loans and Reimbursement Obligations, ratably   among the Lenders and the Issuing Lender in proportion to the respective amounts described in   this clause Third payable to them;   (d) Fourth, to payment of that portion of the Obligations constituting unpaid   principal of the Loans, Reimbursement Obligations and payment obligations then owing under   Lender Provided Interest Rate Hedges, Lender Provided Commodity Hedges and Other Lender   Provided Financial Service Products, ratably among the Lenders, the Issuing Lender, the   applicable Cash Management Banks, the applicable Commodity Hedge Banks and the applicable   Interest Rate Hedge Banks, in proportion to the respective amounts described in this clause Fourth   held by them;   (e) Fifth, to the Administrative Agent for the account of the Issuing Lender, to   Cash Collateralize any undrawn amounts under outstanding Letters of Credit (to the extent not   otherwise cash collateralized pursuant to this Agreement); and   (f) Last, the balance, if any, after all of the Obligations have been indefeasibly   paid in full, to the Borrower or as otherwise required by Law.   Amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant   to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur.    If any amount remains on deposit as cash collateral after all Letters of Credit have either been fully   drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the   order set forth above.   In addition, notwithstanding the foregoing, Obligations arising under Lender Provided Interest   Rate Hedges, Lender Provided Commodity Hedges and Other Lender Provided Financial Service   Products shall be excluded from the application described above if the Administrative Agent has   not received written notice thereof, together with such supporting documentation as the   Administrative Agent may reasonably request, from the applicable Cash Management Bank,   Commodity Hedge Bank or Interest Rate Hedge Bank, as the case may be.  Each Cash   Management Bank, Commodity Hedge Bank or Interest Rate Hedge Bank not a party to the Credit   Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,     





 







   79   68576829_13   be deemed to have acknowledged and accepted the appointment of the Administrative Agent   pursuant to the terms of Article 11 hereof for itself and its Affiliates as if a “Lender” party hereto.   ARTICLE 11   THE ADMINISTRATIVE AGENT   11.1 Appointment and Authority.  Each of the Lenders and the Issuing Lender hereby   irrevocably appoints PNC Bank, National Association 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, the Lenders and the Issuing Lender, and the Borrower 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.   11.2 Rights as a Lender.  The Person serving as the Administrative Agent hereunder   shall have the same rights and powers in its capacity as a Lender as any other Lender and may   exercise the same as though it were not the Administrative Agent, and the term “Lender” or   “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,   include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such   Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the   financial advisor or in any other advisory capacity for, and generally engage in any kind of business   with, the Borrower 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.     11.3 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:   (i) shall not be subject to any fiduciary or other implied duties,   regardless of whether a Potential Default or Event of 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     





 







   80   68576829_13   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 Borrower or any of its Affiliates that is   communicated to or obtained by the Person serving as the Administrative Agent or   any of its Affiliates in any capacity.      (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 12.1 [Modifications;   Amendments and Waivers] and 10.2[Consequences of Event of Default]), 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 Potential Default or Event of Default unless and until notice describing such   Potential Default or Event of Default is given to the Administrative Agent in writing by the   Borrower, a Lender or an Issuing 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 Potential Default or Event of 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 7 [Conditions of Lending and Issuance of Letters of Credit] or elsewhere herein, other   than to confirm receipt of items expressly required to be delivered to the Administrative Agent.      (d) Reserved.      11.4 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 a Loan, or the issuance, extension, renewal or   increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or   the Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to   such Lender or Issuing Lender unless the Administrative Agent shall have received notice to the     





 







   81   68576829_13   contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance   of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be   counsel for the Borrower), 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.   11.5 Delegation of Duties.  The Administrative Agent may perform any and all of its   duties and exercise its rights and powers hereunder or under any other Loan Document by or   through any one or more sub-agents appointed by the Administrative Agent.  The Administrative   Agent and any such sub-agent may perform any and all of its duties and exercise its rights and   powers by or through their respective Related Parties.  The exculpatory provisions of this Article   shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any   such sub-agent, and shall apply to their respective activities in connection with the syndication of   the Facility as well as activities as Administrative Agent.  The Administrative Agent shall not be   responsible for the negligence or misconduct of any sub-agents except to the extent that a court of   competent jurisdiction determines in a final and nonappealable judgment that the Administrative   Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.   11.6 Resignation of Administrative Agent.  (a) The Administrative Agent may at any   time give notice of its resignation to the Lenders, the Issuing Lender and the Borrower.  Upon   receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation   with the Borrower (so long as no Potential Default or Event of Default has occurred and is   continuing), to 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 after the retiring   Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the   Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent   may (but shall not be obligated to), on behalf of the Lenders and the Issuing Lender, 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 Borrower and such Person remove such Person as   Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such   successor shall have been so appointed by the Required Lenders and shall have accepted such   appointment within 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 (except that in the case of any   collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Lender   under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to   hold such collateral security until such time as a successor Administrative Agent is appointed) and     





 







   82   68576829_13   (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 and Issuing 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 Borrower to a successor Administrative Agent   shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower   and such successor.  After the retiring or removed Administrative Agent’s resignation or removal   hereunder and under the other Loan Documents, the provisions of this Article and Section   12.3  [Expense; Indemnity; Damage Waiver] 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.      11.7 Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and the   Issuing Lender acknowledges that it has, independently and without reliance upon the   Administrative Agent or any other Lender or any of their Related Parties and based on such   documents and information as it has deemed appropriate, made its own credit analysis and decision   to enter into this Agreement.  Each Lender and Issuing Lender also acknowledges that it will,   independently and without reliance upon the Administrative Agent or any other Lender or any of   their Related Parties and based on such documents and information as it shall from time to time   deem appropriate, continue to make its own decisions in taking or not taking action under or based   upon this Agreement, any other Loan Document or any related agreement or any document   furnished hereunder or thereunder.   11.8 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the   Bookrunners, Arrangers or Syndication Agent 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, a Lender or an Issuing Lender   hereunder.   11.9 Administrative Agent’s Fee.  The Borrower shall pay to the Administrative Agent   a nonrefundable fee (the “Administrative Agent’s Fee”) under the terms of a letter (the   “Administrative Agent’s Letter”) between the Borrower and Administrative Agent, as amended   from time to time.   11.10 Administrative Agent May File Proofs of Claim.  In case of the pendency of any   proceeding under any Debtor Relief Law, the Administrative Agent (irrespective of whether the   principal of any Loan or Letter of Credit Obligation shall then be due and payable as herein   expressed or by declaration or otherwise and irrespective of whether the Administrative Agent   shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated)   by intervention in such proceeding or otherwise:     





 







   83   68576829_13   (a) to file and prove a claim for the whole amount of the principal and interest   owing and unpaid in respect of the Loans, Letter of Credit Obligations 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, the Issuing Lender and the Administrative Agent   (including any claim for the reasonable compensation, expenses, disbursements and advances of   the Lenders, the Issuing Lender and the Administrative Agent and their respective agents and   counsel and all other amounts due the Lenders, the Issuing Lender and the Administrative Agent   under Sections 2.9(b) [Letter of Credit Fees] and 12.3 [Expenses; Indemnity; Damage Waiver])   allowed in such judicial proceeding; and      (b) to collect and receive any monies or other property payable or deliverable   on any such claims and to distribute the same;      and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in   any such judicial proceeding is hereby authorized by each Lender and the Issuing 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 and the Issuing Lender, 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 12.3 [Expenses; Indemnity; Damage   Waiver].      11.11 Reserved.     11.12 No Reliance on Administrative Agent’s Customer Identification Program.  Each   Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or   assignees, may rely on the Administrative Agent to carry out such Lender’s, Affiliate’s,   participant’s or assignee’s customer identification program, or other obligations required or   imposed under or pursuant to the USA Patriot Act or the regulations thereunder, including the   regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP   Regulations”), or any other Anti-Terrorism Law, including any programs involving any of the   following items relating to or in connection with the Borrower, its Affiliates or its agents, the Loan   Documents or the transactions hereunder or contemplated hereby: (i) any identity verification   procedures, (ii) any recordkeeping, (iii) comparisons with government lists, (iv) customer notices   or (v) other procedures required under the CIP Regulations or such other Laws.   11.13 Lender Provided Interest Rate Hedges, Lender Provided Commodity Hedges and   Other Lender Provided Financial Service Products.  Except as otherwise expressly set forth herein,   no Cash Management Bank, Commodity Hedge Bank or Interest Rate Hedge Bank that obtains   the benefits of Section 10.3 [Application of Proceeds] by virtue of the provisions hereof or of any   Loan Document shall have any right to notice of any action or to consent to, direct or object to any   action hereunder or under any other Loan Document other than in its capacity as a Lender and, in   such case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any   other provision of this Article 11 to the contrary, the Administrative Agent shall not be required to   verify the payment of, or that other satisfactory arrangements have been made with respect to,   Obligations arising under Lender Provided Interest Rate Hedges, Lender Provided Commodity   Hedges and/or Other Lender Provided Financial Service Products unless the Administrative Agent     





 







   84   68576829_13   has received written notice of such Obligations, together with such supporting documentation as   the Administrative Agent may request, from the applicable Cash Management Bank, Commodity   Hedge Bank or Interest Rate Hedge Bank, as the case may be.      ARTICLE 12   MISCELLANEOUS   12.1 Modifications, Amendments or Waivers.  With the written consent of the Required   Lenders, the Administrative Agent, acting on behalf of all the Lenders, and the Borrower, may   from time to time enter into written agreements amending or changing any provision of this   Agreement or any other Loan Document or the rights of the Lenders or the Borrower hereunder or   thereunder, or may grant written waivers or consents hereunder or thereunder.  Any such   agreement, waiver or consent made with such written consent shall be effective to bind all the   Lenders and the Borrower; provided, that no such agreement, waiver or consent may be made   which will:   (a) Increase of Commitment.  Increase the amount of the Revolving Credit   Commitment of any Lender hereunder without the consent of such Lender;   (b) Extension of Payment; Reduction of Principal, Interest or Fees;   Modification of Terms of Payment.  Whether or not any Loans are outstanding, subject to Section   2.12, extend the Expiration Date or the time for payment of principal or interest of any Loan, the   Commitment Fee or any other fee payable to any Lender, or reduce the principal amount of or the   rate of interest borne by any Loan (other than as a result of waiving the applicability of any post-   default increase in interest rates) or reduce the Commitment Fee or any other fee payable to any   Lender, without the consent of each Lender directly affected thereby; or   (c) Miscellaneous.  Amend Section 5.2 [Pro Rata Treatment of Lenders],   Section 11.4 [Exculpatory Provisions] or Section 5.3 [Sharing of Payments by Lenders] or this   Section 12.1, alter any provision regarding the pro rata treatment of the Lenders or requiring all   Lenders to authorize the taking of any action or reduce any percentage specified in the definition   of Required Lenders, in each case without the consent of all of the Lenders;   provided that (i) no agreement, waiver or consent which would modify the interests, rights or   obligations of the Administrative Agent, the Issuing Lender, or the Swing Loan Lender may be   made without the written consent of the Administrative Agent, the Issuing Lender or the Swing   Loan Lender, as applicable and (ii) the Administrative Agent’s Letter and the BAML Letter may   be amended, or rights or privileges thereunder waived, in a writing executed only by the parties   thereto, and provided, further that, if in connection with any proposed waiver, amendment or   modification referred to in Sections 12.1(a) through (c) above, there is a Non-Consenting Lender,   then the Borrower shall have the right to replace any such Non-Consenting Lender with one or   more replacement Lenders pursuant to Section 5.6(b) [Replacement of a Lender].  Notwithstanding   anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove   any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by   its terms requires the consent of all Lenders or each affected Lender may be effected with the   consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment     





 







   85   68576829_13   of any Defaulting Lender may not be increased or extended without the consent of such Lender   and (y) any waiver, amendment or modification requiring the consent of all Lenders or each   affected Lender that by its terms affects any Defaulting Lender disproportionately adversely   relative to other affected Lenders shall require the consent of such Defaulting Lender.   12.2 No Implied Waivers; Cumulative Remedies.  No course of dealing and no delay or   failure of the Administrative Agent or any Lender in exercising any right, power, remedy or   privilege under this Agreement or any other Loan Document shall affect any other or future   exercise thereof or operate as a waiver thereof, nor shall any single or partial exercise thereof   preclude any further exercise thereof or of any other right, power, remedy or privilege.  The   enumeration of the rights and remedies of the Administrative Agent and the Lenders set forth in   this Agreement is not intended to be exhaustive and the exercise by the Administrative Agent and   the Lenders of any right or remedy shall not preclude the exercise of any other rights or remedies,   all of which shall be cumulative, and shall be in addition to any other right or remedy given   hereunder or under the other Loan Documents or that may now or hereafter exist at law or in equity   or by suit or otherwise.  No reasonable delay or failure to take action on the part of the   Administrative Agent or any Lender in exercising any right, power or privilege shall operate as a   waiver thereof, nor shall any single or partial exercise of any such right, power or privilege   preclude any other or further exercise thereof or the exercise of any other right, power or privilege   or shall be construed to be a waiver of any Event of Default.   12.3 Expenses; Indemnity; Damage Waiver.   (a) Costs and Expenses.  The Borrower shall pay (i) all out-of-pocket expenses   incurred by the Administrative Agent, the Arrangers and their respective Affiliates (including the   reasonable fees, charges and disbursements of counsel for the Administrative Agent), and shall   pay all fees and time charges and disbursements for attorneys who may be employees of the   Administrative Agent, in connection with the syndication of the credit facilities provided for   herein, the preparation, negotiation, execution, delivery and administration of this Agreement and   the other Loan Documents or any amendments, modifications or waivers of the provisions hereof   or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated),   (ii) all out-of-pocket expenses incurred by the Issuing Lender in connection with the issuance,   amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder,   (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the Issuing   Lender (including the fees, charges and disbursements of any counsel for the Administrative   Agent, any Lender or the Issuing Lender), and shall pay all fees and time charges for attorneys   who may be employees of the Administrative Agent, any Lender or the Issuing Lender, in   connection with the enforcement or protection of its rights (A) in connection with this Agreement   and the other Loan Documents, including its rights under this Section, and (B) in connection with   the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses   incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of   Credit, and (iv) all reasonable out-of-pocket expenses of the Administrative Agent’s regular   employees and agents engaged periodically to perform audits of the Borrower’s books, records   and business properties.   (b) Indemnification by the Borrower.  The Borrower shall indemnify the   Administrative Agent (and any sub-agent thereof), the Arrangers, each Lender and the Issuing     





 







   86   68576829_13   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 (and shall reimburse each   Indemnitee as the same are incurred), any and all losses, claims, damages, liabilities, penalties and   related expenses (including the fees, charges and disbursements of any counsel for any   Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time   charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by   any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower but   excluding other Indemnitees and its Related Parties) 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 Loan or Letter of Credit or the use or proposed use of the   proceeds therefrom (including any refusal by the Issuing Lender to honor a demand for payment   under a Letter of Credit if the documents presented in connection with such demand do not strictly   comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of   Hazardous Materials on or from any property owned or operated by the Borrower or any of its   Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its   Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating   to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a   third party or by the Borrower, 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 non-appealable judgment to have resulted from the gross negligence or   willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower against   an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder or under any   other Loan Document, if the Borrower has obtained a final and non-appealable judgment in its   favor on such claim as determined by a court of competent jurisdiction.  This Section 12.3(b) shall   not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc.   arising from any non-Tax claim.   (c) Reimbursement by Lenders.  To the extent that the Borrower for any reason   fails to indefeasibly 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), the Issuing Lender, the Swing Loan   Lender or any Related Party of any of the foregoing, without relieving the Borrower from its   obligation to do so, each Lender severally agrees to pay to the Administrative Agent (or any such   sub-agent), such Issuing Lender, such Swing Loan Lender or such Related Party, as the case may   be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed   expense or indemnity payment is sought based on each Lender’s Ratable Share 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),the Issuing Lender or the Swing Loan Lender in its capacity as such, or   against any Related Party of any of the foregoing acting for the Administrative Agent (or any such   sub-agent), the Issuing Lender or the Swing Loan Lender in connection with such capacity.  The   obligations of the Lenders under this paragraph (b) are subject to the provisions of Section 2.2   [Nature of Lenders’ Obligations with Respect to Revolving Credit Loans].       





 







   87   68576829_13   (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by   applicable Law, the Borrower shall not assert, and hereby waives, any claim against any   Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as   opposed to direct or actual damages) arising out of, in connection with, or as a result of, this   Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the   transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the   proceeds thereof.  No Indemnitee referred to in Section 12.3(a) [Costs and Expenses] shall be liable   for any damages arising from the use by unintended recipients of any information or other   materials distributed by it through telecommunications, electronic or other information   transmission systems in connection with this Agreement or the other Loan Documents or the   transactions contemplated hereby or thereby, except to the extent such liability or damages are   determined by a court of competent jurisdiction by final and non-appealable judgment to have   resulted from the gross negligence or willful misconduct of such Indemnitee.   (e) Payments.  All amounts due under this Section shall be payable not later   than ten (10) days after demand therefor.   (f) Survival.  Each party’s obligations under this Section shall survive the   termination of the Loan Documents and the termination of the Commitments and the repayment,   satisfaction or discharge of all Obligations.   12.4 Reserved.   12.5 Holidays.  Whenever payment of a Loan to be made or taken hereunder shall be   due on a day which is not a Business Day such payment shall be due on the next Business Day   (except as provided in Section 4.2 [Interest Periods]) and such extension of time shall be included   in computing interest and fees, except that the Loans shall be due on the Business Day preceding   the Expiration Date if the Expiration Date is not a Business Day.  Whenever any payment or action   to be made or taken hereunder (other than payment of the Loans) shall be stated to be due on a day   which is not a Business Day, such payment or action shall be made or taken on the next following   Business Day, and such extension of time shall not be included in computing interest or fees, if   any, in connection with such payment or action.   12.6 Notices; Effectiveness; Electronic Communication   (a) Notices Generally.  Except in the case of notices and other communications   expressly permitted to be given by telephone (and except as provided in Section 12.6(b) [Electronic   Communications]), 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 telecopier (i) if to a Lender, to it at its address set forth in its administrative questionnaire,   or (ii) if to any other Person, to it at its address set forth on Schedule 1.1(B).       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 telecopier 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     





 







   88   68576829_13   recipient).  Notices delivered through electronic communications to the extent provided in 12.6(b)   [Electronic Communications], shall be effective as provided in such Section.      (b) Electronic Communications.  Notices and other communications to the   Lenders and the Issuing Lender hereunder may be delivered or furnished by electronic   communication (including e-mail and Internet or intranet websites) pursuant to procedures   approved by the Administrative Agent; provided that the foregoing shall not apply to notices to   any Lender or the Issuing Lender if such Lender or the Issuing Lender, as applicable, has notified   the Administrative Agent that it is incapable of receiving notices under such Article by electronic   communication.  The Administrative Agent or the Borrower may, in its discretion, agree to accept   notices and other communications to it hereunder by electronic communications pursuant to   procedures approved by it; provided that approval of such procedures may be limited to particular   notices or communications.  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); provided that if such   notice 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, 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.      (c) Change of Address, etc.  Any party hereto may change its address, e-mail   address or telecopier number for notices and other communications hereunder by notice to the   other parties hereto.      12.7 Severability.  The provisions of this Agreement are intended to be severable.  If any   provision of this Agreement shall be held invalid or unenforceable in whole or in part in any   jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such   invalidity or unenforceability without in any manner affecting the validity or enforceability thereof   in any other jurisdiction or the remaining provisions hereof in any jurisdiction.  Without limiting   the foregoing provisions of this Section, if and to the extent that the enforceability of any   provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief   Laws, as determined in good faith by the Administrative Agent, the Issuing Lender or the Swing   Loan Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent   not so limited.   12.8 Duration; Survival.  All representations and warranties of the Borrower contained   herein or made in connection herewith shall survive the execution and delivery of this Agreement   and the completion of the transactions hereunder, and shall continue in full force and effect until   the Facility Termination Date.  All covenants and agreements of the Borrower contained herein   relating to the payment of principal, interest, premiums, additional compensation or expenses and   indemnification, including those set forth in the Notes, Section 5.1 [Payments] and Section 12.3   [Expenses; Indemnity; Damage Waiver], shall survive the Facility Termination Date.  All other   covenants and agreements of the Borrower shall continue in full force and effect from and after   the Closing Date and until the Facility Termination Date.     





 







   89   68576829_13   12.9 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 the Borrower may not assign or otherwise transfer any of its   rights or obligations hereunder without the prior written consent of the Administrative Agent and   each Lender and no Lender may assign or otherwise transfer any of its rights or obligations   hereunder except (i) to an assignee in accordance with the provisions of 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 (and any other attempted assignment or transfer by any party hereto   shall be null and void except as expressly set forth herein).  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, Indemnitees 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 Loans at the time owing to it); provided that any such   assignment shall be subject to the following conditions:   (i) Minimum Amounts.   (A) in the case of an assignment of the entire remaining amount   of the assigning Lender’s Commitment and the Loans at the time owing to it or contemporaneous   assignments to 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 clause (i)(A) of this Section, the   aggregate amount of the Commitment (which for this purpose includes Loans outstanding   thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding   balance of the Loans of the assigning Lender subject to each such assignment (determined as of   the date the Assignment and Assumption Agreement with respect to such assignment is delivered   to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption   Agreement, as of such “Trade Date”) shall not be less than $5,000,000, in the case of any   assignment in respect of the Revolving Credit Commitment of the assigning Lender, unless each   of the Administrative Agent and, so long as no Event of Default has occurred and is continuing,   the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).   (ii) Proportionate Amounts.  Each partial assignment shall be made as   an assignment of a proportionate part of all the assigning Lender’s rights and obligations under   this Agreement with respect to the Loan or the Commitment assigned.     





 







   90   68576829_13   (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 Borrower (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 Borrower shall be deemed to have consented   to any such assignment unless it shall object thereto by written notice to the Administrative Agent   within five (5) Business Days after having received notice thereof;     (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 such Lender or an Approved Fund with respect to such Lender; and   (C) the consent of the Issuing Lender and Swing Loan Lender   (such consent not to be unreasonably withheld or delayed) shall be required for any assignment of   the Facility.   (iv) Assignment and Assumption Agreement.  The parties to each   assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption   Agreement, 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 Borrower or any of the Borrower’s Affiliates or Subsidiaries, (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 or (C) any Disqualified Institution (to the   extent that such institution has been disclosed on a list that has been made available to all Lenders).   (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 subparticipations, or other compensating actions,   including funding, with the consent of the Borrower and the Administrative Agent, the applicable   pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of   which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in   full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the   Issuing Lender, the Swing Loan Lender and each other Lender hereunder (and interest accrued   thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and     





 







   91   68576829_13   participations in Letters of Credit and Swing Loans in accordance with its Ratable Share.    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.   (viii) Effectiveness; Release. Subject to acceptance and recording thereof   by the Administrative Agent pursuant to paragraph (c) of this Section 12.9, from and after the   effective date specified in each Assignment and Assumption Agreement, the assignee thereunder   shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment   and Assumption Agreement, 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 Agreement, be released from its obligations under this Agreement (and, in the   case of an Assignment and Assumption Agreement 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 4.4 [LIBOR Rate Unascertainable; Etc.], 5.8   [Increased Costs], 5.9 [Taxes], 5.10 [Indemnity] and 12.3 [Expenses, Indemnity; Damage Waiver]   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 Borrower, shall maintain at one of its offices a copy of each Assignment and   Assumption Agreement 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 Loans   owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries   in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative   Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to   the terms hereof as a Lender hereunder for all purposes of this Agreement.  The Register shall be   available for inspection by the Borrower and any Lender, at any reasonable time and from time to   time upon reasonable prior notice.   (d) Participations.  Any Lender may at any time, without the consent of, or   notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than   a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for   the primary benefit of, a natural Person, the Borrower or any of the Borrower’s Affiliates or   Subsidiaries or any Disqualified Institution (to the extent that such institution has been disclosed   on a list that has been made available to all Lenders)) (each, a “Participant”) in all or a portion of   such Lender’s rights and/or obligations under this Agreement (including all or a portion of its   Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this   Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other   parties hereto for the performance of such obligations, and (iii) the Borrower, the Administrative   Agent, the Issuing Lender and Lenders shall continue to deal solely and directly with such Lender     





 







   92   68576829_13   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 12.3 [Expenses;   Indemnity; Damage Waiver] 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 (other than as is already provided for herein) to any amendment, modification   or waiver with respect to Sections 12.1(a) [Increase of Commitment] or 12.1(b) [Extension of   Payment, Etc.] that affects such Participant.  The Borrower agrees that each Participant shall be   entitled to the benefits of Sections 4.4 [Libor Rate Unascertainable, Etc.], 5.8 [Increased Costs],   5.9 [Taxes] and 5.10 [Indemnity] (subject to the requirements and limitations therein, including   the requirements under Section 5.9(g) [Status of Lenders] (it being understood that the   documentation required under Section 5.9(g) [Status of Lenders] 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 5.6(b) [Replacement of a Lender] and Section 5.6(c)   [Designation of a Different Lending Office] as if it were an assignee under paragraph (b) of this   Section; and (B) shall not be entitled to receive any greater payment under Sections 5.8 [Increased   Costs] or 5.9 [Taxes], with 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 Borrower’s request and expense, to use reasonable   efforts to cooperate with the Borrower to effectuate the provisions of Section 5.6(b) [Replacement   of a Lender] and Section 5.6(c) [Designation of Different Lending Office] with respect to any   Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits   of Section 10.2(b) [Set-off] as though it were a Lender; provided that such Participant agrees to be   subject to Section 5.3 [Sharing of Payments by Lenders] as though it were a Lender.  Each Lender   that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the   Borrower, maintain a register on which it enters the name and address of each Participant and the   principal amounts (and stated interest) of each Participant’s interest in the Loans or other   obligations under the Loan Documents (the “Participant Register”); provided that no Lender   shall have any obligation to disclose all or any portion of the Participant Register (including the   identity of any Participant or any information relating to a Participant’s interest in any   commitments, loans, letters of credit or its other obligations under any Loan Document) to any   Person except to the extent that such disclosure is necessary to establish that such commitment,   loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United   States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent   manifest error, and such Lender shall treat each Person whose name is recorded in the Participant   Register as the owner of such participation for all purposes of this Agreement notwithstanding any   notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as   Administrative Agent) shall have no responsibility for maintaining a Participant Register.   (e) Certain Pledges; Successors and Assigns Generally.  Any Lender may at   any time pledge or assign a security interest in all or any portion of its rights under this Agreement     





 







   93   68576829_13   to secure obligations of such Lender, including any pledge or assignment to secure obligations to   a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender   from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender   as a party hereto.   (f) Reserved.   (g) Reserved.   (h) Reserved.   (i) Cashless Settlement.  Notwithstanding anything to the contrary contained   in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in   connection with any refinancing, extension, loan modification or similar transaction permitted by   the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the   Borrower, the Administrative Agent and such Lender.   12.10 Confidentiality.   (a) General.  Each of the Administrative Agent, the Lenders and the Issuing   Lender agree to maintain the confidentiality of the Information (as defined below), except that   Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood   that the Persons to whom such disclosure is made will be informed of the confidential nature of   such Information and instructed to keep such Information confidential); (b) to the extent required   or requested by any regulatory authority purporting to have jurisdiction over such Person or its   Related Parties (including any self-regulatory authority, such as the National Association of   Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any   subpoena or similar legal process; (d) to any other party hereto; (e) in connection with the exercise   of any remedies hereunder or under any other Loan Document or any action or proceeding relating   to this Agreement or any other Loan Document or the enforcement of rights hereunder or   thereunder; (f) subject to an agreement containing provisions substantially the same as those of   this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant   in, any of its rights and obligations under this Agreement, or (ii) any actual or prospective party   (or its Related Parties) to any swap, derivative or other transaction under which payments are to   be made by reference to the Borrower and its obligations, this Agreement or payments hereunder;   (g) on a confidential basis to (i)  any rating agency in connection with rating the Borrower or its   Subsidiaries or the Facility or (ii) the CUSIP Service Bureau or any similar agency in connection   with the issuance and monitoring of CUSIP numbers with respect to the Facility; (h) with the   consent of the Borrower; or (i) to the extent such Information (x) becomes publicly available other   than as a result of a breach of this Section, or (y) becomes available to the Administrative Agent,   any Lender, any Issuing Lender or any of their respective Affiliates on a nonconfidential basis   from a source other than the Borrower. 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 Agents     





 







   94   68576829_13   and the Lenders in connection with the administration of this Agreement, the other Loan   Documents, and the Commitments.   For purposes of this Section, “Information” means all information received from the Borrower or   any of its Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their respective   businesses, other than any such information that is available to the Administrative Agent, any   Lender or any Issuing Lender on a nonconfidential basis prior to disclosure by the Borrower or   any of its Subsidiaries; provided that, in the case of information received from the Borrower 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.   (b) Sharing Information With Affiliates of the Lenders.  The Borrower   acknowledges that from time to time financial advisory, investment banking and other services   may be offered or provided to the Borrower or one or more of its Affiliates (in connection with   this Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such   Lender and the Borrower hereby authorizes each Lender to share any information delivered to such   Lender by the Borrower and its Subsidiaries pursuant to this Agreement to any such Subsidiary or   Affiliate subject to the provisions of Section 12.10(a) [General].    12.11 Counterparts; Integration; Effectiveness.   (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 thereof and supersede any and all previous agreements and   understandings, oral or written, relating to the subject matter hereof and thereof including any prior   confidentiality agreements and commitments.  Except as provided in Article 7 [Conditions Of   Lending And Issuance Of Letters Of Credit], this Agreement shall become effective when it shall   have been executed by the Administrative Agent and when the Administrative Agent shall have   received counterparts hereof that, when taken together, bear the signatures of each of the other   parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by   telecopy or e-mail shall be effective as delivery of a manually executed counterpart of this   Agreement.   (b) Electronic Execution of Assignments.  The words “execution,” “signed,”   “signature,” and words of like import in any Assignment and Assumption shall be deemed to   include electronic signatures or the keeping of records in electronic form, each of which shall be   of the same legal effect, validity or enforceability as a manually executed signature or the use of a   paper-based recordkeeping system, as the case may be, to the extent and as provided for in any   Applicable Law, including the Federal Electronic Signatures in Global and National Commerce   Act, the New York State Electronic Signatures and Records Act, or any other similar state laws   based on the Uniform Electronic Transactions Act.     





 







   95   68576829_13   12.12 Choice of Law Submission to Jurisdiction; Waiver of Venue; Service of Process;   Waiver of Jury Trail.   (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.    Each standby Letter of Credit issued under this Agreement shall be subject, as applicable, to the   rules of the Uniform Customs and Practice for Documentary Credits, as most recently published   by the International Chamber of Commerce (the “ICC”) at the time of issuance (“UCP”) or the   rules of the International Standby Practices (ICC Publication Number 590) (“ISP98”), as   determined by the Issuing Lender, and each trade Letter of Credit shall be subject to UCP, and in   each case to the extent not inconsistent therewith, the Laws of the State of New York without   regard to its conflict of laws principles.     The 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, the Issuing   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 of   the Southern District of New York, and any appellate court from any thereof, and each of the   parties hereto irrevocably and unconditionally submits to the jurisdiction of such  courts and agrees   that all claims in respect of any such action, litigation or proceeding may be heard and determined   in such New York State court or, to the fullest extent permitted by applicable law, in such federal   court.  Each of the parties hereto agrees that a final judgment in any such action, litigation or   proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment   or in any other manner provided by law.  Nothing in this Agreement or in any other Loan   Document shall affect any right that the Administrative Agent, any Lender or any Issuing Lender   may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan   Document against the Borrower or its properties in the courts of any jurisdiction.      (b) Waiver of Venue.  The 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.   (c) Service of Process.  Each party hereto irrevocably consents to service of   process in the manner provided for notices in Section 12.6 [ Notices; Effectiveness; Electronic   Communication].  Nothing in this Agreement will affect the right of any party hereto to serve   process in any other manner permitted by applicable law.     





 







   96   68576829_13   (d) 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.   12.13 USA Patriot Act Notice.  Each Lender that is subject to the USA Patriot Act and   the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower   that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record   information that identifies the Borrower and its Subsidiaries, which information includes the name   and address the Borrower and its Subsidiaries and other information that will allow such Lender   or Administrative Agent, as applicable, to identify the Borrower and its Subsidiaries in accordance   with the USA Patriot Act.  The Borrower shall, promptly following a request by the Administrative   Agent or any Lender, provide all documentation and other information that the Administrative   Agent or such Lender requests in order to comply with its ongoing obligations under applicable   “know your customer” and anti-money laundering rules and regulations, including the Act.   12.14 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 Borrower acknowledges   and agrees that: (a) (i) the arranging and other services regarding this Agreement provided   by the Administrative Agent, the Arrangers, and the Lenders are arm’s-length commercial   transactions between the Borrower, on the one hand, and the Administrative Agent, the   Arrangers and the Lenders, on the other hand, (ii) the Borrower has consulted its own legal,   accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii)   the Borrower is capable of evaluating, and understands and accepts, the terms, risks and   conditions of the transactions contemplated hereby and by the other Loan Documents; (b)   (i) each of the Administrative Agent, each Arranger and each Lender is and has been acting   solely as a principal and, except as expressly agreed in writing by the relevant parties, has   not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower   or any of its Affiliates, or any other Person and (ii) neither the Administrative Agent, the   Arrangers nor any Lender has any obligation to the Borrower or any of its Affiliates with   respect to the transactions contemplated hereby except those obligations expressly set forth   herein and in the other Loan Documents; and (c) the Administrative Agent, the Arrangers   and the Lenders and their respective Affiliates may be engaged in a broad range of   transactions that involve interests that differ from those of the Borrower and its Affiliates,   and neither the Administrative Agent, the Arranger nor any Lender has any obligation to   disclose any of such interests to the Borrower or its Affiliates.  To the fullest extent     





 







   97   68576829_13   permitted by Law, the Borrower hereby waives and releases any claims that it may have   against the Administrative Agent, the Arranger or any Lender with respect to any breach   or alleged breach of agency or fiduciary duty in connection with any aspect of any   transaction contemplated hereby.         [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]                 





 







   CREDIT AGREEMENT   SIGNATURE PAGE         IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized,   have executed this Agreement as of the day and year first above written.   ATTEST: BORROWER   CHESAPEAKE UTILITIES CORPORATION   By:    Name:    Title:            





 







   CREDIT AGREEMENT   SIGNATURE PAGE      PNC BANK, NATIONAL ASSOCIATION,   individually and as Administrative Agent      By:    Name:  Nicholas Stanek   Title:    Vice President             





 







   CREDIT AGREEMENT   SIGNATURE PAGE      BANK OF AMERICA, N.A.    By:    Name:    Title:_____________________________________         





 







   CREDIT AGREEMENT   SIGNATURE PAGE      CITIZENS BANK NA    By:    Name:    Title:          





 







   CREDIT AGREEMENT   SIGNATURE PAGE      ROYAL BANK OF CANADA    By:    Name:    Title:          





 







   CREDIT AGREEMENT   SIGNATURE PAGE      WELLS FARGO BANK, NATIONAL   ASSOCIATION    By:    Name:    Title:         





 







   68576829_13   SCHEDULE 1.1(B)   COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES   Page 1 of 2   Part 1 - Commitments of Lenders and Addresses for Notices to Lenders            Lender   Amount of   Commitment for   Revolving   Credit Loans            Ratable Share   Name: PNC Bank, National   Association   Address: 500 First Avenue    Pittsburgh, PA 15219    Attention of: Agency Services Loan   Administration   Telecopy 412-762-8672                  $37,500,000                  25.000000000%      Name: Bank of America, N.A.   Address: 421 Fayetteville St. 17th   Floor, Raleigh, NC 27601    Attention: Keith T. Erazmus   Telephone:  919-829-6888   Telecopy:  415-228-6607                     $37,500,000                     25.000000000%   Name: Citizens Bank NA   Address: 919 N Market Street, 8th   Floor, Wilmington, DE 19801   Attention: Edward S Winslow   Telephone:  302-425-7364   Telecopy:  302-655-5379                  $25,000,000                  16.6666666667%   Name: Royal Bank of Canada   Address: 200 Vesey Street,    New York, NY 10281   Attention: Rahul Shah   Telephone:  (212) 858-6053               $25,000,000               16.6666666667%   Name: Wells Fargo Bank, National   Association   Address: 301 S. College St., 11th   Floor, Charlotte NC 28202, MAC   D1053-115   Attention: Allison Newman   Telephone:  704-410-0856                     $25,000,000                  16.6666666667%    Total $150,000,000 100.000000000%     





 







   68576829_13       SCHEDULE 1.1(B)   COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES   Page 2 of 2   Part 2 - Addresses for Notices to Borrower:   ADMINISTRATIVE AGENT   Name: PNC Bank, National Association   Address: 500 First Avenue    Pittsburgh, PA 15219    Attention of: Agency Services Loan Administration   Telecopy 412-762-8672   With a Copy To:   Agency Services, PNC Bank, National Association   Mail Stop: P7-PFSC-04-I   Address: 500 First Avenue   Pittsburgh, PA 15219   Attention: Agency Services   Telephone: 412 762 6442   Telecopy: 412 762 8672   BORROWER:   Name: Chesapeake Utilities Corporation   Address: 909 Silver Lake Boulevard   Dover, Delaware 19904   Attention: Beth W. Cooper, Senior Vice President & Chief Financial Officer   Chesapeake Utilities Corporation   Telephone: 302-734-6022    Telecopy: 302-734-6750         





 







   68576829_13    SCHEDULE 1.1(P)   PERMITTED LIENS   Page 1 of 1      1. The FPU Indebtedness is secured by the Indenture of Mortgage and Deed of Trust, dated   as of September 1, 1942, as amended, supplemented and modified, by the Borrower, in   favor of U.S. Bank National Association (successor to the original trustees), as trustee.   2. Capacity, Supply and Operating Agreement and Capital Lease Obligation, dated May 21,   2013, between Sandpiper Energy, Inc. and Eastern Gas and Water Investment Company,   LLC due May 1, 2019.         





 







   68576829_13   SCHEDULE 6.2   SUBSIDIARIES    Page 1 of 1   Name   Jurisdiction of   Organization   Owner   Ownership   Percentage   Eastern Shore Natural Gas Company Delaware Chesapeake Utilities Corporation 100%   Sharp Energy, Inc. Delaware Chesapeake Utilities Corporation 100%   Sharpgas, Inc. Delaware Sharp Energy, Inc. 100%   Xeron, Inc. Mississippi Chesapeake Utilities Corporation 100%   Peninsula Energy Services Company, Inc. Delaware Chesapeake Utilities Corporation 100%   Peninsula Pipeline Company, Inc. Delaware Chesapeake Utilities Corporation 100%   Florida Public Utilities Company Florida  Chesapeake Utilities Corporation 100%   Flo-Gas Corporation Florida Florida Public Utilities Company 100%   Chesapeake Service Company Delaware Chesapeake Utilities Corporation 100%   Skipjack, Inc. Delaware Chesapeake Service Company 100%   Chesapeake Investment Company Delaware Chesapeake Service Company 100%   Eastern Shore Real Estate, Inc. Delaware Chesapeake Service Company 100%   Chesapeake OnSight Services, LLC Delaware Chesapeake Utilities Corporation 100%   Sandpiper Energy, Inc. Delaware Chesapeake Utilities Corporation 100%   Eight Flags Energy, LLC Delaware Chesapeake OnSight Services,   LLC   100%   Austin Cox Home Services, Inc. Delaware Chesapeake Utilities Corporation 100%   Grove Energy, Inc. Delaware Chesapeake Utilities Corporation 100%   Aspire Energy of Ohio, LLC Delaware Chesapeake Utilities Corporation 100%   Sharp Water, Inc. (Inactive) Delaware Chesapeake Utilities Corporation 100%   aQuality Company, Inc. (Inactive) Delaware Chesapeake Utilities Corporation 100%     





 







   68576829_13   SCHEDULE 6.6(B)   INDEBTEDNESS AND LIABILITIES   Page 1 of 1   None.           





 







   68576829_13   SCHEDULE 9.1   PERMITTED INDEBTEDNESS   Page 1 of 1      1. Note Purchase Agreement, dated September 5, 2013, regarding $20,000,000 3.73%   Series A, Senior Unsecured Notes, due December 16, 2028 and $50,000,000 3.88%   Series B, Senior Unsecured Notes, due May 15, 2029   2. Note Agreement, dated June 29, 2010, as amended by First Amendment June 20, 2011,   regarding $29,000,000 5.68% Series A, Senior Unsecured Notes, due June 30, 2026 and   $7,000,000 6.43% Series B, Senior Unsecured Notes, due May 2, 2028   3. Note Agreement, dated October 31, 2008, as amended, regarding $30,000,000 5.93%   Senior Unsecured Notes, due October 31, 2023     4. Note Agreement, dated October 18, 2005, as amended, regarding $20,000,000 5.50%   Senior Unsecured Notes, due October 12, 2020     5. Note Agreement, dated October 31, 2002, as amended, regarding $30,000,000 6.64%   Senior Unsecured Notes, due October 31, 2017     6. Indenture of Mortgage and Deed of Trust, dated September 1, 1942, between Florida   Public Utilities Company and the trustee, for the First Mortgage Bonds, all supplemental   indentures thereto and the First Colony Bond Purchase Agreement.     7. Letter Agreement, dated September 26, 2003, between Chesapeake Utilities Corporation   and PNC Bank, National Association, as amended     8. Loan Agreement, dated September 12, 2002, between Chesapeake Utilities Corporation   and Bank of America, N.A., as amended.     9. Revolving Credit Agreement dated December 29, 2014, between Chesapeake Utilities   Corporation and Citizens Bank, National Association.     10. Capacity, Supply and Operating Agreement and Capital Lease Obligation, dated May 21,   2013, between Sandpiper Energy, Inc. and Eastern Gas and Water Investment Company,   LLC due May 1, 2019.      11. Consulting Agreement, dated February 5, 2013, between Flo-Gas Corporation and Glades   Gas Co., Inc. due February 15, 2018.   12. Private Shelf Agreement, dated October 8, 2015, between Chesapeake Utilities   Corporation and Prudential Investment Management, Inc. and the other purchasers that   may become a party thereto from time to time.