kforcearcreditagreement1






  Published CUSIP Number:  49373FAA0  Revolving Credit CUSIP Number:  49373FAB8      $200,000,000  AMENDED AND RESTATED  CREDIT AGREEMENT    dated as of October 20, 2021,  by and among  KFORCE INC.,  as Borrower,  THE SUBSIDIARY GUARANTORS,  the Lenders referred to herein,  as Lenders,  and  WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent,  Swingline Lender and Issuing Lender  BANK OF AMERICA, N.A.,  as Syndication Agent  BMO HARRIS BANK, N.A.,   as Documentation Agent  WELLS FARGO SECURITIES, LLC  as Lead Arranger and Bookrunner        





 






TABLE OF CONTENTS  Page  i  ARTICLE I DEFINITIONS ......................................................................................................................... 1  SECTION 1.1 Definitions ............................................................................................................. 1  SECTION 1.2 Other Definitions and Provisions ......................................................................... 31  SECTION 1.3 Accounting Terms................................................................................................ 31  SECTION 1.4 UCC Terms .......................................................................................................... 31  SECTION 1.5 Rounding .............................................................................................................. 31  SECTION 1.6 References to Agreement and Laws .................................................................... 32  SECTION 1.7 Times of Day. ...................................................................................................... 32  SECTION 1.8 Letter of Credit Amounts. .................................................................................... 32  SECTION 1.9 Guarantees. .......................................................................................................... 32  SECTION 1.10 Covenant Compliance Generally. ........................................................................ 32  SECTION 1.11 Compliance with Article IX ................................................................................. 32  SECTION 1.12 Limited Condition Acquisitions ........................................................................... 32  SECTION 1.13 Rates .................................................................................................................... 33  ARTICLE II REVOLVING CREDIT FACILITY ..................................................................................... 34  SECTION 2.1 Revolving Credit Loans ....................................................................................... 34  SECTION 2.2 Swingline Loans. ................................................................................................. 34  SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline  Loans. ................................................................................................................... 35  SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans. ............ 36  SECTION 2.5 Permanent Reduction of the Commitment. .......................................................... 37  SECTION 2.6 Termination of Revolving Credit Facility ............................................................ 38  ARTICLE III LETTER OF CREDIT FACILITY ...................................................................................... 38  SECTION 3.1 L/C Facility. ......................................................................................................... 38  SECTION 3.2 Procedure for Issuance of Letters of Credit ......................................................... 38  





 






TABLE OF CONTENTS  (continued)  Page  ii  SECTION 3.3 Commissions and Other Charges. ........................................................................ 39  SECTION 3.4 L/C Participations. ............................................................................................... 39  SECTION 3.5 Reimbursement Obligation of Borrower ............................................................. 40  SECTION 3.6 Obligations Absolute ........................................................................................... 41  SECTION 3.7 Effect of Letter of Credit Application .................................................................. 41  SECTION 3.8 Resignation of Issuing Lenders. ........................................................................... 41  SECTION 3.9 Reporting of Letter of Credit Information and L/C Commitment ....................... 41  SECTION 3.10 Letters of Credit Issued for Subsidiaries .............................................................. 42  ARTICLE IV [RESERVED] ...................................................................................................................... 42  ARTICLE V GENERAL LOAN PROVISIONS ........................................................................................ 42  SECTION 5.1 Interest. ................................................................................................................ 42  SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans .............................. 43  SECTION 5.3 Fees. ..................................................................................................................... 44  SECTION 5.4 Manner of Payment .............................................................................................. 44  SECTION 5.5 Evidence of Indebtedness. ................................................................................... 44  SECTION 5.6 Sharing of Payments by Lenders ......................................................................... 45  SECTION 5.7 Administrative Agent’s Clawback. ...................................................................... 45  SECTION 5.8 Changed Circumstances. ...................................................................................... 46  SECTION 5.9 Indemnity ............................................................................................................. 49  SECTION 5.10 Increased Costs. ................................................................................................... 49  SECTION 5.11 Taxes. ................................................................................................................... 50  SECTION 5.12 Mitigation Obligations; Replacement of Lenders. ............................................... 53  SECTION 5.13 Incremental Loans................................................................................................ 54  SECTION 5.14 Cash Collateral ..................................................................................................... 56  SECTION 5.15 Defaulting Lenders. ............................................................................................. 57  





 






TABLE OF CONTENTS  (continued)  Page  iii  ARTICLE VI CONDITIONS OF CLOSING AND BORROWING ......................................................... 59  SECTION 6.1 Conditions to Closing and Initial Extensions of Credit ....................................... 59  SECTION 6.2 Conditions to All Extensions of Credit ................................................................ 61  ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES ................... 62  SECTION 7.1 Organization; Power; Qualification ..................................................................... 62  SECTION 7.2 Ownership ............................................................................................................ 62  SECTION 7.3 Authorization; Enforceability .............................................................................. 62  SECTION 7.4 Compliance of Agreement, Loan Documents and Borrowing with Laws,  Etc ........................................................................................................................ 62  SECTION 7.5 Compliance with Law; Governmental Approvals ............................................... 63  SECTION 7.6 Tax Returns and Payments .................................................................................. 63  SECTION 7.7 Intellectual Property Matters ............................................................................... 63  SECTION 7.8 Environmental Matters ........................................................................................ 64  SECTION 7.9 Employee Benefit Matters. .................................................................................. 64  SECTION 7.10 Margin Stock ....................................................................................................... 66  SECTION 7.11 Government Regulation ....................................................................................... 66  SECTION 7.12 [Reserved]. ........................................................................................................... 66  SECTION 7.13 Employee Relations ............................................................................................. 66  SECTION 7.14 [Reserved]. ........................................................................................................... 66  SECTION 7.15 Financial Statements ............................................................................................ 66  SECTION 7.16 No Material Adverse Change .............................................................................. 66  SECTION 7.17 Solvency .............................................................................................................. 66  SECTION 7.18 Title to Properties................................................................................................. 66  SECTION 7.19 Litigation .............................................................................................................. 67  SECTION 7.20 Anti-Corruption Laws and Sanctions................................................................... 67  





 






TABLE OF CONTENTS  (continued)  Page  iv  SECTION 7.21 Absence of Defaults ............................................................................................. 67  SECTION 7.22 Senior Indebtedness Status .................................................................................. 67  SECTION 7.23 Disclosure ............................................................................................................ 67  ARTICLE VIII AFFIRMATIVE COVENANTS ....................................................................................... 68  SECTION 8.1 Financial Statements and Forecasts ..................................................................... 68  SECTION 8.2 Certificates; Other Reports .................................................................................. 69  SECTION 8.3 Notice of Litigation and Other Matters ................................................................ 70  SECTION 8.4 Preservation of Corporate Existence and Related Matters................................... 71  SECTION 8.5 Maintenance of Property and Licenses. ............................................................... 71  SECTION 8.6 Insurance .............................................................................................................. 71  SECTION 8.7 Accounting Methods and Financial Records ....................................................... 71  SECTION 8.8 Payment of Taxes and Other Obligations ............................................................ 71  SECTION 8.9 Compliance with Laws and Approvals ................................................................ 72  SECTION 8.10 Environmental Laws ............................................................................................ 72  SECTION 8.11 Compliance with ERISA ..................................................................................... 72  SECTION 8.12 Visits and Inspections .......................................................................................... 72  SECTION 8.13 Additional Subsidiaries. ....................................................................................... 72  SECTION 8.14 [Reserved]. ........................................................................................................... 73  SECTION 8.15 Use of Proceeds ................................................................................................... 73  SECTION 8.16 [Reserved]. ........................................................................................................... 74  SECTION 8.17 Further Assurances .............................................................................................. 74  SECTION 8.18 Anti-Corruption ................................................................................................... 74  ARTICLE IX NEGATIVE COVENANTS ................................................................................................ 74  SECTION 9.1 Indebtedness ........................................................................................................ 74  SECTION 9.2 Liens .................................................................................................................... 76  





 






TABLE OF CONTENTS  (continued)  Page  v  SECTION 9.3 Investments .......................................................................................................... 78  SECTION 9.4 Fundamental Changes .......................................................................................... 80  SECTION 9.5 Asset Dispositions................................................................................................ 81  SECTION 9.6 Restricted Payments ............................................................................................. 81  SECTION 9.7 Transactions with Affiliates ................................................................................. 82  SECTION 9.8 Accounting Changes; Organizational Documents. .............................................. 83  SECTION 9.9 Payments and Modifications of Subordinated Indebtedness. .............................. 83  SECTION 9.10 No Further Negative Pledges; Restrictive Agreements. ...................................... 83  SECTION 9.11 Nature of Business ............................................................................................... 84  SECTION 9.12 Sale Leasebacks ................................................................................................... 84  SECTION 9.13 [Reserved]. ........................................................................................................... 84  SECTION 9.14 Financial Covenants. ............................................................................................ 84  SECTION 9.15 [Reserved]. ........................................................................................................... 84  SECTION 9.16 Disposal of Subsidiary Interests .......................................................................... 84  SECTION 9.17 Use of Proceeds ................................................................................................... 84  ARTICLE X DEFAULT AND REMEDIES .............................................................................................. 85  SECTION 10.1 Events of Default ................................................................................................. 85  SECTION 10.2 Remedies .............................................................................................................. 86  SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver; etc. .......................................... 87  SECTION 10.4 Crediting of Payments and Proceeds ................................................................... 88  SECTION 10.5 Administrative Agent May File Proofs of Claim ................................................. 88  SECTION 10.6 Credit Bidding...................................................................................................... 89  ARTICLE XI THE ADMINISTRATIVE AGENT .................................................................................... 90  SECTION 11.1 Appointment and Authority. ................................................................................ 90  SECTION 11.2 Rights as a Lender................................................................................................ 90  





 






TABLE OF CONTENTS  (continued)  Page  vi  SECTION 11.3 Exculpatory Provisions. ....................................................................................... 90  SECTION 11.4 Reliance by the Administrative Agent ................................................................. 91  SECTION 11.5 Delegation of Duties ............................................................................................ 92  SECTION 11.6 Resignation of Administrative Agent. ................................................................. 92  SECTION 11.7 Non-Reliance on Administrative Agent and Other Lenders ................................ 93  SECTION 11.8 No Other Duties, Etc ............................................................................................ 93  SECTION 11.9 Collateral and Guaranty Matters. ......................................................................... 93  SECTION 11.10 Secured Hedge Agreements and Secured Cash Management Agreements ......... 94  SECTION 11.11 Certain ERISA Matters. ....................................................................................... 94  SECTION 11.12 Erroneous Payments. ........................................................................................... 95  ARTICLE XII MISCELLANEOUS ........................................................................................................... 97  SECTION 12.1 Notices. ................................................................................................................ 97  SECTION 12.2 Amendments, Waivers and Consents .................................................................. 99  SECTION 12.3 Expenses; Indemnity. ......................................................................................... 101  SECTION 12.4 Right of Setoff ................................................................................................... 102  SECTION 12.5 Governing Law; Jurisdiction, Etc. ..................................................................... 103  SECTION 12.6 Waiver of Jury Trial. .......................................................................................... 104  SECTION 12.7 Reversal of Payments ......................................................................................... 104  SECTION 12.8 Injunctive Relief ................................................................................................ 104  SECTION 12.9 Successors and Assigns; Participations. ............................................................ 104  SECTION 12.10 Treatment of Certain Information; Confidentiality ............................................ 109  SECTION 12.11 Performance of Duties ....................................................................................... 110  SECTION 12.12 All Powers Coupled with Interest ...................................................................... 110  SECTION 12.13 Survival. ............................................................................................................. 110  SECTION 12.14 Titles and Captions ............................................................................................ 110  





 






TABLE OF CONTENTS  (continued)  Page  vii  SECTION 12.15 Severability of Provisions .................................................................................. 110  SECTION 12.16 Counterparts; Integration; Effectiveness; Electronic Execution. ....................... 110  SECTION 12.17 Term of Agreement ............................................................................................ 111  SECTION 12.18 USA PATRIOT Act; Anti-Money Laundering Laws ........................................ 111  SECTION 12.19 Independent Effect of Covenants ....................................................................... 111  SECTION 12.20 No Advisory or Fiduciary Responsibility. ......................................................... 111  SECTION 12.21 Inconsistencies with Other Documents .............................................................. 112  SECTION 12.22 Acknowledgment and Consent to Bail-In of EEA Financial Institutions .......... 112  SECTION 12.23 Acknowledgement Regarding Any Supported QFC .......................................... 112      





 






  viii  EXHIBITS    Exhibit A-1 - Form of Revolving Credit Note  Exhibit A-2 - Form of Swingline Note  Exhibit B - Form of Notice of Borrowing  Exhibit C - Form of Notice of Account Designation  Exhibit D - Form of Notice of Prepayment  Exhibit E - Form of Notice of Conversion/Continuation  Exhibit F - Form of Officer’s Compliance Certificate  Exhibit G - Form of Assignment and Assumption  Exhibit H-1 - Form of U.S. Tax Compliance Certificate (Non-Partnership  Foreign Lenders)  Exhibit H-2 - Form of U.S. Tax Compliance Certificate (Non-Partnership  Foreign Participants)  Exhibit H-3 - Form of U.S. Tax Compliance Certificate (Foreign Participant  Partnerships)  Exhibit H-4 - Form of U.S. Tax Compliance Certificate (Foreign Lender  Partnerships)  Exhibit I - Funding Indemnity Letter    SCHEDULES  Schedule 1.1(b) - Commitments and Commitment Percentages                                                      





 






  1   AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 20, 2021, by and among KFORCE INC.,  a Florida corporation, as Borrower, the Subsidiary Guarantors who are or may become party to this Agreement, the  lenders who are party to this Agreement and the lenders who may become a party to this Agreement pursuant to the  terms hereof, as Lenders, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association,  as Administrative Agent for the Lenders.  STATEMENT OF PURPOSE  WHEREAS, the Borrower, the Subsidiary Guarantors, the lenders party thereto and Wells Fargo Bank, National  Association, in its capacity as administrative agent, are parties to that certain Credit Agreement, dated as of May 25,  2017 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Original Credit  Agreement”);  WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent amend and restate the  Original Credit Agreement and replace it in its entirety with this Agreement; and   WHEREAS, the Lenders party hereto and the Administrative Agent have consented to the amendment and  restatement of the Original Credit Agreement in the form hereof on the terms and subject to the conditions set forth  herein.  NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby  acknowledged by the parties hereto, such parties hereby agree as follows:  ARTICLE I    DEFINITIONS  SECTION 1.1 Definitions.  The following terms when used in this Agreement shall have the meanings  assigned to them below:  “Administrative Agent” means Wells Fargo, in its capacity as Administrative Agent hereunder, and any  successor thereto appointed pursuant to Section 11.6.  “Administrative Agent’s Office” means the office of the Administrative Agent specified in or determined in  accordance with the provisions of Section 12.1(c).  “Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative  Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.  “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or  more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.  “Agreement” means this Amended and Restated Credit Agreement.  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to Borrower or its  Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the United  States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.  “Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatory government orders,  decrees, ordinances or rules applicable to a Credit Party, its Subsidiaries or Affiliates related to terrorism financing or  money laundering, including any applicable provision of the Patriot Act and The Currency and Foreign Transactions  





 






  2   Reporting Act (also known as the “Bank Secrecy Act,” 31U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818 (s), 1820(b) and  1951-1959).  “Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties,  regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities and all orders  and decrees of all courts and arbitrators.  “Applicable Margin” means the corresponding percentages per annum as set forth below based on the Total  Leverage Ratio:  Pricing  Level  Total Leverage Ratio Commitment Fee LIBOR + Base Rate +  I Less than 1.25 to 1.00 0.200% 1.125% 0.125%  II Greater than or equal to 1.25 to 1.00, but  less than 1.75 to 1.00  0.200% 1.250% 0.250%  III Greater than or equal to 1.75 to 1.00, but  less than 2.25 to 1.00  0.250% 1.375% 0.375%  IV Greater than or equal to 2.25 to 1.00 0.300% 1.500% 0.500%        The Applicable Margin shall be determined and adjusted quarterly among the above-referenced pricing levels (each a  “Pricing Level”) on the date five (5) Business Days after the day on which Borrower provides an Officer’s Compliance  Certificate pursuant to Section 8.2(a) for the most recently ended Fiscal Quarter of Borrower (each such date, a  “Calculation Date”); provided that (a) the Applicable Margin shall be based on “Pricing Level I” until the first  Calculation Date occurring after the Closing Date and, thereafter the Pricing Level shall be determined by reference to  the Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter of Borrower preceding the  applicable Calculation Date, and (b) if Borrower fails to provide an Officer’s Compliance Certificate when due as  required by Section 8.2(a) for the most recently ended Fiscal Quarter of Borrower preceding the applicable Calculation  Date, the Applicable Margin from the date on which such Officer’s Compliance Certificate was required to have been  delivered shall be based on “Pricing Level IV” until such time as such Officer’s Compliance Certificate is delivered, at  which time the Pricing Level shall be determined by reference to the Total Leverage Ratio as of the last day of the most  recently ended Fiscal Quarter of Borrower preceding such Calculation Date and adjusted on the date five (5) Business  days after the submission of the Officer’s Compliance Certificate.  The applicable Pricing Level shall be effective from  one Calculation Date until the next Calculation Date.  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 Officer’s Compliance Certificate delivered  pursuant to Section 8.1 or 8.2(a) is shown to be inaccurate (regardless of whether (i) this Agreement is in effect, (ii) any  Commitments are in effect, or (iii) any Extension of Credit is outstanding when such inaccuracy is discovered or such  financial statement or Officer’s 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) Borrower shall promptly deliver to the Administrative Agent a corrected  Officer’s Compliance Certificate for such Applicable Period, (B) the Applicable Margin for such Applicable Period shall  be determined as if the Total Leverage Ratio in the corrected Officer’s Compliance Certificate were applicable for such  Applicable Period, and (C) Borrower shall be obligated to pay to the Administrative Agent within three (3) Business  Days 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.  Nothing  in this paragraph shall limit the rights of the Administrative Agent and Lenders with respect to Sections 5.1(b) and 10.2  nor any of their other rights under this Agreement or any other Loan Document.  Borrower’s obligations under this  paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder.  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender  or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  





 






  3   “Arranger” means Wells Fargo Securities, LLC in its capacity as lead arranger and bookrunner.  “Asset Disposition” means the sale, transfer, license, lease or other disposition of any Property (including any  disposition of owned Equity Interests) by any Credit Party or any Subsidiary thereof (or the granting of any option or  other right to do any of the foregoing), and any issuance of Equity Interests by any Subsidiary of Borrower to any Person  that is not a Credit Party or any Subsidiary thereof.  The term “Asset Disposition” shall not include (a) the sale of  inventory in the ordinary course of business or the sale or other disposition of obsolete or aged assets, (b) the transfer of  assets to Borrower or any Subsidiary Guarantor pursuant to any other transaction permitted pursuant to Section 9.4, (c)  the write-off, discount, sale or other disposition of defaulted or past-due receivables and similar obligations in the  ordinary course of business and not undertaken as part of an accounts receivable financing transaction, (d) the  disposition of any Hedge Agreement, (e) dispositions of Investments in cash and Cash Equivalents, (f) the transfer by  any Credit Party of its assets to any other Credit Party or any Domestic Subsidiary, (g) the transfer by any Non- Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any new transfer, such Credit  Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith by such  Credit Party at the time of such transfer) and (h) the transfer by any Non-Guarantor Subsidiary of its assets to any other  Non-Guarantor Subsidiary.   “Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible  Assignee (with the consent of any party whose consent is required by Section 12.9), and accepted by the Administrative  Agent, in substantially the form attached as Exhibit G or any other form approved by the Administrative Agent.  “Attributable Indebtedness” means, on any date of determination, (a) in respect of any Capital Lease of any  Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in  accordance with GAAP, and (b) in respect of any Synthetic Lease, the capitalized amount or principal amount of the  remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of  such date in accordance with GAAP if such lease were accounted for as a Capital Lease.  “Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as  applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be  used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for  interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any  frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and  not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of  “Interest Period” pursuant to Section 5.8(c)(iv).  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution  Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive  2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation,  rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation  Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended  from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of  unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through  liquidation, administration or other insolvency proceedings).  “Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus 0.50% and (c)  LIBOR for an Interest Period of one month plus 1%; each change in the Base Rate shall take effect simultaneously with  the corresponding change or changes in the Prime Rate, the Federal Funds Rate or LIBOR (provided that clause (c) shall  not be applicable during any period in which LIBOR is unavailable or unascertainable as described in Section 5.8).   “Base Rate Loan” means any Loan that bears interest based on the Base Rate.   





 






  4   “Benchmark” means, initially, USD LIBOR; provided that if a Benchmark Transition Event, a Term SOFR  Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related  Benchmark Replacement Date have occurred with respect to USD LIBOR or the then-current Benchmark, then  “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has  replaced such prior benchmark rate pursuant to Section 5.8(c)(i).  “Benchmark Replacement” means, for any Available Tenor,  (a) with respect to any Benchmark Transition Event or Early Opt-in Election, the first alternative set forth in  the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:    (1) the sum of: (A) Term SOFR and (B) the related Benchmark Replacement Adjustment; provided,  that, if the Borrower has provided a notification to the Administrative Agent in writing on or prior to such  Benchmark Replacement Date that the Borrower has a Hedge Agreement in place with respect to any of the  Loans as of the date of such notice (which such notification the Administrative Agent shall be entitled to rely  upon and shall have no duty or obligation to ascertain the correctness or completeness of), then the  Administrative Agent, in its sole discretion, may decide not to determine the Benchmark Replacement pursuant  to this clause (a)(1) for such Benchmark Transition Event or Early Opt-in Election, as applicable;  (2) the sum of: (A) Daily Simple SOFR and (B) the related Benchmark Replacement Adjustment;   (3) the sum of: (A) the alternate benchmark rate that has been selected by the Administrative Agent  and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor  giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the  mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then- prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark  for Dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement  Adjustment;   (b) with respect to any Term SOFR Transition Event, the sum of (i) Term SOFR and (ii) the related  Benchmark Replacement Adjustment; or  (c) with respect to any Other Benchmark Rate Election, the sum of: (i) the alternate benchmark rate that has  been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the  applicable Corresponding Tenor giving due consideration to any evolving or then-prevailing market convention for  determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit  facilities at such time and (ii) the related Benchmark Replacement Adjustment;  provided that, (i) in the case of clause (a)(1), if the Administrative Agent decides that Term SOFR is not administratively  feasible for the Administrative Agent, then Term SOFR will be deemed unable to be determined for purposes of this  definition and (ii) in the case of clause (a)(1) or clause (b) of this definition, the applicable Unadjusted Benchmark  Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected  by the Administrative Agent in its reasonable discretion. If the Benchmark Replacement as determined pursuant to  clause (a)(1), (a)(2) or (a)(3), clause (b) or clause (c) of this definition would be less than the Floor, the Benchmark  Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark  with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of  such Unadjusted Benchmark Replacement:   (1) for purposes of clauses (a)(1) and (b) of the definition of “Benchmark Replacement,” an amount equal to  (A) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, (B) 0.26161% (26.161 basis points)  for an Available Tenor of three-months’ duration and (C) 0.42826% (42.826 basis points) for an Available Tenor of six- months’ duration;  





 






  5   (2) for purposes of clause (a)(2) of the definition of “Benchmark Replacement,” an amount equal to  0.11448% (11.448 basis points); and  (3) for purposes of clause (a)(3) of the definition of “Benchmark Replacement,” the spread adjustment, or  method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that  has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or  recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the  replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement by  the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing  market convention for determining a spread adjustment, or method for calculating or determining such spread  adjustment, for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark  Replacement for Dollar-denominated syndicated credit facilities; and  (4) for purposes of clause (c) of the definition of “Benchmark Replacement,” the spread adjustment, or  method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that  has been selected by the Administrative Agent and the Borrower giving due consideration to any evolving or then- prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread  adjustment, for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark  Replacement for Dollar-denominated syndicated credit facilities.  “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any  technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of  “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of  interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the  applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative  Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to  permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice  (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively  feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark  Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary  in connection with the administration of this Agreement and the other Loan Documents).   “Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then- current Benchmark:  (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (a) the date  of the public statement or publication of information referenced therein and (b) the date on which the administrator of  such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to  provide all Available Tenors of such Benchmark (or such component thereof);  (b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public  statement or publication of information referenced therein;  (c) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the Administrative  Agent has provided the Term SOFR Notice to the Lenders and the Borrower pursuant to Section 5.8(c)(i)(B); or  (d) in the case of an Early Opt-in Election or an Other Benchmark Rate Election, the sixth (6th) Business  Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to  the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th)  Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is  provided to the Lenders, written notice of objection to such Early Opt-in Election or Other Benchmark Rate Election, as  applicable, from Lenders comprising the Required Lenders.  





 






  6   For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as,  but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed  to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be  deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the  applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the  published component used in the calculation thereof).  “Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the  then-current Benchmark:  (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark  (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease  to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided  that, at the time of such statement or publication, there is no successor administrator that will continue to provide any  Available Tenor of such Benchmark (or such component thereof);  (b) a public statement or publication of information by the regulatory supervisor for the administrator of  such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of  New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a  resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an  entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component),  which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all  Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time  of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of  such Benchmark (or such component thereof); or  (c) a public statement or publication of information by the regulatory supervisor for the administrator of  such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of  such Benchmark (or such component thereof) are no longer representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any  Benchmark if a public statement or publication of information set forth above has occurred with respect to each then- current Available Tenor of such Benchmark (or the published component used in the calculation thereof).  “Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark  Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark  Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in  accordance with Section 5.8(c) and (y) ending at the time that a Benchmark Replacement has replaced the then-current  Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.8(c).  “Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the  Beneficial Ownership Regulation.    “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.    “Borrower” means Kforce Inc., a Florida corporation.  “Borrower Materials” has the meaning assigned thereto in Section 8.2.  “Business Day” means (a) for all purposes other than as set forth in clause (b) below, any day other than a  Saturday, Sunday or legal holiday on which banks in New York, New York, are open for the conduct of their  commercial banking business and (b) with respect to all notices and determinations in connection with, and payments of  principal and interest on, any LIBOR Rate Loan, or any Base Rate Loan as to which the interest rate is determined by  reference to LIBOR, any day that is a Business Day described in clause (a) and that is also a London Banking Day.  





 






  7   “Calculation Date” has the meaning assigned thereto in the definition of Applicable Margin.  “Capital Expenditures” means, with respect to Borrower and its Subsidiaries on a Consolidated basis, for any  period, (a) the additions to property, plant and equipment and other capital expenditures that are (or would be) set forth  as capital expenditures in a consolidated statement of cash flows of such Person for such period prepared in accordance  with GAAP and (b) additions for implementation costs of a hosting arrangement that is a service contract after giving  effect to Accounting Standards Update No. 2018-15.  “Capital Lease” means any lease of (or other arrangement conveying the right to use) real or personal property,  or a combination thereof, for which the lessee’s obligations are or would be required to be classified and accounted for  as capital leases on a balance sheet of such Person under GAAP as in effect on the Closing Date (assuming for such  purposes that the leases were in existence on the Closing Date), without regard to any classification or reclassification as  financing or operating leases upon the Person’s adoption of leasing standard ASC 842.  “Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts  under any Capital Lease, and the amount of such obligations shall be the capitalized amount thereof determined in  accordance with GAAP.  “Cash Collateralize” means, to deposit in a Controlled Account or to pledge and deposit with, or deliver to the  Administrative Agent, or directly to the applicable Issuing Lender (with notice thereof to the Administrative Agent), for  the benefit of one or more of the Issuing Lenders, the Swingline Lender or the Lenders, as collateral for L/C Obligations  or obligations of the Lenders to fund participations in respect of L/C Obligations or Swingline Loans, cash or deposit  account balances or letters of credit from financial institutions reasonably acceptable to the Administrative Agent (and  the applicable Issuing Lender or Swingline Lender), or, at Borrower’s request and if the Administrative Agent and the  applicable Issuing Lender and the Swingline 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, such Issuing Lender and the  Swingline Lender, as applicable.  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include  the proceeds of such cash collateral and other credit support.   “Cash Equivalents” means, collectively, (a) marketable direct obligations issued or unconditionally guaranteed  by the United States or any agency thereof maturing within one (1) year from the date of acquisition thereof, (b)  commercial paper maturing no more than one (1) year from the date of creation thereof and currently having a rating of  either A-2 by S&P or P-2 by Moody’s, (c) certificates of deposit maturing no more than one (1) year from the date of  creation thereof issued by commercial banks incorporated under the laws of the United States, and having a rating of “A”  or better by a nationally recognized rating agency; provided that the aggregate amount invested in such certificates of  deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such  bank, (d) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks  or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which  are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder or (e)  investments, classified in accordance with GAAP as current assets of Borrower, in money market programs registered  under the Investment Company Act of 1940, having the quality and maturity described in (a), (b) and (c) above.  “Cash Management Agreement” means any agreement to provide cash management services, including treasury,  depository, overdraft, credit or debit card (including non-card electronic payables), electronic funds transfer and other  cash management arrangements.  “Cash Management Bank” means any Person that, (a) at the time it enters into a Cash Management Agreement  with a Credit Party, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative  Agent, or (b) at the time it (or its Affiliate) becomes a Lender (including on the Closing Date), is a party to a Cash  Management Agreement with a Credit Party, in each case in its capacity as a party to such Cash Management  Agreement.  





 






  8   “Change in Control” means an event or series of events by which (i) any “person” or “group” (as such terms are  used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its  Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any  such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or  indirectly, of more than thirty-five percent (35%) of the Equity Interests of Borrower entitled to vote in the election of  members of the board of directors (or equivalent governing body) of Borrower or (ii) a majority of the members of the  board of directors (or other equivalent governing body) of Borrower shall not constitute Continuing Directors.   “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the  adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in  the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the  making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any  Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street  Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection  therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the  Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign  regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”,  regardless of the date enacted, adopted or issued.  “Class” means, when used in reference to any Loan, whether such Loan is a Revolving Credit Loan or Swingline  Loan.  “Closing Date” means the date of this Agreement.  “Code” means the Internal Revenue Code of 1986, and the rules and regulations promulgated thereunder.  “Collateral” means the collateral security for the Secured Obligations pledged or granted pursuant to the  Security Documents.  “Collateral Agreement” means the Guaranty and Security Agreement dated as of May 25, 2017, executed by the  Credit Parties in favor of the Administrative Agent, for the ratable benefit of the Secured Parties.  “Commitment” means, (a) as to any Lender, the obligation of such Lender to make Revolving Credit Loans to,  and to purchase participations in L/C Obligations and Swingline Loans for the account of, Borrower hereunder in an  aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Lender’s name on  the Register, as such amount may be modified at any time or from time to time pursuant to the terms hereof and (b) the  aggregate commitment of all Lenders to make Revolving Credit Loans, as such amount may be modified at any time or  from time to time pursuant to the terms hereof.  The aggregate Commitment of all the Lenders on the Closing Date shall  be Two Hundred Million Dollars ($200,000,000).  The Commitment of each Lender as of the Closing Date is set forth  opposite the name of such Lender on Schedule 1.1(b).  “Commitment Fee” has the meaning assigned thereto in Section 5.3(a).  “Commitment Percentage” means the percentage of the total Commitments of all the Lenders.  If the  Commitments have terminated or expired, the Commitment Percentages shall be determined based upon the  Commitments most recently in effect, giving effect to any assignments.  The initial Commitment of each Lender is set  forth opposite the name of such Lender on Schedule 1.1(b).   “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).  “Competitor” means any Person that is a competitor engaged in any of the same or similar lines of business as  engaged in by Borrower or any of its Subsidiaries.  





 






  9   “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income  (however denominated) or that are franchise Taxes or branch profits Taxes.  “Consolidated” means, when used with reference to financial statements or financial statement items of any  Person, such statements or items on a consolidated basis in accordance with applicable principles of consolidation under  GAAP.  “Consolidated Assets” means, as of any date of determination, the Consolidated assets of Borrower and its  Subsidiaries at such date, as determined in accordance with GAAP.  “Consolidated EBITDA” means, for any period, the sum of the following determined on a Consolidated basis,  without duplication, for Borrower and its Subsidiaries in accordance with GAAP: (a) Consolidated Net Income for such  period plus (b) the sum of the following, without duplication, to the extent deducted in determining Consolidated Net  Income for such period: (i) the provision for federal, state, local and foreign taxes, (ii) Consolidated Interest Expense,  (iii) amortization and depreciation expenses, (iv) amortization associated with implementation costs of a hosting  arrangement that is a service contract after giving effect to Accounting Standards Update No. 2018-15, (v) share based  compensation expense to the extent not settled in cash, (vi) losses from discontinued operations, (vii) severance amounts  paid or accrued (to the extent not added back in a prior period) and charges incurred during such period in connection  with the redemption or repurchase of options or shares of former employees of Borrower and its Subsidiaries in an  aggregate amount not to exceed $4,000,000 during any four (4) consecutive Fiscal Quarter period, (viii) Transaction  Costs; provided that the aggregate amount of Transaction Costs related to Permitted Acquisitions or any proposed  acquisition that does not close added back under this clause (viii) shall not exceed $5,000,000 (unless otherwise agreed  to by the Administrative Agent in its reasonable discretion) for similar acquisitions during any four (4) consecutive  Fiscal Quarter period, (ix) any losses on sales of or impairment of property, plants, equipment and intangible assets, (x)  other expenses reducing Consolidated Net Income that do not represent a cash item in such period or future periods, (xi)  other reasonable non-recurring or unusual cash expenses incurred during such period not to exceed $3,000,000 during  any four (4) consecutive Fiscal Quarter period, (xii) any extraordinary charges and (xiii) the amount of loss or discount  on sale of Receivables Assets and related assets in connection with a Receivables Facility, less (c) the sum of the  following, without duplication, to the extent included in determining Consolidated Net Income for such period: (i)  interest income, (ii) any extraordinary gains (including income or gains from discontinued operations), (iii) non-cash  gains or non-cash items increasing Consolidated Net Income, (iv) any gains on sales of property, plant and equipment  and (v) the amount of gain on sale of Receivables Assets and related assets in connection with a Receivables Facility.   For purposes of this Agreement, Consolidated EBITDA shall be adjusted on a Pro Forma Basis.  “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) (i)  Consolidated EBITDA for the period of four (4) consecutive Fiscal Quarters ending on or immediately prior to such date  minus (ii) Capital Expenditures paid in cash for the period of four (4) consecutive Fiscal Quarters ending on or  immediately prior to such date minus (iii) (d) federal, state, local and foreign income taxes paid in cash for the period of  four (4) consecutive Fiscal Quarters ending on or immediately prior to such date to the extent permitted hereunder minus  (iv) cash dividends and distributions paid in cash for the period of four (4) consecutive Fiscal Quarters ending on or  immediately prior to such date to the extent permitted hereunder (excluding, for the avoidance of doubt, any repurchase  of Equity Interests) to (b) Consolidated Fixed Charges for the period of four (4) consecutive Fiscal Quarters ending on or  immediately prior to such date.    “Consolidated Fixed Charges” means, for any period, the sum of the following determined on a Consolidated  basis for such period, without duplication, for Borrower and its Subsidiaries in accordance with GAAP: (a) Consolidated  Interest Expense paid in cash, and (b) scheduled principal payments whether paid or not with respect to Indebtedness.    “Consolidated Interest Expense” means, for any period, the sum of the following determined on a Consolidated  basis, without duplication, for Borrower and its Subsidiaries in accordance with GAAP, interest expense (including,  without limitation, interest expense attributable to Capital Lease Obligations and all net payment obligations pursuant to  Hedge Agreements) for such period, but excluding the amortization of fees associated with the Transactions.  





 






  10   “Consolidated Net Income” means, for any period, the net income (or loss) of Borrower and its Subsidiaries for  such period, determined on a Consolidated basis, without duplication, in accordance with GAAP; provided, that in  calculating Consolidated Net Income of Borrower and its Subsidiaries for any period, there shall be excluded (a) the net  income (or loss) of any Person (other than a Subsidiary which shall be subject to clause (c) below), in which Borrower or  any of its Subsidiaries has a joint interest with a third party and that joint interest does not result in such Person being a  Subsidiary, except such net income may be included up to the aggregate amount of cash actually paid by such Person to  Borrower or any of its Subsidiaries by dividend or other distribution during such period, (b) the net income (or loss) of  any Person accrued prior to the date it becomes a Subsidiary of Borrower or any of its Subsidiaries or is merged into or  consolidated with Borrower or any of its Subsidiaries or that Person’s assets are acquired by Borrower or any of its  Subsidiaries except to the extent included pursuant to the foregoing clause (a), and (c) the net income (if positive), of any  Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to  Borrower or any of its Subsidiaries of such net income (i) is not at the time permitted by operation of the terms of its  charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such  Subsidiary or (ii) would be subject to any taxes payable on such dividends or distributions, but in each case only to the  extent of such prohibition or taxes.  “Consolidated Total Indebtedness” means, as of any date of determination with respect to Borrower and its  Subsidiaries on a Consolidated basis without duplication, the sum of all Indebtedness of Borrower and its Subsidiaries.  “Continuing Directors” means the directors of Borrower on the Closing Date and each other director of  Borrower, if, in each case, such other director’s nomination for election to the board of directors (or equivalent  governing body) of Borrower is approved by at least 51% of the then Continuing Directors.  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the  management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.   “Controlling” and “Controlled” have meanings correlative thereto.  “Controlled Account” means each deposit account and securities account that is subject to an account control  agreement in form and substance reasonably satisfactory to the Administrative Agent at the time such control agreement  is executed.  “Corresponding Tenor” means, with respect to any Available Tenor means, as applicable, either a tenor  (including overnight) or an interest payment period having approximately the same length (disregarding business day  adjustment) as such Available Tenor.  “Credit Facility” means, collectively, the Revolving Credit Facility, the Swingline Facility and the L/C Facility.  “Credit Parties” means, collectively, Borrower and the Subsidiary Guarantors.  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a  lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or  recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans;  provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the  Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.  “Debt Issuance” means the issuance of any Indebtedness for borrowed money by any Credit Party or any of its  Subsidiaries.  “Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership,  insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time  to time in effect.  





 






  11   “Default” means any of the events specified in Section 10.1 which with the passage of time, the giving of notice  or any other condition, would constitute an Event of Default.  “Defaulting Lender” means, subject to Section 5.15(b), any Lender that (a) has failed to (i) fund all or any  portion of the Revolving Credit Loans, participations in L/C Obligations or participations in Swingline Loans required to  be funded by it hereunder within one Business Day of the date such Loans or participations were required to be funded  hereunder unless such Lender notifies the Administrative Agent and 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, any Issuing Lender, the Swingline Lender or any other Lender any other amount required to  be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within one  Business Day of the date when due, (b) has notified Borrower, the Administrative Agent, any Issuing Lender or the  Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a  public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan  hereunder and states that such position is based on such Lender’s good faith 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 Borrower, to confirm in writing to the Administrative Agent and Borrower that it will comply  with and is financially able to meet 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 Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a  proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee,  administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its  business or assets, including the FDIC or any other state or federal regulatory authority acting in such a capacity or (iii)  become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the  ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a  Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity  from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on  its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any  contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a  Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent  manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 5.15(b)) upon delivery of  written notice of such determination to Borrower, each Issuing Lender, the Swingline Lender and each other Lender.  “Disclosure Letter” means that certain side letter dated as of the date hereof between Borrower and the  Administrative Agent, for the benefit of the Lenders, pursuant to which Borrower has attached (a) as Schedule 1 thereto,  the jurisdictions in which each Credit Party and each Subsidiary thereof are organized as of the Closing Date, (b) as  Schedule 2 thereto, the subsidiary and capitalization information for each Credit Party (other than the capitalization  information for Borrower) as of the Closing Date, (c) as Schedule 3 thereto, any ongoing audit or examination or, to the  knowledge of any Responsible Officer, other investigation by any Governmental Authority of the tax liability of any  Credit Party or any Subsidiary thereof, (d) as Schedule 4 thereto, all of the Employee Benefit Plans as of the Closing  Date, (e) as Schedule 6 thereto, the labor and collective bargaining agreements of the Credit Parties and their  Subsidiaries existing as of the Closing Date, (f) as Schedule 7 thereto, all real property owned by the Credit Parties and  their Subsidiaries existing as of the Closing Date, (g) as Schedule 9 thereto, the Indebtedness of the Credit Parties and  their Subsidiaries existing as of the Closing Date, (h) as Schedule 10 thereto, the Liens of the Credit Parties and their  Subsidiaries existing as of the Closing Date, (i) as Schedule 11 thereto, the loans, advances and Investments of the Credit  Parties and their Subsidiaries existing as of the Closing Date, and (j) as Schedule 12 thereto, transactions with Affiliates  of the Credit Parties and their Subsidiaries existing as of the Closing Date.  “Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or  other Equity Interest into which they are convertible or for which they are exchangeable) or upon the happening of any  event or condition, (a)  mature or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant  to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of  





 






  12   the holders thereof upon the occurrence of a change of control or asset sale event shall be (i) subject to the prior  repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the  Commitments or (ii) otherwise consented to by the Required Lenders), (b) are redeemable at the option of the holder  thereof (other than solely for Qualified Equity Interests) (except as a result of a change of control or asset sale so long as  any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be (i) subject to the  prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the  Commitments or (ii) otherwise consented to by the Required Lenders), in whole or in part, (c) provide for the scheduled  payment of dividends in cash or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity  Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the  Maturity Date; provided that if such Equity Interests is issued pursuant to a plan for the benefit of Borrower or its  Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity  Interests solely because they may be required to be repurchased by Borrower or its Subsidiaries in order to satisfy  applicable statutory or regulatory obligations.  “Disqualified Institution” means, on any date, (a) any Person that is both (i) a Competitor or the direct or indirect  Controlling owner of such Competitor and (ii) designated by Borrower as a “Disqualified Institution” by written notice  to the Administrative Agent and the Lenders not less than three (3) Business Days prior to such date (which such notice  shall specify such Person by exact legal name or in another manner that, on the basis of its name, would reasonably  identify such Person as a Person referenced in clause (i) above) and (b) any Affiliate of any Person described in clause  (a) above that is reasonably identifiable as an Affiliate of such Person solely by its name; provided that “Disqualified  Institutions” shall exclude any Person that Borrower has designated as no longer being a “Disqualified Institution” by  written notice delivered to the Administrative Agent from time to time; provided further that any bona fide debt fund or  investment vehicle that is engaged in making, purchasing, holding or otherwise investing in commercial loans and  similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by any Person  Controlling, Controlled by or under common Control with such Competitor or its Controlling owner and for which no  personnel involved with the competitive activities of such Competitor or Controlling owner (i) makes any investment  decisions for such debt fund or (ii) has access to any confidential information (other than publicly available information)  relating to Borrower and its Subsidiaries, shall be deemed not to be a Competitor of Borrower or any of its Subsidiaries.   “Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency of the United States.  “Domestic Subsidiary” means any Subsidiary organized under the laws of any political subdivision of the United  States.  “DQ List” has the meaning assigned thereto in Section 12.9.  “Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the occurrence of:  (a) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative  Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated  credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including  SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are  identified in such notice and are publicly available for review), and  (b) the joint election by the Administrative Agent and the Borrower to trigger a fallback from USD LIBOR  and the provision by the Administrative Agent of written notice of such election to the Lenders.  “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member  Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA  Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial  institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)  of this definition and is subject to consolidated supervision with its parent.  





 






  13   “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and  Norway.  “EEA Resolution Authority” means any public administrative authority or any Person entrusted with public  administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of  any credit institution or investment firm established in any EEA Member Country.  “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 12.9(b)(iii),  (v) and (vi) (subject to such consents, if any, as may be required under Section 12.9(b)(iii)).  For the avoidance of doubt,  any Disqualified Institution is subject to Section 12.9(f).  “Employee Benefit Plan” means (a) any employee benefit plan within the meaning of Section 3(3) of ERISA  that is maintained or contributed to by any Credit Party or any ERISA Affiliate and (b) any Pension Plan or  Multiemployer Plan that has at any time within the preceding seven (7) years been maintained or contributed to (or with  respect to which there is or has been an obligation to contribute to) by any Credit Party or any current or former ERISA  Affiliate.  “Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands,  demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, investigations (other than  internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or  request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any  Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law,  including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal,  response, remedial or other actions or damages, contribution, indemnification, cost recovery, compensation or injunctive  relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to public health or the  environment.  “Environmental Laws” means any and all federal, foreign, state, provincial and local laws, statutes, ordinances,  codes, rules, standards and regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental  Authorities, relating to the protection of public health or the environment, including, but not limited to, requirements  pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling,  reporting, licensing, permitting, investigation or remediation of Hazardous Materials.  “Equity Interests” means (a) in the case of a corporation, capital stock, (b) in the case of an association or  business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital  stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited  liability company, membership interests, (e) any other interest or participation that confers on a Person the right to  receive a share of the profits and losses of, or distributions of assets of, the issuing Person and (f) any and all warrants,  rights or options to purchase any of the foregoing.  “ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and regulations  thereunder.  “ERISA Affiliate” means any Person who together with any Credit Party or any of its Subsidiaries would be  deemed at any relevant time to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code  or Section 4001(b) of ERISA.  “Erroneous Payment” has the meaning assigned thereto in Section 11.12(a).  “Erroneous Payment Deficiency Assignment” has the meaning assigned thereto in Section 11.12(d).  “Erroneous Payment Impacted Class” has the meaning assigned thereto in Section 11.12(d).  “Erroneous Payment Return Deficiency” has the meaning assigned thereto in Section 11.12(d).  





 






  14   “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market  Association (or any successor thereto), as in effect from time to time.  “Eurodollar Reserve Percentage” means, for any day, the percentage which is in effect for such day as  prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum  reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of  eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New  York City.  “Event of Default” means any of the events specified in Section 10.1; provided that any requirement for passage  of time, giving of notice, or any other condition, has been satisfied.  “Exchange Act” means the Securities Exchange Act of 1934.  “Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent  that, all or a portion of the liability of such Credit Party for or the guarantee of such Credit Party of, or the grant by such  Credit Party of a security interest to secure, such Swap Obligation (or any liability or guarantee thereof) is or becomes  illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading  Commission (or the application or official interpretation of any thereof) by virtue of such Credit Party’s failure for any  reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations  thereunder at the time the liability for or the guarantee of such Credit Party or the grant of such security interest becomes  effective with respect to such Swap Obligation (such determination being made after giving effect to any applicable  keepwell, support or other agreement for the benefit of the applicable Credit Party).  If a Swap Obligation arises under a  master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation  that is attributable to swaps for which such guarantee or security interest is or becomes illegal for the reasons identified  in the immediately preceding sentence of this definition.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be  withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however  denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being  organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office  located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection  Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the  account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the  date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment  request by Borrower under Section 5.12(b)) or (ii) such Lender changes its lending office, except in each case to the  extent that, pursuant to Section 5.11, amounts with respect to such Taxes were payable either to such Lender's assignor  immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending  office, (c) Taxes attributable to such Recipient’s failure to comply with Section 5.11(g), (d) any United States federal  withholding Taxes imposed under FATCA and (e) all liabilities, penalties and interest with respect to any of the  foregoing.  “Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the sum of (i) the aggregate  principal amount of all Revolving Credit Loans made by such Lender then outstanding, (ii) such Lender’s Commitment  Percentage of the L/C Obligations then outstanding and (iii) such Lender’s Commitment Percentage of the Swingline  Loans then outstanding, or (b) the making of any Loan or participation in any Letter of Credit by such Lender, as the  context requires.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or  successor version that is substantively comparable and not materially more onerous to comply with), any current or  future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the  Code and any applicable intergovernmental agreements with respect thereto.  





 






  15   “FCA” has the meaning assigned thereto in Section 1.13.  “FDIC” means the Federal Deposit Insurance Corporation.  “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on  overnight federal funds transactions with members of the Federal Reserve System on such day (or, if such day is not a  Business Day, for the immediately preceding Business Day), as published by the Federal Reserve Bank of New York on  the Business Day next succeeding such day, provided that if such rate is not so published for any day which is a Business  Day, the Federal Funds Rate for such day shall be the average of the quotations for such day on such transactions  received by the Administrative Agent from three federal funds brokers of recognized standing selected by the  Administrative Agent.  Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall  be deemed to be zero for purposes of this Agreement.   “Fee Letter” means (a) that certain fee letter agreement dated February 28, 2017 among Borrower, Wells Fargo,  and Wells Fargo Securities, LLC, (b) that certain fee letter agreement dated September 23, 2021 among Borrower, Wells  Fargo, and Wells Fargo Securities, LLC and (c) any other letter between Borrower and any Issuing Lender (other than  Wells Fargo) relating to certain fees payable to such Issuing Lender in its capacity as such.  “First Tier Foreign Subsidiary” means any Foreign Subsidiary that is a “controlled foreign corporation” within  the meaning of Section 957 of the Code and the Equity Interests of which are owned directly by any Credit Party.  “Fiscal Quarter” means each fiscal quarter ending on March 31, June 30, September 30 and December 31 during  each Fiscal Year.  “Fiscal Year” means the fiscal year of Borrower and its Subsidiaries ending on December 31 of each year.  “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this  Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to USD LIBOR.  “Foreign Lender” means (a) if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if Borrower  is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which  Borrower is resident for tax purposes.  “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.  “FRB” means the Board of Governors of the Federal Reserve System of the United States.   “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Lender,  such Defaulting Lender’s Commitment Percentage of the outstanding L/C Obligations with respect to Letters of Credit  issued by such Issuing Lender, other than such L/C 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 the Swingline Lender, such Defaulting Lender’s Commitment Percentage of outstanding Swingline Loans  other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other  Lenders, repaid by Borrower or Cash Collateralized in accordance with the terms hereof.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing,  holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its  activities.  “GAAP” means generally accepted accounting principles in the United States set forth in the opinions and  pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and  statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be  approved by a significant segment of the accounting profession in the United States, consistently applied and as in effect  from time to time.  





 






  16   “Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and exemptions of,  and all registrations and filings with or issued by, any Governmental Authorities.  “Governmental Authority” means the government of the United States or any other nation, or of any political  subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central  bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of  or pertaining to government (including any supra-national bodies such as the European Union or the European Central  Bank).  “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the  guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other  Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the  guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such  Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the  payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such  Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other  financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such  Indebtedness or other obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to  support such Indebtedness or obligation or (e) for the purpose of assuming in any other manner the obligee in respect of  such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in  respect thereof (whether in whole or in part).  “Hazardous Materials” means any substances or materials (a) which are or become defined as hazardous wastes,  hazardous substances, pollutants, contaminants, chemical substances or mixtures or toxic substances under any  Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,  mutagenic or otherwise harmful to public health or the environment and are or become regulated by any Governmental  Authority, (c) the presence of which require investigation or remediation under any Environmental Law or common law,  (d) the discharge or emission or release of which requires a permit or license under any Environmental Law or other  Governmental Approval, (e) which are deemed by a Governmental Authority to constitute a nuisance or a trespass which  pose a health or safety hazard to Persons or neighboring properties, or (f) which contain, without limitation, asbestos,  polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances  or waste, crude oil, nuclear fuel, natural gas or synthetic gas.  “Hedge Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions,  forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index  swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward  bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions,  collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts,  or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of  the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and  all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed  by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any  International Foreign Exchange Master Agreement, or any other master agreement.  “Hedge Bank” means any Person that, (a) at the time it enters into a Hedge Agreement with a Credit Party  permitted under Article IX, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the  Administrative Agent or (b) at the time it (or its Affiliate) becomes a Lender or the Administrative Agent (including on  the Closing Date), is a party to a Hedge Agreement with a Credit Party, in each case in its capacity as a party to such  Hedge Agreement.  “Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account  the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after  the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith,  





 






  17   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 Hedge Agreements, as determined based upon one or more mid-market or other readily  available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any  Affiliate of a Lender).  “IBA” has the meaning assigned thereto in Section 1.13.  “Increased Amount Date” has the meaning assigned thereto in Section 5.13 herein.  “Incremental Facilities Limit” means, with respect to any proposed incurrence of additional Indebtedness under  Section 5.13, an amount equal to the sum of (a) $150,000,000 less the total aggregate initial principal amount (as of the  date of incurrence thereof) of all Incremental Loans, in each case previously incurred under this clause (a), plus (b) such  additional amount of Indebtedness that would cause the Total Leverage Ratio as of the most recently completed four (4)  Fiscal Quarter period most recently ended prior to the incurrence of such additional Indebtedness (or in the case of any  additional Indebtedness, the proceeds of which will finance a substantially concurrent Limited Condition Acquisition,  the LCA Test Date), calculated on a Pro Forma Basis after giving effect to the incurrence of such additional  Indebtedness and any Limited Condition Acquisition to be consummated using the proceeds of such additional  Indebtedness and assuming that any proposed Incremental Loan Commitment is fully drawn at such time, not to exceed  3.00 to 1.00.  Unless Borrower otherwise notifies the Administrative Agent, if all or any portion of any Incremental  Loans would be permitted under clause (b) above on the applicable date of incurrence, such Incremental Loans (or the  relevant portion thereof) shall be deemed to have been incurred in reliance on clause (b) above prior to the utilization of  any amount available under clause (a) above.    “Incremental Lender” has the meaning assigned thereto in Section 5.13 herein.  “Incremental Loan” has the meaning assigned thereto in Section 5.13 herein.  “Incremental Loan Commitment” has the meaning assigned thereto in Section 5.13 herein.  “Indebtedness” means, with respect to any Person at any date and without duplication, the sum of the following:  (a) all liabilities, obligations and indebtedness for borrowed money and all obligations of such  Person evidenced by bonds, debentures, notes or other similar instruments;  (b) all obligations to pay the deferred purchase price of property or services of any such Person  (including, without limitation, all obligations under non-competition agreements (other than pursuant to  employment or severance agreements), earn-out agreements or similar agreements), except trade payables  arising in the ordinary course of business not more than ninety (90) days past due, or that are currently being  contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP  have been provided for on the books of such Person and, for the avoidance of doubt, other than royalty payments  payable in the ordinary course of business in respect of non-exclusive licenses or Permitted Exclusive Licenses;  (c) the Attributable Indebtedness of such Person with respect to such Person’s Capital Lease  Obligations and Synthetic Leases (regardless of whether accounted for as indebtedness under GAAP);  (d) all obligations of such Person under conditional sale or other title retention agreements relating  to property purchased by such Person to the extent of the value of such property (other than customary  reservations or retentions of title under agreements with suppliers entered into in the ordinary course of  business);  (e) all Indebtedness of any other Person secured by a Lien on any asset owned or being purchased  by such Person (including indebtedness arising under conditional sales or other title retention agreements except  trade payables arising in the ordinary course of business), whether or not such indebtedness shall have been  assumed by such Person or is limited in recourse;  





 






  18   (f) all obligations, contingent or otherwise, of any such Person relative to the face amount of letters  of credit, whether or not drawn, including, without limitation, any Reimbursement Obligation, and banker’s  acceptances issued for the account of any such Person;  (g) all obligations of any such Person in respect of Disqualified Equity Interests;  (h) all net obligations of such Person under any Hedge Agreements;   (i) all obligations under any Receivables Facility; and  (j) all Guarantees of any such Person with respect to any of the foregoing.  For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint  venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a  general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  The amount  of any net obligation under any Hedge Agreement on any date shall be deemed to be the Hedge Termination Value  thereof as of such date.   “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment  made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not  otherwise described in clause (a), Other Taxes.  “Indemnitee” has the meaning assigned thereto in Section 12.3(b).  “Information” has the meaning assigned thereto in Section 12.10.  “Insurance and Condemnation Event” means the receipt by any Credit Party or any of its Subsidiaries of any  cash insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or damage, taking  or similar event with respect to any of their respective Property.  “Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date such LIBOR Rate  Loan is disbursed or converted to or continued as a LIBOR Rate Loan and ending on the date one (1), three (3), or six (6)  months thereafter or, if agreed by all of the relevant Lenders twelve (12) months thereafter, in each case as selected by  Borrower in its Notice of Borrowing or Notice of Conversion/Continuation and subject to availability; provided that:  (a) the Interest Period shall commence on the date of advance of or conversion to any LIBOR Rate  Loan and, in the case of immediately successive Interest Periods, each successive Interest Period shall  commence on the date on which the immediately preceding Interest Period expires;  (b) if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest  Period shall expire on the next succeeding Business Day; provided that if any Interest Period with respect to a  LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but is a day of the month after  which no further Business Day occurs in such month, such Interest Period shall expire on the immediately  preceding Business Day;  (c) any Interest Period with respect to a LIBOR Rate Loan that begins on the last Business Day of a  calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the  end of such Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such  Interest Period;  (d) no Interest Period shall extend beyond the Maturity Date; and  (e) there shall be no more than twenty (20) Interest Periods in effect at any time.  





 






  19   “IRS” means the United States Internal Revenue Service.  “ISP98” means the International Standby Practices (1998 Revision, effective January 1, 1999), International  Chamber of Commerce Publication No. 590.  “Issuing Lender” means with respect to Letters of Credit issued hereunder on or after the Closing Date, Wells  Fargo or any other Lender that may issue a Letter of Credit to Borrower or a Subsidiary of Borrower pursuant to Article  III.  “LCA Election” shall have the meaning set forth in Section 1.12.  “LCA Test Date” shall have the meaning set forth in Section 1.12.  “L/C Commitment” means, as to any Issuing Lender, the obligation of such Issuing Lender to issue Letters of  Credit for the account of Borrower or one or more of its Subsidiaries from time to time in an aggregate amount equal to  the amount set forth opposite the name of each Issuing Lender on Schedule 1.1(b), any such amount may be changed  after the Closing Date in a written agreement between Borrower and such Issuing Lender (which such agreement shall be  promptly delivered to the Administrative Agent upon execution); provided that the L/C Commitment with respect to any  Person that ceases to be an Issuing Lender for any reason pursuant to the terms hereof shall be $0 (subject to the Letters  of Credit of such Person remaining outstanding in accordance with the provisions hereof).  “L/C Facility” means the letter of credit facility established pursuant to Article III.  “L/C Obligations” means at any time, an amount equal to the sum of (a) the aggregate undrawn and unexpired  amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit which  have not then been reimbursed pursuant to Section 3.5.  For all purposes of this Agreement, if on any date of  determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the  operation of Rule 3.14 of ISP98, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining  available to be drawn.  “L/C Participants” means, with respect to any Letter of Credit, the collective reference to all the Lenders other  than the applicable Issuing Lender.  “L/C Sublimit” means the lesser of (a) Ten Million Dollars ($10,000,000) and (b) the Commitment.  “Lender” means the Persons listed on Schedule 1.1(a) and any other Person that shall have become a party to  this Agreement as a Lender pursuant to an Assignment and Assumption, other than any Person that ceases to be a party  hereto as a Lender pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the term  “Lenders” includes the Swingline Lender.  “Lender Joinder Agreement” means a joinder agreement in form and substance reasonably satisfactory to the  Administrative Agent.  “Lending Office” means, with respect to any Lender, the office of such Lender maintaining such Lender’s  Extensions of Credit.  “Letter of Credit Application” means an application, in the form specified by the applicable Issuing Lender from  time to time, requesting such Issuing Lender to issue a Letter of Credit.  “Letters of Credit” means the collective reference to letters of credit issued pursuant to Section 3.1.   Notwithstanding anything to the contrary contained herein, a letter of credit issued by any Issuing Lender (other than  Wells Fargo at any time it is also acting as Administrative Agent) shall not be a “Letter of Credit” for purposes of the  Loan Documents until such time as the Administrative Agent has been notified in writing of the issuance thereof by the  applicable Issuing Lender.  





 






  20   “LIBOR” means, subject to the implementation of a Benchmark Replacement in accordance with  Section 5.8(c),    (1) for any interest rate calculation with respect to a LIBOR Rate Loan, the rate of interest per  annum determined on the basis of the rate as set by the ICE Benchmark Administration (“ICE”) (or the  successor thereto if ICE is no longer making such rate available) for deposits in Dollars for a period equal to the  applicable Interest Period which appears on Reuters Screen LIBOR01 Page (or any applicable successor page) at  approximately 11:00 a.m. (London time) two (2) London Banking Days prior to the first day of the applicable  Interest Period.  If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or any  applicable successor page), then “LIBOR” shall be determined by the Administrative Agent to be the arithmetic  average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London  interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) London  Banking Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period,  and  (2) for any interest rate calculation with respect to a Base Rate Loan, the rate of interest per annum  determined on the basis of the rate as set by the ICE (or the successor thereto if ICE is no longer making such  rate available) for deposits in Dollars for an Interest Period equal to one month (commencing on the date of  determination of such interest rate) which appears on the Reuters Screen LIBOR01 Page (or any applicable  successor page) at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not  a Business Day, then the immediately preceding Business Day.  If, for any reason, such rate does not appear on  Reuters Screen LIBOR01 Page (or any applicable successor page) then “LIBOR” for such Base Rate Loan shall  be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits  in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at  approximately 11:00 a.m. (London time) on such date of determination for a period equal to one month  commencing on such date of determination.  Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all  purposes, absent manifest error.    Notwithstanding the foregoing, (i) in no event shall LIBOR (including, without limitation, any  Benchmark Replacement with respect thereto) be less than 0% and (ii) unless otherwise specified in any  amendment to this Agreement entered into in accordance with Section 5.8(c), in the event that a Benchmark  Replacement with respect to LIBOR is implemented then all references herein to LIBOR shall be deemed  references to such Benchmark Replacement.     “LIBOR Rate” means a rate per annum determined by the Administrative Agent pursuant to the following  formula:  LIBOR Rate = LIBOR   1.00-Eurodollar Reserve Percentage    “LIBOR Rate Loan” means any Loan bearing interest at a rate based upon the LIBOR Rate as provided in  Section 5.1(a).  “Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge, security  interest, hypothecation or encumbrance of any kind in respect of such asset.  For the purposes of this Agreement, a  Person shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a  vendor or lessor under any conditional sale agreement, Capital Lease or other title retention agreement relating to such  asset.  





 






  21   “Limited Condition Acquisition” means any Permitted Acquisition or investment not prohibited hereunder in  any assets, business or Person, in each case the consummation of which is not conditioned on the availability of, or on  obtaining, third party financing.  “Liquidity” means, as of any date of determination, the sum of amount of availability under the Revolving  Credit Facility plus Qualified Cash.  “Loan Documents” means, collectively, this Agreement, each Note, the Letter of Credit Applications, the  Security Documents, the Fee Letters and each other document, instrument, certificate and agreement executed and  delivered by the Credit Parties or any of their respective Subsidiaries in favor of or provided to the Administrative Agent  or any Secured Party in connection with this Agreement or otherwise referred to herein or contemplated hereby  (excluding any Secured Hedge Agreement and any Secured Cash Management Agreement).  “Loans” means the collective reference to the Revolving Credit Loans and the Swingline Loans, and “Loan”  means any of such Loans.  “London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between  banks in the London interbank Eurodollar market.  “Material Adverse Effect” means, with respect to Borrower and its Subsidiaries, (a) a material adverse change  in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent) or  financial condition of such Persons, taken as a whole, (b) a material impairment of the rights and remedies of the  Administrative Agent or any Lender under any Loan Document, or of the ability of Borrower, individually, or the Credit  Parties, taken as a whole, to perform its or their respective obligations under any Loan Document to which any of such  Person is a party or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any  Credit Party of any Loan Document to which it is a party.  “Material Domestic Subsidiary” means any Domestic Subsidiary of Borrower that, together with its  Subsidiaries, (a) generates more than 5% of Consolidated EBITDA attributable to Credit Parties (excluding the financial  performance of all Foreign Subsidiaries) on a Pro Forma Basis for the four (4) Fiscal Quarter period most recently ended  or (b) owns more than 5% of the Consolidated Assets attributable to the Credit Parties (excluding the financial  performance of all Foreign Subsidiaries) as of the last day of the most recently ended Fiscal Quarter of Borrower;  provided, however, that if at any time there are Domestic Subsidiaries which are not classified as “Material Domestic  Subsidiaries” but which collectively (i) generate more than 5% of Consolidated EBITDA attributable to the  Credit  Parties (excluding the financial performance of all Foreign Subsidiaries) on a Pro Forma Basis or (ii) own more than 5%  of the Consolidated Assets attributable to the Credit Parties (excluding the financial performance of all Foreign  Subsidiaries) as of the last day of the most recently ended Fiscal Quarter of Borrower, then Borrower shall within thirty  (30) days after the end of such Fiscal Quarter designate one or more of such Domestic Subsidiaries as Material Domestic  Subsidiaries and cause any such Domestic Subsidiaries to comply with the provisions of Section 8.13 such that, after  such Domestic Subsidiaries become Subsidiary Guarantors hereunder, the Domestic Subsidiaries that are not Subsidiary  Guarantors shall (iii) generate 5% or less of Consolidated EBITDA attributable to the Credit Parties (excluding the  financial performance of all Foreign Subsidiaries) and (iv) own 5% or less of the Consolidated Assets attributable to  Credit Parties (excluding the financial performance of all Foreign Subsidiaries).  “Maturity Date” means the earliest to occur of (a) the fifth anniversary of the Closing Date, (b) the date of  termination of the entire Commitment by Borrower pursuant to Section 2.5, and (c) the date of termination of the  Commitment pursuant to Section 10.2(a).  “Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or  deposit account balances, an amount equal to 102% of the sum of (i) the Fronting Exposure of the Issuing Lender with  respect to Letters of Credit issued and outstanding at such time, if applicable, and (ii) the Fronting Exposure of the  Swingline Lender with respect to all Swingline Loans outstanding at such time, if applicable, and (b) otherwise, an  





 






  22   amount determined by the Administrative Agent and each of the applicable Issuing Lenders that is entitled to Cash  Collateral hereunder at such time in their reasonable discretion.  “Moody’s” means Moody’s Investors Service, Inc.  “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any  Credit Party or any ERISA Affiliate is making, or is accruing an obligation to make, or has been obligated to make,  contributions within the preceding seven (7) years.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver, amendment,  modification or termination that (i) requires the approval of all Lenders or all affected Lenders in accordance with the  terms of Section 12.2 and (ii) has been approved by the Required Lenders.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.  “Non-Guarantor Subsidiary” means any Subsidiary of Borrower that is not a Subsidiary Guarantor.  “Notes” means the collective reference to the Revolving Credit Notes and the Swingline Note.  “Notice of Account Designation” has the meaning assigned thereto in Section 2.3(b).  “Notice of Borrowing” has the meaning assigned thereto in Section 2.3(a).  “Notice of Conversion/Continuation” has the meaning assigned thereto in Section 5.2.  “Notice of Prepayment” has the meaning assigned thereto in Section 2.4(c).  “Obligations” means, in each case, whether now in existence or hereafter arising: (a) the principal of and interest  on (including interest accruing after the filing of any bankruptcy or similar petition) the Loans, (b) the L/C Obligations  and (c) all other fees and commissions (including attorneys’ fees), charges, indebtedness, loans, liabilities, financial  accommodations, obligations, covenants and duties owing by the Credit Parties and each of their respective Subsidiaries  to the Lenders, any Issuing Lender or the Administrative Agent, in each case under any Loan Document, with respect to  any Loan or Letter of Credit of every kind, nature and description, direct or indirect, absolute or contingent, due or to  become due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any note and including  interest and fees that accrue after the commencement by or against any Credit Party or any Subsidiary thereof of any  proceeding under any Debtor Relief Laws, naming such Person as the debtor in such proceeding, regardless of whether  such interest and fees are allowed claims in such proceeding.  “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.  “Officer’s Compliance Certificate” means a certificate of the chief financial officer, principal accounting officer  or treasurer of Borrower substantially in the form attached as Exhibit F.   “Operating Lease” means, as to any Person as determined in accordance with GAAP, any lease of Property  (whether real, personal or mixed) by such Person as lessee which is not a Capital Lease.  “Other Benchmark Rate Election” means, if the then-current Benchmark is USD LIBOR, the occurrence of:  (a) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative  Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated  credit facilities at such time contain (as a result of amendment or as originally executed), in lieu of a USD LIBOR-based  rate, a term benchmark rate that is not a SOFR-based rate as a benchmark rate (and such syndicated credit facilities are  identified in such notice and are publicly available for review), and  





 






  23   (b) the joint election by the Administrative Agent and the Borrower to trigger a fallback from USD LIBOR  and the provision by the Administrative Agent of written notice of such election to the Lenders.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or  former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from  such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under,  received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan  Document, or sold or assigned an interest in any Loan or Loan Document).  “Other Taxes” means all present or future stamp, court, 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 5.12).  “Participant” has the meaning assigned thereto in Section 12.9(d).  “Participant Register” has the meaning assigned thereto in Section 12.9(d).  “PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,  2001)).  “PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.  “Pension Plan” means any employee benefit plan as defined in Section 3 of ERISA, other than a Multiemployer  Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is maintained or  contributed to by any Credit Party or any ERISA Affiliate or (b) has at any time within the preceding seven (7) years  been maintained or contributed to (or with respect to which there is or has been an obligation to contribute to) by any  Credit Party or any current or former ERISA Affiliates.  “Permitted Acquisition” means any acquisition by Borrower or any Subsidiary Guarantor in the form of the  acquisition of all or substantially all of the assets, business or a line of business, or at least a majority of the outstanding  Equity Interests which have the ordinary voting power for the election of directors of the board of directors (or  equivalent governing body) (whether through purchase, merger or otherwise), of any other Person that is incorporated,  formed or organized in the United States if each such acquisition meets all of the following requirements:  (a) no less than five (5) Business Days prior to the proposed closing date of such acquisition (or such  shorter period of time as the Administrative Agent may agree, in its sole discretion), Borrower shall have delivered  written notice of such acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed  closing date of such acquisition;  (b) if required, such acquisition has been approved by the board of directors (or equivalent governing body)  of the Person to be acquired;  (c) the Person or business to be acquired shall be in a line of business permitted pursuant to Section 9.11;  (d) if such transaction is a merger or consolidation, Borrower or a Subsidiary Guarantor shall be the  surviving Person and no Change in Control shall have been effected thereby;  (e) Borrower shall have delivered to the Administrative Agent all documents required to be delivered  pursuant to, and in accordance with, Section 8.13;  (f) no later than five (5) Business Days prior to the proposed closing date of such acquisition (or such  shorter period of time as the Administrative Agent may agree, in its sole discretion), Borrower shall have delivered to the  





 






  24   Administrative Agent an Officer’s Compliance Certificate for the most recent Fiscal Quarter end preceding such  acquisition for which financial statements are available demonstrating, in form and substance reasonably satisfactory to  the Administrative Agent, (i) that Borrower is in compliance on a Pro Forma Basis (as of the date of the acquisition and  immediately after giving effect thereto and any Indebtedness incurred in connection therewith) with each covenant  contained in Section 9.14 and (ii) that the Total Leverage Ratio calculated on a Pro Forma Basis (as of the proposed  closing date of the acquisition and immediately after giving effect thereto and any Indebtedness incurred in connection  therewith) shall be less than or equal to 2.75 to 1.00 as of the most recent Fiscal Quarter for which financial statements  have been delivered pursuant to Section 8.1;  (g) for any acquisition involving aggregate consideration in excess of $20,000,000, on or prior to the  proposed closing date of such acquisition, Borrower shall have delivered to the Administrative Agent copies of  substantially final Permitted Acquisition Documents;  (h) no Event of Default shall have occurred and be continuing both before and after giving effect to such  acquisition and any Indebtedness incurred in connection therewith;  (i) after giving effect to the acquisition, Liquidity shall be at least $25,000,000; and  (j) Borrower shall have (i) delivered to the Administrative Agent a certificate of a Responsible Officer  certifying that all of the requirements set forth above have been satisfied or will be satisfied on or prior to the  consummation of such purchase or other acquisition and (ii) provided such other documents and other information as  may be reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent)  in connection with such purchase or other acquisition.  “Permitted Acquisition Documents” means with respect to any acquisition proposed by Borrower or any  Subsidiary Guarantor, final copies or substantially final drafts if not executed at the required time of delivery of the  purchase agreement, sale agreement, merger agreement or other agreement evidencing such acquisition, including,  without limitation, any legal opinions and each other material document executed, delivered, contemplated by or  prepared in connection therewith and any amendment, modification or supplement to any of the foregoing.  “Permitted Liens” means the Liens permitted pursuant to Section 9.2.  “Person” means any natural person, corporation, limited liability company, trust, joint venture, association,  company, partnership, Governmental Authority or other entity.  “Plan” means any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws.  “Platform” has the meaning assigned thereto in Section 8.2.  “Pricing Level” has the meaning assigned thereto in the definition of Applicable Margin.  “Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the  Administrative Agent as its prime rate.  Each change in the Prime Rate shall be effective as of the opening of business on  the day such change in such prime rate occurs.  The parties hereto acknowledge that the rate announced publicly by the  Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged  to its customers or other banks.  “Pro Forma Basis” means, for purposes of calculating Consolidated EBITDA for any period during which one or  more Specified Transactions occurs, that such Specified Transaction (and all other Specified Transactions that have been  consummated during the applicable period) shall be deemed to have occurred as of the first day of the applicable period  of measurement and:  (a) all income statement items (whether positive or negative) attributable to the Property or Person disposed  of in a Specified Disposition shall be excluded and all income statement items (whether positive or negative) attributable  





 






  25   to the Property or Person acquired in a Permitted Acquisition shall be included (provided that such income statement  items to be included are reflected in financial statements or other financial data reasonably acceptable to the  Administrative Agent and based upon reasonable assumptions and calculations which are expected to have a continuous  impact); and  (b) pro forma adjustments attributable to such Specified Transaction shall be calculated consistent with the  methodology included in the definition of Consolidated EBITDA; provided that the pro forma adjustments shall be  without duplication of any costs, expenses or adjustments that are already included in the calculation of Consolidated  EBITDA or clause (a) above.  “Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed  and whether tangible or intangible, including, without limitation, Equity Interests.  “Public Lenders” has the meaning assigned thereto in Section 8.2.  “Qualified Cash” means, as of any date of determination, the amount of unrestricted cash, Cash Equivalents, and  credit and debit card receivables of Borrower and its Subsidiaries maintained in deposit accounts in any financial  institutions located within the United States.  “Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.  “Receivables Assets” means (a) any accounts receivable owed to Borrower or a Subsidiary subject to a  Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and  contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such  accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a  non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred  or pledged in connection with a Receivables Facility.  “Receivables Facility” means any of one or more receivables financing facilities (and any guarantee of such  financing facility), as amended, supplemented, modified, extended, renewed, restated, or refunded from time to time, the  obligations of which are non-recourse (except for customary representations, warranties, covenants, and indemnities  made in connection with such facilities) to Borrower and the Subsidiaries (other than a Receivables Subsidiary) pursuant  to which Borrower or any Subsidiary sells, directly or indirectly, grants a security interest in or otherwise transfers its  Receivables Assets to either (i) a Person that is not Borrower or a Subsidiary or (ii) a Receivables Subsidiary that in turn  funds such purchase by purporting to sell its accounts receivable to a Person that is not Borrower or a Subsidiary or by  borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a  Person.  “Receivables Fee” means distributions or payments made directly or by means of discounts with respect to any  accounts receivable or participation interest issued or sold in connection with, and other fees paid to a Person that is not  Borrower or a Subsidiary in connection with, any Receivables Facility.  “Receivables Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or  more Receivables Facilities that engages only in activities reasonably related or incidental thereto or another Person  formed for the purposes of engaging in a Receivables Facility in which any Subsidiary makes an Investment and to  which any Subsidiary transfers accounts receivables and related assets.  “Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Lender, as applicable.  “Reference Time” means, with respect to any setting of the then-current Benchmark means (1) if such  Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two (2) London Banking Days preceding the  date of such setting, and (2) if such Benchmark is not USD LIBOR, the time determined by the Administrative Agent in  its reasonable discretion.  





 






  26   “Register” has the meaning assigned thereto in Section 12.9(c).  “Reimbursement Obligation” means the obligation of Borrower to reimburse any Issuing Lender pursuant to  Section 3.5 for amounts drawn under Letters of Credit issued by such Issuing Lender.  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers,  employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s  Affiliates.  “Relevant Governmental Body” means the FRB or the Federal Reserve Bank of New York, or a committee  officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto.   “Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than fifty  percent (50)% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall  be disregarded in determining Required Lenders at any time.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a  UK Resolution Authority.  “Responsible Officer” means, as to any Person, the chief executive officer, president, chief financial officer,  principal accounting officer, controller, treasurer or assistant treasurer of such Person or any other officer of such Person  designated in writing by Borrower and reasonably acceptable to the Administrative Agent; provided that, to the extent  requested thereby, the Administrative Agent shall have received a certificate of such Person certifying as to the  incumbency and genuineness of the signature of each such officer.  Any document delivered hereunder or under any  other Loan Document that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been  authorized by all necessary corporate, partnership and/or other action on the part of such Person and such Responsible  Officer shall be conclusively presumed to have acted on behalf of such Person. Unless and except to the extent expressly  stated to the contrary herein in a particular context, “Responsible Officer” means a Responsible Officer of Borrower.  “Restricted Payment” has the meaning assigned thereto in Section 9.6.  “Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time  of its outstanding Revolving Credit Loans and such Lender’s participation in L/C Obligations and Swingline Loans at  such time.  “Revolving Credit Facility” means the revolving credit facility established pursuant to Article II.  “Revolving Credit Loan” means any revolving credit loan made to Borrower pursuant to Section 2.1, and all  such revolving credit loans collectively as the context requires.  “Revolving Credit Note” means a promissory note made by Borrower in favor of a Lender evidencing the  Revolving Credit Loans made by such Lender, substantially in the form attached as Exhibit A-1, and any substitutes  therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.  “Revolving Credit Outstandings” means the sum of (a) with respect to Revolving Credit Loans and Swingline  Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and  prepayments or repayments of Revolving Credit Loans and Swingline Loans, as the case may be, occurring on such date;  plus (b) with respect to any L/C Obligations on any date, the aggregate outstanding amount thereof on such date after  giving effect to any Extensions of Credit occurring on such date and any other changes in the aggregate amount of the  L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any  Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect  on such date.  





 






  27   “S&P” means Standard & Poor’s Financial Services LLC, a part of McGraw-Hill Financial and any successor  thereto.  “Sanctioned Country” means at any time, a country, region or territory which is itself (or whose government is)  the subject or target of any Sanctions (including, as of the Closing Date, Cuba, Iran, North Korea, Syria and Crimea).  “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons  maintained by OFAC (including OFAC’s Specially Designated Nationals and Blocked Persons List and OFAC’s  Consolidated Non-SDN List), the U.S. Department of State, the United Nations Security Council, the European Union,  any European member state, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any Person operating,  organized or resident in a Sanctioned Country, (c) any Person owned or controlled by, or acting or purporting to act for  or on behalf of, directly or indirectly, any such Person or Persons described in clauses (a) and (b), including a Person that  is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity by Sanctioned Person(s) or (d)  any Person otherwise a target of Sanctions, including vessels and aircraft, that are designated under any Sanctions  program.  “Sanction(s)” means any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade  embargoes and restrictions and anti-terrorism laws, including but not limited to those imposed, administered or enforced  from time to time by the U.S. government (including those administered by OFAC or the U.S. Department of State), the  United Nations Security Council, the European Union, any European member state, Her Majesty’s Treasury, or other  relevant sanctions authority in any jurisdiction in which (a) the Borrower or any of its Subsidiaries or Affiliates is  located or conducts business, (b) in which any of the proceeds of the Extensions of Credit will be used, or (c) from which  repayment of the Extensions of Credit will be derived.  “SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its  principal functions.  “Secured Cash Management Agreement” means any Cash Management Agreement between or among any  Credit Party and any Cash Management Bank.  “Secured Hedge Agreement” means any Hedge Agreement between or among any Credit Party and any Hedge  Bank.  “Secured Obligations” means, collectively, (a) the Obligations and (b) all existing or future payment and other  obligations owing by any Credit Party under (i) any Secured Hedge Agreement (other than an Excluded Swap  Obligation) and (ii) any Secured Cash Management Agreement.  “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the Issuing Lenders, the Hedge  Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to  time pursuant to Section 11.5, any other holder from time to time of any of any Secured Obligations and, in each case,  their respective successors and permitted assigns.  “Security Documents” means the collective reference to the Collateral Agreement and each other agreement or  writing pursuant to which any Credit Party pledges or grants a security interest in any Property or assets securing the  Secured Obligations.  “Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date  (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent  liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that  will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such  Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay  such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to  engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital,  and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature  





 






  28   in the ordinary course of business.  The amount of contingent liabilities at any time shall be computed as the amount  that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be  expected to become an actual or matured liability.  “SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate  for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately  succeeding Business Day.  “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the  secured overnight financing rate).  “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at  http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the  SOFR Administrator from time to time.  “Specified Disposition” means any disposition of all or substantially all of the assets or Equity Interests of any  Subsidiary of Borrower or any division, business unit, product line or line of business.  “Specified LCA Transaction” means, with respect to any period, any Investment, sale, transfer or other  disposition of assets, incurrence or repayment of Indebtedness, Restricted Payment, subsidiary designation or other event  that by the terms of the Loan Documents requires pro forma compliance with a test or covenant hereunder or requires  such test or covenant to be calculated on a Pro Forma Basis or after giving pro forma effect thereto.  “Specified Transactions” means (a) any Specified Disposition, (b) any Permitted Acquisition and (c) the  Transactions.  “Subordinated Indebtedness” means the collective reference to any Indebtedness incurred by Borrower or any of  its Subsidiaries that is subordinated in right and time of payment to the Obligations on terms and conditions satisfactory  to the Administrative Agent.  “Subsidiary” means as to any Person, any corporation, partnership, limited liability company or other entity of  which more than fifty percent (50%) of the outstanding Equity Interests having ordinary voting power to elect a majority  of the board of directors (or equivalent governing body) or other managers of such corporation, partnership, limited  liability company or other entity is at the time owned by (directly or indirectly) or the management is otherwise  controlled by (directly or indirectly) such Person (irrespective of whether, at the time, Equity Interests of any other class  or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting  power by reason of the happening of any contingency).  Unless otherwise qualified, references to “Subsidiary” or  “Subsidiaries” herein shall refer to those of Borrower.  “Subsidiary Guarantors” means, collectively, all direct and indirect Subsidiaries of Borrower (other than  Borrower and Foreign Subsidiaries to the extent that and for so long as the guaranty of such Foreign Subsidiary would  have adverse tax consequences for Borrower or any other Credit Party or result in a violation of Applicable Laws) that  are parties to the Collateral Agreement on the Closing Date or which become a party to the Collateral Agreement  thereafter pursuant to Section 8.13.   “Swap Obligation” means, with respect to any Credit Party, any obligation to pay or perform under any  agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity  Exchange Act.  “Swingline Commitment” means the lesser of (a) Ten Million Dollars ($10,000,000) and (b) the Commitment.  “Swingline Facility” means the swingline facility established pursuant to Section 2.2.  “Swingline Lender” means Wells Fargo in its capacity as swingline lender hereunder or any successor thereto.  





 






  29   “Swingline Loan” means any swingline loan made by the Swingline Lender to Borrower pursuant to Section 2.2,  and all such swingline loans collectively as the context requires.  “Swingline Note” means a promissory note made by Borrower in favor of the Swingline Lender evidencing the  Swingline Loans made by the Swingline Lender, substantially in the form attached as Exhibit A-2, and any substitutes  therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.  “Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off- balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but  is classified as an Operating Lease in accordance with GAAP.  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup  withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, fines,  additions to tax or penalties applicable thereto.  “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward- looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.  “Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the Borrower of the  occurrence of a Term SOFR Transition Event.  “Term SOFR Transition Event” means the determination by the Administrative Agent that (a) Term SOFR has  been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is  administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event, an Early Opt-in Election  or an Other Benchmark Rate Election, as applicable, has previously occurred resulting in the replacement of the then- current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.8(c) with a  Benchmark Replacement the Unadjusted Benchmark Replacement component of which is not Term SOFR.  “Termination Event” means the occurrence of any of the following: (a) a “reportable event” described in  Section 4043 of ERISA for which the thirty (30) day notice requirement has not been waived by the PBGC, or (b) the  withdrawal of any Credit Party or any ERISA Affiliate from a Pension Plan 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, or (c) the termination of a Pension Plan under Section 4041 of ERISA, the  filing of a notice of intent to terminate a Pension Plan under Section 4041 of ERISA, or the treatment of a Pension Plan  amendment as a termination under Section 4041 of ERISA, or (d) the institution of proceedings to terminate, or the  appointment of a trustee to administer, any Pension Plan or Multiemployer Plan by the PBGC, or (e) any other event or  condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of  a trustee to administer, any Pension Plan or Multiemployer Plan, or (f) the failure to make a required contribution to any  Pension Plan or Multiemployer Plan that would result in the imposition of a Lien or other encumbrance or the provision  of security under Section 430(k) of the Code or Section 303 or 4068 of ERISA, or the arising of such a Lien or  encumbrance, or (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or plan  in endangered or critical status within the meaning of Sections 430, 431 or 432 of the Code or Sections 303, 304 or 305  of ERISA, or (h) the partial or complete withdrawal of any Credit Party or any ERISA Affiliate from a Multiemployer  Plan, or (i) any event or condition which results in the insolvency of a Multiemployer Plan under Section 4245 of  ERISA, or (j) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of  ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA, or  (k) 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 any Credit Party or any ERISA Affiliate, or (l) engaging in a non-exempt prohibited  transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA.  “Threshold Amount” means $10,000,000.  “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and Revolving Credit  Exposure of such Lender at such time.  





 






  30   “Total Leverage Ratio” means, as of any date of  determination the result of (a) the amount of Consolidated  Total Indebtedness as of such date to (b) Consolidated EBITDA for the four (4) Fiscal Quarters then ended as of such  date.  “Trade Date” has the meaning assigned thereto in Section 12.9(f)(i).  “Transaction Costs” means all transaction fees, charges, integration costs and other amounts related to the  Transactions, any actual or attempted Permitted Acquisitions (including, without limitation, any financing fees, merger  and acquisition fees, legal fees and expenses, due diligence fees or any other fees and expenses in connection therewith),  in each case to the extent paid within six (6) months of the closing of the Credit Facility or such Permitted Acquisition,  as applicable, and approved by the Administrative Agent in its reasonable discretion.  “Transactions” means, collectively, (a) the initial Extensions of Credit and (b) the payment of the Transaction  Costs incurred in connection with the foregoing.  “UCC” means the Uniform Commercial Code as in effect in the State of New York.  “UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits  2007 Revision, International Chamber of Commerce Publication No. 600 and any subsequent revision thereof adopted  by the International Chamber of Commerce on the date such Letter of Credit is issued.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as  amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling  within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom  Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of  such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative authority having  responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related  Benchmark Replacement Adjustment.  “United States” means the United States of America.  “USD LIBOR” means the London interbank offered rate for Dollars.  “U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.  “U.S. Tax Compliance Certificate” has the meaning assigned thereto in Section 5.11(g).  “Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.  “Wholly-Owned” means, with respect to a Subsidiary, that all of the Equity Interests of such Subsidiary are,  directly or indirectly, owned or controlled by Borrower and/or one or more of its Wholly-Owned Subsidiaries (except for  directors’ qualifying shares or other shares required by Applicable Law to be owned by a Person other than Borrower  and/or one or more of its Wholly-Owned Subsidiaries).  “Withholding Agent” means any Credit Party and the Administrative Agent.  “Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down  and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the  applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation  Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail- 





 






  31   In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract  or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations  of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been  exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  SECTION 1.2 Other Definitions and Provisions.  With reference to this Agreement and each other Loan  Document, unless otherwise specified herein or in such other Loan Document: (a) the definitions of terms herein shall  apply equally to the singular and plural forms of the terms defined, (b) whenever the context may require, any pronoun  shall include the corresponding masculine, feminine and neuter forms, (c) the words “include”, “includes” and  “including” shall be deemed to be followed by the phrase “without limitation”, (d) the word “will” shall be construed to  have the same meaning and effect as the word “shall”, (e) any reference herein to any Person shall be construed to  include such Person’s successors and assigns, (f) the words “herein”, “hereof” and “hereunder”, and words of similar  import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (g) all  references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and  Exhibits and Schedules to, this Agreement, (h) 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, (i) the term “documents” includes any and all instruments, documents, agreements,  certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or  electronic form and (j) in the computation of periods of time from a specified date to a later specified date, the word  “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through”  means “to and including”.  SECTION 1.3 Accounting Terms.  (a) All accounting terms not specifically or completely defined herein shall be construed in  conformity with, and all financial data (including financial ratios and other financial calculations) required to be  submitted pursuant to this Agreement shall be prepared in conformity with GAAP, applied on a consistent basis,  as in effect from time to time and in a manner consistent with that used in preparing the audited financial  statements required by Section 8.1(a), except as otherwise specifically prescribed herein.  Notwithstanding the  foregoing, for purposes of determining compliance with any covenant (including the computation of any  financial covenant) contained herein, Indebtedness of Borrower and its Subsidiaries shall be deemed to be  carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC  470-20 on financial liabilities shall be disregarded.  (b) If at any time any change in GAAP would affect the computation of any financial ratio or  requirement set forth in any Loan Document, and either Borrower or the Required Lenders shall so request, the  Administrative Agent, the Lenders and Borrower shall negotiate in good faith to amend such ratio or  requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of  the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be  computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide to the  Administrative Agent and the Lenders financial statements and other documents required under this Agreement  or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or  requirement made before and after giving effect to such change in GAAP.  SECTION 1.4 UCC Terms. Terms defined in the UCC in effect on the Closing Date and not otherwise defined  herein shall, unless the context otherwise indicates, have the meanings provided by those definitions.  Subject to the  foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.  SECTION 1.5 Rounding. Any financial ratios required to be maintained pursuant to this Agreement shall be  calculated by dividing the appropriate component by the other component, carrying the result to one place more than the  number of places by which such ratio or percentage is expressed herein and rounding the result up or down to the nearest  number (with a rounding-up if there is no nearest number).  





 






  32   SECTION 1.6 References to Agreement and Laws.  Unless otherwise expressly provided herein, (a) any  definition or reference to formation documents, governing documents, agreements (including the Loan Documents) and  other contractual documents or instruments shall be deemed to include all subsequent amendments, restatements,  extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements,  extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) any definition or  reference to any Applicable Law, including, without limitation,  Anti-Corruption Laws, Anti-Money Laundering Laws,  the Bankruptcy Code the Code, the Commodity Exchange Act, ERISA, the Exchange Act, the PATRIOT Act, the  Securities Act of 1933, the UCC, the Investment Company Act of 1940, the Interstate Commerce Act, the Trading with  the Enemy Act of the United States or any of the foreign assets control regulations of the United States Treasury  Department, shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or  interpreting such Applicable Law.  SECTION 1.7 Times of Day. Unless otherwise specified, all references herein to times of day shall be  references to Eastern time (daylight or standard, as applicable).  SECTION 1.8 Letter of Credit Amounts.  Unless otherwise specified, all references herein to the amount of a  Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit after giving  effect to all increases thereof contemplated by such Letter of Credit or the Letter of Credit Application therefor (at the  time specified therefor in such applicable Letter of Credit or Letter of Credit Application and as such amount may be  reduced by (a) any permanent reduction of such Letter of Credit or (b) any amount which is drawn, reimbursed and no  longer available under such Letter of Credit).  SECTION 1.9 Guarantees. Unless otherwise specified, the amount of any Guarantee shall be the lesser of the  principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the  guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee.  SECTION 1.10 Covenant Compliance Generally.  For purposes of determining compliance under Sections 9.1,  9.2, 9.3, 9.5 and 9.6, any amount in a currency other than Dollars will be converted to Dollars in a manner consistent  with that used in calculating Consolidated Net Income in the most recent annual financial statements of Borrower and its  Subsidiaries delivered pursuant to Section 8.1(a).  Notwithstanding the foregoing, for purposes of determining  compliance with Sections 9.1, 9.2 and 9.3, with respect to any amount of Indebtedness or Investment in a currency other  than Dollars, no breach of any basket contained in such sections shall be deemed to have occurred solely as a result of  changes in rates of exchange occurring after the time such Indebtedness or Investment is incurred; provided that for the  avoidance of doubt, the foregoing provisions of this Section 1.10 shall otherwise apply to such Sections, including with  respect to determining whether any Indebtedness or Investment may be incurred at any time under such Sections.  SECTION 1.11 Compliance with Article IX.  In the event that any Indebtedness, Lien, Investment or Restricted  Payment (whether at the time of incurrence or upon application of all or a portion of the proceeds thereof) meets the  criteria of one or more than one of the categories of transactions then permitted pursuant to any clause of a Section (or  any clause of a definition used in such Section) in Article IX, Borrower, in its sole discretion, may divide, classify or  reclassify (or later divide, classify or reclassify) such transaction and shall only be required to include the amount and  type of such transaction in one of such clauses.  SECTION 1.12 Limited Condition Acquisitions.  Notwithstanding anything in this Agreement or any Loan  Document to the contrary, when calculating any applicable ratio or any other basket based on Consolidated EBITDA or  Consolidated Assets, or determining other compliance with this Agreement (including the determination of compliance  with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or  would result therefrom, but excluding determination of compliance with Section 6.2 in accordance with the terms  thereof) in connection with a Specified LCA Transaction undertaken in connection with the consummation of a Limited  Condition Acquisition, the date of determination of such ratio or the amount or availability of any basket based on  Consolidated EBITDA or Consolidated Assets, and determination of whether any Default or Event of Default has  occurred, is continuing or would result therefrom or other applicable covenant shall, at the option of Borrower  (Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”),  





 






  33   be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA  Test Date”) and if, after such ratios and other provisions are measured on a Pro Forma Basis after giving effect to such  Limited Condition Acquisition and the other Specified LCA Transactions to be entered into in connection therewith  (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the  applicable test period ending prior to the LCA Test Date, Borrower could have taken such action on the relevant LCA  Test Date in compliance with such ratios and provisions, such provisions shall be deemed to have been complied with.  For the avoidance of doubt, (x) if any of such ratios are exceeded as a result of fluctuations in such ratio (including due  to fluctuations in Consolidated EBITDA of Borrower and its Subsidiaries) at or prior to the consummation of the  relevant Limited Condition Acquisition, such ratios and other provisions will not be deemed to have been exceeded as a  result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted  hereunder and (y) such ratios and other provisions shall not be tested at the time of consummation of such Limited  Condition Acquisition or related Specified LCA Transactions. If Borrower has made an LCA Election for any Limited  Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect  to any other Specified LCA Transaction on or following the relevant LCA Test Date and prior to the earlier of the date  on which such prior Limited Condition Acquisition is consummated or the date that the definitive agreement for such  prior Limited Condition Transaction is terminated or expires without consummation of such prior Limited Condition  Acquisition, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such prior Limited Condition  Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of  proceeds thereof) have been consummated.  Notwithstanding the foregoing, nothing contained in Section 1.12 shall  modify the requirements contained in Section 6.2, except as stated explicitly therein.  SECTION 1.13 Rates.  The interest rate on LIBOR Rate Loans and Base Rate Loans (when determined by  reference to clause (c) of the definition of Base Rate) may be determined by reference to LIBOR, which is derived from  the London interbank offered rate.  The London interbank offered rate is intended to represent the rate at which  contributing banks may obtain short-term borrowings from each other in the London interbank market.  On March 5,  2021, ICE Benchmark Administration (“IBA”), the administrator of the London interbank offered rate, and the Financial  Conduct Authority (the “FCA”), the regulatory supervisor of IBA, announced in public statements (the  “Announcements”) that the final publication or representativeness date for the London interbank offered rate for Dollars  for: (a) 1-week and 2-month tenor settings will be December 31, 2021 and (b) overnight, 1-month, 3-month, 6-month  and 12-month tenor settings will be June 30, 2023. No successor administrator for IBA was identified in such  Announcements.  As a result, it is possible that commencing immediately after such dates, the London interbank offered  rate for such tenors may no longer be available or may no longer be deemed a representative reference rate upon which  to determine the interest rate on LIBOR Rate Loans or Base Rate Loans (when determined by reference to clause (c) of  the definition of Base Rate). There is no assurance that the dates set forth in the Announcements will not change or that  IBA or the FCA will not take further action that could impact the availability, composition or characteristics of any  London interbank offered rate. Public and private sector industry initiatives have been and continue, as of the date  hereof, to be underway to implement new or alternative reference rates to be used in place of the London interbank  offered rate.  In the event that the London interbank offered rate or any other then-current Benchmark is no longer  available or in certain other circumstances set forth in Section 5.8(c), such Section 5.8(c) provides a mechanism for  determining an alternative rate of interest.  The Administrative Agent will notify the Borrower, pursuant to Section  5.8(c), of any change to the reference rate upon which the interest rate on LIBOR Rate Loans and Base Rate Loans  (when determined by reference to clause (c) of the definition of Base Rate) is based.  However, the Administrative Agent  does not warrant or accept any responsibility for, and shall not have any liability with respect to, (i) the continuation of,  administration of, submission of, calculation of or any other matter related to the London interbank offered rate or other  rates in the definition of “LIBOR” or with respect to any alternative, successor or replacement rate thereto (including any  then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any  such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be  adjusted pursuant to Section 5.8(c), will be similar to, or produce the same value or economic equivalence of, LIBOR or  any other Benchmark, or have the same volume or liquidity as did the London interbank offered rate or any other  Benchmark prior to its discontinuance or unavailability, or (ii) the effect, implementation or composition of any  Benchmark Replacement Conforming Changes.  The Administrative Agent and its Affiliates or other related entities may  engage in transactions that affect the calculation of a Benchmark, any alternative, successor or replacement rate  (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to the  





 






  34   Borrower.  The Administrative Agent may select information sources or services in its reasonable discretion to ascertain  any Benchmark, any component definition thereof or rates referenced in the definition thereof, in each case pursuant to  the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for  damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or  expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such  rate (or component thereof) provided by any such information source or service.  SECTION 1.14 Amendment and Restatement. This Agreement shall amend and restate the Original Credit  Agreement in its entirety, with the parties hereby agreeing that there is no novation of the Original Credit Agreement or  any other Original Loan Document and from and after the effectiveness of this Agreement, the rights and obligations of  the parties under the Original Credit Agreement shall be subsumed and governed by this Agreement.  From and after the  effectiveness of this Agreement, the “Obligations” under the Original Credit Agreement shall continue as Obligations  under this Agreement and the Loan Documents until otherwise paid in accordance with the terms hereof.  The Security  Documents and the grant of Liens on all of the Collateral described therein do and shall continue to secure the payment  of all Obligations, and each Credit Party reaffirms its prior grant of the Liens granted by it pursuant to the “Security  Documents” (as defined in the Original Credit Agreement) and all such Liens shall continue in full force and effect after  giving effect to this Agreement and are hereby confirmed and reaffirmed by each Credit Party.  The parties hereto further  acknowledge and agree that all “Security Documents” (as defined in the Original Credit Agreement) shall remain in full  force and effect after the Effective Date in favor of and for the benefit of the Collateral Agent and the Secured Creditors  (with each reference therein to the administrative agent, the credit agreement or a loan document being a reference to the  Administrative Agent, this Agreement or the other Loan Documents, as applicable), in each case, as such Security  Documents are modified on the Closing Date, and each Credit Party hereby confirms and ratifies its obligations  thereunder.    ARTICLE II    REVOLVING CREDIT FACILITY  SECTION 2.1 Revolving Credit Loans.  Subject to the terms and conditions of this Agreement and the other  Loan Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan  Documents, each Lender severally agrees to make Revolving Credit Loans to Borrower from time to time from the  Closing Date through, but not including, the Maturity Date as requested by Borrower in accordance with the terms of  Section 2.3; provided, that (a) the Revolving Credit Outstandings shall not exceed the Commitment and (b) the  Revolving Credit Exposure of any Lender shall not at any time exceed such Lender’s Commitment.  Each Revolving  Credit Loan by a Lender shall be in a principal amount equal to such Lender’s Commitment Percentage of the aggregate  principal amount of Revolving Credit Loans requested on such occasion.  Subject to the terms and conditions hereof,  Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder until the Maturity Date.  SECTION 2.2 Swingline Loans.  (a) Availability.  Subject to the terms and conditions of this Agreement and the other Loan  Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other  Loan Documents, the Swingline Lender shall make Swingline Loans to Borrower from time to time from the  Closing Date through, but not including, the Maturity Date; provided, that (a) after giving effect to any amount  requested, the Revolving Credit Outstandings shall not exceed the  Commitment and (b) the aggregate principal  amount of all outstanding Swingline Loans (after giving effect to any amount requested) shall not exceed the  Swingline Commitment.    (b) Refunding.  (i) Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender.   Such refundings shall be made by the Lenders in accordance with their respective Commitment  Percentages and shall thereafter be reflected as Revolving Credit Loans of the Lenders on the books and  





 






  35   records of the Administrative Agent.  Each Lender shall fund its respective Commitment Percentage of  Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon  demand by the Swingline Lender but in no event later than 1:00 p.m. on the next succeeding Business  Day after such demand is made.  No Lender’s obligation to fund its respective Commitment Percentage  of a Swingline Loan shall be affected by any other Lender’s failure to fund its Commitment Percentage  of a Swingline Loan, nor shall any Lender’s Commitment Percentage be increased as a result of any  such failure of any other Lender to fund its Commitment Percentage of a Swingline Loan.  (ii) Borrower shall pay to the Swingline Lender on demand the amount of such Swingline  Loans to the extent amounts received from the Lenders are not sufficient to repay in full the outstanding  Swingline Loans requested or required to be refunded.  In addition, Borrower hereby authorizes the  Administrative Agent to charge any account maintained by Borrower with the Swingline Lender (up to  the amount available therein) in order to immediately pay the Swingline Lender the amount of such  Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full the  outstanding Swingline Loans requested or required to be refunded.  If any portion of any such amount  paid to the Swingline Lender shall be recovered by or on behalf of Borrower from the Swingline Lender  in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the  Lenders in accordance with their respective Commitment Percentages (unless the amounts so recovered  by or on behalf of Borrower pertain to a Swingline Loan extended after the occurrence and during the  continuance of an Event of Default of which the Administrative Agent has received notice in the manner  required pursuant to Section 11.3 and which such Event of Default has not been waived by the Required  Lenders or the Lenders, as applicable).  (iii) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in  accordance with the terms of this Section is absolute and unconditional and shall not be affected by any  circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in  Article VI.  Further, each Lender agrees and acknowledges that if prior to the refunding of any  outstanding Swingline Loans pursuant to this Section, one of the events described in Section 10.1(h) or  (i) shall have occurred, each Lender will, on the date the applicable Revolving Credit Loan would have  been made, purchase an undivided participating interest in the Swingline Loan to be refunded in an  amount equal to its Commitment Percentage of the aggregate amount of such Swingline Loan.  Each  Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of  its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate  evidencing such participation dated the date of receipt of such funds and for such amount.  Whenever, at  any time after the Swingline Lender has received from any Lender such Lender’s participating interest  in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline  Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in  the case of interest payments, to reflect the period of time during which such Lender’s participating  interest was outstanding and funded).  (c) Defaulting Lenders.  Notwithstanding anything to the contrary contained in this Agreement, this  Section 2.2 shall be subject to the terms and conditions of Section 5.14 and Section 5.15.  SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans.  (a) Requests for Borrowing.  Borrower shall give the Administrative Agent irrevocable prior notice  (1) written substantially in the form of Exhibit B or (2) delivered electronically via e-mail from the official  corporate email address of Borrower which includes an approval from the Chief Financial Officer, Senior Vice  President - Finance & Accounting, Controller, Treasurer, Assistant Treasurer, Director of Treasury or Senior  Manager - Treasury Operations of Borrower and containing substantially the same information as specified on  Exhibit B (a “Notice of Borrowing”) not later than 1:00 p.m. (i) on the same Business Day as each Base Rate  Loan and each Swingline Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, of its  intention to borrow, specifying (A) the date of such borrowing, which shall be a Business Day, (B) the amount  





 






  36   of such borrowing, which shall be, (x) with respect to Base Rate Loans (other than Swingline Loans) in an  aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof, (y) with respect to  LIBOR Rate Loans in an aggregate principal amount of $1,000,000 or a whole multiple of $250,000 in excess  thereof and (z) with respect to Swingline Loans in an aggregate principal amount of $100,000 or a whole  multiple of $50,000 in excess thereof, (C) whether such Loan is to be a Revolving Credit Loan or Swingline  Loan, (D) in the case of a Revolving Credit Loan whether the Loans are to be LIBOR Rate Loans or Base Rate  Loans, and (E) in the case of a LIBOR Rate Loan, the duration of the Interest Period applicable thereto; provided  that if Borrower wishes to request LIBOR Rate Loans having an Interest Period of twelve months in duration,  such notice must be received by the Administrative Agent not later than 1:00 p.m. four (4) Business Days prior  to the requested date of such borrowing, whereupon the Administrative Agent shall give prompt notice to the  Lenders of such request and determine whether the requested Interest Period is acceptable to all of them.  If  Borrower fails to specify a type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as  Base Rate Loans.  If Borrower requests a Borrowing of LIBOR Rate Loans in any such Notice of Borrowing,  but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.  A  Notice of Borrowing received after 1:00 p.m. shall be deemed received on the next Business Day.  The  Administrative Agent shall promptly notify the Lenders of each Notice of Borrowing.  (b) Disbursement of Revolving Credit and Swingline Loans.  Not later than 3:00 p.m. on the  proposed borrowing date, (i) each Lender will make available to the Administrative Agent, for the account of  Borrower, at the office of the Administrative Agent in funds immediately available to the Administrative Agent,  such Lender’s Commitment Percentage of the Revolving Credit Loans to be made on such borrowing date and  (ii) the Swingline Lender will make available to the Administrative Agent, for the account of Borrower, at the  office of the Administrative Agent in funds immediately available to the Administrative Agent, the Swingline  Loans to be made on such borrowing date.  Borrower hereby irrevocably authorizes the Administrative Agent to  disburse the proceeds of each borrowing requested pursuant to this Section in immediately available funds by  crediting or wiring such proceeds to the deposit account of Borrower identified in the most recent notice  substantially in the form attached as Exhibit C (a “Notice of Account Designation”) delivered by Borrower to  the Administrative Agent or as may be otherwise agreed upon by Borrower and the Administrative Agent from  time to time.  Subject to Section 5.7 hereof, the Administrative Agent shall not be obligated to disburse the  portion of the proceeds of any Revolving Credit Loan requested pursuant to this Section to the extent that any  Lender has not made available to the Administrative Agent its Commitment Percentage of such Loan.   Revolving Credit Loans to be made for the purpose of refunding Swingline Loans shall be made by the Lenders  as provided in Section 2.2(b).  SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans.  (a) Repayment on Maturity Date.  Borrower hereby agrees to repay the outstanding principal  amount of (i) all Revolving Credit Loans in full on the Maturity Date, and (ii) all Swingline Loans in accordance  with Section 2.2(b) (but, in any event, no later than the Maturity Date), together, in each case, with all accrued  but unpaid interest thereon.  (b) Mandatory Prepayments.  If at any time the Revolving Credit Outstandings exceed the  Commitment, Borrower agrees to repay immediately upon notice from the Administrative Agent, by payment to  the Administrative Agent for the account of the Lenders, Extensions of Credit in an amount equal to such excess  with each such repayment applied first, to the principal amount of outstanding Swingline Loans, second to the  principal amount of outstanding Revolving Credit Loans and third, with respect to any Letters of Credit then  outstanding, a payment of Cash Collateral into a Cash Collateral account opened by the Administrative Agent,  for the benefit of the Lenders, in an amount equal to such excess (such Cash Collateral to be applied in  accordance with Section 10.2(b)).  (c) Optional Prepayments.  Borrower may at any time and from time to time prepay Revolving  Credit Loans and Swingline Loans, in whole or in part, with irrevocable prior notice (1) written substantially in  the form of Exhibit D or (2) delivered electronically via e-mail from the official corporate email address of  





 






  37   Borrower which includes an approval from the Chief Financial Officer, Senior Vice President - Finance &  Accounting, Controller, Treasurer, Assistant Treasurer, Director of Treasury or Senior Manager - Treasury  Operations of Borrower and containing substantially the same information as specified on Exhibit D (a “Notice  of Prepayment”) given not later than 1:00 p.m. (i) on the same Business Day as each Base Rate Loan and each  Swingline Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, specifying the date and  amount of prepayment and whether the prepayment is of LIBOR Rate Loans, Base Rate Loans, Swingline Loans  or a combination thereof, and, if of a combination thereof, the amount allocable to each.  Upon receipt of such  notice, the Administrative Agent shall promptly notify each Lender.  If any such notice is given, the amount  specified in such notice shall be due and payable on the date set forth in such notice.  Partial prepayments shall  be in an aggregate amount of $1,000,000 or a whole multiple of $100,000 in excess thereof with respect to Base  Rate Loans (other than Swingline Loans), $1,000,000 or a whole multiple of $250,000 in excess thereof with  respect to LIBOR Rate Loans and $100,000 or a whole multiple of $50,000 in excess thereof with respect to  Swingline Loans.  A Notice of Prepayment received after 1:00 p.m. shall be deemed received on the next  Business Day.  Each such repayment shall be accompanied by any amount required to be paid pursuant to  Section 5.9 hereof.  Notwithstanding the foregoing, any Notice of a Prepayment delivered in connection with  any refinancing of all of the Credit Facility with the proceeds of such refinancing or of any incurrence of  Indebtedness, may be, if expressly so stated to be, contingent upon the consummation of such refinancing or  incurrence and may be revoked by Borrower in the event such refinancing is not consummated (provided that  the failure of such contingency shall not relieve Borrower from its obligations in respect thereof under  Section 5.9).   (d) Limitation on Prepayment of LIBOR Rate Loans.  Borrower may not prepay any LIBOR Rate  Loan on any day other than on the last day of the Interest Period applicable thereto unless such prepayment is  accompanied by any amount required to be paid pursuant to Section 5.9 hereof.  (e) Hedge Agreements.  No repayment or prepayment of the Loans pursuant to this Section shall  affect any of Borrower’s obligations under any Hedge Agreement entered into with respect to the Loans.  SECTION 2.5 Permanent Reduction of the Commitment.  (a) Voluntary Reduction.  Borrower shall have the right at any time and from time to time, upon at  least five (5) Business Days prior irrevocable written notice to the Administrative Agent, to permanently reduce,  without premium or penalty, (i) the entire Commitment at any time or (ii) portions of the Commitment, from  time to time, in an aggregate principal amount not less than $1,000,000 or any whole multiple of $500,000 in  excess thereof.  Any reduction of the Commitment shall be applied to the Commitment of each Lender according  to its Commitment Percentage.  All Commitment Fees accrued until the effective date of any termination of the  Commitment shall be paid on the effective date of such termination.  Notwithstanding the foregoing, any notice  to reduce the Commitment delivered in connection with any refinancing of all of the Credit Facility with the  proceeds of such refinancing or of any incurrence of Indebtedness, may be, if expressly so stated to be,  contingent upon the consummation of such refinancing or incurrence and may be revoked by Borrower in the  event such refinancing is not consummated (provided that the failure of such contingency shall not relieve  Borrower from its obligations in respect thereof under Section 5.9).  (b) Corresponding Payment.  Each permanent reduction permitted pursuant to this Section shall be  accompanied by a payment of principal sufficient to reduce the aggregate outstanding Revolving Credit Loans,  Swingline Loans and L/C Obligations, as applicable, after such reduction to the Commitment as so reduced, and  if the aggregate amount of all outstanding Letters of Credit exceeds the Commitment as so reduced, Borrower  shall be required to deposit Cash Collateral in a Cash Collateral account opened by the Administrative Agent in  an amount equal to such excess.  Such Cash Collateral shall be applied in accordance with Section 10.2(b).  Any  reduction of the Commitment to zero shall be accompanied by payment of all outstanding Revolving Credit  Loans and Swingline Loans (and furnishing of Cash Collateral satisfactory to the Administrative Agent for all  L/C Obligations) and shall result in the termination of the Commitment and the Swingline Commitment and the  





 






  38   Revolving Credit Facility.  If the reduction of the Commitment requires the repayment of any LIBOR Rate  Loan, such repayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof.  SECTION 2.6 Termination of Revolving Credit Facility.  The Revolving Credit Facility and the Commitments  shall terminate on the Maturity Date.  ARTICLE III    LETTER OF CREDIT FACILITY  SECTION 3.1 L/C Facility.    (a) Availability.  Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the  agreements of the Lenders set forth in Section 3.4(a), agrees to issue standby Letters of Credit and commercial  Letters of Credit in an aggregate amount not to exceed its L/C Commitment for the account of Borrower or,  subject to Section 3.10, any Subsidiary thereof, Letters of Credit may be issued on any Business Day from the  Closing Date through but not including the fifth (5th) Business Day prior to the Maturity Date in such form as  may be approved from time to time by the applicable Issuing Lender; provided, that no Issuing Lender shall  issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C  Sublimit or (ii) the Revolving Credit Outstandings would exceed the Commitment.  Each Letter of Credit shall  (i) be denominated in Dollars, (ii) expire on a date no more than twelve (12) months after the date of issuance or  last renewal of such Letter of Credit (subject to automatic renewal for additional one (1) year periods pursuant to  the terms of the Letter of Credit Application or other documentation acceptable to the applicable Issuing  Lender), which date shall be no later than the fifth (5th) Business Day prior to the Maturity Date and (iii) be  subject to the ISP98 or, with respect to commercial letters of credit UCP 600, as applicable, as set forth in the  Letter of Credit Application or as determined by the applicable Issuing Lender and, to the extent not inconsistent  therewith, the laws of the State of New York.  No Issuing Lender shall at any time be obligated to issue any  Letter of Credit hereunder if (i) any order, judgment or decree of any Governmental Authority or arbitrator shall  by its terms purport to enjoin or restrain such Issuing Lender from issuing such Letter of Credit, or any  Applicable Law applicable to such Issuing Lender or any request or directive (whether or not having the force of  law) from any Governmental Authority with jurisdiction over such Issuing Lender shall prohibit, or request that  such Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular  or shall impose upon such Issuing Lender with respect to letters of credit generally or such Letter of Credit in  particular any restriction or reserve or capital requirement (for which such Issuing Lender is not otherwise  compensated) not in effect on the Closing Date, or any unreimbursed loss, cost or expense that was not  applicable, in effect or known to such Issuing Lender as of the Closing Date and that such Issuing Lender in  good faith deems material to it, (ii) the conditions set forth in Section 6.2 are not satisfied, or (iii) the proceeds of  which would be made available to any Person (x) to fund any activity or business of or with any Sanctioned  Person, or in any Sanctioned Country or (y) in any manner that would result in a violation of any Sanctions by  any party to this Agreement.  References herein to “issue” and derivations thereof with respect to Letters of  Credit shall also include extensions or modifications of any outstanding Letters of Credit, unless the context  otherwise requires.    (b) Defaulting Lenders.  Notwithstanding anything to the contrary contained in this Agreement,  Article III shall be subject to the terms and conditions of Section 5.14 and Section 5.15.  SECTION 3.2 Procedure for Issuance of Letters of Credit.  Borrower may from time to time request that any  Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at its applicable office (with a copy to the  Administrative Agent at the Administrative Agent’s Office) a Letter of Credit Application therefor, completed to the  satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information as such  Issuing Lender or the Administrative Agent may request.  Upon receipt of any Letter of Credit Application, the  applicable Issuing Lender shall, process such Letter of Credit Application and the certificates, documents and other  papers and information delivered to it in connection therewith in accordance with its customary procedures and shall,  





 






  39   subject to Section 3.1 and Article VI, promptly issue the Letter of Credit requested thereby (but in no event shall such  Issuing Lender be required to issue any Letter of Credit earlier than three (3) Business Days after its receipt of the Letter  of Credit Application therefor and all such other certificates, documents and other papers and information relating  thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed by such  Issuing Lender and Borrower.  The applicable Issuing Lender shall promptly furnish to Borrower and the Administrative  Agent a copy of such Letter of Credit and the Administrative Agent shall promptly notify each Lender of the issuance  and upon request by any Lender, furnish to such Lender a copy of such Letter of Credit and the amount of such Lender’s  participation therein.  SECTION 3.3 Commissions and Other Charges.  (a) Letter of Credit Commissions.  Subject to Section 5.15(a)(iii)(B), Borrower shall pay to the  Administrative Agent, for the account of the applicable Issuing Lender and the L/C Participants, a letter of credit  commission with respect to each Letter of Credit in the amount equal to the daily amount available to be drawn  under such Letters of Credit times the Applicable Margin with respect to Revolving Credit Loans that are  LIBOR Rate Loans (determined, in each case, on a per annum basis).  Such commission shall be payable  quarterly in arrears on the last Business Day of each calendar quarter, on the Maturity Date and thereafter on  demand of the Administrative Agent.  The Administrative Agent shall, promptly following its receipt thereof,  distribute to the applicable Issuing Lender and the L/C Participants all commissions received pursuant to this  Section 3.3 in accordance with their respective Commitment Percentages.  (b) Issuance Fee.  In addition to the foregoing commission, Borrower shall pay directly to the  applicable Issuing Lender, for its own account, an issuance fee with respect to each Letter of Credit issued by  such Issuing Lender as set forth in the Fee Letter executed by such Issuing Lender and Borrower.  Unless  otherwise set forth in any such Fee Letter, such issuance fee shall be payable quarterly in arrears on the last  Business Day of each calendar quarter commencing with the first such date to occur after the issuance of such  Letter of Credit, on the Maturity Date and thereafter on demand of the applicable Issuing Lender.  (c) Other Fees, Costs, Charges and Expenses.  In addition to the foregoing fees and commissions,  Borrower shall pay or reimburse each Issuing Lender for such normal and customary fees, costs, charges and  expenses as are incurred or charged by such Issuing Lender in issuing, effecting payment under, amending or  otherwise administering any Letter of Credit issued by it.  SECTION 3.4 L/C Participations.  (a) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and,  to induce each Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to  accept and purchase and hereby accepts and purchases from each Issuing Lender, on the terms and conditions  hereinafter stated, for such L/C Participant’s own account and risk an undivided interest equal to such L/C  Participant’s Commitment Percentage in each Issuing Lender’s obligations and rights under and in respect of  each Letter of Credit issued by it hereunder and the amount of each draft paid by such Issuing Lender  thereunder.  Each L/C Participant unconditionally and irrevocably agrees with each Issuing Lender that, if a draft  is paid under any Letter of Credit issued by such Issuing Lender for which such Issuing Lender is not reimbursed  in full by Borrower through a Revolving Credit Loan or otherwise in accordance with the terms of this  Agreement, such L/C Participant shall pay to such Issuing Lender upon demand at such Issuing Lender’s address  for notices specified herein an amount equal to such L/C Participant’s Commitment Percentage of the amount of  such draft, or any part thereof, which is not so reimbursed.  (b) Upon becoming aware of any amount required to be paid by any L/C Participant to any Issuing  Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by such Issuing  Lender under any Letter of Credit, issued by it, such Issuing Lender shall notify the Administrative Agent of  such unreimbursed amount and the Administrative Agent shall notify each L/C Participant (with a copy to the  applicable Issuing Lender) of the amount and due date of such required payment and such L/C Participant shall  





 






  40   pay to the Administrative Agent (which, in turn shall pay such Issuing Lender) the amount specified on the  applicable due date.  If any such amount is paid to such Issuing Lender after the date such payment is due, such  L/C Participant shall pay to such Issuing Lender on demand, in addition to such amount, the product of (i) such  amount, times (ii) the daily average Federal Funds Rate as determined by the Administrative Agent during the  period from and including the date such payment is due to the date on which such payment is immediately  available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse  during such period and the denominator of which is 360.  A certificate of such Issuing Lender with respect to  any amounts owing under this Section shall be conclusive in the absence of manifest error.  With respect to  payment to such Issuing Lender of the unreimbursed amounts described in this Section, if the L/C Participants  receive notice that any such payment is due (A) prior to 1:00 p.m. on any Business Day, such payment shall be  due that Business Day, and (B) after 1:00 p.m. on any Business Day, such payment shall be due on the following  Business Day.  (c) Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit  issued by it and has received from any L/C Participant its Commitment Percentage of such payment in  accordance with this Section, such Issuing Lender receives any payment related to such Letter of Credit  (whether directly from Borrower or otherwise), or any payment of interest on account thereof, such Issuing  Lender will distribute to such L/C Participant its pro rata share thereof; provided, that in the event that any such  payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C  Participant shall return to such Issuing Lender the portion thereof previously distributed by such Issuing Lender  to it.  (d) Each L/C Participant’s obligation to make the Revolving Credit Loans referred to in  Section 3.4(b) and to purchase participating interests pursuant to Section 3.4(a) shall be absolute and  unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment,  defense or other right that such Revolving Credit Lender or Borrower may have against the Issuing Lender,  Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an  Event of Default or the failure to satisfy any of the other conditions specified in Article VI, (iii) any adverse  change in the condition (financial or otherwise) of Borrower, (iv) any breach of this Agreement or any other  Loan Document by Borrower, any other Credit Party or any other Revolving Credit Lender or (v) any other  circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.  SECTION 3.5 Reimbursement Obligation of Borrower.  In the event of any drawing under any Letter of  Credit, Borrower agrees to reimburse (either with the proceeds of a Revolving Credit Loan as provided for in this  Section or with funds from other sources), in same day funds, the applicable Issuing Lender on each date on which such  Issuing Lender notifies Borrower of the date and amount of a draft paid by it under any Letter of Credit for the amount  of (a) such draft so paid and (b) any amounts referred to in Section 3.3(c) incurred by such Issuing Lender in connection  with such payment.  Unless Borrower shall immediately notify such Issuing Lender that Borrower intends to reimburse  such Issuing Lender for such drawing from other sources or funds, Borrower shall be deemed to have timely given a  Notice of Borrowing to the Administrative Agent requesting that the Lenders make a Revolving Credit Loan bearing  interest at the Base Rate on the applicable repayment date in the amount of (i) such draft so paid and (ii) any amounts  referred to in Section 3.3(c) incurred by such Issuing Lender in connection with such payment, and the Lenders shall  make a Revolving Credit Loan bearing interest at the Base Rate in such amount, the proceeds of which shall be applied  to reimburse such Issuing Lender for the amount of the related drawing and such fees and expenses.  Each Lender  acknowledges and agrees that its obligation to fund a Revolving Credit Loan in accordance with this Section to  reimburse such Issuing Lender for any draft paid under a Letter of Credit issued by it is absolute and unconditional and  shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set  forth in Section 2.3(a) or Article VI.  If Borrower has elected to pay the amount of such drawing with funds from other  sources and shall fail to reimburse such Issuing Lender as provided above, the unreimbursed amount of such drawing  shall bear interest at the rate which would be payable on any outstanding Base Rate Loans which were then overdue  from the date such amounts become payable (whether at stated maturity, by acceleration or otherwise) until payment in  full.  





 






  41   SECTION 3.6 Obligations Absolute.  Borrower’s obligations under this Article III (including, without  limitation, the Reimbursement Obligation) shall be absolute and unconditional under any and all circumstances and  irrespective of any set off, counterclaim or defense to payment which Borrower may have or have had against the  applicable Issuing Lender or any beneficiary of a Letter of Credit or any other Person.  Borrower also agrees that the  applicable Issuing Lender and the L/C Participants shall not be responsible for, and Borrower’s Reimbursement  Obligation under Section 3.5 shall not be affected by, among other things, the validity or genuineness of documents or of  any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any  dispute between or among Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter  of Credit may be transferred or any claims whatsoever of Borrower against any beneficiary of such Letter of Credit or  any such transferee.  No Issuing Lender shall be liable for any error, omission, interruption or delay in transmission,  dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit issued by it,  except for errors or omissions caused by such Issuing Lender’s bad faith, gross negligence, willful misconduct or  material breach in bad faith of any Loan Document, as determined by a court of competent jurisdiction by final  nonappealable judgment.  Borrower agrees that any action taken or omitted by any Issuing Lender under or in  connection with any Letter of Credit issued by it or the related drafts or documents, if done in the absence of bad faith,  gross negligence, willful misconduct or material breach in bad faith of any Loan Document shall be binding on Borrower  and shall not result in any liability of such Issuing Lender or any L/C Participant to Borrower.  The responsibility of any  Issuing Lender to Borrower in connection with any draft presented for payment under any Letter of Credit issued to it  shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining  that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment  substantially conforms to the requirements under such Letter of Credit.  SECTION 3.7 Effect of Letter of Credit Application.  To the extent that any provision of any Letter of Credit  Application related to any Letter of Credit is inconsistent with the provisions of this Article III, the provisions of this  Article III shall apply.  SECTION 3.8 Resignation of Issuing Lenders.    (a) Any Lender may at any time resign from its role as an Issuing Lender hereunder upon not less  than thirty (30) days prior notice to Borrower and the Administrative Agent (or such shorter period of time as  may be acceptable to Borrower and the Administrative Agent).  (b) Any resigning Issuing Lender shall retain all the rights, powers, privileges and duties of an  Issuing Lender hereunder with respect to all Letters of Credit issued by it that are outstanding as of the effective  date of its resignation as an Issuing Lender and all L/C Obligations with respect thereto (including, without  limitation, the right to require the Lenders to take such actions as are required under Section 3.4).  Without  limiting the foregoing, upon the resignation of a Lender as an Issuing Lender hereunder, Borrower may, or at the  request of such resigned Issuing Lender Borrower shall, use commercially reasonable efforts to, arrange for one  or more of the other Issuing Lenders to issue Letters of Credit hereunder in substitution for the Letters of Credit,  if any, issued by such resigned Issuing Lender and outstanding at the time of such resignation, or make other  arrangements satisfactory to the resigned Issuing Lender to effectively cause another Issuing Lender to assume  the obligations of the resigned Issuing Lender with respect to any such Letters of Credit.   SECTION 3.9 Reporting of Letter of Credit Information and L/C Commitment.  At any time that there is an  Issuing Lender that is not also the financial institution acting as Administrative Agent, then (a) on the last Business Day  of each calendar month, (b) on each date that a Letter of Credit is amended, terminated or otherwise expires, (c) on each  date that a Letter of Credit is issued or the expiry date of a Letter of Credit is extended, and (d) upon the request of the  Administrative Agent, each Issuing Lender (or, in the case of clauses (b), (c) or (d) of this Section, the applicable Issuing  Lender) shall deliver to the Administrative Agent a report setting forth in form and detail reasonably satisfactory to the  Administrative Agent information (including, without limitation, any reimbursement, Cash Collateral, or termination in  respect of Letters of Credit issued by such Issuing Lender) with respect to each Letter of Credit issued by such Issuing  Lender that is outstanding hereunder.  In addition, each Issuing Lender shall provide notice to the Administrative Agent  of its L/C Commitment, or any change thereto, promptly upon it becoming an Issuing Lender or making any change to  





 






  42   its L/C Commitment.  No failure on the part of any L/C Issuer to provide such information pursuant to this Section 3.9  shall limit the obligations of Borrower or any Lender hereunder with respect to its reimbursement and participation  obligations hereunder.  SECTION 3.10 Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit issued or  outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, Borrower shall be  obligated to reimburse, or to cause the applicable Subsidiary to reimburse, the applicable Issuing Lender hereunder for  any and all drawings under such Letter of Credit.  Borrower hereby acknowledges that the issuance of Letters of Credit  for the account of any of its Subsidiaries inures to the benefit of Borrower and that Borrower’s business derives  substantial benefits from the businesses of such Subsidiaries.  ARTICLE IV    [RESERVED]  ARTICLE V    GENERAL LOAN PROVISIONS  SECTION 5.1 Interest.  (a) Interest Rate Options.  Subject to the provisions of this Section, at the election of Borrower,  (i) Revolving Credit Loans shall bear interest at (A) the Base Rate plus the Applicable Margin or (B) the LIBOR  Rate plus the Applicable Margin (provided that the LIBOR Rate shall not be available until three (3) Business  Days (or four (4) Business Days with respect to a LIBOR Rate based on a twelve month Interest Period) after the  Closing Date unless Borrower has delivered to the Administrative Agent a letter in form and substance  reasonably satisfactory to the Administrative Agent indemnifying the Lenders in the manner set forth in  Section 5.9 of this Agreement) and (ii) any Swingline Loan shall bear interest at the Base Rate plus the  Applicable Margin.  Borrower shall select the rate of interest and Interest Period, if any, applicable to any Loan  at the time a Notice of Borrowing is given or at the time a Notice of Conversion/Continuation is given pursuant  to Section 5.2.  (b) Default Rate.  Subject to Section 10.3, (i) immediately upon the occurrence and during the  continuance of an Event of Default under Section 10.1(a), (b), (h) or (i), or (ii) at the election of the Required  Lenders (or the Administrative Agent at the direction of the Required Lenders), upon the occurrence and during  the continuance of any other Event of Default, (A) Borrower shall no longer have the option to request LIBOR  Rate Loans, Swingline Loans or Letters of Credit, (B) all outstanding LIBOR Rate Loans shall bear interest at a  rate per annum of two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to  LIBOR Rate Loans until the end of the applicable Interest Period and thereafter at a rate equal to two percent  (2%) in excess of the rate (including the Applicable Margin) then applicable to Base Rate Loans, (C) all  outstanding Base Rate Loans and other Obligations arising hereunder or under any other Loan Document shall  bear interest at a rate per annum equal to two percent (2%) in excess of the rate (including the Applicable  Margin) then applicable to Base Rate Loans or such other Obligations arising hereunder or under any other Loan  Document and (D) all accrued and unpaid interest shall be due and payable on demand of the Administrative  Agent.  Interest shall continue to accrue on the Obligations after the filing by or against Borrower of any petition  seeking any relief in bankruptcy or under any Debtor Relief Law.  (c) Interest Payment and Computation.  Interest on each Base Rate Loan shall be due and payable in  arrears on the last Business Day of each calendar quarter commencing December 31, 2021; and interest on each  LIBOR Rate Loan shall be due and payable on the last day of each Interest Period applicable thereto, and if such  Interest Period extends over three (3) months, at the end of each three (3) month interval during such Interest  Period.  All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime Rate  shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other  





 






  43   computations of fees and interest provided hereunder shall be made on the basis of a 360-day year and actual  days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a  365/366-day year).  (d) Maximum Rate.  In no contingency or event whatsoever shall the aggregate of all amounts  deemed interest under this Agreement charged or collected pursuant to the terms of this Agreement exceed the  highest rate permissible under any Applicable Law which a court of competent jurisdiction shall, in a final  determination, deem applicable hereto.  In the event that such a court determines that the Lenders have charged  or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall  automatically be reduced to the maximum rate permitted by Applicable Law and the Lenders shall at the  Administrative Agent’s option (i) promptly refund to Borrower any interest received by the Lenders in excess of  the maximum lawful rate or (ii) apply such excess to the principal balance of the Obligations.  It is the intent  hereof that Borrower not pay or contract to pay, and that neither the Administrative Agent nor any Lender  receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which  may be paid by Borrower under Applicable Law.  SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans. Provided that no Default or Event  of Default has occurred and is then continuing, Borrower shall have the option to (a) convert at any time all or any  portion of any outstanding Base Rate Loans (other than Swingline Loans) in a principal amount equal to $1,000,000 or  any whole multiple of $100,000 in excess thereof into one or more LIBOR Rate Loans and (b) upon the expiration of  any Interest Period, (i) convert all or any part of its outstanding LIBOR Rate Loans in a principal amount equal to  $1,000,000 or a whole multiple of $100,000 in excess thereof into Base Rate Loans (other than Swingline Loans) or  (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans.  Whenever Borrower desires to convert or continue Loans  as provided above, Borrower shall give the Administrative Agent irrevocable prior notice (1) written substantially in the  form of Exhibit E or (2) delivered electronically via e-mail from the official corporate email address of Borrower which  includes an approval from the Chief Financial Officer, Senior Vice President - Finance & Accounting, Controller,  Treasurer, Assistant Treasurer, Director of Treasury or Senior Manager - Treasury Operations of Borrower and  containing substantially the same information as specified on Exhibit E (a “Notice of Conversion/Continuation”) not  later than 1:00 p.m. three (3) Business Days before the day on which a proposed conversion or continuation of such Loan  is to be effective specifying (A) the Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to be  converted or continued, the last day of the Interest Period therefor, (B) the effective date of such conversion or  continuation (which shall be a Business Day), (C) the principal amount of such Loans to be converted or continued, and  (D) the Interest Period to be applicable to such converted or continued LIBOR Rate Loan; provided that if Borrower  wishes to request LIBOR Rate Loans having an Interest Period of twelve months in duration, such notice must be  received by the Administrative Agent not later than 1:00 p.m. three (3) Business Days prior to the requested date of such  conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the applicable Lenders of  such request and determine whether the requested Interest Period is acceptable to all of them.  If Borrower fails to give a  timely Notice of Conversion/Continuation prior to the end of the Interest Period for any LIBOR Rate Loan, then the  applicable LIBOR Rate Loan shall be converted to a Base Rate Loan.  Any such automatic conversion to a Base Rate  Loan shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Rate  Loan.  If Borrower requests a conversion to, or continuation of, LIBOR Rate Loans, but fails to specify an Interest  Period, it will be deemed to have specified an Interest Period of one month.  Subject to the foregoing, Borrower hereby  gives notice to the Administrative Agent that Borrower elects, with respect to the $100,000,000 outstanding on the  Closing Date (which shall be reduced to $75,000,000 on May 31, 2023, which shall be further reduced to $40,000,000  on May 31, 2024 and which shall be further reduced to $0.00 on May 30, 2025), the Interest Period shall be for one (1)  month with the first such period ending on October 29, 2021, and such Interest Period shall renew automatically for an  additional one (1) month period at the end of each month; provided that, (A) Borrower may revoke such election at any  time upon written notice to the Administrative Agent and (B) to the extent Borrower repays the Loans such that the  outstanding aggregate principal amount of Revolving Loans hereunder is less than the applicable amount set forth in this  sentence, the election in this sentence shall thereafter apply to such lesser amount.  Notwithstanding anything to the  contrary herein, a Swingline Loan may not be converted to a LIBOR Rate Loan (but a Revolving Credit Loan bearing  interest at the LIBOR Rate or the Base Rate may be used to repay a Swingline Loan).  The Administrative Agent shall  promptly notify the affected Lenders of such Notice of Conversion / Continuation.  Notwithstanding the foregoing,  





 






  44   Loans made on the Closing Date or any of the three (3) Business Days following the Closing Date, may only consist of  Base Rate Loans unless Borrower delivers a funding indemnity letter, substantially in the form of Exhibit I or otherwise  reasonably acceptable to the Administrative Agent.  LIBOR Rate Loans shall be made by each Revolving Lender at its  LIBOR Lending Office and Base Rate Loans at its domestic Lending Office.    SECTION 5.3 Fees.  (a) Commitment Fee.  Commencing on the Closing Date, subject to Section 5.15(a)(iii)(A), a non- refundable commitment fee (the “Commitment Fee”) shall accrue in favor of the Administrative Agent, for the  account of the Lenders, at a rate per annum equal to the Applicable Margin on the average daily unused portion  of the Commitment of the Lenders (other than the Defaulting Lenders, if any); provided, that the amount of  outstanding Swingline Loans shall not be considered usage of the Commitment for the purpose of calculating the  Commitment Fee.  The Commitment Fee shall be payable in arrears on the last Business Day of each calendar  quarter during the term of this Agreement commencing December 31, 2021 and ending on the date upon which  all Obligations (other than contingent indemnification obligations not then due) arising under the Revolving  Credit Facility shall have been indefeasibly and irrevocably paid and satisfied in full, all Letters of Credit have  been terminated or expired (or been Cash Collateralized) and the Commitment has been terminated.  The  Commitment Fee shall be distributed by the Administrative Agent to the Lenders (other than any Defaulting  Lender) pro rata in accordance with such Lenders’ respective Commitment Percentages.  (b) Other Fees.  Borrower shall pay to the Arranger and the Administrative Agent for their own  respective accounts fees in the amounts and at the times specified in their Fee Letter.  Borrower shall pay to the  Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so  specified.  SECTION 5.4 Manner of Payment.  Each payment by Borrower on account of the principal of or interest on  the Loans or of any fee, commission or other amounts (including the Reimbursement Obligation) payable to the Lenders  under this Agreement shall be made not later than 3:00 p.m. on the date specified for payment under this Agreement to  the Administrative Agent at the Administrative Agent’s Office for the account of the Lenders entitled to such payment in  Dollars, in immediately available funds and shall be made without any set off, counterclaim or deduction whatsoever.   Any payment received after such time but before 4:00 p.m. on such day shall be deemed a payment on such date for the  purposes of Section 10.1, but for all other purposes shall be deemed to have been made on the next succeeding Business  Day.  Any payment received after 4:00 p.m. shall be deemed to have been made on the next succeeding Business Day for  all purposes.  Upon receipt by the Administrative Agent of each such payment, the Administrative Agent shall distribute  to each such Lender at its address for notices set forth herein its Commitment Percentage in respect of the relevant Credit  Facility (or other applicable share as provided herein) of such payment and shall wire advice of the amount of such credit  to each Lender.  Each payment to the Administrative Agent on account of the principal of or interest on the Swingline  Loans or of any fee, commission or other amounts payable to the Swingline Lender shall be made in like manner, but for  the account of the Swingline Lender.  Each payment to the Administrative Agent of any Issuing Lender’s fees or L/C  Participants’ commissions shall be made in like manner, but for the account of such Issuing Lender or the L/C  Participants, as the case may be.  Each payment to the Administrative Agent of Administrative Agent’s fees or expenses  shall be made for the account of the Administrative Agent and any amount payable to any Lender under Sections 5.9,  5.10, 5.11 or 12.3 shall be paid to the Administrative Agent for the account of the applicable Lender.  Subject to the  definition of Interest Period, if any payment under this Agreement shall be specified to be made upon a day which is not  a Business Day, it shall be made on the next succeeding day which is a Business Day and such extension of time shall in  such case be included in computing any interest if payable along with such payment.  Notwithstanding the foregoing, if  there exists a Defaulting Lender each payment by Borrower to such Defaulting Lender hereunder shall be applied in  accordance with Section 5.15(a)(ii).  SECTION 5.5 Evidence of Indebtedness.  (a) Extensions of Credit.  The Extensions of Credit made by each Lender and each Issuing Lender  shall be evidenced by one or more accounts or records maintained by such Lender or such Issuing Lender and by  





 






  45   the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the  Administrative Agent and each Lender or the applicable Issuing Lender shall be conclusive absent manifest error  of the amount of the Extensions of Credit made by the Lenders or such Issuing Lender to Borrower and its  Subsidiaries and the interest and payments thereon.  Any failure to so record or any error in doing so shall not,  however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect  to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender or  any Issuing Lender and the accounts and records of the Administrative Agent in respect of such matters, the  accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the  request of any Lender made through the Administrative Agent, Borrower shall execute and deliver to such  Lender (through the Administrative Agent) a Revolving Credit Note and/or Swingline Note, as applicable, which  shall evidence such Lender’s Revolving Credit Loans and/or Swingline Loans, as applicable, in addition to such  accounts or records.  Each Lender may attach schedules to its Notes and endorse thereon the date, amount and  maturity of its Loans and payments with respect thereto.  (b) Participations.  In addition to the accounts and records referred to in subsection (a), each Lender  and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing  the purchases and sales by such Lender of participations in Letters of Credit and Swingline Loans.  In the event  of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and  records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall  control in the absence of manifest error.  SECTION 5.6 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or  counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its 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 (other than pursuant to Sections 5.9, 5.10, 5.11 or 12.3) greater  than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the  Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the 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, without interest, and  (ii) the provisions of this paragraph shall not be construed to apply to (A) any payment  made by Borrower pursuant to and in accordance with the express terms of this Agreement (including  the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash  Collateral provided for in Section 5.14 or (C) any payment obtained by a Lender as consideration for the  assignment of or sale of a participation in any of its Loans or participations in Swingline Loans and  Letters of Credit to any assignee or participant, other than to Borrower or any of its Subsidiaries or  Affiliates (as to which the provisions of this paragraph shall apply).  Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that  any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Credit Party  rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of  each Credit Party in the amount of such participation.  SECTION 5.7 Administrative Agent’s Clawback.  (a) Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent  shall have received notice from a Lender (i) in the case of Base Rate Loans, not later than 1:00 p.m. on the date  of any proposed borrowing and (ii) otherwise, prior to the proposed date of any borrowing that such Lender will  





 






  46   not make available to the Administrative Agent such Lender’s share of such borrowing, the Administrative  Agent may assume that such Lender has made such share available on such date in accordance with  Section 2.3(b) and may, in reliance upon such assumption, make available to Borrower a corresponding amount.   In such event, if a Lender has not in fact made its share of the applicable borrowing available to the  Administrative Agent, then the applicable Lender and Borrower severally agree to pay to the Administrative  Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including  the date such amount is made available to Borrower to but excluding the date of payment to the Administrative  Agent, at (A) in the case of a payment to be made by such Lender, the greater of the daily average Federal Funds  Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank  compensation and (B) in the case of a payment to be made by Borrower, the interest rate applicable to Base Rate  Loans.  If Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an  overlapping period, the Administrative Agent shall promptly remit to Borrower the amount of such interest paid  by Borrower for such period.  If such Lender pays its share of the applicable borrowing to the Administrative  Agent, then the amount so paid shall constitute such Lender’s Loan included in such borrowing.  Any payment  by Borrower shall be without prejudice to any claim Borrower may have against a Lender that shall have failed  to make such payment to the Administrative Agent.  (b) Payments by Borrower; Presumptions by Administrative Agent.  Unless the Administrative  Agent shall have received notice from Borrower prior to the date on which any payment is due to the  Administrative Agent for the account of the Lenders, any Issuing Lender or the Swingline Lender hereunder that  Borrower will not make such payment, the Administrative Agent may assume that Borrower has made such  payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the  Lenders, any Issuing Lender or the Swingline Lender, as the case may be, the amount due.  In such event, if  Borrower has not in fact made such payment, then each of the Lenders, any Issuing Lender or the Swingline  Lender, as the case maybe, severally agrees to repay to the Administrative Agent forthwith on demand the  amount so distributed to such Lender, Issuing Lender or the Swingline Lender, with interest thereon, for each  day from and including the date such amount is distributed to it to but excluding the date of payment to the  Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative  Agent in accordance with banking industry rules on interbank compensation.  (c) Nature of Obligations of Lenders Regarding Extensions of Credit.  The obligations of the  Lenders under this Agreement to make the Loans and issue or participate in Letters of Credit are several and are  not joint or joint and several.  The failure of any Lender to make available its Commitment Percentage of any  Loan requested by Borrower shall not relieve it or any other Lender of its obligation, if any, hereunder to make  its Commitment Percentage of such Loan available on the borrowing date, but no Lender shall be responsible for  the failure of any other Lender to make its Commitment Percentage of such Loan available on the borrowing  date.  SECTION 5.8 Changed Circumstances.  (a) Circumstances Affecting LIBOR Rate Availability.  Unless and until a Benchmark Replacement  is implemented in accordance with clause (c) below, in connection with any request for a LIBOR Rate Loan or a  conversion to or continuation thereof or otherwise, if for any reason (i) the Administrative Agent shall determine  (which determination shall be conclusive and binding absent manifest error) that Dollar deposits are not being  offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of  such Loan, (ii) the Administrative Agent shall determine (which determination shall be conclusive and binding  absent manifest error) that reasonable and adequate means do not exist for the ascertaining the LIBOR Rate for  such Interest Period with respect to a proposed LIBOR Rate Loan or (iii) the Required Lenders shall determine  (which determination shall be conclusive and binding absent manifest error) that the LIBOR Rate does not  adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest  Period, then the Administrative Agent shall promptly give notice thereof to Borrower.  Thereafter, until the  Administrative Agent notifies Borrower that such circumstances no longer exist, the obligation of the Lenders to  make LIBOR Rate Loans and the right of Borrower to convert any Loan to or continue any Loan as a LIBOR  





 






  47   Rate Loan shall be suspended, and Borrower shall either (A) repay in full (or cause to be repaid in full) the then  outstanding principal amount of each such LIBOR Rate Loan together with accrued interest thereon (subject to  Section 5.1(d)), on the last day of the then current Interest Period applicable to such LIBOR Rate Loan; or (B)  convert the then outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan as of the last  day of such Interest Period.  (b) Laws Affecting LIBOR Rate Availability.  If, after the date hereof, the introduction of, or any change in,  any Applicable Law or any change in the interpretation or administration thereof by any Governmental Authority,  central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any of  the Lenders (or any of their respective Lending Offices) with any request or directive (whether or not having the force  of law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful or  impossible for any of the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to  make or maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to the Administrative Agent  and the Administrative Agent shall promptly give notice to Borrower and the other Lenders.  Thereafter, until the  Administrative Agent notifies Borrower that such circumstances no longer exist, (i) the obligations of the Lenders to  make LIBOR Rate Loans, and the right of Borrower to convert any Loan to a LIBOR Rate Loan or continue any  Loan as a LIBOR Rate Loan shall be suspended and thereafter Borrower may select only Base Rate Loans and (ii) if  any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan to the end of the then current Interest  Period applicable thereto, the applicable Loan shall immediately be converted to a Base Rate Loan for the remainder  of such Interest Period.  (c) Benchmark Replacement Setting.    (i) (A) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any  other Loan Document (and any Hedge Agreement shall be deemed not to be a “Loan Document” for  purposes of this Section 5.8(c)) if a Benchmark Transition Event, an Early Opt-in Election or an Other  Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred  prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a  Benchmark Replacement is determined in accordance with clause (a)(1) or (a)(2) of the definition of  “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will  replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such  Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or  consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark  Replacement is determined in accordance with clause (a)(3) or clause (c) of the definition of  “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will  replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any  Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the  date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or  further action or consent of any other party to, this Agreement or any other Loan Document so long as  the Administrative Agent has not received, by such time, written notice of objection to such Benchmark  Replacement from Lenders comprising the Required Lenders of each Class.  If an Unadjusted  Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly  basis.  (B) Notwithstanding anything to the contrary herein or in any other Loan Document, if a  Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the  Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark  Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan  Document in respect of such Benchmark setting and subsequent Benchmark settings, without any  amendment to, or further action or consent of any other party to, this Agreement or any other Loan  Document; provided that this clause (B) shall not be effective unless the Administrative Agent has  delivered to the Lenders and the Borrower a Term SOFR Notice.  For the avoidance of doubt, the  





 






  48   Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR  Transition Event and may elect or not elect to do so in its sole discretion.   (ii) Benchmark Replacement Conforming Changes. In connection with the implementation of a  Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement  Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other  Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will  become effective without any further action or consent of any other party to this Agreement or any other Loan  Document.  (iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly  notify the Borrower and the Lenders of (A) any occurrence of a Benchmark Transition Event, a Term SOFR  Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related  Benchmark Replacement Date, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of  any Benchmark Replacement Conforming Changes, (D) the removal or reinstatement of any tenor of a  Benchmark pursuant to Section 5.8(c)(iv) below and (E) the commencement or conclusion of any Benchmark  Unavailability Period.  Any determination, decision or election that may be made by the Administrative Agent  or, if applicable, any Lender (or group of Lenders) pursuant to this Section 5.8(c), including any determination  with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or  date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding  absent manifest error and may be made in its or their sole discretion and without consent from any other party to  this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section  5.8(c).  (iv) Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary herein or in  any other Loan Document, at any time (including in connection with the implementation of a Benchmark  Replacement), (A) if the then-current Benchmark is a term rate (including Term SOFR or USD LIBOR) and  either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes  such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the  regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of  information announcing that any tenor for such Benchmark is or will be no longer representative, then the  Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such  time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to  clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark  (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is or will  no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative  Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate  such previously removed tenor.  (v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement  of a Benchmark Unavailability Period, the Borrower may revoke any request for a borrowing of, conversion to  or continuation of LIBOR Rate Loans to be made, converted or continued during any Benchmark Unavailability  Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a  borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that  a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon  the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any  determination of the Base Rate.   (vi) London Interbank Offered Rate Benchmark Transition Event.  On March 5, 2021, the IBA, the  administrator of the London interbank offered rate, and the FCA, the regulatory supervisor of the IBA, made the  Announcements that the final publication or representativeness date for Dollars for (I) 1-week and 2-month  London interbank offered rate tenor settings will be December 31, 2021 and (II) overnight, 1-month, 3-month, 6- month and 12-month London interbank offered rate tenor settings will be June 30, 2023.  No successor  





 






  49   administrator for the IBA was identified in such Announcements.  The parties hereto agree and acknowledge  that the Announcements resulted in the occurrence of a Benchmark Transition Event with respect to the London  interbank offered rate pursuant to the terms of this Agreement and that any obligation of the Administrative  Agent to notify any parties of such Benchmark Transition Event pursuant to clause (iii) of this Section 5.8(c)  shall be deemed satisfied.  SECTION 5.9 Indemnity.  Borrower hereby indemnifies each of the Lenders against any actual loss or expense  (including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain a LIBOR  Rate Loan or from fees payable to terminate the deposits from which such funds were obtained) which may arise or be  attributable to each Lender’s obtaining, liquidating or employing deposits or other funds acquired to effect, fund or  maintain any Loan (a) as a consequence of any failure by Borrower to make any payment when due of any amount due  hereunder in connection with a LIBOR Rate Loan, (b) due to any failure of Borrower to borrow, continue or convert on a  date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation or (c) due to any payment,  prepayment or conversion of any LIBOR Rate Loan on a date other than the last day of the Interest Period therefor.  A  certificate of such Lender setting forth the basis for determining such amount or amounts necessary to compensate such  Lender shall be forwarded to Borrower through the Administrative Agent and shall be conclusively presumed to be  correct save for manifest error.  SECTION 5.10 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  advances, loans or other credit extended or participated in by, any Lender (except any reserve  requirement reflected in the LIBOR Rate) or any Issuing Lender;  (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes  described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income  Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits,  reserves, other liabilities or capital attributable thereto; or  (iii) impose on any Lender or any Issuing Lender or the London interbank market any other  condition, cost or expense (other than Taxes) affecting this Agreement or LIBOR Rate Loans made by  such Lender or any Letter of Credit or participation therein;  and the result of any of the foregoing shall be to increase the cost to such Lender, any Issuing 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, such 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, such Issuing Lender or such other  Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, such  Issuing Lender or other Recipient, Borrower shall promptly pay to any such Lender, such Issuing Lender or other  Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing Lender  or other Recipient, as the case may be, for such additional costs incurred or reduction suffered, provided that such  amounts shall only be paid by Borrower to the applicable Recipient to the extent it is customary for such Recipient to  charge such amounts to similarly situated borrowers.  (b) Capital Requirements.  If any Lender or any Issuing Lender determines that any Change in Law  affecting such Lender or such Issuing Lender or any Lending Office of such Lender or such Lender’s or such  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 such Issuing Lender’s capital or on the capital of such  Lender’s or such Issuing Lender’s holding company, if any, as a consequence of this Agreement, the  





 






  50   Commitment of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans  held by, such Lender, or the Letters of Credit issued by such Issuing Lender, to a level below that which such  Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s holding company could have achieved  but for such Change in Law (taking into consideration such Lender’s or such Issuing Lender’s policies and the  policies of such Lender’s or such Issuing Lender’s holding company with respect to capital adequacy), then from  time to time upon written request of such Lender or such Issuing Lender Borrower shall promptly pay to such  Lender or such Issuing Lender, as the case may be, such additional amount or amounts as will compensate such  Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s holding company for any such  reduction suffered; provided that such amounts shall only be paid by Borrower to the applicable Lender to the  extent it is customary for such Lender to charge such amounts to similarly situated borrowers.  (c) Certificates for Reimbursement.  A certificate of a Lender, or an Issuing Lender or such other  Recipient setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or such  Issuing Lender, such other Recipient or any of their respective holding companies, as the case may be, as  specified in paragraph (a) or (b) of this Section and delivered to Borrower, shall be conclusive absent manifest  error.  Borrower shall pay such Lender or such Issuing Lender or such other Recipient, as the case may be, the  amount shown as due on any such certificate within thirty (30) days after receipt thereof.  (d) Delay in Requests.  Failure or delay on the part of any Lender or any Issuing Lender or such  other Recipient to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s  or such Issuing Lender’s or such other Recipient’s right to demand such compensation; provided that Borrower  shall not be required to compensate any Lender or an Issuing Lender or any other Recipient pursuant to this  Section for any increased costs incurred or reductions suffered more than six (6) months prior to the date that  such Lender or such Issuing Lender or such other Recipient, as the case may be, notifies Borrower of the Change  in Law giving rise to such increased costs or reductions, and of such Lender’s or such Issuing Lender’s or such  other Recipient’s intention to claim compensation therefor (except that if the Change in Law giving rise to such  increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to  include the period of retroactive effect thereof).  SECTION 5.11 Taxes.  (a) Defined Terms.  For purposes of this Section 5.11, the term “Lender” includes any 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 any Credit  Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as  required by Applicable Law.  If any Applicable Law (as determined in the good faith discretion of an applicable  Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding  Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall  timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with  Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party  shall be increased as necessary so that, after such deduction or withholding has been made (including such  deductions and withholdings applicable to additional sums payable under this Section), the applicable Recipient  receives an amount equal to the sum it would have received had no such deduction or withholding been made.  (c) Payment of Other Taxes by the Credit Parties.  The Credit Parties shall timely pay to the  relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative  Agent timely reimburse it for the payment of, any Other Taxes.  (d) Indemnification by the Credit Parties.  The Credit Parties shall jointly and severally indemnify  each Recipient, within twenty (20) days after written demand therefor, for the full amount of any Indemnified  Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this  Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such  





 






  51   Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such  Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A  certificate as to the amount of such payment or liability, in reasonable detail, delivered to Borrower by a  Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on  behalf of a Recipient, shall be conclusive absent manifest error.  (e) Intentionally Omitted.  (f) Evidence of Payments.  As soon as practicable after any payment of Taxes by any Credit Party  to a Governmental Authority pursuant to this Section 5.11, such Credit Party shall deliver to the Administrative  Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such  payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory  to the Administrative Agent.  (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 Borrower and the Administrative  Agent, at the time or times reasonably requested by Borrower or the Administrative Agent, such  properly completed and executed documentation reasonably requested by 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 Borrower or the Administrative  Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by  Borrower or the Administrative Agent as will enable 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 5.11(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 Borrower is a U.S.  Person:  (A) Any Lender that is a U.S. Person shall deliver to 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 Borrower or the  Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is  exempt from United States federal backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to  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 Borrower or the  Administrative Agent), whichever of the following is applicable:  (1) in the case of a Foreign Lender claiming the benefits of an income tax  treaty to which the United States is a party (x) with respect to payments of interest under  any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E  establishing an exemption from, or reduction of, United States federal withholding Tax  pursuant to the “interest” article of such tax treaty and (y) with respect to any other  applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E  





 






  52   establishing an exemption from, or reduction of, United States federal withholding Tax  pursuant to the “business profits” or “other income” article of such tax treaty;  (2) executed originals of IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits of the exemption  for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in  the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within  the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of  Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled  foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax  Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W- 8BEN-E; or  (4) 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 or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of  Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from  each beneficial owner, as applicable; provided that if the 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  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 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 United States federal withholding Tax, duly  completed, together with such supplementary documentation as may be prescribed by  Applicable Law to permit 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  United States 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 Borrower  and the Administrative Agent at the time or times prescribed by law and at such time or times  reasonably requested by 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 Borrower or the Administrative Agent as  may be necessary for 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 Borrower and the Administrative  Agent in writing of its legal inability to do so.  





 






  53   (h) Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good  faith, that it has received a refund (or a credit for overpayment of Taxes in lieu of a refund) of any Taxes as to  which it has been indemnified pursuant to this Section 5.11 (including by the payment of additional amounts  pursuant to this Section 5.11), it shall pay to the indemnifying party an amount equal to such refund (but only to  the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund),  net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than  any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party,  upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant  to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental  Authority) in the event that such indemnified party is required to repay such refund to such Governmental  Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party  be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which  would place the indemnified party in a less favorable net after-Tax position than the indemnified party would  have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld  or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had  never been paid.  This paragraph shall not be construed to require any indemnified party to make available its  Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party  or any other Person.  (i) Indemnification of the Administrative Agent.  Each Lender and each Issuing 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 any Credit Party has not already indemnified the  Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do  so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.9(d) relating  to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each  case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any  reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or  legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such  payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest  error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any  time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the  Lender from any other source against any amount due to the Administrative Agent under this paragraph (i). The  agreements in paragraph (i) shall survive the resignation and/or replacement of the Administrative Agent.  (j) Survival.  Each party’s obligations under this Section 5.11 shall survive the resignation or  replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the  termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan  Document.  SECTION 5.12 Mitigation Obligations; Replacement of Lenders.  (a) Designation of a Different Lending Office.  If any Lender requests compensation under  Section 5.10, or requires Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any  Governmental Authority for the account of any Lender pursuant to Section 5.11, then such Lender shall, at the  request of 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 judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts  payable pursuant to Section 5.10 or Section 5.11, as the case may be, in the future and (ii) would not subject  such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any  such designation or assignment.  





 






  54   (b) Replacement of Lenders.  If any Lender requests compensation under Section 5.10, or if  Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental  Authority for the account of any Lender pursuant to Section 5.11, and, in each case, such Lender has declined or  is unable to designate a different lending office in accordance with Section 5.12(a), or if any Lender is a  Defaulting Lender or a Non-Consenting Lender, then 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), all of its  interests, rights (other than its existing rights to payments pursuant to Section 5.10 or Section 5.11) 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) Borrower shall have paid to the Administrative Agent the assignment fee (if any)  specified in Section 12.9;  (ii) such Lender shall have received payment of an amount equal to the outstanding  principal of its Loans and participations in Letters of Credit, accrued interest thereon, accrued fees and  all other amounts payable to it hereunder and under the other Loan Documents (including any amounts  under Section 5.9) from the assignee (to the extent of such outstanding principal and accrued interest  and fees) or Borrower (in the case of all other amounts);  (iii) in the case of any such assignment resulting from a claim for compensation under  Section 5.10 or payments required to be made pursuant to Section 5.11, 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 Borrower to require such assignment and delegation cease to  apply.  SECTION 5.13 Incremental Loans.  (a) At any time, Borrower may by written notice to the Administrative Agent elect to request the  establishment of one or more increases in the Revolving Credit Commitments (any such increase, an  “Incremental Loan Commitment”) to make revolving credit loans under the Revolving Credit Facility (any such  increase, an “Incremental Loan”); provided that (1) the total aggregate principal amount for all such Incremental  Loan Commitments shall not (as of any date of incurrence thereof) exceed the Incremental Facilities Limit and  (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans  made  thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount  permitted pursuant to the foregoing clause (1).  Each such notice shall specify the date (each, an “Increased  Amount Date”) on which Borrower proposes that any Incremental Loan Commitment shall be effective, which  shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to  Administrative Agent.  Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved  Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental  Loan Commitment (any such Person, an “Incremental Lender”).  Any proposed Incremental Lender offered or  approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole  discretion, to provide such Incremental Loan Commitment.  Any Incremental Loan Commitment shall become  effective as of such Increased Amount Date; provided that:  (A) no Default or Event of Default shall exist on such Increased Amount Date before or  after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans   





 






  55   pursuant thereto and (3) any Permitted Acquisition or other transaction consummated in connection  therewith (or, to the extent constituting an Incremental Loan to finance a Limited Condition Acquisition,  the foregoing condition, other than with respect to the absence of an Event of Default pursuant to  Section 10.1(a), (b), (h) or (i), shall be satisfied at the LCA Test Date related to such Limited Condition  Acquisition);  (B) the Administrative Agent and the Lenders shall have received from Borrower an  Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the  Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in  Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or  8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental  Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental  Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition or other  transaction consummated in connection therewith;  (C) each of the representations and warranties contained in Article VII shall be true and  correct in all material respects, except to the extent any such representation and warranty is qualified by  materiality or reference to Material Adverse Effect, in which case, such representation and warranty  shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect  as if made on and as of such date (except for any such representation and warranty that by its terms is  made only as of an earlier date, which representation and warranty shall remain true and correct as of  such earlier date) and to the extent constituting an Incremental Loan to finance a Limited Condition  Acquisition, the foregoing other than with respect to the absence of an Event of Default pursuant to  Section 10.1(a), (b), (h) or (i), shall be satisfied at the LCA Test Date related to such Limited Condition  Acquisition);  (D) the proceeds of any Incremental Loans shall be used for general corporate purposes of  Borrower and its Subsidiaries (including Permitted Acquisitions, joint venture Investments permitted  hereunder, Capital Expenditures permitted hereunder, Restricted Payments permitted hereunder and  repurchases of Equity Interests permitted hereunder);  (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall  constitute Obligations of Borrower and shall be secured and guaranteed with the other Extensions of  Credit on a pari passu basis;  (F) in each case (the terms of which shall be set forth in the relevant Lender Joinder  Agreement):  (x) such Incremental Loan shall mature on the Maturity Date, shall bear interest  and be entitled to fees, at the rates applicable to the Revolving Credit Loans, but with respect to  upfront fees only, a rate determined by the Administrative Agent, the applicable Incremental  Lenders and Borrower, and shall be subject to the same terms and conditions as the Revolving  Credit Loans;   (y) the outstanding Revolving Credit Loans and Commitment Percentages of  Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the  applicable Increased Amount Date among the Lenders (including the Incremental Lenders  providing such Incremental Loan) in accordance with their revised Commitment Percentages  (and the Lenders (including the Incremental Lenders providing such Incremental Loan) agree to  make all payments and adjustments necessary to effect such reallocation and Borrower shall pay  any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such  reallocation were a repayment); and  





 






  56   (z) except as provided above, all of the other terms and conditions applicable to  such Incremental Loan shall, except to the extent otherwise provided in this Section 5.13, be  identical to the terms and conditions applicable to the Revolving Credit Facility;  (G) any Incremental Lender shall be entitled to the same voting rights as the existing  Lenders under the Revolving Credit Facility and any Extensions of Credit made in connection with each  Incremental Loan shall receive proceeds of prepayments on the same basis as the other Revolving Credit  Loans made hereunder;  (H) such Incremental Loan Commitments shall be effected pursuant to one or more Lender  Joinder Agreements executed and delivered by Borrower, the Administrative Agent and the applicable  Incremental Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders,  effect such amendments to this Agreement and the other Loan Documents as may be necessary or  appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 5.13);  and  (I) Borrower shall deliver or cause to be delivered any customary legal opinions or other  documents (including, without limitation, a resolution duly adopted by the board of directors (or  equivalent governing body) of each Credit Party authorizing such Incremental Loan) reasonably  requested by Administrative Agent in connection with any such transaction.  (b) The Incremental Lenders shall be included in any determination of the Required Lenders, and,  unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes  under this Agreement.  (c) On any Increased Amount Date on which any Incremental Loan becomes effective, subject to  the foregoing terms and conditions, each Incremental Lender with an Incremental Loan Commitment shall  become a Lender hereunder with respect to such Incremental Loan Commitment.  (d) Solely to the extent an Incremental Loan is used to finance a Limited Condition Acquisition, and  the conditions set forth in Section 6.2(a) and (b) cannot be met at the time such Incremental Loan is to be funded  (but such Incremental Loan could be consummated in accordance with the terms thereof and of this Agreement),  such Incremental Loan shall constitute a separate tranche of Revolving Credit Loans and Commitments from the  existing Revolving Credit Loans and Commitments.  SECTION 5.14 Cash Collateral.  At any time that there shall exist a Defaulting Lender, within one Business Day  following the written request of the Administrative Agent, any Issuing Lender (with a copy to the Administrative Agent)  or the Swingline Lender (with a copy to the Administrative Agent), Borrower shall Cash Collateralize the Fronting  Exposure of such Issuing Lender and/or the Swingline Lender, as applicable, with respect to such Defaulting Lender  (determined after giving effect to Section 5.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an  amount not less than the Minimum Collateral Amount.  (a) Grant of Security Interest.  Borrower, and to the extent provided by any Defaulting Lender, such  Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of each Issuing Lender and the  Swingline Lender, and agrees to maintain, a first priority security interest in all such Cash Collateral as security  for the Defaulting Lender’s obligation to fund participations in respect of L/C Obligations and Swingline Loans,  to be applied pursuant to subsection (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, each Issuing  Lender and the Swingline Lender as herein provided, or that the total amount of such Cash Collateral is less than  the Minimum Collateral Amount, 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).  





 






  57   (b) Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash  Collateral provided under this Section 5.14 or Section 5.15 in respect of Letters of Credit and Swingline Loans  shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of L/C  Obligations and Swingline Loans (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 Fronting Exposure of any Issuing Lender and/or the Swingline Lender, as applicable, shall no longer  be required to be held as Cash Collateral pursuant to this Section 5.14 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, the Issuing Lenders and the Swingline Lender  that there exists excess Cash Collateral; provided that, subject to Section 5.15, the Person providing Cash  Collateral, the Issuing Lenders and the Swingline 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 Borrower, such Cash Collateral shall remain subject to the security interest granted  pursuant to the Loan Documents.  SECTION 5.15 Defaulting Lenders.  (a) Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a  Defaulting Lender, to the extent permitted by Applicable Law:  (i) Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove  any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the  definition of Required Lenders and Section 12.2.  (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 X or otherwise) or received by the Administrative Agent  from a Defaulting Lender pursuant to Section 12.4 shall be applied at such time or times as may be  determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such  Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of  any amounts owing by such Defaulting Lender to the Issuing Lenders or the Swingline Lender  hereunder; third, to Cash Collateralize the Fronting Exposure of the Issuing Lenders and the Swingline  Lender with respect to such Defaulting Lender in accordance with Section 5.14; fourth, as Borrower  may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded  participation 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 Borrower, to be held in a deposit account and released pro rata in order to (A)  satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans and funded  participations under this Agreement and (B) Cash Collateralize the Issuing Lenders’ future Fronting  Exposure with respect to such Defaulting Lender with respect to future Letters of Credit and Swingline  Loans issued under this Agreement, in accordance with Section 5.14; sixth, to the payment of any  amounts owing to the Lenders, the Issuing Lenders or the Swingline Lender as a result of any judgment  of a court of competent jurisdiction obtained by any Lender, the Issuing Lender or the Swingline Lender  against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under  this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any  amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by  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 (1) such payment is a payment of the principal amount  





 






  58   of any Loans or funded participations in Letters of Credit or Swingline Loans in respect of which such  Defaulting Lender has not fully funded its appropriate share, and (2) such Loans were made or the  related Letters of Credit or Swingline Loans were issued at a time when the conditions set forth in  Section 6.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and  funded participations in Letters of Credit or Swingline Loans owed to, all Non-Defaulting Lenders on a  pro rata basis prior to being applied to the payment of any Loans of, or funded participations in Letters  of Credit or Swingline Loans owed to, such Defaulting Lender until such time as all Loans and funded  and unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in  accordance with the Commitments under the applicable Revolving Credit Facility without giving effect  to Section 5.15(a)(iv). 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 5.15(a)(ii) 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 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 commissions  pursuant to Section 3.3 for any period during which that Lender is a Defaulting Lender only to  the extent allocable to its Commitment Percentage of the stated amount of Letters of Credit for  which it has provided Cash Collateral pursuant to Section 5.14.  (C) With respect to any Commitment Fee or letter of credit commission not  required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, Borrower  shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to  such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C  Obligations or Swingline Loans that has been reallocated to such Non-Defaulting Lender  pursuant to clause (iv) below, (2) pay to each applicable Issuing Lender and Swingline 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 Swingline Lender’s Fronting Exposure to such  Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.  (iv) Reallocation of Participations to Reduce Fronting Exposure.  All or any part of such  Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be reallocated from  time to time as necessary among the Non-Defaulting Lenders in accordance with their respective  Commitment Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only  to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non- Defaulting Lender to exceed such Non-Defaulting Lender’s 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 Swingline Loans.  If the reallocation described in clause  (iv) above cannot, or can only partially, be effected, Borrower shall, without prejudice to any right or  remedy available to it hereunder or under law, (x) first, repay Swingline Loans in an amount equal to the  Swingline Lenders’ Fronting Exposure and (y) second, Cash Collateralize the Issuing Lenders’ Fronting  Exposure in accordance with the procedures set forth in Section 5.14.  





 






  59   (b) Defaulting Lender Cure.  If Borrower, the Administrative Agent, the Issuing Lenders and the  Swingline 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), such 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 Swingline Loans to be held pro rata by the Lenders in  accordance with the Commitments under the applicable Credit Facility (without giving effect to  Section 5.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments  will be made retroactively with respect to fees accrued or payments made by or on behalf of 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.  ARTICLE VI    CONDITIONS OF CLOSING AND BORROWING  SECTION 6.1 Conditions to Closing and Initial Extensions of Credit.  The obligation of the Lenders to close  this Agreement and to make the initial Loans or issue or participate in the initial Letter of Credit, if any, is subject to the  satisfaction of each of the following conditions:  (a) Executed Loan Documents.  This Agreement, a Revolving Credit Note in favor of each Lender  requesting a Revolving Credit Note, a Swingline Note in favor of the Swingline Lender (in each case, if  requested thereby) and the Security Documents, together with any other applicable Loan Documents, shall have  been duly authorized, executed and delivered to the Administrative Agent by the parties thereto, shall be in full  force and effect and no Default or Event of Default shall exist hereunder or thereunder.  (b) Closing Certificates; Etc.  The Administrative Agent shall have received each of the following  in form and substance reasonably satisfactory to the Administrative Agent:  (i) Officer’s Certificate.  A certificate from a Responsible Officer of Borrower to the effect  that (A) all representations and warranties of the Credit Parties contained in this Agreement and the  other Loan Documents are true and correct in all material respects (except to the extent any such  representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which  case, such representation and warranty shall be true and correct in all respects); (B) none of the Credit  Parties is in violation of any of the covenants contained in this Agreement and the other Loan  Documents; (C) after giving effect to the Transactions, no Default or Event of Default has occurred and  is continuing; (D) since December 31, 2020, no event has occurred or condition arisen, either  individually or in the aggregate, that has had or could reasonably be expected to have a Material  Adverse Effect; and (E)  each of the Credit Parties, as applicable, has satisfied each of the conditions set  forth in Section 6.1 and Section 6.2.  (ii) Certificate of Secretary of each Credit Party.  A certificate of a Responsible Officer of  each Credit Party certifying as to the incumbency and genuineness of the signature of each officer of  such Credit Party executing Loan Documents to which it is a party and certifying that attached thereto is  a true, correct and complete copy of (A) the articles or certificate of incorporation or formation (or  equivalent), as applicable, of such Credit Party and all amendments thereto, certified by the appropriate  Governmental Authority in its jurisdiction of incorporation, organization or formation (or equivalent), as  applicable, (B) the bylaws or other governing document of such Credit Party as in effect on the Closing  Date, (C) resolutions duly adopted by the board of directors (or other governing body) of such Credit  Party authorizing and approving the transactions contemplated hereunder and the execution, delivery  





 






  60   and performance of this Agreement and the other Loan Documents to which it is a party, and (D) each  certificate required to be delivered pursuant to Section 6.1(b)(iii).  (iii) Certificates of Good Standing.  Certificates as of a recent date of the good standing of  each Credit Party under the laws of its jurisdiction of incorporation, organization or formation (or  equivalent), as applicable.  (iv) Opinions of Counsel.  Opinions of counsel to the Credit Parties addressed to the  Administrative Agent and the Lenders with respect to the Credit Parties, the Loan Documents and such  other matters as the Administrative Agent shall reasonably request (which such opinions shall expressly  permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders).  (c) Lien Searches.  The Administrative Agent shall have received the results of a Lien search, in  form and substance reasonably satisfactory thereto, made against the Credit Parties under the Uniform  Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations  under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets  (excluding real estate) of such Credit Party, indicating among other things that the assets of each such Credit  Party are free and clear of any Lien (except for Permitted Liens).  (d) Consents; Defaults.  (i) Governmental and Third Party Approvals.  The Credit Parties shall have received all  material governmental, shareholder and third party consents and approvals necessary in connection with  the transactions contemplated by this Agreement and the other Loan Documents and all applicable  waiting periods shall have expired without any action being taken by any Person that could reasonably  be expected to restrain, prevent or impose any material adverse conditions on any of the Credit Parties or  such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall  be applicable which in the reasonable judgment of the Administrative Agent could reasonably be  expected to have such effect.  (ii) No Injunction, Etc.  No action, proceeding or investigation shall have been instituted,  threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain  substantial damages in respect of, or which is related to or arises out of this Agreement or the other Loan  Documents or the consummation of the transactions contemplated hereby or thereby.  (e) Payment at Closing. Borrower shall have paid or made arrangements to pay contemporaneously  with closing (A) to the Administrative Agent, the Arranger and the Lenders the fees set forth or referenced in  Section 5.3 and any other accrued and unpaid fees or commissions due hereunder, (B) all fees, charges and  disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the  Administrative Agent) to the extent accrued and unpaid prior to or on the Closing Date, plus such additional  amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges  and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate  shall not thereafter preclude a final settling of accounts between Borrower and the Administrative Agent) and  (C) to any other Person such amount as may be due thereto in connection with the transactions contemplated  hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing  and registration of any of the Loan Documents.  (f) PATRIOT Act, etc.    (i) The Borrower and each of the Subsidiary Guarantors shall have provided to the  Administrative Agent and the Lenders the documentation and other information requested by the  Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws,  including, without limitation, the PATRIOT Act and any applicable “know your customer” rules and  regulations.  





 






  61   (ii) The Borrower shall have delivered to the Administrative Agent, and directly to any  Lender requesting the same, a Beneficial Ownership Certification in relation to it (or a certification that  the Borrower qualifies for an express exclusion from the “legal entity customer” definition under the  Beneficial Ownership Regulations), in each case at least five (5) Business Days prior to the Closing  Date.   (g) Fees and Expenses.  The Administrative Agent shall have received from the Borrower such fees  and expenses that are payable in connection with the consummation of the transactions contemplated hereby and  King & Spalding LLP shall have received from the Borrower payment of all outstanding reasonable fees and  expenses previously incurred and all reasonable fees and expenses incurred in connection with this Agreement.  (h) Due Diligence. The Administrative Agent shall have completed, to its satisfaction, all legal, tax,  environmental, business and other due diligence with respect to the business, assets, liabilities, operations and  condition (financial or otherwise) of the Borrower and its Subsidiaries in scope and determination satisfactory to  the Administrative Agent in its sole discretion.  (i) Miscellaneous.  All other documents and legal matters in connection with the transactions  contemplated by this Agreement shall be reasonably satisfactory in form and substance to the Administrative  Agent and its counsel.  Without limiting the generality of the provisions of the last paragraph of Section 11.3, for purposes of determining  compliance with the conditions specified in this Section 6.1, the Administrative Agent and 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.  SECTION 6.2 Conditions to All Extensions of Credit.  The obligations of the Lenders to make or participate in  any Extensions of Credit (including the initial Extension of Credit), convert or continue any Loan and/or any Issuing  Lender to issue or extend any Letter of Credit are subject to the satisfaction of the following conditions precedent on the  relevant borrowing, continuation, conversion, issuance or extension date:  (a) Continuation of Representations and Warranties.  The representations and warranties contained  in this Agreement and the other Loan Documents shall be true and correct in all material respects, except for any  representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such  representation and warranty shall be true and correct in all respects, on and as of such borrowing, issuance or  extension date with the same effect as if made on and as of such date (except for any such representation and  warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true  and correct in all material respects as of such earlier date, except for any representation and warranty that is  qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be  true and correct in all respects as of such earlier date).  (b) No Existing Default.  No Default or Event of Default shall have occurred and be continuing (i)  on the borrowing date with respect to such Loan or after giving effect to the Loans to be made on such date or  (ii) on the issuance or extension date with respect to such Letter of Credit or after giving effect to the issuance or  extension of such Letter of Credit on such date.  (c) Notices.  The Administrative Agent shall have received a Notice of Borrowing or Letter of  Credit Application, as applicable, from Borrower in accordance with Section 2.3(a) or Section 3.2, as applicable.  (d) New Swingline Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender, (i) the  Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no  Fronting Exposure after giving effect to such Swingline Loan and (ii) the Issuing Lender shall not be required to  





 






  62   issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure  after giving effect thereto.  (e) Limited Condition Acquisitions.  Solely in connection with an initial drawing under an  Incremental Loan in connection with a Limited Condition Acquisition, the conditions set forth in clauses (a) and  (b) (other than with respect to the absence of an Event of Default pursuant to Section 10.1(a), (b), (h) or (i)) shall  relate to the LCA Test Date, not the date of the related Extension of Credit.  ARTICLE VII    REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES  To induce the Administrative Agent and Lenders to enter into this Agreement and to induce the Lenders to make  Extensions of Credit, the Credit Parties hereby represent and warrant to the Administrative Agent and the Lenders both  before and after giving effect to the transactions contemplated hereunder, which representations and warranties shall be  deemed made on the Closing Date and as otherwise set forth in Section 6.2, that:  SECTION 7.1 Organization; Power; Qualification.  Each Credit Party and each Subsidiary thereof (a) is duly  organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation,  (b) has the power and authority to own its Properties and to carry on its business as now being and hereafter proposed to  be conducted and (c) is duly qualified and authorized to do business in each jurisdiction in which the character of its  Properties or the nature of its business requires such qualification and authorization except in jurisdictions where the  failure to be so qualified or in good standing could not reasonably be expected to result in a Material Adverse Effect.   The jurisdictions in which each Credit Party and each Subsidiary thereof are organized as of the Closing Date are  described on Schedule 1 to the Disclosure Letter.  No Credit Party nor any Subsidiary thereof is an EEA Financial  Institution.  SECTION 7.2 Ownership.  Each Subsidiary of each Credit Party as of the Closing Date is listed on Schedule 2  to the Disclosure Letter.  As of the Closing Date, the capitalization of each Credit Party and its Subsidiaries consists of  the number of shares or units, authorized, issued and outstanding, of such classes and series, with or without par value,  described on Schedule 2 to the Disclosure Letter.  As of the Closing Date, all outstanding shares of such Credit Parties  and Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable and not subject to  any preemptive or similar rights, except as described in Schedule 2 to the Disclosure Letter.  As of the Closing Date,  there are no outstanding stock purchase warrants, subscriptions, options, securities, instruments or other rights of any  type or nature whatsoever, which are convertible into, exchangeable for or otherwise provide for or require the issuance  of Equity Interests of any Credit Party or any Subsidiary thereof, except as described on Schedule 2 to the Disclosure  Letter.  SECTION 7.3 Authorization; Enforceability.  Each Credit Party and each Subsidiary thereof has the right,  power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and  performance of this Agreement and each of the other Loan Documents to which it is a party in accordance with their  respective terms.  This Agreement and each of the other Loan Documents have been duly executed and delivered by the  duly authorized officers of each Credit Party and each Subsidiary thereof that is a party thereto, and each such document  constitutes the legal, valid and binding obligation of each Credit Party and each Subsidiary thereof that is a party thereto,  enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency,  reorganization, moratorium or similar state or federal Debtor Relief Laws from time to time in effect which affect the  enforcement of creditors’ rights in general and the availability of equitable remedies.  SECTION 7.4 Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.  The execution,  delivery and performance by each Credit Party and each Subsidiary thereof of the Loan Documents to which each such  Person is a party, in accordance with their respective terms, the Extensions of Credit hereunder and the transactions  contemplated hereby or thereby do not and will not, by the passage of time, the giving of notice or otherwise, (a) require  any Governmental Approval which has not been obtained or violate any Applicable Law relating to any Credit Party or  





 






  63   any Subsidiary thereof where the failure to obtain such Governmental Approval or such violation could reasonably be  expected to have a Material Adverse Effect, (b) conflict with, result in a breach of or constitute a default under the  articles of incorporation, bylaws or other organizational documents of any Credit Party or any Subsidiary thereof,  (c) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which  such Person is a party or by which any of its properties may be bound or any Governmental Approval relating to such  Person, which conflict, breach or default could, individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect, (d) result in or require the creation or imposition of any Lien upon or with respect to any  property now owned or hereafter acquired by such Person other than Permitted Liens or (e) require any consent or  authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any  other Person is required in connection with the execution, delivery, performance, validity or enforceability of this  Agreement other than (i) consents, authorizations, filings or other acts or consents for which the failure to obtain or make  could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) consents or  filings under the Uniform Commercial Code, (iii) filings with the United States Copyright Office and/or the United  States Patent and Trademark Office and (iv) consents that have been obtained.  SECTION 7.5 Compliance with Law; Governmental Approvals.  Each Credit Party and each Subsidiary  thereof (a) has all Governmental Approvals required by any Applicable Law for it to conduct its business, each of which  is in full force and effect, is final and not subject to review on appeal and is not the subject of any pending or, to the  knowledge of any Responsible Officer, threatened attack by direct or collateral proceeding, (b) is in compliance with  each Governmental Approval applicable to it and in compliance with all other Applicable Laws relating to it or any of its  respective properties and (c) has timely filed all material reports, documents and other materials required to be filed by it  under all Applicable Laws with any Governmental Authority and has retained all material records and documents  required to be retained by it under Applicable Law except in each case (a), (b) or (c) where the failure to have, comply or  file could not reasonably be expected to have a Material Adverse Effect.  SECTION 7.6 Tax Returns and Payments.  Each Credit Party and each Subsidiary thereof has duly filed or  caused to be filed all federal and all material state, local and other tax returns required by Applicable Law to be filed, and  has paid, or made adequate provision for the payment of, all federal and all material state, local and other taxes,  assessments and governmental charges or levies upon it and its property, income, profits and assets which are due and  payable (other than any amount the validity of which is currently being contested in good faith by appropriate  proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of the  relevant Credit Party).  Such returns accurately reflect in all material respects all liability for taxes of any Credit Party or  any Subsidiary thereof for the periods covered thereby.  As of the Closing Date, except as set forth on Schedule 3 to the  Disclosure Letter, there is no ongoing audit or examination or, to the knowledge of any Responsible Officer, other  investigation by any Governmental Authority of the tax liability of any Credit Party or any Subsidiary thereof that could  reasonably be expected to have a Material Adverse Effect.  No Governmental Authority has asserted any Lien or other  claim against any Credit Party or any Subsidiary thereof with respect to unpaid taxes which has not been discharged or  resolved (other than (a) any amount the validity of which is currently being contested in good faith by appropriate  proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of the  relevant Credit Party and (b) Permitted Liens).  The charges, accruals and reserves on the books of each Credit Party and  each Subsidiary thereof in respect of federal, state, local and other taxes for all Fiscal Years and portions thereof since  the organization of any Credit Party or any Subsidiary thereof are in the judgment of Borrower adequate, and Borrower  does not anticipate any additional taxes or assessments for any of such years.  SECTION 7.7 Intellectual Property Matters.  Each Credit Party and each Subsidiary thereof owns or possesses  rights to use all material franchises, licenses, copyrights, copyright applications, patents, patent rights or licenses, patent  applications, trademarks, trademark rights, service mark, service mark rights, trade names, trade name rights, copyrights  and other rights with respect to the foregoing which are reasonably necessary to conduct its business.  No event has  occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such  rights, and no Credit Party nor any Subsidiary thereof is liable to any Person for infringement under Applicable Law  with respect to any such rights as a result of its business operations that could reasonably be expected to have a Material  Adverse Effect.  





 






  64   SECTION 7.8 Environmental Matters.  Except to the extent that no Material Adverse Effect could reasonably  be expected to result therefrom:   (a) The properties owned, leased or operated by each Credit Party and each Subsidiary thereof now  do not contain, and to the knowledge of any Responsible Officer have not previously contained, any Hazardous  Materials in amounts or concentrations which constitute or constituted a violation of applicable Environmental  Laws;  (b) Each Credit Party and each Subsidiary thereof and such properties and all operations conducted  in connection therewith, to the knowledge of any Responsible Officer are and have been in compliance with all  applicable Environmental Laws, and, to the knowledge of any Responsible Officer, there is no contamination at,  under or about such properties or such operations which could interfere with the continued operation of such  properties or impair the fair saleable value thereof;  (c) No Credit Party nor any Subsidiary thereof has received any notice of violation, alleged  violation, non-compliance, liability or potential liability regarding environmental matters, Hazardous Materials,  or compliance with Environmental Laws, nor does any Responsible Officer of any Credit Party or any  Subsidiary thereof have knowledge or reason to believe that any such notice will be received or is being  threatened;  (d) To the knowledge of any Responsible Officer Hazardous Materials have not been transported or  disposed of to or from the properties owned, leased or operated by any Credit Party or any Subsidiary thereof in  violation of, or in a manner or to a location which could reasonably be expected to give rise to liability under,  Environmental Laws, nor to the knowledge of any Responsible Officer have any Hazardous Materials been  generated, treated, stored or disposed of at, on or under any of such properties in violation of, or in a manner that  could reasonably be expected to give rise to liability under, any applicable Environmental Laws;  (e) No judicial proceedings or governmental or administrative action is pending, or, to the  knowledge of any Responsible Officer, threatened, under any Environmental Law to which any Credit Party or  any Subsidiary thereof is or will be named as a potentially responsible party, nor are there any consent decrees or  other decrees, consent orders, administrative orders or other orders, or other administrative or judicial  requirements outstanding under any applicable Environmental Law with respect to any Credit Party, any  Subsidiary thereof, or to the knowledge of any Responsible Officer, with respect to any real property owned,  leased or operated by any Credit Party or any Subsidiary thereof or operations conducted in connection  therewith; and  (f) To the knowledge of any Responsible Officer there has been no release, or threat of release, of  Hazardous Materials at or from properties owned, leased or operated by any Credit Party or any Subsidiary, now  or in the past, in violation of or in amounts or in a manner that could give rise to liability under applicable  Environmental Laws.  SECTION 7.9 Employee Benefit Matters.  (a) As of the Closing Date, no Credit Party nor any ERISA Affiliate maintains or contributes to, or  has any obligation under, any Employee Benefit Plans other than those identified on Schedule 4 to the  Disclosure Letter;  (b) Each Employee Benefit Plan is in compliance in form and operation with its terms and with all  applicable provisions of ERISA and the Code (including without limitation the Code provisions compliance with  which is necessary for any intended favorable tax treatment) and all other applicable laws and regulations,  except for any required amendments for which the remedial amendment period as defined in Section 401(b) of  the Code has not yet expired.  Each Employee Benefit Plan that is intended to be qualified under Section 401(a)  of the Code has been determined by the IRS to be so qualified, and each trust related to such plan has been  determined to be exempt under Section 501(a) of the Code except for such plans that have not yet received  





 






  65   determination letters but for which the remedial amendment period for submitting a determination letter has not  yet expired, and, nothing has occurred since the date of such determination that would adversely affect such  determination (or, in the case of an Employee Benefit Plan with no determination, nothing has occurred that  would materially adversely affect the issuance of a favorable determination letter or otherwise materially  adversely affect such qualification.  No liability has been incurred by any Credit Party or any ERISA Affiliate  which remains unsatisfied with respect to any Employee Benefit Plan except for liability that, individually or in  the aggregate, could not reasonably be expected to have a Material Adverse Effect;  (c) As of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan become  subject to funding-based benefit restrictions under Section 436 of the Code, nor has any funding waiver from the  IRS been received or requested with respect to any Pension Plan or Multiemployer Plan, nor has any Credit  Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required  by Sections 412 or 430 of the Code, Section 302 of ERISA, the terms of any Pension Plan or Multiemployer  Plan, or any contract or agreement requiring contributions to a Pension Plan or Multiemployer Plan, on or prior  to the due dates of such contributions under Sections 412 or 430 of the Code or Section 302 of ERISA, except as  could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. As of the  Closing Date, there has not been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of  ERISA with respect to any Pension Plan;  (d) Except where the failure of any of the following representations to be correct could not  reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Credit Party nor  any ERISA Affiliate has:  (i) engaged in a nonexempt prohibited transaction described in Section 406 of the  ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which remains outstanding other  than the payment of premiums due and not delinquent under Section 4007 of ERISA, and there are no premium  payments which are due and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer  Plan, (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the Code,  or (v) incurred any liability under Section 4069 or 4212(c) of ERISA;  (e) No Termination Event has occurred or is reasonably expected to occur which, individually or in  the aggregate, has resulted in, or could reasonably be expected to result in, liability of any of the Credit Parties in  an aggregate amount in excess of the Threshold Amount;  (f) Except where the failure of any of the following representations to be correct could not  reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no proceeding,  claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or,  to the knowledge of any Responsible Officer, threatened concerning or involving (i) any Employee Benefit Plan  that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (ii) any Pension Plan or (iii) any  Multiemployer Plan;  (g) Borrower and its Subsidiaries have classified individuals who perform services for them  correctly within all material respects under each Employee Benefit Plan, ERISA, the Code and other applicable  law as common law employees, independent contractors or leased employees; and  (h) Borrower, each of its Subsidiaries, and each Employee Benefit Plan that is a “group health plan”  as defined in Section 733(a)(1) of ERISA (a “Health Plan”) (i) is currently in compliance with the Patient  Protection and Affordable Care Act, Pub. L. No. 111-148 (“PPACA”), the Health Care and Education  Reconciliation Act of 2010, Pub. L. No. 111-152 (“HCERA”), and all regulations and guidance issued  thereunder (collectively, with PPACA and HCERA, the “Healthcare Reform Laws”), and (ii) has been in  compliance with all applicable Healthcare Reform Laws since March 23, 2010. No event has occurred, and no  condition or circumstance exists, that could reasonably be expected to subject Borrower, any of its Subsidiaries,  or any Health Plan to penalties or excise taxes under Sections 4980D, 4980H, or 4980I of the Code or any other  provision of the Healthcare Reform Laws.  





 






  66   SECTION 7.10 Margin Stock.  No Credit Party nor any Subsidiary thereof is engaged principally or as one of its  activities in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each  such term is defined or used, directly or indirectly, in Regulation U of the Board of Governors of the Federal Reserve  System).  No part of the proceeds of any of the Loans or Letters of Credit will be used for purchasing or carrying margin  stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X of  such Board of Governors.  Following the application of the proceeds of each Extension of Credit, not more than twenty- five percent (25%) of the value of the assets (either of Borrower, individually, or of Borrower and its Subsidiaries on a  Consolidated basis) subject to the provisions of Section 9.2 or Section 9.5 or subject to any restriction contained in any  agreement or instrument between Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness in  excess of the Threshold Amount will be “margin stock”.  SECTION 7.11 Government Regulation.  No Credit Party nor any Subsidiary thereof is an “investment  company” or a company “controlled” by an “investment company” (as each such term is defined or used in the  Investment Company Act of 1940) and no Credit Party nor any Subsidiary thereof is, or after giving effect to any  Extension of Credit will be, subject to regulation under the Interstate Commerce Act, or any other Applicable Law which  limits its ability to incur or consummate the transactions contemplated hereby.  SECTION 7.12 [Reserved].   SECTION 7.13 Employee Relations.  As of the Closing Date, no Credit Party or any Subsidiary thereof is party  to any collective bargaining agreement, nor has any labor union been recognized as the representative of its employees  except as set forth on Schedule 6 to the Disclosure Letter.  No Responsible Officer knows of any pending, threatened or  contemplated strikes, work stoppage or other collective labor disputes involving its employees or those of its  Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.  SECTION 7.14 [Reserved].  SECTION 7.15 Financial Statements.  The audited and unaudited financial statements delivered pursuant to  Section 6.1(f)(i) present fairly within all material respects on a Consolidated basis the assets, liabilities and financial  position of Borrower and its Subsidiaries as at such dates, and the results of the operations and changes of financial  position for the periods then ended (other than customary year-end adjustments for unaudited financial statements and  the absence of footnotes from unaudited financial statements).  All such financial statements, including the related  schedules and notes thereto, have been prepared in accordance with GAAP.  Such financial statements show all material  indebtedness and other material liabilities, direct or contingent, of Borrower and its Subsidiaries as of the date thereof,  including material liabilities for taxes, material commitments, and Indebtedness, in each case, to the extent required to be  disclosed under GAAP. The forecasts delivered pursuant to Section 6.1(f)(iii) were prepared in good faith on the basis of  the assumptions stated therein, which assumptions were believed to be reasonable in light of then existing conditions  except that such financial projections and statements shall be subject to normal year end closing and audit adjustments (it  being recognized by the Lenders that projections are not to be viewed as facts and that the actual results during the  period or periods covered by such projections will vary from such projections).  SECTION 7.16 No Material Adverse Change.  No Material Adverse Effect has occurred since the date of the  most recent audited financial statements provided to the Administrative Agent pursuant to this Agreement, except as  may have been disclosed in any reports or registration statements filed with the SEC and copies of which have been  provided to the Administrative Agent pursuant to the requirements of Section 8.2(e) hereof.  SECTION 7.17 Solvency.  The Credit Parties, on a Consolidated basis, are Solvent.  SECTION 7.18 Title to Properties.  As of the Closing Date, the real property listed on Schedule 7 to the  Disclosure Letter constitutes all of the real property that is owned by any Credit Party or any of its Subsidiaries.  Each  Credit Party and each Subsidiary thereof has such title to the real property owned by it, and such occupancy rights to the  real property leased by it as is material to the conduct of its business and valid and legal title to all of its personal  





 






  67   property and assets, except those which have been disposed of by the Credit Parties and their Subsidiaries which  dispositions have been in the ordinary course of business or as otherwise expressly permitted hereunder.  SECTION 7.19 Litigation.  There are no actions, suits or proceedings pending nor, to the knowledge of any  Responsible Officer, threatened in writing against any Credit Party or any Subsidiary thereof or any of their respective  properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that could  reasonably be expected to have a Material Adverse Effect.  SECTION 7.20 Anti-Corruption Laws and Sanctions.  None of (i) Borrower, any Subsidiary, any of their  respective directors, officers, or, to the knowledge of Borrower or such Subsidiary, any of their respective employees or  Affiliates, or (ii) to the knowledge of Borrower, any agent or representative of Borrower or any Subsidiary that will act  in any capacity in connection with or benefit from the Credit Facility, (A) is a Sanctioned Person or currently the subject  or target of any Sanctions, (B) has its assets located in a Sanctioned Country, (C) is under administrative, civil or  criminal investigation for an alleged violation of, or received notice from or made a voluntary disclosure to any  governmental entity regarding a possible violation of, Anti-Corruption Laws, Anti-Money Laundering Laws or  Sanctions by a governmental authority that enforces Sanctions or any Anti-Corruption Laws or Anti-Money Laundering  Laws, (D) directly or indirectly derives revenues from investments in, or transactions with, Sanctioned Persons, (E) has  taken any action, directly or indirectly, that would result in a violation by such Persons of any Anti-Corruption Laws, or  (F) has violated any Anti-Money Laundering Law. Each of Borrower and its Subsidiaries has implemented and  maintains in effect policies and procedures designed to ensure compliance by Borrower and its Subsidiaries and their  respective directors, officers, employees, agents and Affiliates with the Anti-Corruption Laws.  Each of Borrower and its  Subsidiaries, and to the knowledge of Borrower, each director, officer, employee, agent and Affiliate of Borrower and  each such Subsidiary, is in compliance with the Anti-Corruption Laws in all material respects.  (b) No proceeds of any Extension of Credit have been used, directly or indirectly, by Borrower, any  of its Subsidiaries or any of its or their respective directors, officers, employees and agents (i) in furtherance of  an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value,  to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating  any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, including  any payments (directly or indirectly) to a Sanctioned Person or a Sanctioned Country or (iii) in any manner that  would result in the violation of any Sanctions applicable to any party hereto.  SECTION 7.21 Absence of Defaults.  No event has occurred or is continuing (a) which constitutes a Default or  an Event of Default, or (b) which constitutes, or which with the passage of time or giving of notice or both would  constitute, a default or event of default by any Credit Party or any Subsidiary thereof under any judgment, decree or  order to which any Credit Party or any Subsidiary thereof is a party or by which any Credit Party or any Subsidiary  thereof or any of their respective properties may be bound or which would require any Credit Party or any Subsidiary  thereof to make any payment thereunder prior to the scheduled maturity date therefor that, in any case under this  clause (b), could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  SECTION 7.22 Senior Indebtedness Status.  The Obligations of each Credit Party and each Subsidiary thereof  under this Agreement and each of the other Loan Documents ranks and shall continue to rank at least senior in priority of  payment to all Subordinated Indebtedness and all senior unsecured Indebtedness of each such Person and is designated  as “Senior Indebtedness” under all instruments and documents, now or in the future, relating to all Subordinated  Indebtedness and all senior unsecured Indebtedness of such Person.  SECTION 7.23 Disclosure.  No financial statement, material report, material certificate or other material  information furnished (whether in writing or orally) by or on behalf of any Credit Party or any Subsidiary thereof to the  Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this  Agreement or delivered hereunder (as modified or supplemented by other information so furnished), taken together as a  whole, contains any untrue statement of a material fact or omits to state any material fact necessary to make the  statements therein, in the light of the circumstances under which they were made, not misleading as of the time when  made or delivered; provided that, with respect to projected financial information, pro forma financial information,  





 






  68   estimated financial information and other projected or estimated information, such information was prepared in good  faith based upon assumptions believed to be reasonable at the time (it being recognized by the Lenders that projections  are subject to significant uncertainties and contingencies, many of which are beyond the control of the Credit Parties and  their Subsidiaries, and are not to be viewed as facts and that the actual results during the period or periods covered by  such projections may vary materially from such projections). As of the Closing Date, all of the information included in  the Beneficial Ownership Certification is true and correct.    ARTICLE VIII    AFFIRMATIVE COVENANTS  Until all of the Obligations (other than contingent indemnification obligations not then due) have been paid and  satisfied in full in cash, all Letters of Credit have been terminated or expired (or been Cash Collateralized) and the  Commitments terminated, each Credit Party will, and will cause each of its Subsidiaries to:  SECTION 8.1 Financial Statements and Forecasts.  Deliver to the Administrative Agent, in form and detail  satisfactory to the Administrative Agent (which shall promptly make such information available to the Lenders in  accordance with its customary practice):  (a) Annual Financial Statements.  As soon as practicable and in any event within ninety (90) days  (or, if earlier, promptly after the date of any required public filing thereof) after the end of each Fiscal Year, an  audited Consolidated balance sheet of Borrower and its Subsidiaries as of the close of such Fiscal Year and  audited Consolidated statements of income or operations, changes in stockholder’s equity and cash flows  including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as  of the end of and for the preceding Fiscal Year and prepared in accordance with GAAP and, if applicable,  containing disclosure of the effect on the financial position or results of operations of any change in the  application of accounting principles and practices during the year.  Such annual financial statements shall be  audited by an independent certified public accounting firm of recognized national standing acceptable to the  Administrative Agent, and accompanied by a report and opinion thereon by such certified public accountants  prepared in accordance with generally accepted auditing standards that is not subject to any “going concern” or  similar qualification or exception or any qualification as to the scope of such audit or with respect to accounting  principles followed by Borrower or any of its Subsidiaries not in accordance with GAAP.  (b) Quarterly Financial Statements.  As soon as practicable and in any event within forty-five (45)  days (or, if earlier, promptly after the date of any required public filing thereof) after the end of the first three  Fiscal Quarters of each Fiscal Year, an unaudited Consolidated balance sheet of Borrower and its Subsidiaries as  of the close of such Fiscal Quarter and unaudited Consolidated statements of income or operations, changes in  stockholder’s equity and cash flows together with a report containing management’s discussion and analysis of  such financial statements for the Fiscal Quarter then ended and that portion of the Fiscal Year then ended,  including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as  of the end of and for the corresponding period in the preceding Fiscal Year and prepared by Borrower in  accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results  of operations of any change in the application of accounting principles and practices during the period, and  certified by the chief financial officer of Borrower to present fairly in all material respects the financial condition  of Borrower and its Subsidiaries on a Consolidated basis as of their respective dates and the results of operations  of Borrower and its Subsidiaries for the respective periods then ended, subject to normal year-end adjustments  and the absence of footnotes.  (c) Annual Forecast.  As soon as practicable and in any event within ninety (90) days after the end  of each Fiscal Year, a Consolidated forecast of Borrower and its Subsidiaries for the ensuing Fiscal Year, such  plan to be prepared in accordance with GAAP and to include, on an annual basis for the remaining term of the  Credit Facility, the following:  a projected income statement, statement of cash flows and balance sheet,  





 






  69   calculations demonstrating projected compliance with the financial covenants set forth in Section 9.14 and a  summary discussion of the most relevant assumptions utilized and drivers to such forecast, accompanied by a  certificate from a Responsible Officer to the effect that such forecast contains good faith estimates (utilizing  assumptions believed to be reasonable at the time of delivery of such forecast) of the financial condition and  operations of Borrower and its Subsidiaries for such period, it being understood that the forecast is subject to  significant uncertainties and contingencies, many of which are beyond the control of Borrower and its  Subsidiaries, and are  not to be viewed as facts, and that the actual results during the period or periods covered  by such forecast may vary materially from such forecast).  SECTION 8.2 Certificates; Other Reports.  Deliver to the Administrative Agent (which shall promptly make  such information available to the Lenders in accordance with its customary practice):  (a) at each time financial statements are delivered pursuant to Sections 8.1(a) or (b) a duly  completed Officer’s Compliance Certificate signed by the chief executive officer, president, chief financial  officer, principal accounting officer, treasurer or controller of Borrower and a report containing management’s  discussion and analysis of such financial statements;  (b) promptly upon the request of the Administrative Agent, copies of all material reports, if any,  submitted to any Credit Party, any Subsidiary thereof or any of their respective boards of directors by their  respective independent public accountants in connection with their auditing function, including, without  limitation, any management report and any management responses thereto;  (c) promptly after the furnishing thereof, copies of any notice of default received from any holder of  Indebtedness of any Credit Party or any Subsidiary thereof in excess of the Threshold Amount pursuant to the  terms of any indenture, loan or credit or similar agreement;  (d) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or  of any noncompliance by any Credit Party or any Subsidiary thereof with any Environmental Law that could  reasonably be expected to have a Material Adverse Effect;  (e) promptly after the same are available, copies of each annual report, proxy or financial statement  or other report or communication sent to the stockholders of Borrower, and copies of all annual, regular, periodic  and special reports and registration statements which Borrower may file or be required to file with the SEC  under Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and in any case not  otherwise required to be delivered to the Administrative Agent pursuant hereto;  (f) promptly, and in any event within seven (7) Business Days after receipt thereof by any Credit  Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or  comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by such agency  regarding material financial or other operational results of any Credit Party or any Subsidiary thereof;  (g) promptly upon the request thereof, such other information and documentation required by bank  regulatory authorities under applicable Anti-Money Laundering Laws (including, without limitation, any  applicable “know your customer” rules and regulations and the PATRIOT Act), as from time to time reasonably  requested by the Administrative Agent or any Lender; and  (h) such other information regarding the operations, business affairs and financial condition of any  Credit Party or any Subsidiary thereof as the Administrative Agent or any Lender may reasonably request.  Documents required to be delivered pursuant to Section 8.1(a), (b) or (e) or Section 8.2(e) (to the extent any such  documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered,  shall be deemed to have been delivered on the date (i) on which Borrower posts such documents, or provides a link  thereto on Borrower’s website on the Internet at the website address listed in Section 12.1; or (ii) on which such  documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the  





 






  70   Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the  Administrative Agent).  Notwithstanding anything contained herein, in every instance Borrower shall be required to  provide paper copies of the Officer’s Compliance Certificates required by Section 8.2 to the Administrative Agent.   Except for such Officer’s Compliance Certificates, the Administrative Agent shall have no obligation to request the  delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to  monitor compliance by Borrower with any such request for delivery, and each Lender shall be solely responsible for  requesting delivery to it or maintaining its copies of such documents.  Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders  and the Issuing Lenders materials and/or information provided by or on behalf of Borrower hereunder (collectively,  “Borrower Materials”) by posting Borrower Materials on Debt Domain, IntraLinks, SyndTrak Online or another similar  electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not  wish to receive material non-public information with respect to Borrower or its securities) (each, a “Public Lender”).   Borrower hereby agrees that so long as Borrower is the issuer of any outstanding debt or equity securities that are  registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use  commercially reasonable efforts to identify that portion of Borrower Materials that may be distributed to the Public  Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a  minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower  Materials “PUBLIC,” Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing  Lenders and the Lenders to treat such Borrower Materials as not containing any material non-public information  (although it may be sensitive and proprietary) with respect to Borrower or its securities for purposes of United States  Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information,  they shall be treated as set forth in Section 12.10); (y) all Borrower Materials marked “PUBLIC” are permitted to be  made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the  Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for  posting on a portion of the Platform not designated “Public Investor.”    SECTION 8.3 Notice of Litigation and Other Matters.  Promptly (but in no event later than ten (10) days after  any Responsible Officer obtains knowledge thereof) notify the Administrative Agent in writing of (which shall promptly  make such information available to the Lenders in accordance with its customary practice):  (a) the occurrence of any Default or Event of Default;  (b) the commencement of all proceedings and investigations by or before any Governmental  Authority and all actions and proceedings in any court or before any arbitrator against or involving any Credit  Party or any Subsidiary thereof or any of their respective properties, assets or businesses in each case that could  reasonably be expected to result in a Material Adverse Effect;  (c) any notice of any violation received by any Credit Party or any Subsidiary thereof from any  Governmental Authority including, without limitation, any notice of violation of Environmental Laws which in  any such case could reasonably be expected to have a Material Adverse Effect;  (d) any labor controversy that has resulted in a strike or other  similar work action against any  Credit Party or any Subsidiary thereof in any such case could reasonably be expected to have a Material Adverse  Effect;  (e) any attachment, judgment, lien, levy or order exceeding the Threshold Amount that may be  assessed against or threatened against any Credit Party or any Subsidiary thereof; and  (f) (i) any unfavorable determination letter from the IRS regarding the qualification of an Employee  Benefit Plan under Section 401(a) of the Code (along with a copy thereof), (ii) all notices received by any Credit  Party or any ERISA Affiliate of the PBGC’s intent to terminate any Pension Plan or to have a trustee appointed  to administer any Pension Plan, (iii) all notices received by any Credit Party or any ERISA Affiliate from a  





 






  71   Multiemployer Plan sponsor concerning the imposition or amount of withdrawal liability pursuant to  Section 4202 of ERISA and (iv) any Responsible Officer obtaining knowledge that any Termination Event has  occurred or is reasonably expected to occur within the next sixty (60) days.  (g) any change in the information provided in the Beneficial Ownership Certification that would  result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification.  Each notice pursuant to Section 8.3 shall be accompanied by a statement of a Responsible Officer setting forth  details of the occurrence referred to therein and stating what action Borrower has taken and proposes to take with respect  thereto.  Each notice pursuant to Section 8.3(a) shall describe with particularity any and all provisions of this Agreement  and any other Loan Document that have been breached.  SECTION 8.4 Preservation of Corporate Existence and Related Matters.  Except as permitted by Section 9.4,  preserve and maintain its separate corporate existence and all rights, franchises, licenses and privileges necessary to the  conduct of its business, and qualify and remain qualified as a foreign corporation or other entity and authorized to do  business in each jurisdiction in which qualification is necessary, in each case to the extent that failure to do so could  reasonably be expected to have a Material Adverse Effect.  SECTION 8.5 Maintenance of Property and Licenses.  (a) In addition to the requirements of any of the Security Documents, use commercially reasonable  efforts to protect and preserve all Properties necessary in and material to its business, including copyrights,  patents, trade names, service marks and trademarks; maintain in good working order and condition, ordinary  wear and tear excepted, all buildings, equipment and other tangible real and personal property; and from time to  time make or cause to be made all repairs, renewals and replacements thereof and additions to such Property  necessary for the conduct of its business, so that the business carried on in connection therewith may be  conducted in a commercially reasonable manner, in each case except as such action or inaction would not  reasonably be expected to result in a Material Adverse Effect.  (b) Maintain, in full force and effect in all material respects, each and every license, permit,  certification, qualification, approval or franchise issued by any Governmental Authority (each a “License”)  required for each of them to conduct their respective businesses as presently conducted, except where the failure  to do so could not reasonably be expected to have a Material Adverse Effect.  SECTION 8.6 Insurance.  Maintain insurance with financially sound and reputable insurance companies  against at least such risks and in at least such amounts as are customarily maintained by similar businesses and as may be  required by Applicable Law and as are required by any Security Documents.  All such insurance shall, (a) provide that  no cancellation or material modification thereof shall be effective until at least 30 days after receipt by the  Administrative Agent of written notice thereof, (b) name the Administrative Agent as an additional insured party  thereunder and (c) in the case of each casualty insurance policy, name the Administrative Agent as lender’s loss payee.   On the Closing Date and from time to time thereafter deliver to the Administrative Agent upon its request information in  reasonable detail as to the insurance then in effect, stating the names of the insurance companies, the amounts and rates  of the insurance, the dates of the expiration thereof and the properties and risks covered thereby.    SECTION 8.7 Accounting Methods and Financial Records.  Maintain a system of accounting, and keep proper  books, records and accounts (which shall be true and complete in all material respects) as may be required or as may be  necessary to permit the preparation of financial statements in accordance with GAAP and in material compliance with  the regulations of any Governmental Authority having jurisdiction over it or any of its Properties.  SECTION 8.8 Payment of Taxes and Other Obligations.  Pay and perform (a) all taxes, assessments and other  governmental charges that may be levied or assessed upon it or any of its Property and (b) all other Indebtedness,  obligations and liabilities in accordance with customary trade practices; provided, that Borrower or such Subsidiary may  contest any item described in this Section in good faith so long as adequate reserves are maintained with respect thereto  





 






  72   in accordance with GAAP, except where the failure to pay or perform the items described in (a) or (b) of this Section  could not reasonably be expected to have material impact on the business of Borrower or such Subsidiary.  SECTION 8.9 Compliance with Laws and Approvals.  Observe and remain in compliance with all Applicable  Laws and maintain in full force and effect all Governmental Approvals, in each case applicable to the conduct of its  business except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.  SECTION 8.10 Environmental Laws.  In addition to and without limiting the generality of Section 8.9:  (a) comply with, and use commercially reasonable efforts to ensure such compliance by all tenants and subtenants with  all applicable Environmental Laws and obtain and comply with and maintain, and use commercially reasonable efforts to  ensure that all tenants and subtenants, if any, obtain and comply with and maintain, any and all material licenses,  approvals, notifications, registrations or permits required by applicable Environmental Laws, (b) conduct and complete  all investigations, studies, sampling and testing, and all remedial, removal and other actions required under  Environmental Laws, and promptly comply with all lawful orders and directives of any Governmental Authority  regarding Environmental Laws, and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders,  and their respective parents, Subsidiaries, Affiliates, employees, agents, officers and directors, from and against any  claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature known  or unknown, contingent or otherwise, arising out of, or in any way relating to the presence of Hazardous Materials, or the  violation of, noncompliance with or liability under any Environmental Laws applicable to the operations of Borrower or  any such Subsidiary, or any orders, requirements or demands of Governmental Authorities related thereto, including,  without limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court  costs and litigation expenses, except to the extent that any of the foregoing directly result from the bad faith, gross  negligence, willful misconduct or material breach in bad faith of any Loan Document of the party seeking  indemnification therefor, as determined by a court of competent jurisdiction by final nonappealable judgment.  SECTION 8.11 Compliance with ERISA.  In addition to and without limiting the generality of Section 8.9,  (a) except where the failure to so comply could not, individually or in the aggregate, reasonably be expected to have a  Material Adverse Effect, (i) comply with applicable provisions of ERISA, the Code and the regulations and published  interpretations thereunder with respect to all Employee Benefit Plans, (ii) not take any action or fail to take action the  result of which could reasonably be expected to result in a liability to the PBGC or to a Multiemployer Plan, (iii) not  participate in any prohibited transaction that could result in any civil penalty under ERISA or tax under the Code and (iv)  operate each Employee Benefit Plan in such a manner that will not incur any tax liability under Section 4980B of the  Code or any liability to any qualified beneficiary as defined in Section 4980B of the Code and (b) furnish to the  Administrative Agent upon the Administrative Agent’s request such additional information about any Employee Benefit  Plan as may be reasonably requested by the Administrative Agent to confirm compliance with this Section.  SECTION 8.12 Visits and Inspections.  Permit representatives of the Administrative Agent, from time to time  upon prior reasonable notice and at such times during normal business hours and with no more than reasonable  frequency, all at the expense of Borrower (limited, except during the continuance of an Event of Default to the cost of a  single visit and inspection by the Administrative Agent, per calendar year), to visit and inspect its properties; inspect,  audit and make extracts from its books, records and files, including, but not limited to, management letters prepared by  independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets,  liabilities, financial condition, results of operations and business prospects; provided that upon the occurrence and during  the continuance of an Event of Default, the Administrative Agent or any Lender may do any of the foregoing at the  expense of Borrower at any time without advance notice.  Upon the request of the Administrative Agent or the Required  Lenders, participate in a meeting of the Administrative Agent and Lenders once during each Fiscal Year, which meeting  will be held at Borrower’s corporate offices (or such other location as may be agreed to by Borrower and the  Administrative Agent) at such time as may be agreed by Borrower and the Administrative Agent.  SECTION 8.13 Additional Subsidiaries.  (a) Additional Domestic Subsidiaries.  Promptly after the creation or acquisition of any Material  Domestic Subsidiary (and, in any event, within forty-five (45) days after such creation or acquisition, as such  





 






  73   time period may be extended by the Administrative Agent in its sole discretion) cause such Person to (i) become  a Subsidiary Guarantor by delivering to the Administrative Agent a duly executed supplement to the Collateral  Agreement and joinder to this Agreement or such other document as the Administrative Agent shall deem  appropriate for such purpose, (ii) grant a security interest in all Collateral (subject to the exceptions specified in  the Collateral Agreement) owned by such Subsidiary by delivering to the Administrative Agent a duly executed  supplement to each applicable Security Document or such other document as the Administrative Agent shall  deem appropriate for such purpose and comply with the terms of each applicable Security Document,  (iii) deliver to the Administrative Agent such opinions, documents and certificates referred to in Section 6.1 as  may be reasonably requested by the Administrative Agent, (iv) deliver to the Administrative Agent such original  certificated Equity Interests or other certificates and stock or other transfer powers evidencing the Equity  Interests of such Person, (v) deliver to the Administrative Agent such updated Schedules to the Loan Documents  as requested by the Administrative Agent with respect to such Person, and (vi) deliver to the Administrative  Agent such other documents as may be reasonably requested by the Administrative Agent, all in form, content  and scope reasonably satisfactory to the Administrative Agent.  (b) Additional Foreign Subsidiaries.  Notify the Administrative Agent of any Person that becomes a  First Tier Foreign Subsidiary and cause the applicable Credit Party to (i) deliver to the Administrative Agent  Security Documents pledging sixty-five percent (65%) of the total outstanding voting Equity Interests (and one  hundred percent (100%) of the non-voting Equity Interests) of any such new First Tier Foreign Subsidiary and a  consent thereto executed by such new First Tier Foreign Subsidiary (including, without limitation, if applicable,  original certificated Equity Interests (or the equivalent thereof pursuant to the Applicable Laws and practices of  any relevant foreign jurisdiction) evidencing the Equity Interests of such new First Tier Foreign Subsidiary,  together with an appropriate undated stock or other transfer power for each certificate duly executed in blank by  the registered owner thereof), (ii) such Person to deliver to the Administrative Agent such opinions, documents  and certificates referred to in Section 6.1 as may be reasonably requested by the Administrative Agent, (iii) such  Person to deliver to the Administrative Agent such updated Schedules to the Loan Documents as requested by  the Administrative Agent with regard to such Person and (iv) such Person to deliver to the Administrative Agent  such other documents as may be reasonably requested by the Administrative Agent, all in form, content and  scope reasonably satisfactory to the Administrative Agent.  (c) [Reserved].  (d) Merger Subsidiaries.  Notwithstanding the foregoing, to the extent any new Subsidiary is  created solely for the purpose of consummating a merger transaction pursuant to a Permitted Acquisition, and  such new Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to  it contemporaneously with (or as may be reasonably required in advance of) the closing of such merger  transaction, such new Subsidiary shall not be required to take the actions set forth in Section 8.13(a) or (b), as  applicable, until the consummation of such Permitted Acquisition (at which time, the surviving entity of the  respective merger transaction shall be required to so comply with Section 8.13(a) or (b), as applicable, within ten  (10) Business Days of the consummation of such Permitted Acquisition, as such time period may be extended by  the Administrative Agent in its sole discretion).  (e) Exclusions.  The provisions of this Section 8.13 shall not apply to assets as to which the  Administrative Agent and Borrower shall reasonably determine that the costs and burdens of obtaining a security  interest therein or perfection thereof outweigh the value of the security afforded thereby.  SECTION 8.14 [Reserved].  SECTION 8.15 Use of Proceeds  Borrower shall use the proceeds of the Extensions of Credit (i) to pay fees,  commissions and expenses in connection with the Transactions, (ii) [reserved] and (iii) for working capital and general  corporate purposes of Borrower and its Subsidiaries (including Permitted Acquisitions, joint venture Investments  permitted hereunder, Restricted Payments permitted hereunder, Capital Expenditures permitted hereunder and  repurchases of Equity Interests permitted hereunder). No part of the proceeds of the Loans will be used by Borrower or  





 






  74   its Subsidiaries, directly or indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the  payment or giving of money, or anything else of value, to any Person in violation of the FCPA or any other applicable  Anti-Corruption Laws.  SECTION 8.16 [Reserved].   SECTION 8.17 Further Assurances.  Execute any and all further documents, financing statements, agreements  and instruments, and take all such further actions (including the filing and recording of financing statements and other  documents), which may be required under any Applicable Law, or which the Administrative Agent or the Required  Lenders may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant,  preserve, protect or perfect the Liens contemplated by the Security Documents or the validity or priority of any such  Lien (subject to Permitted Liens), all at the expense of the Credit Parties.  Borrower also agrees to provide to the  Administrative Agent, from time to time upon the reasonable request by the Administrative Agent, evidence reasonably  satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by  the Security Documents (subject to Permitted Liens).  SECTION 8.18 Anti-Corruption.  Maintain in effect policies and procedures designed to ensure compliance by  Borrower, its Subsidiaries, and their respective directors, officers, employees, and agents with Anti-Corruption Laws and  applicable Sanctions applicable to the conduct of the business of Borrower and its Subsidiaries, (ii) notify the  Administrative Agent and each Lender that previously received a Beneficial Ownership Certification of any change in  the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial  owners identified therein and (iii) promptly upon the reasonable request of the Administrative Agent or any Lender,  provide the Administrative Agent or such Lender, as the case may be, any information or documentation requested by it  for purposes of complying with the Beneficial Ownership Regulation.  ARTICLE IX    NEGATIVE COVENANTS  Until all of the Obligations (other than contingent, indemnification obligations not then due) have been paid and  satisfied in full, all Letters of Credit have been terminated or expired (or been Cash Collateralized) and the  Commitments terminated, the Credit Parties will not, and will not permit any of their respective Subsidiaries to:  SECTION 9.1 Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness except:  (a) the Obligations;  (b) Indebtedness and obligations owing under Hedge Agreements entered into in order to manage  existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;  (c) Indebtedness existing on the Closing Date and listed on Schedule 9 to the Disclosure Letter, and  any refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such  Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an  amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably  incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized  thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or  extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing,  refunding, renewal or extension and (iii) any refinancing, refunding, renewal or extension of any Subordinated  Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on  Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or  extended and (C) in an amount not less than the amount outstanding at the time of such refinancing, refunding,  renewal or extension;  





 






  75   (d) Indebtedness incurred in connection with capital leases, purchase money Indebtedness, and any  financing related to any corporate aircraft, which may exist, in an aggregate principal amount not to exceed  $20,000,000 at any time outstanding, together with any refinancings, refundings, renewals or extensions thereof;  (e) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were  acquired from such Person in connection with an Investment permitted pursuant to Section 9.3, to the extent that  (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a  Subsidiary or the acquisition of such assets, (ii) neither Borrower nor any Subsidiary thereof (other than such  Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have  any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal  amount of such Indebtedness does not exceed $5,000,000 at any time outstanding, together with any  refinancings, refundings, renewals or extensions thereof; provided that (y) the principal amount of such  Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an  amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably  incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized  thereunder, and (z) the final maturity date and weighted average life of such refinancing, refunding, renewal or  extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing,  refunding, renewal or extension;  (f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through  (e) of this Section, subsections (g) through (r) of this Section, and, other than with respect to the Indebtedness of  any Subsidiary which is not a Credit Party, subsection (s) of this Section;  (g) unsecured intercompany Indebtedness:  (i) owed by any Credit Party to another Credit Party;  (ii) owed by any Credit Party to any Non-Guarantor Subsidiary (provided that such  Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the  Administrative Agent); and  (iii) owed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary;   (h) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft  or other similar instrument drawn against insufficient funds in the ordinary course of business (and any  endorsement of instruments or other payment items for deposit);  (i) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds,  statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary  course of business, and reimbursement obligations in respect of any of the foregoing;   (j) Indebtedness consisting of (i) unsecured guarantees incurred in the ordinary course of business  with respect to surety and appeal bonds, performance bonds, bid bonds, appeal bonds, completion guarantee and  similar obligations, and (ii) unsecured guarantees arising with respect to customary indemnification obligations  to (A) purchasers in connection with any Asset Disposition permitted by Section 9.5 or which has occurred prior  to the Closing Date or (B) clients, customers or vendors of Borrower or any of its Subsidiaries incurred in the  ordinary course of business;  (k) Indebtedness owed to any Person providing property, casualty, liability, or other insurance to  Borrower or any of its Subsidiaries, so long as the amount of such Indebtedness is not in excess of the amount of  the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such  Indebtedness is incurred and such Indebtedness is outstanding only during such year;  





 






  76   (l) Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card  processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or  “P-cards”), or cash management services;  (m) contingent liabilities in respect of any indemnification obligation, adjustment of purchase price,  non-compete, or similar obligation of Borrower or the applicable Credit Party incurred in connection with the  consummation of one or more Permitted Acquisitions or any Investment permitted hereunder;  (n) Indebtedness composing Investments permitted by Section 9.3;  (o) unsecured Indebtedness incurred in respect of netting services, overdraft protection, and other  like services, in each case, incurred in the ordinary course of business;  (p) unsecured Indebtedness of Borrower or its Subsidiaries in respect of earn-outs owing to sellers  of assets or Equity Interests to Borrower or its Subsidiaries that is incurred in connection with the consummation  of one or more Permitted Acquisitions;  (q) accrual of interest, accretion or amortization of original issue discount, or the payment of  interest in kind, in each case, on Indebtedness permitted under this Section 9.1;  (r) Indebtedness of Borrower or its Subsidiaries resulting from any guaranties of the lease  obligations of any Credit Party (other than Borrower) to the extent such lease obligations are permitted to be  incurred under this Agreement;   (s) Indebtedness of any Receivables Subsidiary arising under any Receivables Facility; provided  that the outstanding principal amount of such Indebtedness shall not exceed $25,000,000 at any time  outstanding; and  (t) Indebtedness of any Credit Party or any Subsidiary thereof not otherwise permitted pursuant to  this Section in an aggregate principal amount not to exceed the greater of (i) $15,000,000 and (ii) 15% of  Consolidated EBITDA calculated on a Pro Forma Basis, at any time outstanding.  SECTION 9.2 Liens.  Create, incur, assume or suffer to exist, any Lien on or with respect to any of its  Property, whether now owned or hereafter acquired, except:  (a) Liens created pursuant to the Loan Documents (including, without limitation, Liens in favor of  the Swingline Lender and/or the Issuing Lenders, as applicable, on Cash Collateral granted pursuant to the Loan  Documents);  (b) Liens in existence on the Closing Date and described on Schedule 10 to the Disclosure Letter,  and the replacement, renewal or extension thereof (including Liens incurred, assumed or suffered to exist in  connection with any refinancing, refunding, renewal or extension of Indebtedness pursuant to Section 9.1(c)  (solely to the extent that such Liens were in existence on the Closing Date and described on Schedule 10 to the  Disclosure Letter)); provided that the scope of any such Lien shall not be increased, or otherwise expanded, to  cover any additional property or type of asset, as applicable, beyond that in existence on the Closing Date,  except for (i) products and proceeds of the foregoing and (ii) any additional property covered resulting from  amendments or supplements to the furniture, fixture and equipment facilities with Wells Fargo Equipment  Finance, Inc. and Banc of America Leasing & Capital, LLC;  (c) Liens for taxes, assessments and other governmental charges or levies (excluding any Lien  imposed pursuant to any of the provisions of ERISA or Environmental Laws) (i) not yet due or as to which the  period of grace (not to exceed thirty (30) days), if any, related thereto has not expired or (ii) which are being  contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required  by GAAP;  





 






  77   (d) the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for  labor, materials, supplies or rentals incurred in the ordinary course of business, which (i) are not overdue for a  period of more than thirty (30) days, or if more than thirty (30) days overdue, no action has been taken to  enforce such Liens and such Liens are being contested in good faith and by appropriate proceedings if adequate  reserves are maintained to the extent required by GAAP and (ii) do not, individually or in the aggregate,  materially impair the use thereof in the operation of the business of Borrower or any of its Subsidiaries;  (e) deposits or pledges made in the ordinary course of business in connection with, or to secure  payment of, obligations under workers’ compensation, unemployment insurance and other types of social  security or similar legislation, or to secure the performance of bids, trade contracts and leases (other than  Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation),  performance bonds and other obligations of a like nature incurred in the ordinary course of business, in each  case, so long as no foreclosure sale or similar proceeding has been commenced with respect to any portion of the  Collateral on account thereof;  (f) encumbrances in the nature of zoning restrictions, easements and rights or restrictions of record  on the use of real property;  (g) Liens arising from the filing of precautionary UCC financing statements relating solely to  personal property leased pursuant to operating leases entered into in the ordinary course of business of Borrower  and its Subsidiaries;  (h) Liens securing Indebtedness permitted under Section 9.1(d) and the replacement, renewal or  extension thereof; provided that (i) such Liens shall be created substantially simultaneously with the acquisition,  repair, improvement or lease, as applicable, of the related Property, (ii) such Liens do not at any time encumber  any property other than the Property financed by such Indebtedness, (iii) the amount of Indebtedness secured  thereby is not increased (other than in connection with additional work) and (iv) the principal amount of  Indebtedness secured by any such Lien shall at no time exceed one hundred percent (100%) of the original price  for the purchase, repair improvement or lease amount (as applicable) of such Property at the time of purchase,  repair, improvement or lease (as applicable), plus related transaction costs;  (i) Liens securing judgments for the payment of money not constituting an Event of Default under  Section 10.1(l) or securing appeal or other surety bonds relating to such judgments;  (j) (i) Liens on Property (i) of any Subsidiary which are in existence at the time that such  Subsidiary is acquired pursuant to a Permitted Acquisition and (ii) of Borrower or any of its Subsidiaries  existing at the time such tangible property or tangible assets are purchased or otherwise acquired by Borrower or  such Subsidiary thereof pursuant to a transaction permitted pursuant to this Agreement, and the replacement,  renewal or extension of any thereof; provided that, with respect to each of the foregoing clauses (i) and (ii),  (A) such Liens are not incurred in connection with, or in anticipation of, such Permitted Acquisition, purchase or  other acquisition, (B) such Liens are applicable only to specific Property, (C) such Liens do not attach to any  other Property of Borrower or any of its Subsidiaries and (D) the Indebtedness secured by such Liens is  permitted under Section 9.1(e) of this Agreement).  (k) (i) Liens of a collecting bank arising in the ordinary course of business under Section 4-210 of  the Uniform Commercial Code in effect in the relevant jurisdiction and (ii) Liens of any depositary bank in  connection with statutory, common law and contractual rights of set-off and recoupment with respect to any  deposit account of Borrower or any Subsidiary thereof;  (l) (i) contractual or statutory Liens of landlords to the extent relating to the property and assets  relating to any lease agreements with such landlord and (ii) contractual Liens of suppliers (including sellers of  goods) or customers granted in the ordinary course of business to the extent limited to the property or assets  relating to such contract;  





 






  78   (m) any interest or title of a licensor, sublicensor, lessor or sublessor with respect to any assets under  any license or lease agreement entered into in the ordinary course of business which do not (i) interfere in any  material respect with the business of Borrower or its Subsidiaries or materially detract from the value of the  relevant assets of Borrower or its Subsidiaries or (ii) secure any Indebtedness;   (n) the interests of lessors under operating leases and licensors under nonexclusive license  agreements or Permitted Exclusive Licenses;  (o) Liens granted in the ordinary course of business on the unearned portion of insurance premiums  securing the financing of insurance premiums to the extent the financing is permitted by Section 9.1(k);  (p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment  of customs duties in connection with the importation of goods;   (q) Liens securing Indebtedness permitted under Section 9.1(e);  (r) Liens solely on any cash earnest money deposits made by Borrower or any of its Subsidiaries in  connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition;   (s) Liens on Receivables Assets and related assets incurred in connection with a Receivables  Facility; provided that the outstanding principal amount thereof secured by such Liens under this clause (s) shall  not exceed $25,000,000 at any time outstanding; and  (t) Liens not otherwise permitted hereunder on assets securing Indebtedness or other obligations in  an aggregate amount not to exceed the greater of (i) $15,000,000 and (ii) 15% of Consolidated EBITDA  calculated on a Pro Forma Basis, at any time outstanding.  SECTION 9.3 Investments.  Purchase, own, invest in or otherwise acquire (in one transaction or a series of  transactions), directly or indirectly, any Equity Interests, interests or rights (including board or management rights) in  any partnership or joint venture arrangement (including, without limitation, the creation or capitalization of any  Subsidiary whether in corporate, partnership, contract or other legal form), evidence of Indebtedness or other obligation  or security, all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in  any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to,  guaranty of any Indebtedness of, or any investment in cash or by delivery of Property in, any Person (all the foregoing,  “Investments”) except:  (a) (i) Investments existing on the Closing Date in Subsidiaries existing on the Closing Date;  (ii) Investments existing on the Closing Date (other than Investments in Subsidiaries  existing on the Closing Date) and described on Schedule 11 to the Disclosure Letter;  (iii) Investments made after the Closing Date by any Credit Party in any other Credit Party  (other than Borrower) or in any other Domestic Subsidiary (and Investments by any Credit Party in any  of its Subsidiaries in order to maintain a minimum net capital or as may otherwise be required by law);  (iv) Investments made after the Closing Date by any Non-Guarantor Subsidiary in any other  Non-Guarantor Subsidiary; and  (v) Investments made after the Closing Date by any Non-Guarantor Subsidiary in any  Credit Party;   (b) Investments in cash and Cash Equivalents;  





 






  79   (c) Investments by Borrower or any of its Subsidiaries consisting of Capital Expenditures permitted  by this Agreement;  (d) deposits made in the ordinary course of business to secure the performance of leases or other  obligations as permitted by Section 9.2;  (e) Hedge Agreements permitted pursuant to Section 9.1;  (f) purchases of assets in the ordinary course of business;  (g) Investments by Borrower or any Subsidiary thereof in the form of Permitted Acquisitions;   (h) Investments in the form of loans and advances to officers, directors and employees in the  ordinary course of business in an aggregate amount not to exceed at any time outstanding $1,000,000  (determined without regard to any write-downs or write-offs of such loans or advances);  (i) Investments in the form of payments of cash constituting Restricted Payments permitted  pursuant to Section 9.6;  (j) Guaranty Obligations permitted pursuant to Section 9.1(f);  (k) Investments in negotiable instruments deposited or to be deposited for collection in the ordinary  course of business;  (l) advances made in connection with purchases of goods or services in the ordinary course of  business;  (m) Investments received in settlement of amounts due to any Credit Party or any of its Subsidiaries  effected in the ordinary course of business or owing to any Credit Party or any of its Subsidiaries as a result of  insolvency proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor  of a Credit Party or its Subsidiaries;   (n) Equity Interests or other securities acquired in connection with the satisfaction or enforcement  of Indebtedness or claims due or owing to a Credit Party or its Subsidiaries (in bankruptcy of customers or  suppliers or otherwise outside the ordinary course of business) or as security for any such Indebtedness or  claims;  (o) Investments resulting from entering into (i) Cash Management Agreements, or (ii) agreements  relative to Indebtedness that is permitted under Section 9.1(l);  (p) Investments held by a Person acquired in a Permitted Acquisition to the extent that such  Investments were not made in contemplation of or in connection with such Permitted Acquisition and were in  existence on the date of such Permitted Acquisition;   (q) Investments arising out of the receipt by Borrower or any of its Subsidiaries of non-cash  consideration in connection with any Asset Disposition permitted by Section 9.5;   (r) Investments in any joint venture arrangement so long as (i) no Default or Event of Default has  occurred and is continuing or would result therefrom, (ii) the Total Leverage Ratio calculated on a Pro Forma  Basis shall be less than or equal to 3.00 to 1.00 as of the end of the most recent Fiscal Quarter for which  financial statements have been delivered pursuant to Section 8.1 and (iii) after giving effect to any such  Investment, Liquidity shall be at least $25,000,000;   





 






  80   (s) (i) any Investment in a Receivables Subsidiary in order to effectuate a Receivables Facility or  any Investment by a Receivables Subsidiary in any other Person in connection with a Receivables Facility;  provided, however, that any such Investment in a Receivables Subsidiary is in the form of a contribution of  additional Receivables Assets or as equity, and (ii) distributions or payments of Receivables Fees and purchases  of Receivables Assets in connection with a Receivables Facility; and  (t) Investments of any Credit Party or any Subsidiary thereof not otherwise permitted pursuant to  this Section in an aggregate principal amount not to exceed the greater of (i) $25,000,000 and (ii) 25% of  Consolidated EBITDA at any time outstanding calculated on a Pro Forma Basis.  For purposes of determining the amount of any Investment outstanding for purposes of this Section 9.3, such amount  shall be deemed to be the amount of such Investment when made, purchased or acquired (without adjustment for  subsequent increases or decreases in the value of such Investment) less any amount realized in respect of such  Investment upon the sale, collection or return of capital (not to exceed the original amount invested).  SECTION 9.4 Fundamental Changes.  Merge, consolidate or enter into any similar combination with, or enter  into any Asset Disposition of all or substantially all of its assets (whether in a single transaction or a series of  transactions) with, any other Person or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution)  except:  (a) (i) any Wholly-Owned Subsidiary of Borrower may be merged, amalgamated or consolidated  with or into Borrower (provided that Borrower shall be the continuing or surviving entity) or (ii) any Wholly- Owned Subsidiary of Borrower may be merged, amalgamated or consolidated with or into any Subsidiary  Guarantor (provided that the Subsidiary Guarantor shall be the continuing or surviving entity or simultaneously  with such transaction or the continuing or surviving entity shall become a Subsidiary Guarantor and Borrower  shall comply with Section 8.13 in connection therewith);  (b) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or  consolidated with or into, or be liquidated into, any other Non-Guarantor Subsidiary and (ii) any Non-Guarantor  Subsidiary that is a Domestic Subsidiary may be merged, amalgamated or consolidated with or into, or be  liquidated into, any other Non-Guarantor Subsidiary that is a Domestic Subsidiary;  (c) any Subsidiary may dispose of all or substantially all of its assets in connection with any  voluntary liquidation, dissolution, winding up or otherwise to Borrower or any Subsidiary Guarantor and any  such Subsidiary without assets or liabilities may liquidate, dissolve or wind up; provided that, with respect to  any such disposition by any Non-Guarantor Subsidiary, the consideration for such disposition shall not exceed  the fair value of such assets;  (d) (i) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may dispose of all or substantially  all of its assets in connection with any voluntary liquidation, dissolution, winding up or otherwise to any other  Non-Guarantor Subsidiary and any such Subsidiary without assets or liabilities may liquidate, dissolve or wind  up and (ii) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may dispose of all or substantially all of  its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Non-Guarantor  Subsidiary that is a Domestic Subsidiary and any such Subsidiary without assets or liabilities may liquidate,  dissolve or wind up;  (e) any Wholly-Owned Subsidiary of Borrower may merge with or into the Person such Wholly- Owned Subsidiary was formed to acquire in connection with any acquisition permitted hereunder (including,  without limitation, any Permitted Acquisition permitted pursuant to Section 9.3(g)); provided that in the case of  any merger involving a Wholly-Owned Subsidiary that is a Domestic Subsidiary, (i) a Subsidiary Guarantor  shall be the continuing or surviving entity or (ii) simultaneously with such transaction, the continuing or  surviving entity shall become a Subsidiary Guarantor and Borrower shall comply with Section 8.13 in  connection therewith;  





 






  81   (f) any Person may merge into Borrower or any of its Wholly-Owned Subsidiaries in connection  with a Permitted Acquisition permitted pursuant to Section 9.3(g); provided that (i) in the case of a merger  involving Borrower or a Subsidiary Guarantor, the continuing or surviving Person shall be Borrower or such  Subsidiary Guarantor and (ii) in all other cases, the continuing or surviving Person shall be Borrower or a  Wholly-Owned Subsidiary of Borrower; and  (g) any Asset Disposition permitted by Section 9.5.  SECTION 9.5 Asset Dispositions.  Make any Asset Disposition except:  (a) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of  Borrower or any of its Subsidiaries;  (b) non-exclusive licenses and sublicenses of intellectual property rights in the ordinary course of  business not interfering, individually or in the aggregate, in any material respect with the conduct of the business  of Borrower and its Subsidiaries;  (c) leases, subleases, licenses or sublicenses of real or personal property granted by Borrower or  any of its Subsidiaries to others in the ordinary course of business not detracting from the value of such real or  personal property or interfering in any material respect with the business of Borrower or any of its Subsidiaries;  (d) Asset Dispositions in connection with Insurance and Condemnation Events;  (e) Asset Dispositions in connection with transactions permitted by Section 9.4;   (f) sale-leaseback transactions permitted by Section 9.12;   (g) the granting of Permitted Liens;  (h) payments of cash constituting Restricted Payments that are expressly permitted by Section 9.6;  (i) the making of Investments permitted by Section 9.3;   (j) [reserved];   (k) any disposition or discount of Receivables Assets in connection with any Receivables Facility;  and  (l) Asset Dispositions not otherwise permitted pursuant to this Section; provided that (i) at the time  of such Asset Disposition, no Default or Event of Default shall exist or would result from such Asset  Disposition, and (ii) the aggregate fair market value of all property disposed of in reliance on this clause (k) shall  not exceed $20,000,000 in any Fiscal Year.  SECTION 9.6 Restricted Payments.  Declare or pay any dividend on, or make any payment or other  distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or indirectly), or set apart assets for  a sinking or other analogous fund for the purchase, redemption, retirement or other acquisition of, any class of Equity  Interests of any Credit Party or any Subsidiary thereof, or make any distribution of cash, property or assets to the holders  of shares of any Equity Interests of any Credit Party or any Subsidiary thereof (all of the foregoing, the “Restricted  Payments”) provided that:  (a) so long as no Default or Event of Default has occurred and is continuing or would result  therefrom, Borrower or any of its Subsidiaries may pay dividends in shares of its own Qualified Equity Interests;  (b) any Subsidiary of Borrower may pay cash dividends to Borrower or any Subsidiary Guarantor;  





 






  82   (c) (i) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may make Restricted Payments  to any other Non-Guarantor Subsidiary that is a Domestic Subsidiary (and, if applicable, to other holders of its  outstanding Equity Interests on a ratable basis) and (ii) any Non-Guarantor Subsidiary that is a Foreign  Subsidiary may make Restricted Payments to any other Non-Guarantor Subsidiary (and, if applicable, to other  holders of its outstanding Equity Interests on a ratable basis);  (d) Borrower may repurchase the Equity Interests of Borrower with the proceeds of the Credit  Facility or otherwise, (i) in an amount not to exceed $25,000,000 in any Fiscal Year so long as Borrower is in  compliance on a Pro Forma Basis with each covenant contained in Section 9.14 after giving effect to any such  repurchase, plus (ii) such additional amount, so long as (A) no Default or Event of Default has occurred and is  continuing or would result therefrom, (B) the Total Leverage Ratio calculated on a Pro Forma Basis shall be less  than or equal to 3.00 to 1.00 as of the end of the most recent Fiscal Quarter for which financial statements have  been delivered pursuant to Section 8.1 and (C) after giving effect to any such repurchase, Liquidity shall be at  least $25,000,000;   (e) Restricted Payments of Receivables Fees; and  (f) Borrower may declare and make (and each Subsidiary of Borrower may declare and make to  enable Borrower to do the same) Restricted Payments, so that Borrower may, and Borrower shall be permitted  to:  (A) pay corporate operating (including, without limitation, directors fees and expenses) and  overhead expenses (including, without limitation, rent, utilities and salary) in the ordinary course of  business and fees and expenses of attorneys, accountants, appraisers and the like;  (B) so long as no Default or Event of Default has occurred and is continuing or would result  therefrom on an actual or Pro Forma Basis, Borrower or any Subsidiary may pay dividends in respect of  its Equity Interests in the ordinary course of business in an unlimited amount.   SECTION 9.7 Transactions with Affiliates.  Directly or indirectly enter into any transaction, including, without  limitation, any purchase, sale, lease or exchange of Property, the rendering of any service or the payment of any  management, advisory or similar fees, with (a) any officer, director, holder of any Equity Interests in, or other Affiliate  of, Borrower or any of its Subsidiaries or (b) any Affiliate of any such officer, director or holder, other than:  (i) payments of cash constituting Restricted Payments permitted by Section  9.6;  (ii) transactions existing on the Closing Date and described on Schedule 12 to the  Disclosure Letter;  (iii) (A) transactions among Credit Parties and (B) transactions among Credit Parties and  their Subsidiaries permitted by Sections 9.1, 9.3, 9.4, 9.5 and 9.12;  (iv) other transactions in the ordinary course of business on terms as favorable as would be  obtained by it on a comparable arm’s-length transaction with an independent, unrelated third party as  determined in good faith by the board of directors (or equivalent governing body) of Borrower;  (v) employment and severance arrangements (including equity incentive plans and  employee benefit plans and arrangements) with their respective officers and employees in the ordinary  course of business;   (vi) any customary transactions with a Receivables Subsidiary effected as part of a  Receivables Facility; and  





 






  83   (vii) payment of customary fees and reasonable out of pocket costs to, and indemnities for  the benefit of, directors, officers and employees of Borrower and its Subsidiaries in the ordinary course  of business to the extent attributable to the ownership or operation of Borrower and its Subsidiaries.  SECTION 9.8 Accounting Changes; Organizational Documents.  (a) Change its Fiscal Year end, or make (without the consent of the Administrative Agent) any  material change in its accounting treatment and reporting practices that could adversely affect the calculation of  the financial covenants in Section 9.14.  (b) Amend, modify or change its articles of incorporation (or corporate charter or other similar  organizational documents) or amend, modify or change its bylaws (or other similar documents) in each case in  any manner that could have a material adverse affect on the rights or interests of the Lenders in the Collateral.  SECTION 9.9 Payments and Modifications of Subordinated Indebtedness.  (a) Amend, modify, waive or supplement (or permit the modification, amendment, waiver or  supplement of) any of the terms or provisions of any Subordinated Indebtedness in any respect which would  materially and adversely affect the rights or interests of the Administrative Agent and Lenders hereunder.  (b) Cancel, forgive, make any payment or prepayment on, or redeem or acquire for value  (including, without limitation, (x) by way of depositing with any trustee with respect thereto money or securities  before due for the purpose of paying when due and (y) at the maturity thereof) any Subordinated Indebtedness,  except:  (i) refinancings, refundings, renewals, extensions or exchange of any Subordinated  Indebtedness permitted by Section 9.1(c), (g)(ii) or (s), and by any subordination provisions applicable  thereto;  (ii) payments and prepayments of any Subordinated Indebtedness made solely with the  proceeds of Qualified Equity Interests; and  (iii) the payment of interest, expenses and indemnities in respect of Subordinated  Indebtedness incurred under Section 9.1(c), (g)(ii) or (s) (other than any such payments prohibited by  any subordination provisions applicable thereto).  SECTION 9.10 No Further Negative Pledges; Restrictive Agreements.  (a) Enter into, assume or be subject to any agreement prohibiting or otherwise restricting the  creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, or  requiring the grant of any security for such obligation if security is given for some other obligation, except  (i) pursuant to this Agreement and the other Loan Documents, (ii) pursuant to any document or instrument  governing Indebtedness incurred pursuant to Section 9.1(d) (provided that any such restriction contained therein  relates only to the asset or assets financed thereby), (iii) customary restrictions contained in the organizational  documents of any Non-Guarantor Subsidiary as of the Closing Date and (iv) customary restrictions in  connection with any Permitted Lien or any document or instrument governing any Permitted Lien (provided that  any such restriction contained therein relates only to the asset or assets subject to such Permitted Lien).  (b) Create or otherwise cause or suffer to exist or become effective any consensual encumbrance or  restriction on the ability of any Credit Party or any Subsidiary thereof to (i) pay dividends or make any other  distributions to any Credit Party or any Subsidiary on its Equity Interests or with respect to any other interest or  participation in, or measured by, its profits, (ii) pay any Indebtedness or other obligation owed to any Credit  Party or (iii) make loans or advances to any Credit Party, except in each case for such encumbrances or  restrictions existing under or by reason of (A) this Agreement and the other Loan Documents, (B) Applicable  





 






  84   Law and (C) in connection with the sale of any assets or equity of a Credit Party or its Subsidiary permitted  under this Agreement (but only to the extent such encumbrance or restriction is limited to the assets or equity  that is the subject of such sale).  (c) Create or otherwise cause or suffer to exist or become effective any consensual encumbrance or  restriction on the ability of any Credit Party or any Subsidiary thereof to (i) sell, lease or transfer any of its  properties or assets to any Credit Party or (ii) act as a Credit Party pursuant to the Loan Documents or any  renewals, refinancings, exchanges, refundings or extension thereof, except in each case for such encumbrances  or restrictions existing under or by reason of (A) this Agreement and the other Loan Documents, (B) Applicable  Law, (C) any document or instrument governing Indebtedness incurred pursuant to Section 9.1(d) (provided that  any such restriction contained therein relates only to the asset or assets acquired in connection therewith),  (D) any Permitted Lien or any document or instrument governing any Permitted Lien (provided that any such  restriction contained therein relates only to the asset or assets subject to such Permitted Lien), (E) obligations  that are binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary of Borrower, so long as  such obligations are not entered into in contemplation of such Person becoming a Subsidiary, (F) customary  restrictions contained in an agreement related to the sale of Property (to the extent such sale is permitted  pursuant to Section 9.5) that limit the transfer of such Property pending the consummation of such sale,  (G) customary restrictions in leases, subleases, licenses and sublicenses or asset sale agreements otherwise  permitted by this Agreement so long as such restrictions relate only to the assets subject thereto, (H) customary  restrictions and encumbrances created in connection with any Receivables Facility that, in the good faith  determination of the board of directors (or analogous governing body) of Borrower, are necessary or advisable to  effect such Receivables Facility and (I) customary provisions restricting assignment of any agreement entered  into in the ordinary course of business.  SECTION 9.11 Nature of Business.  Engage in any material line of business substantially different from those  lines of business conducted by Borrower or its Subsidiaries on the date hereof or any business related or incidental  thereto or reasonable extensions thereof.   SECTION 9.12 Sale Leasebacks.  Directly or indirectly become or remain liable as lessee or as guarantor or  other surety with respect to any lease, whether an operating lease or a Capital Lease, of any Property (whether real,  personal or mixed), whether now owned or hereafter acquired, which any Credit Party or any Subsidiary thereof has sold  or transferred or is to sell or transfer to a Person which is not another Credit Party or Subsidiary of a Credit Party in an  aggregate amount exceeding $50,000,000 during the term of this Agreement.  SECTION 9.13 [Reserved].  SECTION 9.14 Financial Covenants.  (a) Total Leverage Ratio.  As of the last day of any Fiscal Quarter, permit the Total Leverage Ratio  to be greater than 3.50 to 1.00; provided, that for the four Fiscal Quarter period following a Permitted  Acquisition, such Total Leverage Ratio shall be increased such that the Total Leverage Ratio shall not exceed  4.00 to 1.00 as of the last day of any such four Fiscal Quarter period.  (b) Consolidated Fixed Charge Coverage Ratio.  As of the last day of any Fiscal Quarter, permit the  Consolidated Fixed Charge Ratio to be less than 1.25 to 1.00.  SECTION 9.15 [Reserved].  SECTION 9.16 Disposal of Subsidiary Interests.  Permit any Domestic Subsidiary to be a non-Wholly-Owned  Subsidiary except as a result of or in connection with a dissolution, merger, amalgamation, consolidation, disposition or  other transaction, event or occurrence expressly permitted under Article IX.  SECTION 9.17 Use of Proceeds  Borrower will not, directly or indirectly, use the proceeds of the Loans, or  lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to  





 






  85   fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is,  or whose government is, the subject of Sanctions, or (ii) in any other manner that would result in a violation of Sanctions  by any Person (including any Person participating in the Loans, whether as underwriter, advisor, investor, or otherwise).   No part of the proceeds of the Loans will be used by Borrower or its Subsidiaries, directly or indirectly, in furtherance of  an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any  Person in violation of the FCPA or any other applicable Anti-Corruption Laws.  ARTICLE X     DEFAULT AND REMEDIES  SECTION 10.1 Events of Default.  Each of the following shall constitute an Event of Default:  (a) Default in Payment of Principal of Loans and Reimbursement Obligations.  Borrower shall  default in any payment of principal of any Loan or Reimbursement Obligation when and as due (whether at  maturity, by reason of acceleration or otherwise).  (b) Other Payment Default.  Borrower shall default in the payment when and as due (whether at  maturity, by reason of acceleration or otherwise) of interest on any Loan or Reimbursement Obligation or the  payment of any other Obligation, and such default shall continue for a period of three (3) Business Days.  (c) Misrepresentation.  Any representation, warranty, certification or statement of fact made or  deemed made by or on behalf of any Credit Party or any Subsidiary thereof in this Agreement, in any other Loan  Document, or in any document delivered in connection herewith or therewith that is subject to materiality or  Material Adverse Effect qualifications, shall be incorrect or misleading in any respect when made or deemed  made or any representation, warranty, certification or statement of fact made or deemed made by or on behalf of  any Credit Party or any Subsidiary thereof in this Agreement, any other Loan Document, or in any document  delivered in connection herewith or therewith that is not subject to materiality or Material Adverse Effect  qualifications, shall be incorrect or misleading in any material respect when made or deemed made.  (d) Default in Performance of Certain Covenants.  Any Credit Party or any Subsidiary thereof shall  default in the performance or observance of any covenant or agreement contained in Sections 8.1, 8.2, 8.3 (a),  8.4, 8.13, 8.15, or Article IX.  (e) Default in Performance of Other Covenants and Conditions.  Any Credit Party or any Subsidiary  thereof shall default in the performance or observance of any term, covenant, condition or agreement contained  in this Agreement (other than as specifically provided for in this Section) or any other Loan Document and such  default shall continue for a period of thirty (30) days after the earlier of (i) the Administrative Agent’s delivery  of written notice thereof to Borrower and (ii) a Responsible Officer having obtained actual knowledge thereof.  (f) Indebtedness Cross-Default.  Any Credit Party or any Subsidiary thereof shall (i) default in the  payment of any Indebtedness (other than the Loans or any Reimbursement Obligation) the aggregate principal  amount (including undrawn committed or available amounts), or with respect to any Hedge Agreement, the  Hedge Termination Value, of which is in excess of the Threshold Amount beyond the period of grace if any,  provided in the instrument or agreement under which such Indebtedness was created, or (ii) default in the  observance or performance of any other agreement or condition relating to any Indebtedness (other than the  Loans or any Reimbursement Obligation) the aggregate principal amount (including undrawn committed or  available amounts), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in  excess of the Threshold Amount or contained in any instrument or agreement evidencing, securing or relating  thereto or any other event shall occur or condition exist, in each case the effect of which default or other event or  condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of  such holder or holders) to cause, with the giving of notice and/or lapse of time, if required, any such  Indebtedness to become due prior to its stated maturity (any applicable grace period having expired).  





 






  86   (g) Change in Control.  Any Change in Control shall occur.  (h) Voluntary Bankruptcy Proceeding.  Any Credit Party or any Subsidiary thereof shall  (i) commence a voluntary case under any Debtor Relief Laws, (ii) file a petition seeking to take advantage of any  Debtor Relief Laws, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed  against it in an involuntary case under any Debtor Relief Laws, (iv) apply for or consent to, or fail to contest in a  timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee,  or liquidator of itself or of a substantial part of its property, domestic or foreign, (v) admit in writing its inability  to pay its debts as they become due, (vi) make a general assignment for the benefit of creditors, or (vii) take any  corporate action for the purpose of authorizing any of the foregoing.  (i) Involuntary Bankruptcy Proceeding.  A case or other proceeding shall be commenced against  any Credit Party or any Subsidiary thereof in any court of competent jurisdiction seeking (i) relief under any  Debtor Relief Laws, or (ii) the appointment of a trustee, receiver, custodian, liquidator or the like for any Credit  Party or any Subsidiary thereof or for all or any substantial part of their respective assets, domestic or foreign,  and such case or proceeding shall continue without dismissal or stay for a period of sixty (60) consecutive days,  or an order granting the relief requested in such case or proceeding (including, but not limited to, an order for  relief under such federal bankruptcy laws) shall be entered.  (j) Failure of Agreements.  Any material provision of this Agreement or any provision of any other  Loan Document shall for any reason cease to be valid and binding on any Credit Party or any Subsidiary thereof  party thereto or any such Person shall so state in writing, or any Loan Document shall for any reason cease to  create a valid and perfected first priority Lien (subject to Permitted Liens) on, or security interest in, any of the  Collateral purported to be covered thereby, in each case other than in accordance with the express terms hereof  or thereof.  (k) ERISA Events.  The occurrence of any of the following events: (i) any Credit Party or any  ERISA Affiliate fails to make full payment when due of all amounts which, under the provisions of any Pension  Plan or Multiemployer Plan or Sections 412 or 430 of the Code, any Credit Party or any ERISA Affiliate is  required to pay as contributions thereto and such unpaid amounts are in excess of the Threshold Amount, (ii) a  Termination Event occurs which, individually or in the aggregate with all other Termination Events that have  occurred, has resulted or could reasonably be expected to result in liability of any of the Credit Parties in an  aggregate amount in excess of the Threshold Amount, or (iii) any Credit Party or any ERISA Affiliate as  employers under one or more Multiemployer Plans makes a complete or partial withdrawal from any such  Multiemployer Plan and the plan sponsor of such Multiemployer Plans notifies such withdrawing employer that  such employer has incurred a withdrawal liability requiring payments in an amount exceeding the Threshold  Amount.  (l) Judgment.  A judgment or order for the payment of money which causes the aggregate amount  of all such judgments or orders (net of any amounts paid or fully covered by independent third party insurance as  to which the relevant insurance company does not dispute coverage) to exceed the Threshold Amount shall be  entered against any Credit Party or any Subsidiary thereof by any court and such judgment or order shall  continue without having been paid, discharged, vacated or stayed for a period of thirty (30) consecutive days  after the entry thereof.  (m) Senior Indebtedness Status.  The Obligations of each Credit Party and each Subsidiary thereof  under this Agreement and each of the other Loan Documents shall cease to rank as senior in priority of payment  to all Subordinated Indebtedness and all senior unsecured Indebtedness of each such Person.  SECTION 10.2 Remedies.  Upon the occurrence and during the continuance of an Event of Default, with the  consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the  Administrative Agent shall, by notice to Borrower:  





 






  87   (a) Acceleration; Termination of Credit Facility.  Terminate the Commitment and declare the  principal of and interest on the Loans and the Reimbursement Obligations at the time outstanding, and all other  amounts owed to the Lenders and to the Administrative Agent under this Agreement or any of the other Loan  Documents (including, without limitation, all L/C Obligations, whether or not the beneficiaries of the then  outstanding Letters of Credit shall have presented or shall be entitled to present the documents required  thereunder) and all other Obligations, to be forthwith due and payable, whereupon the same shall immediately  become due and payable without presentment, demand, protest or other notice of any kind, all of which are  expressly waived by each Credit Party, anything in this Agreement or the other Loan Documents to the contrary  notwithstanding, and terminate the Credit Facility and any right of Borrower to request borrowings or Letters of  Credit thereunder; provided, that upon the occurrence of an Event of Default specified in Section 10.1(h) or (i),  the Credit Facility shall be automatically terminated and all Obligations shall automatically become due and  payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by  each Credit Party, anything in this Agreement or in any other Loan Document to the contrary notwithstanding.  (b) Letters of Credit.  With respect to all Letters of Credit with respect to which presentment for  honor shall not have occurred at the time of an acceleration pursuant to the preceding paragraph, Borrower shall  at such time deposit in a Cash Collateral account opened by the Administrative Agent an amount equal to the  aggregate then undrawn and unexpired amount of such Letters of Credit.  Amounts held in such Cash Collateral  account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of  Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn  upon, if any, shall be applied to repay the other Secured Obligations on a pro rata basis.  After all such Letters of  Credit shall have expired or been fully drawn upon, the Reimbursement Obligation shall have been satisfied and  all other Secured Obligations shall have been paid in full, the balance, if any, in such Cash Collateral account  shall be returned to Borrower.  (c) General Remedies.  Exercise on behalf of the Secured Parties all of its other rights and remedies  under this Agreement, the other Loan Documents and Applicable Law, in order to satisfy all of the Secured  Obligations.  SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver; etc.  (a) 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 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.  No course of dealing between the  Borrower, the  Administrative Agent and the Lenders or their respective agents or employees shall be effective to change,  modify or discharge any provision of this Agreement or any of the other Loan Documents or to constitute a  waiver of any Event of Default.  (b) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the  authority to enforce rights and remedies hereunder and under the other Loan Documents against the Credit  Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with  such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance  with Section 10.2 for the benefit of all the Lenders and any Issuing Lenders; 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) any Issuing Lender or the Swingline Lender from exercising the rights and remedies that inure to its benefit  (solely in its capacity as an Issuing Lender or Swingline Lender, as the case may be) hereunder and under the  





 






  88   other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 12.4 (subject to  the terms of Section 5.6), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its  own behalf during the pendency of a proceeding relative to any Credit Party under any Debtor Relief Law; and  provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the  other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the  Administrative Agent pursuant to Section 10.2 and (ii) in addition to the matters set forth in clauses (b), (c) and  (d) of the preceding proviso and subject to Section 5.6, 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.  SECTION 10.4 Crediting of Payments and Proceeds.  In the event that the Obligations have been accelerated  pursuant to Section 10.2 or the Administrative Agent or any Lender has exercised any remedy set forth in this  Agreement or any other Loan Document, all payments received on account of the Secured Obligations and all net  proceeds from the enforcement of the Secured Obligations shall be applied by the Administrative Agent as follows:  First, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other  amounts, including attorney fees, payable to the Administrative Agent in its capacity as such, the Issuing Lenders in their  capacity as such and the Swingline Lender in its capacity as such, ratably among the Administrative Agent, the Issuing  Lenders and the Swingline Lender in proportion to the respective amounts described in this clause First payable to them;  Second, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts  (other than principal and interest) 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;  Third, to payment of that portion of the Secured Obligations constituting accrued and unpaid interest on the  Loans and Reimbursement Obligations, ratably among the Lenders in proportion to the respective amounts described in  this clause Third payable to them;  Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans,  Reimbursement Obligations and payment obligations then owing under Secured Hedge Agreements and Secured Cash  Management Agreements, ratably among the Lenders, the Issuing Lenders, the Hedge Banks and the Cash Management  Banks in proportion to the respective amounts described in this clause Fourth payable to them;  Fifth, to the Administrative Agent for the account of the Issuing Lenders, to Cash Collateralize any L/C  Obligations then outstanding; and  Last, the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to Borrower or  as otherwise required by Applicable Law.  Notwithstanding the foregoing, Secured Obligations arising under Secured Cash Management Agreements and  Secured Hedge Agreements 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 request,  from the applicable Cash Management Bank or Hedge Bank, as the case may be.  Each Cash Management Bank or  Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by  such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the  terms of Article XI for itself and its Affiliates as if a “Lender” party hereto.  SECTION 10.5 Administrative Agent May File Proofs of Claim.  In case of the pendency of any proceeding  under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party, the Administrative Agent  (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or  by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on  Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:   (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in  respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other  





 






  89   documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Lenders and  the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and  advances of the Lenders, the Issuing Lenders and the Administrative Agent and their respective agents and  counsel and all other amounts due the Lenders, the Issuing Lenders and the Administrative Agent under Sections  3.3, 5.3 and 12.3) 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 each 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 Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation,  expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts  due the Administrative Agent under Sections 3.3, 5.3 and 12.3.  SECTION 10.6 Credit Bidding.  (a) The Administrative Agent, on behalf of itself and the Secured Parties, shall have the right ,  exercisable at the discretion of the Required Lenders, to credit bid and purchase for the benefit of the  Administrative Agent and the Secured Parties all or any portion of Collateral at any sale thereof conducted by  the Administrative Agent under the provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the  UCC, at any sale thereof conducted under the provisions of the United States Bankruptcy Code, including  Section 363 thereof, or a sale under a plan of reorganization, or at any other sale or foreclosure conducted by the  Administrative Agent (whether by judicial action or otherwise) in accordance with Applicable Law.  Such credit  bid or purchase may be completed through one or more acquisition vehicles formed by the Administrative Agent  to make such credit bid or purchase and, in connection therewith, the Administrative Agent is authorized, on  behalf of itself and the other Secured Parties, to adopt documents providing for the governance of the acquisition  vehicle or vehicles, and assign the applicable Secured Obligations to any such acquisition vehicle in exchange  for Equity Interests and/or debt issued by the applicable acquisition vehicle (which shall be deemed to be held  for the ratable account of the applicable Secured Parties on the basis of the Secured Obligations so assigned by  each Secured Party); provided that any actions by the Administrative Agent with respect to such acquisition  vehicle or vehicles, including any disposition of the assets or Equity Interests thereof, shall be governed, directly  or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without  giving effect to the limitations on actions by the Required Lenders contained in Section 12.2.  (b) Each Lender hereby agrees, on behalf of itself and each of its Affiliates that is a Secured Party,  that, except as otherwise provided in any Loan Documents or with the written consent of the Administrative  Agent and the Required Lenders, it will not take any enforcement action, accelerate obligations under any Loan  Documents, or exercise any right that it might otherwise have under Applicable Law to credit bid at foreclosure  sales, UCC sales or other similar dispositions of Collateral.  SECTION 9.18  Recent Changes in Delaware Law.  Notwithstanding anything herein or any other Loan  Document to the contrary, no Credit Party that is a limited liability company may divide itself into two or more  limited liability companies or series thereof (pursuant to a “plan of division” as contemplated under the  Delaware Limited Liability Company Act or otherwise) without the prior written consent of the Administrative  Agent, except that any Credit Party that is a limited liability company may divide itself into two or more limited  liability companies or series thereof (pursuant to a “plan of division” as contemplated under the Delaware  Limited Liability Company Act or otherwise) without the prior written consent of the Administrative Agent so  long as all such limited liability companies or series thereof are Borrowers (if the entity divided is a Borrower)  or Guarantors (if the entity divided is a Guarantor) and such new Borrowers or new Guarantors, as applicable,  comply with the obligations set forth in Section 8.17 and the other applicable further assurances obligations set  forth in the Loan Documents.  





 






  90     ARTICLE XI    THE ADMINISTRATIVE AGENT  SECTION 11.1 Appointment and Authority.  (a) Each of the Lenders and each Issuing Lender hereby irrevocably appoints Wells Fargo 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 Lenders, and neither Borrower nor any Subsidiary thereof shall have rights as a third- party beneficiary of any of such provisions.  It is understood and agreed that the use of the term “agent” herein  or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not  intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any  Applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only  an administrative relationship between contracting parties.  (b) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents,  and each of the Lenders (including in its capacity as a potential Hedge Bank or Cash Management Bank) and the  Issuing Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such  Lender and such Issuing Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral  granted by any of the Credit Parties to secure any of the Secured Obligations, together with such powers and  discretion as are reasonably incidental thereto (including, without limitation, to enter into additional Loan  Documents or supplements to existing Loan Documents on behalf of the Secured Parties).  In this connection,  the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by  the Administrative Agent pursuant to this Article XI for purposes of holding or enforcing any Lien on the  Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and  remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all  provisions of Articles XI and XII (including Section 12.3, as though such co-agents, sub-agents and attorneys-in- fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.  SECTION 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 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.  SECTION 11.3 Exculpatory Provisions.  (a) The Administrative Agent shall not have any duties or obligations in its capacity as  Administrative Agent except those expressly set forth herein and in the other Loan Documents, and its duties  hereunder and thereunder 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  Default or Event of Default has occurred and is continuing;  





 






  91   (ii) shall not have any duty to take any discretionary action or exercise any discretionary  powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan  Documents that the Administrative Agent is required to exercise as directed in writing by the Required  Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or  in the other Loan Documents), provided that the Administrative Agent shall not be required to take any  action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability  or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any  action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a  forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor  Relief Law; and  (iii) shall not, except as expressly set forth herein and in the other Loan Documents, have  any duty to disclose, and shall not be liable for the failure to disclose, any information relating to  Borrower or any of their respective Subsidiaries or 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 Section 12.2 and Section 10.2) or (ii) in the absence of its own bad faith, gross negligence, willful  misconduct or material breach in bad faith of any Loan Document as determined by a court of competent  jurisdiction by final nonappealable judgment.  The Administrative Agent shall be deemed not to have knowledge  of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to  the Administrative Agent by 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 (including, without limitation, any report provided to it by an Issuing  Lender pursuant to Section 3.9), (iii) the performance or observance of any of the covenants, agreements or other  terms or conditions set forth herein or therein or the occurrence of any Default 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, (v) the satisfaction of any condition set forth in Article VI or elsewhere  herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or  (vi) the utilization of any Issuing Lender’s L/C Commitment (it being understood and agreed that each Issuing  Lender shall monitor compliance with its own L/C Commitment without any further action by the  Administrative Agent).  (d) The Administrative Agent shall not be responsible or have any liability for, or have any duty to  ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified  Institutions.  Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated  to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a  Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation  of Loans, or disclosure of confidential information, to any Disqualified Institution.  SECTION 11.4 Reliance by the 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 an Issuing Lender, the Administrative Agent may presume  





 






  92   that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have  received notice to the contrary from such Lender or such 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 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.  SECTION 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 Credit 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 bad faith, gross negligence, willful misconduct or material breach in  bad faith of any Loan Document in the selection of such sub-agents.  SECTION 11.6 Resignation of Administrative Agent.  (a) The Administrative Agent may at any time give notice of its resignation to the Lenders, the  Issuing Lenders and Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have  the right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office in the  United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall  have been so appointed by the Required Lenders and shall have accepted such appointment within 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 Lenders, appoint a successor Administrative Agent  meeting the qualifications set forth above; provided that in no event shall any such successor Administrative  Agent be a Defaulting Lender or a Disqualified Institution.  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 Borrower and such Person, remove such Person as Administrative Agent and, in consultation with  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),  (1) 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 Lenders 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 (2) except for any indemnity payments owed to the retiring or  removed Administrative Agent (other than Administrative Agent fees), 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 each 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  





 






  93   Loan Documents.  The fees payable by Borrower to a successor Administrative Agent shall be the same as those  payable to its predecessor unless otherwise agreed between 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 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.  (d) Any resignation by, or removal of, Wells Fargo as Administrative Agent pursuant to this Section  shall also constitute its resignation as an Issuing Lender and Swingline Lender.  Upon the acceptance of a  successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become  vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender, if in its sole discretion it  elects to, and Swingline Lender, (b) the retiring Issuing Lender and Swingline Lender shall be discharged from  all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor  Issuing Lender, if in its sole discretion it elects to, shall issue letters of credit in substitution for the Letters of  Credit, if any, outstanding at the time of such succession or make other arrangement satisfactory to the retiring  Issuing Lender to effectively assume the obligations of the retiring Issuing Lender with respect to such Letters of  Credit.  SECTION 11.7 Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and each 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 each 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.  SECTION 11.8 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the syndication  agents, documentation agents, co-agents, arranger or bookrunner 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.  SECTION 11.9 Collateral and Guaranty Matters.  (a) Each of the Lenders (including in its or any of its Affiliate’s capacities as a potential Hedge  Bank or Cash Management Bank) irrevocably authorize the Administrative Agent, at its option and in its  discretion:  (i) to release any Lien on any Collateral granted to or held by the Administrative Agent, for  the ratable benefit of the Secured Parties, under any Loan Document (A) upon the termination of the  Commitment and payment in full of all Secured Obligations (other than (1) contingent indemnification  obligations and (2) obligations and liabilities under Secured Cash Management Agreements or Secured  Hedge Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or  Hedge Bank shall have been made) and the expiration or termination of all Letters of Credit (other than  Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the  applicable Issuing Lender shall have been made), (B) that is sold or otherwise disposed of or to be sold  or otherwise disposed of as part of or in connection with any sale or other disposition permitted under  the Loan Documents, or (C) if approved, authorized or ratified in writing in accordance with  Section 12.2;  (ii) to subordinate any Lien on any Collateral granted to or held by the Administrative  Agent under any Loan Document to the holder of any Permitted Lien; and  





 






  94   (iii) to release any Subsidiary Guarantor from its obligations under any Loan Documents if  such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.  Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative  Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any  Subsidiary Guarantor from its obligations under the Collateral Agreement pursuant to this Section 11.9.  In each case as  specified in this Section 11.9, the Administrative Agent will, at Borrower’s expense, execute and deliver to the  applicable Credit Party such documents as such Credit Party may reasonably request to evidence the release of such item  of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its  interest in such item, or to release such Subsidiary Guarantor from its obligations under the Collateral Agreement, in  each case in accordance with the terms of the Loan Documents and this Section 11.9.  In the case of any such sale,  transfer or disposal of any property constituting Collateral in a transaction constituting an Asset Disposition permitted  pursuant to Section 9.5, the Liens created by any of the Security Documents on such property shall be automatically  released without need for further action by any person.  (b) The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into  any representation or warranty regarding the existence, value or collectability of the Collateral, the existence,  priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Credit Party  in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any  failure to monitor or maintain any portion of the Collateral.  SECTION 11.10 Secured Hedge Agreements and Secured Cash Management Agreements.  No Cash  Management Bank or Hedge Bank that obtains the benefits of Section 10.4 or any Collateral by virtue of the provisions  hereof or of any Security 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 or otherwise in respect of the Collateral (including the release or  impairment of any Collateral) 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 XI 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, Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative  Agent has received written notice of such Secured Cash Management Agreements and Secured Hedge Agreements,  together with such supporting documentation as the Administrative Agent may request, from the applicable Cash  Management Bank or Hedge Bank, as the case may be.  SECTION 11.11 Certain ERISA Matters.  (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party  hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person  ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arranger and their  respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other  Credit Party, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA  or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) of one or more Benefit Plans  with respect to such Lender’s entrance into, participation in, administration of and performance of the  Loans, the Letters of Credit or the Commitments or this Agreement;   (ii) the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14  (a class exemption for certain transactions determined by independent qualified professional asset  managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general  accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled  separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective  investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset  managers), is applicable so as to exempt from the prohibitions of Section 406 of ERISA and Section  





 






  95   4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the  Loans, the Letters of Credit, the Commitments and this Agreement;  (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset  Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager  made the investment decision on behalf of such Lender to enter into, participate in, administer and  perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments  and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and  (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are  satisfied with respect to such Lender’s entrance into, participation in, administration of and performance  of the Loans, the Letters of Credit, the Commitments and this Agreement; or   (iv) such other representation, warranty and covenant as may be agreed in writing between  the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with  respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance  with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as  of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a  Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the  Administrative Agent, the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for  the benefit of the Borrower or any other Credit Party, that none of the Administrative Agent, the Arranger and  their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lender’s  entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the  Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the  Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).  SECTION 11.12 Erroneous Payments.  (a) Each Lender, each Issuing Lender, each other Secured Party and any other party hereto hereby  severally agrees that if (i) the Administrative Agent notifies (which such notice shall be conclusive absent  manifest error) such Lender or Issuing Lender or any other Secured Party (or the Lender Affiliate of a Secured  Party) or any other Person that has received funds from the Administrative Agent or any of its Affiliates, either  for its own account or on behalf of a Lender, Issuing Lender or other Secured Party (each such recipient, a  “Payment Recipient”) that the Administrative Agent has determined in its sole discretion that any funds received  by such Payment Recipient were erroneously transmitted to, or otherwise erroneously or mistakenly received by,  such Payment Recipient (whether or not known to such Payment Recipient) or (ii) any Payment Recipient  receives any payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount  than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the  Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as  applicable, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by  the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as  applicable, or (z) that such Payment Recipient otherwise becomes aware was transmitted or received in error or  by mistake (in whole or in part) then, in each case, an error in payment shall be presumed to have been made  (any such amounts specified in clauses (i) or (ii) of this Section 11.12(a), whether received as a payment,  prepayment or repayment of principal, interest, fees, distribution or otherwise; individually and collectively, an  “Erroneous Payment”), then, in each case, such Payment Recipient is deemed to have knowledge of such error at  the time of its receipt of such Erroneous Payment; provided that nothing in this Section shall require the  Administrative Agent to provide any of the notices specified in clauses (i) or (ii) above. Each Payment Recipient  agrees that it shall not assert any right or claim to any Erroneous Payment, and hereby waives any claim,  counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the  





 






  96   Administrative Agent for the return of any Erroneous Payments, including without limitation waiver of any  defense based on “discharge for value” or any similar doctrine.  (b) Without limiting the immediately preceding clause (a), each Payment Recipient agrees that, in  the case of clause (a)(ii) above, it shall promptly notify the Administrative Agent in writing of such occurrence.  (c) In the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times  remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in  trust for the benefit of the Administrative Agent, and upon demand from the Administrative Agent such Payment  Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment on its behalf to),  promptly, but in all events no later than one Business Day thereafter, return to the Administrative Agent the  amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in Same Day  Funds and in the currency so received, together with interest thereon in respect of each day from and including  the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such  amount is repaid to the Administrative Agent at the Overnight Rate.  (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the  Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with  immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate of a Payment  Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return Deficiency”), then at the  sole discretion of the Administrative Agent and upon the Administrative Agent’s written notice to such Lender  (i) such Lender shall be deemed to have made a cashless assignment of the full face amount of the portion of its  Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made  (the “Erroneous Payment Impacted Class”) to the Administrative Agent or, at the option of the Administrative  Agent, the Administrative Agent’s applicable lending affiliate in an amount that is equal to the Erroneous  Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment  of the Loans (but not Commitments) of the Erroneous Payment  Impacted Class, the “Erroneous Payment  Deficiency Assignment”) plus any accrued and unpaid interest on such assigned amount, without further consent  or approval of any party hereto and without any payment by the Administrative Agent or its applicable lending  affiliate as the assignee of such Erroneous Payment Deficiency Assignment.  Without limitation of its rights  hereunder, the Administrative Agent may cancel any Erroneous Payment Deficiency Assignment at any time by  written notice to the applicable assigning Lender and upon such revocation all of the Loans assigned pursuant to  such Erroneous Payment Deficiency Assignment shall be reassigned to such Lender without any requirement for  payment or other consideration.  The parties hereto acknowledge and agree that (1) any assignment  contemplated in this clause (d) shall be made without any requirement for any payment or other consideration  paid by the applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall govern in  the event of any conflict with the terms and conditions of Section 12.9 and (3) the Administrative Agent may  reflect such assignments in the Register without further consent or action by any other Person.  (e) Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion thereof)  is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for  any reason, the Administrative Agent (1) shall be subrogated to all the rights of such Payment Recipient with  respect to such amount and (2) is authorized to set off, net and apply any and all amounts at any time owing to  such Payment Recipient under any Loan Document, or otherwise payable or distributable by the Administrative  Agent to such Payment Recipient from any source, against any amount due to the Administrative Agent under  this Section 11.12 or under the indemnification provisions of this Agreement, (y) the receipt of an Erroneous  Payment by a Payment Recipient shall not for the purpose of this Agreement be treated as a payment,  prepayment, repayment, discharge or other satisfaction of any Obligations owed by the Borrower or any other  Credit Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the  amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the  Borrower or any other Credit Party for the purpose of making for a payment on the Obligations and (z) to the  extent that an Erroneous Payment was in any way or at any time credited as payment or satisfaction of any of the  Obligations, the Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as  





 






  97   the case may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had  never been received.  (f) Each party’s obligations under this Section 11.12 shall survive the resignation or replacement of  the Administrative Agent or any transfer of right or obligations by, or the replacement of, a Lender, the  termination of the Commitments or the repayment, satisfaction or discharge of all Obligations (or any portion  thereof) under any Loan Document  (g) Nothing in this Section 11.12 will constitute a waiver or release of any claim of any party  hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.   ARTICLE XII    MISCELLANEOUS  SECTION 12.1 Notices.  (a) Notices Generally.  Except in the case of notices and other communications expressly permitted  to be given by telephone (and except as provided in paragraph (b) below), all notices and other communications  provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by  certified or registered mail or sent by facsimile as follows:  If to Borrower or any Subsidiary Guarantor:  Kforce Inc.  1001 E. Palm Avenue  Tampa, Florida 33605  Attn: Jeffrey B. Hackman, Senior Vice President, Finance and Accounting  Direct Dial:  (813) 552-2785  E-mail:  JHackman@kforce.com  With a required copy to:  Kforce Inc.  1001 E. Palm Avenue  Tampa, Florida 33605  Attn: Jennifer Smayda, General Counsel  Direct Dial: (813) 552-1466  Email: jsmayda@kforce.com  If to Wells Fargo as  Administrative   Agent:  Wells Fargo Bank, National Association, as Administrative Agent  1525 West W.T. Harris Blvd.  Mail Code NC 0680  Charlotte, North Carolina 28262  Attention of:  Syndication Agency Services  Telephone No.:  (704) 590-2706  Facsimile No.:  (704) 590-2790  Email: agencyservice.request@wachovia.com  With copies to:  





 






  98   Wells Fargo Bank, National Association  100 South Ashley Drive, Suite 1000  Tampa, Florida 33602  Attention of:  Lynn E. Culbreath, Senior Vice President  Telephone No.: (813) 225-4312  Facsimile No.:  (813) 225-4330  E-mail:  lynn.culbreath@wellsfargo.com  If to any Lender:  To the address set forth on the Register  Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been  given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given  during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next  business day for the recipient).  Notices delivered through electronic communications to the extent provided in  paragraph (b) below, shall be effective as provided in said paragraph (b).  (b) Electronic Communications.  Notices and other communications to the Lenders and the Issuing  Lenders 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 any Issuing Lender pursuant to Article II if such Lender or such  Issuing Lender, as applicable, has notified the Administrative Agent that is incapable of receiving notices under  such Article by electronic communication.  The Administrative Agent or Borrower may, in its discretion, agree  to accept notices and other communications to it hereunder by electronic communications pursuant to procedures  approved by it, provided that approval of such procedures may be limited to particular notices or  communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other communications  sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the  intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written  acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed  received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing  clause (i) of notification that such notice or communication is available and identifying the website address  therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not  sent during the normal business hours of the recipient, such notice, email or other communication shall be  deemed to have been sent at the opening of business on the next business day for the recipient.  (c) Administrative Agent’s Office.  The Administrative Agent hereby designates its office located  at the address set forth above, or any subsequent office which shall have been specified for such purpose by  written notice to Borrower and Lenders, as the Administrative Agent’s Office referred to herein, to which  payments due are to be made and at which Loans will be disbursed and Letters of Credit requested.  (d) Change of Address, Etc.  Any party hereto may change its address or facsimile number for  notices and other communications hereunder by notice to the other parties hereto.  (e) Platform.  (i) Each Credit Party agrees that the Administrative Agent may, but shall not be obligated  to, make Borrower Materials available to the Issuing Lenders and the other Lenders by posting Borrower  Materials on the Platform, subject to the confidentiality provisions of Section 12.10.  (ii) The Platform is provided “as is” and “as available.”  The Agent Parties (as defined  below) do not warrant the accuracy or completeness of Borrower Materials or the adequacy of the  Platform, and expressly disclaim liability for errors or omissions in Borrower Materials.  No warranty of  any kind, express, implied or statutory, including, without limitation, any warranty of merchantability,  





 






  99   fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other  code defects, is made by any Agent Party in connection with Borrower Materials or the Platform.  In no  event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”)  have any liability to any Credit Party, any Lender or any other Person or entity for losses, claims,  damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any  Credit Party’s or the Administrative Agent’s transmission of communications through the Internet  (including, without limitation, the Platform), except to the extent that such losses, claims, damages,  liabilities or expenses are determined by a court of competent jurisdiction by final and nonappealable  judgment to have resulted from the gross negligence, bad faith, willful misconduct, or material breach of  a Loan Document in bad faith of such Agent Party; provided that in no event shall any Agent Party have  any liability to any Credit Party, any Lender, any Issuing Lender or any other Person for indirect,  special, incidental, consequential or punitive damages, losses or expenses (as opposed to actual  damages, losses or expenses).    (f) Private Side Designation.  Each Public Lender agrees to cause at least one individual at or on  behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation  on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in  accordance with such Public Lender’s compliance procedures and Applicable Law, including United States  Federal and state securities Applicable Laws, to make reference to Borrower Materials that are not made  available through the “Public Side Information” portion of the Platform and that may contain material non- public information with respect to Borrower or its securities for purposes of United States Federal or state  securities Applicable Laws.  SECTION 12.2 Amendments, Waivers and Consents.  Except as set forth below or as specifically provided in  any Loan Document, any term, covenant, agreement or condition of this Agreement or any of the other Loan Documents  may be amended or waived by the Lenders, and any consent given by the Lenders, if, but only if, such amendment,  waiver or consent is in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the  Required Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by Borrower;  provided, that no amendment, waiver or consent shall:  (a) increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to  Section 10.2) or the amount of Loans of any Lender, in any case, without the written consent of such Lender;  (b) waive, extend or postpone any date fixed by this Agreement or any other Loan Document for  any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under  any other Loan Document without the written consent of each Lender directly and adversely affected thereby  (provided, however, that waivers of mandatory prepayments shall be permitted with Required Lender approval);  (c) reduce or forgive the principal of, or the rate of interest specified herein on, any Loan or  Reimbursement Obligation, or (subject to clause (iv) of the proviso set forth in the paragraph below) any fees or  other amounts payable hereunder or under any other Loan Document without the written consent of each Lender  directly and adversely affected thereby; provided that only the consent of the Required Lenders shall be  necessary (i) to waive any obligation of Borrower to pay interest at the rate set forth in Section 5.1(b) during the  continuance of an Event of Default or (ii) to amend any financial covenant hereunder (or any defined term used  therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C  Obligation or to reduce any fee payable hereunder;  (d) change Section 5.6 or Section 10.4 in a manner that would alter the pro rata sharing of payments  or order of application required thereby without the written consent of each Lender directly and adversely  affected thereby;  





 






  100   (e) change the second sentence of Section 2.5(a) in a manner that would alter the pro rata reduction  of Commitments required thereby without the written consent of each Lender directly and adversely affected  thereby;  (f)  except as otherwise permitted by this Section 12.2, change any provision of this Section or  reduce the percentages specified in the definitions of “Required Lenders” or any other provision hereof  specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights  hereunder or make any determination or grant any consent hereunder, without the written consent of each  Lender directly affected thereby;   (g) consent to the assignment or transfer by any Credit Party of such Credit Party’s rights and  obligations under any Loan Document to which it is a party (except as permitted pursuant to Section 9.4), in  each case, without the written consent of each Lender;   (h) release (i) all of the Subsidiary Guarantors or (ii) Subsidiary Guarantors comprising  substantially all of the credit support for the Secured Obligations, in any case, from the Collateral Agreement or  other guaranty (other than as authorized in Section 11.9), without the written consent of each Lender; or  (i) release all or substantially all of the Collateral or release any Security Document (other than as  authorized in Section 11.9 or as otherwise specifically permitted or contemplated in this Agreement or the  applicable Security Document) without the written consent of each Lender;  provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by each  affected Issuing Lender in addition to the Lenders required above, affect the rights or duties of such Issuing  Lender under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be  issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in  addition to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement;  (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in  addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this  Agreement or any other Loan Document; (iv) each Fee Letter may be amended, or rights or privileges  thereunder waived, in a writing executed only by the parties thereto, (v) each Letter of Credit Application may  be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto;  provided that a copy of such amended Letter of Credit Application shall be promptly delivered to the  Administrative Agent upon such amendment or waiver, (vi) the Administrative Agent and Borrower shall be  permitted to amend any provision of the Loan Documents (and such amendment shall become effective without  any further action or consent of any other party to any Loan Document) if the Administrative Agent and  Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial  nature in any such provision.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have  any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of  such Lender may not be increased or extended without the consent of such Lender, and (vii) the Administrative  Agent may, without the consent of any Lender, enter into amendments or modifications to this Agreement or any  of the other Loan Documents or enter into additional Loan Documents as the Administrative Agent reasonably  deems appropriate in order to implement any Benchmark Replacement or otherwise effectuate the terms of  Section 5.8(c) in accordance with the terms of Section 5.8(c).  Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes the  Administrative Agent on its behalf, and without further consent, to enter into amendments or modifications to this  Agreement (including, without limitation, amendments to this Section 12.2) or any of the other Loan Documents or to  enter into additional Loan Documents as the Administrative Agent reasonably deems appropriate in order to effectuate  the terms of Section 5.13 (including, without limitation, as applicable, (1) to permit the Incremental Loans to share  ratably in the benefits of this Agreement and the other Loan Documents and (2) to include the Incremental Loan  Commitments or outstanding Incremental Loans in any determination of (i) Required Lenders or (ii) similar required  lender terms applicable thereto); provided that no amendment or modification shall result in any increase in the amount  





 






  101   of any Lender’s Commitment or any increase in any Lender’s Commitment Percentage, in each case, without the written  consent of such affected Lender.  SECTION 12.3 Expenses; Indemnity.  (a) Costs and Expenses.  Borrower and any other Credit Party, jointly and severally, shall pay (i) all  reasonable and documented out of pocket expenses incurred by the Administrative Agent and the Lead Arranger  (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent and the Lead  Arranger, provided that such legal expenses in respect of the Agent and the Lead Arranger shall be limited to  one primary counsel and one local counsel in each applicable jurisdiction for the Agent and the Lead Arranger,  and in case of an actual conflict of interest one additional counsel in each jurisdiction for each affected party) in  connection with the syndication of the Credit Facility, the preparation, negotiation, execution, delivery and  administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers  of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be  consummated), (ii) all reasonable and documented out of pocket expenses incurred by any Issuing Lender in  connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for  payment thereunder and (iii) all reasonable and documented out of pocket expenses incurred by the  Administrative Agent, any Lender of any Issuing Lender (including the reasonable fees, charges and  disbursements of any counsel for the Administrative Agent, any Lender or any 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, or (B) in connection with the Loans made or Letters of Credit  issued hereunder, including all such reasonable and documented out of pocket expenses incurred during any  workout, restructuring or negotiations in respect of such Loans or Letters of Credit.  (b) Indemnification by Borrower.  Borrower shall indemnify the Administrative Agent (and any  sub-agent thereof), each Lender and each Issuing 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 pay  or reimburse any such Indemnitee for, any and all losses, claims (including, without limitation, any  Environmental Claims), penalties, damages, liabilities and related reasonable and documented out of pocket  expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee, provided  that such legal expenses in respect of the Agent and the Lead Arranger shall be limited to one primary counsel  and one local counsel in each applicable jurisdiction for each affected party, and that such legal expenses in  respect of the Lenders shall be limited to one primary counsel and one local counsel in each applicable  jurisdiction for the Lenders, and in case of an actual conflict of interest one additional counsel in each  jurisdiction for each affected party), incurred by any Indemnitee or asserted against any Indemnitee by any  Person (including Borrower or any other Credit Party), other than such Indemnitee 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 (including, without limitation, the Transactions), (ii) any Loan or Letter of  Credit or the use or proposed use of the proceeds therefrom (including any refusal by any 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 any Credit Party or any  Subsidiary thereof, or any Environmental Claim related in any way to any Credit Party or any Subsidiary,  (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 any Credit Party or  any Subsidiary thereof, and regardless of whether any Indemnitee is a party thereto, or (v) any claim (including,  without limitation, any Environmental Claims), investigation, litigation or other proceeding (whether or not the  Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof, arising out of or  in any way connected with the Loans, this Agreement, any other Loan Document, or any documents  contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby, including  without limitation, reasonable attorneys and consultant’s fees, provided that such indemnity shall not, as to any  





 






  102   Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are  determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the  bad faith, gross negligence, willful misconduct or material breach in bad faith of any Loan Document of such  Indemnitee or (B) result from a claim brought by any Credit Party or any Subsidiary thereof against an  Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan  Document, if such Credit Party or such Subsidiary has obtained a final and nonappealable 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 (Y) Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax  claim, or (Z) out of pocket expenses in connection with the syndication of the Credit Facility, the preparation,  negotiation, execution, delivery, and administration of the Loan Documents or any amendments, modifications  or waivers of the provisions thereof, out of pocket expenses incurred in connection with the issuance,  amendment, renewal, or extension of any Letter of Credit or any demand for payment thereunder, or in  connection with the enforcement or protection of rights in connection with the Loan Documents, the Loans, and  the Letters of Credit, in each case to the extent addressed directly in Section 12.3(a).  (c) Reimbursement by Lenders.  To the extent that Borrower for any reason fails to indefeasibly pay  any amount required under clause (a) or (b) of this Section to be paid by it to the Administrative Agent (or any  sub-agent thereof), any Issuing Lender, the Swingline Lender or any Related Party of any of the foregoing, each  Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such Issuing Lender, the  Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the  time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of  the Total Credit Exposure at such time, or if the Total Credit Exposure has been reduced to zero, then based on  such Lender’s share of the Total Credit Exposure immediately prior to such reduction) of such unpaid amount  (including any such unpaid amount in respect of a claim asserted by such Lender); provided that with respect to  such unpaid amounts owed to any Issuing Lender or the Swingline Lender solely in its capacity as such, only the  Lenders shall be required to pay such unpaid amounts, such payment to be made severally among them based on  such Lenders’ Commitment Percentage (determined as of the time that the applicable unreimbursed expense or  indemnity payment is sought or, if the Commitment has been reduced to zero as of such time, determined  immediately prior to such reduction); provided, further, 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), such Issuing Lender or the Swingline Lender in its capacity as  such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub- agent), such Issuing Lender or the Swingline Lender in connection with such capacity.  The obligations of the  Lenders under this clause (c) are subject to the provisions of Section 5.7.  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by Applicable Law each  party hereto 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 party hereto referred to in clause (b) above shall be liable for any damages arising from  the use by unintended recipients of any information or other materials distributed 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.  (e) Payments.  All amounts due under this Section shall be payable promptly after demand therefor.  (f) Survival.  Each party’s obligations under this Section shall survive the termination of the Loan  Documents and payment of the obligations hereunder.  SECTION 12.4 Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, each  Issuing Lender, the Swingline Lender and each of their respective Affiliates is hereby authorized at any time and from  time to time, after obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by  





 






  103   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,  such Issuing Lender, the Swingline Lender or any such Affiliate to or for the credit or the account of Borrower or any  other Credit Party against any and all of the obligations of Borrower or such Credit Party now or hereafter existing under  this Agreement or any other Loan Document to such Lender, such Issuing Lender or the Swingline Lender or any of  their respective Affiliates, irrespective of whether or not such Lender, such Issuing Lender, the Swingline Lender or any  such Affiliate shall have made any demand under this Agreement or any other Loan Document and although such  obligations of Borrower or such Credit Party may be contingent or unmatured or are owed to a branch or office of such  Lender, such Issuing Lender, the Swingline Lender or such Affiliate different from the branch, office or Affiliate holding  such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any  such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further  application in accordance with the provisions of Section 10.4 and, pending such payment, shall be segregated by such  Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing  Lenders, the Swingline Lender and the Lenders, and (y) the Defaulting Lender shall provide promptly to the  Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to  which it exercised such right of setoff.  The rights of each Lender, each Issuing Lender, the Swingline Lender and their  respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that  such Lender, such Issuing Lender, the Swingline Lender or their respective Affiliates may have.  Each Lender, such  Issuing Lender and the Swingline Lender agree to notify 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.    SECTION 12.5 Governing Law; Jurisdiction, Etc.  (a) Governing Law.  This Agreement and the other Loan Documents and any claim, controversy,  dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this  Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein)  and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with,  the law of the State of New York.  (b) Submission to Jurisdiction.  Borrower and each other Credit Party irrevocably and  unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description,  whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent, any  Lender, any Issuing Lender, the Swingline 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 exclusive 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, any Issuing Lender  or the Swingline Lender may otherwise have to bring any action or proceeding relating to this Agreement or any  other Loan Document against Borrower or any other Credit Party or its properties in the courts of any  jurisdiction.  (c) Waiver of Venue.  Borrower and each other Credit Party irrevocably and unconditionally  waives, to the fullest extent permitted by Applicable Law, any objection that it may now or hereafter have to the  laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan  Document in any court referred to in 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.  





 






  104   (d) Service of Process.  Each party hereto irrevocably consents to service of process in the manner  provided for notices in Section 12.1.  Nothing in this Agreement will affect the right of any party hereto to serve  process in any other manner permitted by Applicable Law.  SECTION 12.6 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 CONSENT 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.  SECTION 12.7 Reversal of Payments.  To the extent any Credit Party makes a payment or payments to the  Administrative Agent for the ratable benefit of any of the Secured Parties or to any Secured Party directly or the  Administrative Agent or any Secured Party receives any payment or proceeds of the Collateral or any Secured Party  exercises its right of setoff, which payments or proceeds (including any proceeds of such setoff) or any part thereof are  subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee,  receiver or any other party under any Debtor Relief Law, other Applicable Law or equitable cause, then, to the extent of  such payment or proceeds repaid, the Obligations or part thereof intended to be satisfied shall be revived and continued  in full force and effect as if such payment or proceeds had not been received by the Administrative Agent, and each  Lender and each Issuing Lender severally agrees to pay to the Administrative Agent upon demand its applicable ratable  share (without duplication) of any amount so recovered from or repaid by the Administrative Agent plus interest thereon  at a per annum rate equal to the Federal Funds Rate from the date of such demand to the date such payment is made to  the Administrative Agent.  SECTION 12.8 Injunctive Relief.  Borrower recognizes that, in the event Borrower fails to perform, observe or  discharge any of its obligations or liabilities under this Agreement, any remedy of law may prove to be inadequate relief  to the Lenders. Therefore, Borrower agrees that the Lenders, at the Lenders’ option, shall be entitled to temporary and  permanent injunctive relief in any such case without the necessity of proving actual damages.  SECTION 12.9 Successors and Assigns; Participations.  (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  neither Borrower nor any other Credit Party may assign or otherwise transfer any of its rights or obligations  hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may  assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with  the provisions of 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).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any  Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the  extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related  Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under  or by reason of this Agreement.  





 






  105   (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, in each case with respect to any Credit Facility, 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/or the Loans at the time owing to it (in each case with respect to any  Credit Facility) 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 paragraph (b)(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 with respect to such assignment is delivered to the Administrative  Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date)  shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving  Credit Facility unless each of the Administrative Agent and, so long as no Event of Default has  occurred and is continuing, Borrower otherwise consents (each such consent not to be  unreasonably withheld or delayed); provided that Borrower shall be deemed to have given its  consent five (5) Business Days after the date written notice thereof has been delivered by the  assigning Lender (through the Administrative Agent) unless such consent is expressly refused  by Borrower prior to such fifth (5th) Business Day;  (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;  (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 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 Borrower shall be deemed to have consented to any such  assignment unless it shall object thereto by written notice to the Administrative Agent within ten  (10) Business Days after having received notice thereof;  (B) the consent of the Administrative Agent (such consent not to be unreasonably  withheld, conditioned or delayed) shall be required for assignments in respect of the Revolving  Credit Facility if such assignment is to a Person that is not a Lender with a Commitment, an  Affiliate of such Lender or an Approved Fund with respect to such Lender; and  (C) the consents of the Issuing Lenders and the Swingline Lender (such consent not  to be unreasonably withheld, conditioned or delayed) shall be required for any assignment in  respect of the Revolving Credit Facility.  (iv) Assignment and Assumption.  The parties to each assignment shall execute and deliver  to the Administrative Agent an Assignment and Assumption, together with a processing and recordation  fee of $3,500 for each assignment; provided that (A) only one such fee will be payable in connection  





 






  106   with simultaneous assignments to two or more related Approved Funds by a Lender, (B) Borrower shall  not be obligated to pay the fee for any assignment that is required or requested by a Lender and (C) 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) Borrower  or any of its Subsidiaries or Affiliates or (B) any Defaulting Lender or any of its Subsidiaries, or any  Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons  described in this clause (B).  (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 Borrower and  the Administrative Agent, the applicable pro rata share of Loans previously requested, but not funded  by, the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably  consent), to (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the  Administrative Agent, the Issuing Lenders, the Swingline Lender and each other Lender hereunder (and  interest accrued thereon), and (B) acquire (and fund as appropriate) its full pro rata share of all Loans  and participations in Letters of Credit and Swingline Loans in accordance with its Commitment  Percentage.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of  any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with  the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting  Lender for all purposes of this Agreement until such compliance occurs.  Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from  and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this  Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and  obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest  assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of  an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 5.8, 5.9, 5.10, 5.11  and 12.3 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 (other than a purported assignment to a natural Person  or Borrower or any of Borrower’s Subsidiaries or Affiliates, which shall be null and void.)  (c) Register.  The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of  Borrower, shall maintain at one of its offices in Charlotte, North Carolina, a copy of each Assignment and  Assumption and each Lender Joinder Agreement delivered to it and a register for the recordation of the names  and addresses of the Lenders, and the Commitment of, and principal amounts of (and stated interest on) 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 Borrower, the Administrative Agent and the Lenders  





 






  107   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 Borrower and  any Lender (but only to the extent of entries in the Register that are applicable to such 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, 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, or Borrower  or any of Borrower’s Subsidiaries or Affiliates) (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) Borrower, the Administrative Agent, the Issuing Lenders, the Swingline Lender and the other Lenders shall  continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations  under this Agreement.  For the avoidance of doubt, each Lender shall be responsible for the indemnity under  Section 12.3(c) with respect to any payments made by such Lender to its Participant(s).  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall  retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision  of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the  consent of the Participant, agree to any amendment, modification or waiver or modification described in Section 12.2(b),  (c), (d) or (e) that directly and adversely affects such Participant.  Borrower agrees that each Participant shall be entitled  to the benefits of Sections 5.9, 5.10 and 5.11 (subject to the requirements and limitations therein, including the  requirements under Section 5.11(g) (it being understood that the documentation required under Section 5.11(g) shall be  delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by  assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the  provisions of Section 5.12 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 5.10 or 5.11, 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 Borrower's request and expense, to use reasonable efforts to cooperate with Borrower to  effectuate the provisions of Section 5.12(b) with respect to any Participant.  To the extent permitted by law, each  Participant also shall be entitled to the benefits of Section 12.4 as though it were a Lender; provided that such Participant  agrees to be subject to Section 5.6 as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain  a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest  on) each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”);  provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the  identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of  credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is  necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under  Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive  absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the  owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the  avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for  maintaining a Participant Register.  (e) Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or any  portion of its rights under this Agreement to secure obligations of such Lender, including without limitation 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.  





 






  108   (f) Disqualified Institutions.  (i) No assignment or participation shall be made to any Person that was a Disqualified  Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding  agreement to sell and assign or participate all or a portion of its rights and obligations under this  Agreement to such Person (unless Borrower has consented to such assignment or participation in writing  in its sole and absolute discretion, in which case such Person will not be considered a Disqualified  Institution for the purpose of such assignment or participation).  For the avoidance of doubt, with respect  to any assignee that becomes a Disqualified Institution after the applicable Trade Date (including as a  result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to in, the  definition of “Disqualified Institution”), (x) such assignee shall not retroactively be disqualified from  becoming a Lender and  (y) the execution by Borrower of an Assignment and Assumption with respect  to such assignee will not by itself result in such assignee no longer being considered a Disqualified  Institution. Any assignment in violation of this clause (f)(i) shall not be void, but the other provisions of  this clause (f) shall apply.  (ii) If any assignment or participation is made to any Disqualified Institution without  Borrower’s prior written consent in violation of clause (i) above, or if any Person becomes a  Disqualified Institution after the applicable Trade Date, Borrower may, at its sole expense and effort,  upon notice to the applicable Disqualified Institution and the Administrative Agent, (A) terminate any  Revolving Credit Commitment of such Disqualified Institution and repay all obligations of Borrower  owing to such Disqualified Institution in connection with such Revolving Credit Commitment and/or  (B) require such Disqualified Institution to assign, without recourse (in accordance with and subject to  the restrictions contained in this Section 12.9), all of its interest, rights and obligations under this  Agreement to one or more Eligible Assignees at the lesser of (y) the principal amount thereof and (z) the  amount that such Disqualified Institution paid to acquire such interests, rights and obligations.  (iii) Notwithstanding anything to the contrary contained in this Agreement, Disqualified  Institutions (A) will not (x) have the right to receive information, reports or other materials provided to  Lenders by Borrower, the Administrative Agent or any other Lender, (y) attend or participate in  meetings attended by the Lenders and the Administrative Agent, or (z) access the Platform or any other  electronic site established for the Lenders or confidential communications from counsel to or financial  advisors of the Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any  amendment, waiver or modification of, or any action under, and for the purpose of any direction to the  Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under  this Agreement or any other Loan Document, each Disqualified Institution will be deemed to have  consented in the same proportion as the Lenders that are not Disqualified Institutions consented to such  matter, and (y) for purposes of voting on any Plan, each Disqualified Institution party hereto hereby  agrees (1) not to vote on such Plan, (2) if such Disqualified Institution does vote on such Plan  notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good  faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar  provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether  the applicable class has accepted or rejected such Plan in accordance with Section 1126(c) of the  Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (3) not to contest any  request by any party for a determination by the Bankruptcy Court (or other applicable court of  competent jurisdiction) effectuating the foregoing clause (2).  (iv) The Administrative Agent shall have the right, and Borrower hereby expressly  authorizes  the Administrative Agent, to (A) post the list of Disqualified Institutions provided by  Borrower and any updates thereto from time to time (collectively, the “DQ List”) on the Platform,  including that portion  of the Platform that is designated for “public side” Lenders and/or (B) provide the  DQ List to each Lender requesting the same.    





 






  109   SECTION 12.10 Treatment of Certain Information; Confidentiality.  Each of the Administrative Agent, the  Lenders and the Issuing Lenders agrees to maintain the confidentiality of the Information (as defined below), except that  Information may be disclosed (a) to its Affiliates and to its and its Related Parties in connection with the Credit Facility,  this Agreement, the transactions contemplated hereby or in connection with marketing of services by such Affiliate or  Related Party to Borrower or any of its Subsidiaries (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, or required to be disclosed to, any regulatory or similar 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) (in which case such Person shall, except with respect to any audit  or exam conducted by bank accountants or a governmental bank regulatory authority exercising examination or  regulatory authority, promptly notify Borrower, in advance to the extent practicable and lawfully permitted to do so) or  in accordance with the Administrative Agent’s, the Issuing Lender’s or any Lender’s regulatory compliance policy if the  Administrative Agent, the Issuing Lender or such Lender, as applicable, deems such disclosure to be necessary for the  mitigation of claims by those authorities against the Administrative Agent, the Issuing lender or such Lender, as  applicable, or any of its Related Parties (in which case, the Administrative Agent, the Issuing Lender or such Lender, as  applicable, shall use commercially reasonably efforts to, except with respect to any audit or examination conducted by  bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority,  promptly notify Borrower, in advance, to the extent practicable and otherwise permitted by Applicable Law), (c) as to  the extent required by Applicable Laws or regulations or in any legal, judicial, administrative or other compulsory  proceeding, in which case the Person shall, to the extent permitted by law, inform Borrower in advance thereof to the  extent practicable and lawfully permitted to do so), (d) to any other party hereto, (e) to the extent required for the   exercise of any remedies under this Agreement, under any other Loan Document or under any Secured Hedge  Agreement or Secured Cash Management Agreement, or any action or proceeding relating to this Agreement, any other  Loan Document or any Secured Hedge Agreement or Secured Cash Management Agreement, 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, (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 Borrower and its obligations, this Agreement or  payments hereunder, (iii) to an investor or prospective investor in an Approved Fund that also agrees that Information  shall be used solely for the purpose of evaluating an investment in such Approved Fund, (iv) to a trustee, collateral  manager, servicer, backup servicer, noteholder or secured party in an Approved Fund in connection with the  administration, servicing and reporting on the assets serving as collateral for an Approved Fund, or (v) to a nationally  recognized rating agency that requires access to information regarding Borrower and its Subsidiaries, the Loans and the  Loan Documents in connection with ratings issued with respect to an Approved Fund, (g) on a confidential basis to (i)  with Borrower’s prior written consent, any rating agency in connection with rating Borrower or its Subsidiaries or the  Credit 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 Credit Facility, (h) with the prior written consent of Borrower, (i) with Borrower’s  prior consent, to Gold Sheets and other similar bank trade publications, such information to consist of deal terms and  other information customarily found in such publications, (j) to the extent such Information (i) becomes publicly  available other than as a result of a breach of this Section or any confidentiality agreement provided herein, or (ii)  becomes available to the Administrative Agent, any Lender, any Issuing Lender or any of their respective Affiliates on a  non-confidential basis from a third party that is not, to such Person’s knowledge, subject to confidentiality obligations to  any Credit Party or its Subsidiary, (k) to governmental regulatory authorities in connection with any regulatory  examination of the Administrative Agent or any Lender or in accordance with the Administrative Agent’s or any  Lender’s regulatory compliance policy if the Administrative Agent or such Lender deems necessary for the mitigation of  claims by those authorities against the Administrative Agent or such Lender or any of its subsidiaries or affiliates, (l) to  the extent that such information is independently developed by such Commitment Party, or (m) for purposes of  establishing a “due diligence” defense.  For purposes of this Section, “Information” means all information received from  any Credit Party or any Subsidiary thereof relating to any Credit Party or any Subsidiary thereof 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 any Credit Party or any Subsidiary thereof; provided  that, in the case of information received from a Credit Party or any Subsidiary thereof after the date hereof, such  information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the  





 






  110   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, but in no event less than reasonable care consistent with  industry standards.  SECTION 12.11 Performance of Duties.  Each of the Credit Party’s obligations under this Agreement and each  of the other Loan Documents shall be performed by such Credit Party at its sole cost and expense.  SECTION 12.12 All Powers Coupled with Interest.  All powers of attorney and other authorizations granted to  the Lenders, the Administrative Agent and any Persons designated by the Administrative Agent or any Lender pursuant  to any provisions of this Agreement or any of the other Loan Documents shall be deemed coupled with an interest and  shall be irrevocable so long as any of the Obligations remain unpaid or unsatisfied, any of the Commitments remain in  effect or the Credit Facility has not been terminated.  SECTION 12.13 Survival.  (a) All representations and warranties set forth in Article VII and all representations and warranties  contained in any certificate, or any of the Loan Documents (including, but not limited to, any such representation  or warranty made in or in connection with any amendment thereto) shall constitute representations and  warranties made under this Agreement.  All representations and warranties made under this Agreement shall be  made or deemed to be made at and as of the Closing Date (except those that are expressly made as of a specific  date), shall survive the Closing Date and shall not be waived by the execution and delivery of this Agreement,  any investigation made by or on behalf of the Lenders or any borrowing hereunder.  (b) Notwithstanding any termination of this Agreement, the indemnities to which the  Administrative Agent and the Lenders are entitled under the provisions of this Article XII and any other  provision of this Agreement and the other Loan Documents shall continue in full force and effect and shall  protect the Administrative Agent and the Lenders against events arising after such termination as well as before.  (c) Notwithstanding any termination of this Agreement, the confidentiality undertakings set forth in  Section 12.10 shall survive the Closing Date until the date that is one (1) year following the expiration of the  term of the Agreement pursuant to Section 12.17.  SECTION 12.14 Titles and Captions.  Titles and captions of Articles, Sections and subsections in, and the table  of contents of, this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement.  SECTION 12.15 Severability of Provisions. Any provision of this Agreement or any other Loan Document  which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of  such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions  hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.  In the event that  any provision is held to be so prohibited or unenforceable in any jurisdiction, the Administrative Agent, the Lenders and  Borrower shall negotiate in good faith to amend such provision to preserve the original intent thereof in such jurisdiction  (subject to the approval of the Required Lenders).  SECTION 12.16 Counterparts; Integration; Effectiveness; Electronic Execution.  (a) Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and  by different parties hereto in different counterparts), each of which shall constitute an original, but all of which  when taken together shall constitute a single contract.  This Agreement and the other Loan Documents, and any  separate letter agreements with respect to fees payable to the Administrative Agent, any Issuing Lender, the  Swingline Lender and/or the Arranger, constitute the entire contract among the parties relating to the subject  matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the  subject matter hereof.  Except as provided in Section 6.1, this Agreement shall become effective when it shall  have been executed by the Administrative Agent and when the Administrative Agent shall have received  





 






  111   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 facsimile or in electronic (i.e., “pdf” or “tif”)  format 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.  SECTION 12.17 Term of Agreement.  This Agreement shall remain in effect from the Closing Date through  and including the date upon which all Obligations (other than contingent indemnification obligations not then due)  arising hereunder or under any other Loan Document shall have been indefeasibly and irrevocably paid and satisfied in  full, all Letters of Credit have been terminated or expired (or been Cash Collateralized) or otherwise satisfied in a  manner acceptable to the applicable Issuing Lender and the Commitment has been terminated.  The Administrative  Agent is hereby permitted to release all Liens on the Collateral upon the repayment of the outstanding principal of and  all accrued interest on the Loans, payment of all outstanding fees and expenses hereunder and the termination of the  Commitment.  No termination of this Agreement shall affect the rights and obligations of the parties hereto arising prior  to such termination or in respect of any provision of this Agreement which survives such termination.  SECTION 12.18 USA PATRIOT Act; Anti-Money Laundering Laws.  The Administrative Agent and each  Lender hereby notifies Borrower that pursuant to the requirements of the PATRIOT Act or any other Anti-Money  Laundering Laws, each of them is required to obtain, verify and record information that identifies each Credit Party,  which information includes the name and address of each Credit Party and other information that will allow such Lender  to identify each Credit Party in accordance with the PATRIOT Act or such Anti-Money Laundering Law.  SECTION 12.19 Independent Effect of Covenants.  Borrower expressly acknowledges and agrees that  each covenant contained in Articles VIII or IX hereof shall be given independent effect.  Accordingly, Borrower shall  not engage in any transaction or other act otherwise permitted under any covenant contained in Articles VIII or IX,  before or after giving effect to such transaction or act, Borrower shall or would be in breach of any other covenant  contained in Articles VIII or IX.  SECTION 12.20 No Advisory or Fiduciary Responsibility.  (a) In connection with all aspects of each transaction contemplated hereby, each Credit Party  acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) the facilities provided for  hereunder and any related arranging or other services in connection therewith (including in connection with any  amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length  commercial transaction between Borrower and its Affiliates, on the one hand, and the Administrative Agent, the  Arranger and the Lenders, on the other hand, and Borrower is capable of evaluating and understanding and  understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other  Loan Documents (including any amendment, waiver or other modification hereof or thereof), (ii) in connection  with the process leading to such transaction, each of the Administrative Agent, the Arranger and the Lenders is  and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for Borrower or any  of its Affiliates, stockholders, creditors or employees or any other Person, (iii) none of the Administrative Agent,  the Arranger or the Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor  of Borrower with respect to any of the transactions contemplated hereby or the process leading thereto, including  with respect to any amendment, waiver or other modification hereof or of any other Loan Document  (irrespective of whether any Arranger or Lender has advised or is currently advising Borrower or any of its  Affiliates on other matters) and none of the Administrative Agent, the Arranger or the Lenders has any  obligation to Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby  





 






  112   except those obligations expressly set forth herein and in the other Loan Documents, (iv) the Arranger and the  Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that  differ from, and may conflict with, those of Borrower and its Affiliates, and none of the Administrative Agent,  the Arranger or the Lenders has any obligation to disclose any of such interests by virtue of any advisory, agency  or fiduciary relationship and (v) the Administrative Agent, the Arranger and the Lenders have not provided and  will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions  contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan  Document) and the Credit Parties have consulted their own legal, accounting, regulatory and tax advisors to the  extent they have deemed appropriate.  (b) Each Credit Party acknowledges and agrees that each Lender, the Arranger and any Affiliate  thereof may lend money to, invest in, and generally engage in any kind of business with, any of Borrower, any  Affiliate thereof or any other person or entity that may do business with or own securities of any of the  foregoing, all as if such Lender, Arranger or Affiliate thereof were not a Lender or Arranger or an Affiliate  thereof (or an agent or any other person with any similar role under the Credit Facilities) and without any duty to  account therefor to any other Lender, the Arranger, Borrower or any Affiliate of the foregoing.  Each Lender, the  Arranger and any Affiliate thereof may accept fees and other consideration from Borrower or any Affiliate  thereof for services in connection with this Agreement, the Credit Facilities or otherwise without having to  account for the same to any other Lender, the Arranger, Borrower or any Affiliate of the foregoing.  SECTION 12.21 Inconsistencies with Other Documents.  In the event there is a conflict or inconsistency  between this Agreement and any other Loan Document, the terms of this Agreement shall control; provided that any  provision of the Security Documents which imposes additional burdens on Borrower or any of its Subsidiaries or further  restricts the rights of Borrower or any of its Subsidiaries or gives the Administrative Agent or Lenders additional rights  shall not be deemed to be in conflict or inconsistent with this Agreement and shall be given full force and effect.  SECTION 12.22 Acknowledgment and Consent to Bail-In of EEA Financial Institutions.  Notwithstanding  anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any  such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any  Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of  the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to  any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial  Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership  in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or  otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of  any rights with respect to any such liability under this Agreement or any other Loan Document; or  SECTION 12.23 Acknowledgement Regarding Any Supported QFC.  To the extent that the Loan Documents  provide support, through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a  QFC (such support, “QFC Credit Support” and, each such QFC, a “Supported QFC”), the parties acknowledge and agree  as follows with respect to the resolution power of the FDIC under the Federal Deposit Insurance Act and Title II of the  Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder,  the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions  below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed  by the laws of the State of New York and/or of the United States or any other state of the United States):   





 






  113   (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes  subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of  such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit  Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party  will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the  Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed  by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a  Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan  Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under  the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the  United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights  and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party  with respect to a Supported QFC or any QFC Credit Support.    (b) As used in this Section 12.24, the following terms have the following meanings:  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in  accordance with, 12 U.S.C. 1841(k)) of such party.  “Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 252.82(b);  (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12  C.F.R. § 47.3(b); or  (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.  § 382.2(b).  “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12  C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in  accordance with, 12 U.S.C. 5390(c)(8)(D).  [Remainder of Page Intentionally Left Blank.]    





 






 





 






 





 






    KFORCE INC.  AMENDED AND RESTATED CREDIT AGREEMENT      LENDERS        City National Bank,         in its capacity as a Lender    By:       Name: April Chan   Title: Senior Vice President        





 






    KFORCE INC.  AMENDED AND RESTATED CREDIT AGREEMENT        LENDERS                              SANTANDER BANK, N.A.,         in its capacity as a Lender    By:        Name: Irv Roa  Title: Managing Director        





 






 





 






    KFORCE INC.  AMENDED AND RESTATED CREDIT AGREEMENT      LENDERS                  MUFG Bank Ltd.,          in its capacity as a Lender    By:    Name: George Stoecklein   Title:   Managing Director        





 






    KFORCE INC.  AMENDED AND RESTATED CREDIT AGREEMENT      LENDERS       U.S. BANK NATIONAL ASSOCIATION,         in its capacity as a Lender      By:       Name: Edward B. Hanson  Title:  Senior Vice President        





 






 





 






DMSLIBRARY01\30151656.v6  EXHIBIT A-1    [FORM OF]  REVOLVING CREDIT NOTE    [Date]      FOR VALUE RECEIVED, the undersigned, Kforce Inc., a Florida corporation (the  “Borrower”) hereby unconditionally promises to pay, on the Maturity Date (as defined in the  Credit Agreement referred to below), to [___________] or its registered assigns (the “Lender”), at  the office of Wells Fargo Bank, National Association, in lawful money of the United States of  America and in immediately available funds, the aggregate unpaid principal amount of all  Revolving Loans made by the Lender to the undersigned pursuant to Section 2.1 of the Credit  Agreement referred to below.  The Borrower further agrees to pay interest in like money at such  office on the unpaid principal amount hereof and, to the extent permitted by law, accrued interest  in respect hereof from time to time from the date hereof until payment in full of the principal  amount hereof and accrued interest hereon, at the rates and on the dates set forth in the Credit  Agreement.    This Revolving Credit Note is one of the Revolving Credit Notes referred to in the  Amended and Restated Credit Agreement, dated as of October 20, 2021 (as amended, modified,  extended, restated, replaced, or supplemented from time to time, the “Credit Agreement”), by and  among the Borrower, the other Credit Parties, the Lenders and Wells Fargo Bank, National  Association, as administrative agent for the Lenders (the “Administrative Agent”), and the holder  is entitled to the benefits thereof.  Capitalized terms used but not otherwise defined herein shall  have the meanings provided in the Credit Agreement.    Upon the occurrence of any one or more of the Events of Default specified in the Credit  Agreement, all amounts then remaining unpaid on this Revolving Credit Note shall become, or  may be declared to be, immediately due and payable, all as and to the extent provided therein.  In  the event this Revolving Credit Note is not paid when due at any stated or accelerated maturity,  the Borrower agrees to pay, in addition to principal and interest, all costs of collection, including  reasonable attorneys’ fees.    All parties now and hereafter liable with respect to this Revolving Credit Note, whether  maker, principal, surety, endorser or otherwise, hereby waive presentment, demand, protest and  all other notices of any kind.    This Revolving Credit Note may, upon execution, be delivered by facsimile or electronic  mail, which shall be deemed for all purposes to be an original signature.      This Revolving Credit Note is a Loan Document, is entitled to the benefits of the Loan  Documents and is subject to certain provisions of the Credit Agreement, including Sections 1.2  (Other Definitions and Provisions), 12.5 (Governing Law, Jurisdiction, Etc.) and 12.6 (Waiver of  Jury Trial).  





 






2  DMSLIBRARY01\30151656.v6    THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED  AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.    WAIVER OF JURY TRIAL. BORROWER 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).  BORROWER  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 CONSENT 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.          [remainder of page intentionally left blank]  





 






  DMSLIBRARY01\30151656.v6  IN WITNESS WHEREOF, the Borrower has caused this Revolving Credit Note to be  duly executed and delivered by its officer thereunto duly authorized as of the date first written  above.       KFORCE INC.,  a Florida corporation      By:   Name:  Title:  





 






  DMSLIBRARY01\30151656.v6  EXHIBIT A-2    [FORM OF]  SWINGLINE NOTE    [Date]      FOR VALUE RECEIVED, the undersigned, KFORCE INC., a Florida corporation (the  “Borrower”) hereby unconditionally promises to pay, on the Maturity Date (as defined in the  Credit Agreement referred to below), to [___________] or its registered assigns (the “Swingline  Lender”), at the office of Wells Fargo Bank, National Association, in lawful money of the United  States of America and in immediately available funds, the aggregate unpaid principal amount of  all Swingline Loans made by the Lender to the undersigned pursuant to Section 2.2(a) of the Credit  Agreement referred to below.  The Borrower further agrees to pay interest in like money at such  office on the unpaid principal amount hereof and, to the extent permitted by law, accrued interest  in respect hereof from time to time from the date hereof until payment in full of the principal  amount hereof and accrued interest hereon, at the rates and on the dates set forth in the Credit  Agreement.    This Swingline Note is the Swingline Note referred to in the Amended and Restated Credit  Agreement, dated as of October 20, 2021 (as amended, modified, extended, restated, replaced, or  supplemented from time to time, the “Credit Agreement”), by and among the Borrower, the other  Credit Parties, the Lenders and Wells Fargo Bank, National Association, as administrative agent  for the Lenders (the “Administrative Agent”), and the holder is entitled to the benefits thereof.   Capitalized terms used but not otherwise defined herein shall have the meanings provided in the  Credit Agreement.    Upon the occurrence of any one or more of the Events of Default specified in the Credit  Agreement, all amounts then remaining unpaid on this Swingline Note shall become, or may be  declared to be, immediately due and payable, all as and to the extent provided therein.  In the event  this Swingline Note is not paid when due at any stated or accelerated maturity, the Borrower agrees  to pay, in addition to principal and interest, all costs of collection, including reasonable attorneys’  fees.    All parties now and hereafter liable with respect to this Swingline Note, whether maker,  principal, surety, endorser or otherwise, hereby waive presentment, demand, protest and all other  notices of any kind.    This Swingline Note may, upon execution, be delivered by facsimile or electronic mail,  which shall be deemed for all purposes to be an original signature.      This Swingline Note is a Loan Document, is entitled to the benefits of the Loan Documents  and is subject to certain provisions of the Credit Agreement, including Sections 1.2 (Other  Definitions and Provisions), 12.5 (Governing Law, Jurisdiction, Etc.) and 12.6 (Waiver of Jury  Trial).  





 






  2  DMSLIBRARY01\30151656.v6    THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND  ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.    WAIVER OF JURY TRIAL. BORROWER 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).  BORROWER  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 CONSENT 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.        [remainder of page intentionally left blank]  





 






  DMSLIBRARY01\30151656.v6  IN WITNESS WHEREOF, the Borrower has caused this Swingline Note to be duly  executed and delivered by its officer thereunto duly authorized as of the date first written above.        KFORCE INC.,  a Florida corporation      By:   Name:  Title:  





 






  DMSLIBRARY01\30151656.v6  EXHIBIT B    [FORM OF]  NOTICE OF BORROWING      TO:  Wells Fargo Bank, National Association, as Administrative Agent    RE: Amended and Restated Credit Agreement, dated as of October 20, 2021, by and  among KFORCE INC., a Florida corporation (the “Borrower”), the other Credit  Parties, the Lenders and Wells Fargo Bank, National Association, as  Administrative Agent for the Lenders (as amended, modified, extended, restated,  replaced, or supplemented from time to time, the “Credit Agreement”; capitalized  terms used herein and not otherwise defined shall have the meanings set forth in  the Credit Agreement)    DATE: [Date]       Pursuant to Section [2.3(a)][5.13] of the Credit Agreement, the Borrower hereby requests  the following (the “Proposed Borrowing”):    [Incremental Loan to be made as follows:]1        Date      Amount  Interest  Rate  (Base Rate/  LIBOR Rate)  Interest  Period  (one, three, six or twelve  months  -- for LIBOR Rate only)         Revolving Loans to be made as follows:        Date      Amount  Interest  Rate  (Base Rate/  LIBOR Rate)  Interest  Period  (one, three, six or twelve  months  -- for LIBOR Rate only)                   NOTE: REVOLVING LOAN BORROWINGS THAT ARE (A) BASE RATE LOANS  MUST BE IN A MINIMUM AGGREGATE AMOUNT OF $1,000,000 AND IN    1 Only to be used in connection with an Incremental Loan issued pursuant to Section 5.13.  





 






  2  DMSLIBRARY01\30151656.v6  INTEGRAL MULTIPLES OF $100,000 IN EXCESS THEREOF AND (B) LIBOR  RATE LOANS MUST BE IN A MINIMUM AGGREGATE AMOUNT OF  $1,000,000 AND IN INTEGRAL MULTIPLES OF $250,000 IN EXCESS  THEREOF     Swingline Loans to be made on [date] as follows:    Swingline Loans requested:    (1) Total Amount of Swingline Loans   $      NOTE: SWINGLINE LOANS MUST BE IN A MINIMUM AGGREGATE AMOUNT OF  $100,000 AND IN INTEGRAL MULTIPLES OF $50,000 IN EXCESS  THEREOF.    The undersigned hereby certifies that the following statements will be true on the date of  the Proposed Borrowing:    (a) The representations and warranties contained in the Credit Agreement and  the other Loan Documents are true and correct in all material respects, except for any  representation and warranty that is qualified by materiality or reference to Material  Adverse Effect, which such representation and warranty shall be true and correct in all  respects, on and as of the date of the Proposed Borrowing with the same effect as if made  on and as of such date (except for any such representation and warranty that by its terms is  made only as of an earlier date, which representation and warranty remains true and correct  in all material respects as of such earlier date, except for any representation and warranty  that is qualified by materiality or reference to Material Adverse Effect, which such  representation and warranty is true and correct in all respects as of such earlier date).    (b) No Default or Event of Default has occurred and is continuing on the date  of the Proposed Borrowing or immediately after giving effect to the Proposed Borrowing  unless such Default or Event of Default has been cured or waived in accordance with the  Credit Agreement.    (c) Immediately after giving effect to the making of the Proposed Borrowing  (and the application of the proceeds thereof), (i) the sum of the aggregate principal amount  of outstanding Revolving Credit Loans plus outstanding Swingline Loans plus outstanding  L/C Obligations does not exceed the Commitment then in effect and (ii) the outstanding  Swingline Loans shall not exceed the Swingline Commitment.    (d) All conditions set forth in Section 2.3(a) of the Credit Agreement shall have  been satisfied.    (e) [If a Swingline Loan is requested] All conditions set forth in Section 2.2 of  the Credit Agreement shall have been satisfied.    





 






  3  DMSLIBRARY01\30151656.v6    (f) Additional Conditions to Swingline Loans.  If a Swingline Loan is  requested, (i) all conditions set forth in Section 2.2 shall have been satisfied and (ii) there  shall exist no Lender that is a Defaulting Lender unless the Swingline Lender has entered  into satisfactory arrangements with the Borrower or such Defaulting Lender to eliminate  the Swingline Lender’s risk with respect to such Defaulting Lender.    [(g) [If an Incremental Loan is requested] All conditions set forth in Section 5.13  of the Credit Agreement shall have been satisfied.]    This Notice of Borrowing may, upon execution, be delivered by facsimile or electronic  mail, which shall be deemed for all purposes to be an original signature.        [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]    





 






  DMSLIBRARY01\30151656.v6      KFORCE INC.,  a Florida corporation      By:   Name:  Title:      





 






  DMSLIBRARY01\30151656.v6  EXHIBIT C    [FORM OF]  NOTICE OF ACCOUNT DESIGNATION  Dated [       ]    Wells Fargo Bank, National Association  1525 W. WT Harris Blvd.  Charlotte, NC 28262-0680  Attn: Syndication Agency Services    Ladies and Gentlemen     This Notice of Account Designation is delivered pursuant to the Amended and Restated  Credit Agreement dated as of October 20, 2021, by and among KFORCE INC., the Subsidiary  Guarantors party thereto, the lenders party thereto, and Wells Fargo Bank, National Association,  as Administrative Agent (as amended, restated or modified from time to time, the “Credit  Agreement”).     All capitalized terms used herein and not otherwise defined herein shall have the meaning  ascribed thereto in the Credit Agreement.    1. The Administrative Agent is hereby authorized to disburse all Loan proceeds into the  following account:    Bank Name: [      ]  ABA Routing Number: [       ]  Account Number: [        ]  Account Name: [     ]    2. The Administrative Agent is hereby authorized to debit the following account for all  payments to satisfy any Obligation under the Credit Agreement:    Bank Name: Wells Fargo Bank, National Association  ABA Routing Number: [      ]  Account Number: [      ]  Account Name: [     ]      3. This authorization shall remain in effect until revoked or until a subsequent of Account  Designation is provided to the Administrative Agent.    [Signature page follows] 





 






  DMSLIBRARY01\30151656.v6     KFORCE INC.,  a Florida corporation      By:   Name:  Title:  





 






  DMSLIBRARY01\30151656.v6  EXHIBIT D    [FORM OF]  NOTICE OF PREPAYMENT      TO:  Wells Fargo Bank, National Association, as Administrative Agent    RE:    Amended and Restated Credit Agreement, dated as of October 20, 2021, by and  among KFORCE INC., a Florida corporation (the “Borrower”), the other Credit  Parties, the Lenders and Wells Fargo Bank, National Association, as  Administrative Agent for the Lenders (as amended, modified, extended, restated,  replaced, or supplemented from time to time, the “Credit Agreement”)    DATE:   [      ]    Ladies and Gentlemen:       Reference is hereby made to the Credit Agreement.  Capitalized terms not defined  herein shall have the meanings ascribed thereto in the Credit Agreement.      This letter shall constitute written notice to the Lender pursuant to Section 2.4(c) of  the Credit Agreement of the Borrower’s intent to prepay the [Revolving Credit  Loan][,/and][Swingline Loan] listed below in the amount corresponding to such Loan[s] on or  about the corresponding date listed below (the “Scheduled Prepayment Date”).       Scheduled Prepayment  Date    Amount  Type of Loan  (Revolving Credit Loan/  Swingline Loan)  Interest  Rate  (Base Rate/  LIBOR Rate)                   NOTE: PARTIAL PREPAYMENTS SHALL BE IN AN AGGREGATE AMOUNT OF  (A) $1,000,000 OR A WHOLE MULTIPLE OF $100,000 IN EXCESS THEREOF  WITH RESPECT TO REVOLVING CREDIT LOANS THAT ARE BASE RATE  LOANS (OTHER THAN SWINGLINE LOANS), (B) $1,000,000 OR A WHOLE  MULTIPLE OF $250,000 IN EXCESS THEREOF WITH RESPECT TO  REVOLVING CREDIT LOANS THAT ARE LIBOR RATE LOANS, (C)  $100,000 OR A WHOLE MULTIPLE OF $50,000 IN EXCESS THEREOF WITH  RESPECT TO SWINGLINE LOANS.    [This letter is delivered in connection with a refinancing or incurrence of  Indebtedness, the proceeds of which shall be used to prepay all outstanding Obligations under the  





 






  5  DMSLIBRARY01\30151656.v6  Credit Facility and is consequently contingent upon the consummation of such refinancing or  incurrence and may be revoked by the Borrower in the event such refinancing or incurrence is not  consummated.  The Borrower will forward to you draft release documents to be reviewed in  connection with the release of the Collateral.]2      Notwithstanding the foregoing, this letter shall not be construed as a waiver of any  rights of the Borrower or any of the other Credit Parties under the Credit Agreement and the other  Loan Documents.        [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]       2 Include if prepayment is to be a prepayment in full of the Credit Facility.  





 






  6  DMSLIBRARY01\30151656.v6        Sincerely,     KFORCE INC.,  a Florida corporation      By:   Name:  Title:  





 






  DMSLIBRARY01\30151656.v6  EXHIBIT E    [FORM OF]  NOTICE OF CONVERSION/CONTINUATION      TO:  Wells Fargo Bank, National Association, as Administrative Agent    RE: Amended and Restated Credit Agreement, dated as of October 20, 2021, by and  among KFORCE INC., a Florida corporation (the “Borrower”), the other Credit  Parties, the Lenders and Wells Fargo Bank, National Association, as  Administrative Agent for the Lenders (as amended, modified, extended, restated,  replaced, or supplemented from time to time, the “Credit Agreement”; capitalized  terms used herein and not otherwise defined shall have the meanings set forth in  the Credit Agreement)    DATE: [Date]       Pursuant to Section 5.2 of the Credit Agreement, the Borrower hereby requests ____  conversion (the “Proposed Conversion”) or ____ continuation of the following Loans be made as  follows (the “Proposed Continuation”):      Applicable  Loan  Current  Interest  Rate and  Interest  Period      Date    Amount to  be  converted/  extended  Requested  Interest  Rate  (Base Rate/  LIBOR Rate)  Requested Interest  Period  (one, three, six or  twelve3 months  -- for LIBOR Rate  only)                         NOTE: PARTIAL CONVERSIONS THAT ARE (A) BASE RATE LOANS MUST BE IN  A MINIMUM AGGREGATE AMOUNT OF $1,000,000 AND IN INTEGRAL  MULTIPLES OF $100,000 IN EXCESS THEREOF AND (B) LIBOR RATE  LOANS MUST BE IN A MINIMUM AGGREGATE AMOUNT OF $1,000,000  AND IN INTEGRAL MULTIPLES OF $100,000 IN EXCESS THEREOF.    Capitalized terms used herein and not otherwise defined shall have the meanings set forth  in the Credit Agreement.    The undersigned hereby certifies that no Default or Event of Default has occurred and is  continuing on the date of the Proposed Conversion or Proposed Continuation or immediately after    3 Notice for LIBOR Rate Loans having an Interest Period of twelve months must be received four (4) Business Days  prior to the requested date of such borrowing.  





 






  2  DMSLIBRARY01\30151656.v6  giving effect to the Proposed Conversion or Proposed Continuation unless such Default or Event  of Default has been cured or waived in accordance with the Credit Agreement.    This Notice of Conversion/Continuation may, upon execution, be delivered by facsimile  or electronic mail, which shall be deemed for all purposes to be an original signature.      [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]  





 






  DMSLIBRARY01\30151656.v6  KFORCE INC.,  a Florida corporation      By:   Name:  Title:  





 






  DMSLIBRARY01\30151656.v6  EXHIBIT F    [FORM OF]  OFFICER’S COMPLIANCE CERTIFICATE      TO:  Wells Fargo Bank, National Association, as Administrative Agent    RE: Amended and Restated Credit Agreement, dated as of October 20, 2021, by and  among KFORCE INC., a Florida corporation (the “Borrower”), the other Credit  Parties, the Lenders and Wells Fargo Bank, National Association, as  Administrative Agent for the Lenders (as amended, modified, extended, restated,  replaced, or supplemented from time to time, the “Credit Agreement”; capitalized  terms used herein and not otherwise defined shall have the meanings set forth in  the Credit Agreement)    DATE: [Date]       For the fiscal [quarter] [year] ended [_________________, _____].    The undersigned hereby certifies in his/her capacity as an officer and not in his/her  individual capacity on behalf of the Credit Parties that, to the best of his/her knowledge, with  respect to the Credit Agreement:    (a) The financial statements delivered for the fiscal period referred to above  present fairly the financial position of the Borrower and its Subsidiaries, for the period  indicated above, in conformity with GAAP (subject, in the case of unaudited financial  statements, to normal year-end audit adjustments and the absence of footnotes) applied on  a consistent basis (subject to any changes in GAAP).    (b) Except as otherwise noted herein, I have no knowledge of any Default or  Event of Default under the Credit Agreement.4    (c) Attached hereto on Schedule A is a calculation of Consolidated EBITDA  for the fiscal quarter referred to above and the year to date period then ended (including a  detailed explanation of adjustments made in the calculation) and are calculations in  reasonable detail demonstrating compliance by the Credit Parties with Section 9.14 of the  Credit Agreement as of the last day of such period referred to above.    This Certificate may, upon execution, be delivered by facsimile or electronic mail, which  shall be deemed for all purposes to be an original signature.          4 If the undersigned has knowledge that a Default or Event of Default has occurred and is continuing, an explanation  of such Default or Event of Default shall be provided on a separate page attached hereto.  





 






  2  DMSLIBRARY01\30151656.v6  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]  





 






  DMSLIBRARY01\30151656.v6   KFORCE INC.,   a Florida corporation      By:   Name:  Title:  





 






  DMSLIBRARY01\30151656.v6  EXHIBIT G    [FORM OF]  ASSIGNMENT AND ASSUMPTION      This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the  Effective Date set forth below and is entered into by and between [the] [each] Assignor identified  in item 1 below ([the] [each, an] “Assignor”) and [the] [each] Assignee identified in item 2 below  ([the] [each, an] “Assignee”).  [It is understood and agreed that the rights and obligations of [the  Assignors] [the Assignees] hereunder are several and not joint.]5  Capitalized terms used but not  defined herein shall have the meanings given to them in the Credit Agreement identified below (as  amended, restated, supplemented or otherwise modified from time to time, the “Credit  Agreement”), receipt of a copy of which is hereby acknowledged by [the] [each] Assignee.  The  Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and  incorporated herein by reference and made a part of this Assignment and Assumption as if set forth  herein in full.    For an agreed consideration, [the] [each] Assignor hereby irrevocably sells and assigns to  [the Assignee] [the respective Assignees], and [the] [each] Assignee hereby irrevocably purchases  and assumes from [the Assignor] [the respective Assignors], subject to and in accordance with the  Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the  Administrative Agent as contemplated below (i) all of [the Assignor’s] [the respective Assignors’]  rights and obligations in [its capacity as a Lender] [their respective capacities as Lenders] under  the Credit Agreement and any other documents or instruments delivered pursuant thereto to the  extent related to the amount and percentage interest identified below of all of such outstanding  rights and obligations of [the Assignor] [the respective Assignors] under the respective facilities  identified below (including, without limitation, any Letters of Credit, guarantees and Swingline  Loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable  law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a  Lender)] [the respective Assignors (in their respective capacities as Lenders)] against any Person,  whether known or unknown, arising under or in connection with the Credit Agreement, any other  documents or instruments delivered pursuant thereto or the loan transactions governed thereby or  in any way based on or related to any of the foregoing, including, but not limited to, contract  claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity  related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and  obligations sold and assigned by [the] [any] Assignor to [the] [any] Assignee pursuant to clauses (i)  and (ii) above being referred to herein collectively as [the] [an] “Assigned Interest”).  Each such  sale and assignment is without recourse to [the] [any] Assignor and, except as expressly provided  in this Assignment and Assumption, without representation or warranty by [the] [any] Assignor.      1. Assignor[s]:  ______________________________        ______________________________      5 Include bracketed language if there are either multiple Assignors or multiple Assignees.  





 






  2  DMSLIBRARY01\30151656.v6  2. Assignee[s]:  ______________________________        ______________________________   [for each Assignee, indicate [Affiliate] [Approved Fund] of [identify Lender]    3. Borrower: KFORCE INC, a Florida corporation    4. Administrative Agent: Wells Fargo Bank, National Association, as the administrative agent  under the Credit Agreement.    5. Credit Agreement: Amended and Restated Credit Agreement dated as of October 20,  2021 among the Borrower, the other Credit Parties from time to time  party thereto, the lenders and other financial institutions from time  to time party thereto, and Wells Fargo Bank, National Association,  as Administrative Agent.    6.  Assigned Interest[s]:     Assignor[s] Assignee[s] Facility  Assigned  Aggregate  Amount of  Commitment/  Loans for all  Lenders  Amount of  Commitment/ Loans  Assigned  Percentage  Assigned of  Commitment/  Loans  CUSIP  Number     $ $  %      $ $  %      $ $  %     [7. Trade Date:  ______________]6      Effective Date:   _____________ ___, 20___.      [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]        6 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be  determined as of the Trade Date.  





 






  DMSLIBRARY01\30151656.v6  The terms set forth in this Assignment and Assumption are hereby agreed to:    ASSIGNOR[S]  [NAME OF ASSIGNOR]      By:        Name:  Title:    





 






  DMSLIBRARY01\30151656.v6  ASSIGNEE[S]  [NAME OF ASSIGNEE]      By:        Name:  Title:    





 






  DMSLIBRARY01\30151656.v6  [Consented to and] Accepted:    WELLS FARGO BANK, NATIONAL ASSOCIATION,   as Administrative Agent    By:        Name:  Title:      





 






  DMSLIBRARY01\30151656.v6  [Consented to:]    [KFORCE INC.]    By:        Name:  Title:      





 






  DMSLIBRARY01\30151656.v6  ANNEX 1    STANDARD TERMS AND CONDITIONS FOR  ASSIGNMENT AND ASSUMPTION      1. Representations and Warranties.      1.1 Assignor[s].  [The] [Each] Assignor (a) represents and warrants that (i) it is the  legal and beneficial owner of [the] [the relevant] Assigned Interest, (ii) [the] [such] Assigned  Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power  and authority, and has taken all action necessary, to execute and deliver this Assignment and  Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a  Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties  or representations made in or in connection with the Credit Agreement or any other Loan  Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value  of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower,  any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document  or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any  other Person of any of their respective obligations under any Loan Document.    1.2. Assignee[s].  [The] [Each] Assignee (a) represents and warrants that (i) it has full  power and authority, and has taken all action necessary, to execute and deliver this Assignment  and Assumption and to consummate the transactions contemplated hereby and to become a Lender  under the Credit Agreement, (ii) it meets all the requirements set forth in the definition of Eligible  Assignee and in subsections 12.9(b)(v) and (vi) of the Credit Agreement (subject to such consents,  if any, as may be required under Section 12.9(b)(iii) of the Credit Agreement), (iii) from and after  the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender  thereunder and, to the extent of [the] [the relevant] Assigned Interest, shall have the obligations of  a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type  represented by the Assigned Interest and either it, or the person exercising discretion in making its  decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has  received a copy of the Credit Agreement, and has received or has been accorded the opportunity  to receive copies of the most recent financial statements delivered pursuant to Section 8.1 thereof,  as applicable, and such other documents and information as it deems appropriate to make its own  credit analysis and decision to enter into this Assignment and Assumption and to purchase [the]  [such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative  Agent or any other Lender and based on such documents and information as it has deemed  appropriate, made its own credit analysis and decision to enter into this Assignment and  Assumption and to purchase [the] [such] Assigned Interest, and (vii) if it is a Foreign Lender,  attached to the Assignment and Assumption is any documentation required to be delivered by it  pursuant to the terms of the Credit Agreement, duly completed and executed by [the] [such]  Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative  Agent, [the] [any] Assignor or any other Lender, and based on such documents and information as  it shall deem appropriate at the time, continue to make its own credit decisions in taking or not  taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all  





 






  2  DMSLIBRARY01\30151656.v6  of the obligations which by the terms of the Loan Documents are required to be performed by it  as a Lender.    2. Payments.  From and after the Effective Date, the Administrative Agent shall make  all payments in respect of [the] [each] Assigned Interest (including payments of principal, interest,  fees and other amounts) to [the] [the relevant] Assignor for amounts which have accrued to but  excluding the Effective Date and to [the] [the relevant] Assignee for amounts which have accrued  from and after the Effective Date.    3. General Provisions.  This Assignment and Assumption shall be binding upon, and  inure to the benefit of, the parties hereto and their respective successors and assigns.  This  Assignment and Assumption may be executed in any number of counterparts, which together shall  constitute one instrument.  Delivery of an executed counterpart of a “signature” of this Assignment  and Assumption by telecopy or other electronic means shall be effective as delivery of a manually  executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall  be governed by, and construed in accordance with, the law of the State of New York.    





 






  DMSLIBRARY01\30151656.v6  EXHIBIT H-1    [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE    (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)      TO:  Wells Fargo Bank, National Association, as Administrative Agent    RE: Amended and Restated Credit Agreement, dated as of October 20, 2021, by and  among KFORCE INC., a Florida corporation (the “Borrower”), the other Credit  Parties, the Lenders and Wells Fargo Bank, National Association, as  Administrative Agent for the Lenders (as amended, modified, extended, restated,  replaced, or supplemented from time to time, the “Credit Agreement”; capitalized  terms used herein and not otherwise defined shall have the meanings set forth in  the Credit Agreement)    DATE: [Date]      Pursuant to the provisions of Section 5.11(g) of the Credit Agreement, the undersigned  hereby certifies that (a) it is the sole record and beneficial owner of the Loan(s) (as well as any  Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) it is not a  bank within the meaning of Section 881(c)(3)(A) of the Code (c) it is not a ten percent shareholder  of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (d) it is not a controlled  foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and  (e) the interest payments on the Loan(s) are not effectively connected with the undersigned’s  conduct of a U.S. trade or business or are effectively connected but are not includible in the  undersigned’s gross income for U.S. federal income tax purposes under an income tax treaty.     The undersigned has furnished the Administrative Agent and the Borrower with a  certificate of its non-U.S. person status on Internal Revenue Service Form [W-8BEN][W-8BEN- E]1.  By executing this certificate, the undersigned agrees that (i) if the information provided on  this certificate changes, the undersigned shall promptly so inform the Borrower and the  Administrative Agent, and (ii) the undersigned shall have at all times furnished the Borrower and  the Administrative Agent with a properly completed and currently effective certificate in either the  calendar year in which each payment is to be made to the undersigned, or in either of the two  calendar years preceding such payments.       1 Fill in as applicable.  





 






  DMSLIBRARY01\30151656.v6  Delivery of this Certificate by telecopy shall be effective as an original.            ,  as a Lender    By:        Name:        Title:        





 






  DMSLIBRARY01\30151656.v6  EXHIBIT H-2    [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE    (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)    TO:  Wells Fargo Bank, National Association, as Administrative Agent    RE: Amended and Restated Credit Agreement, dated as of October 20, 2021, by and  among KFORCE INC., a Florida corporation (the “Borrower”), the other Credit  Parties, the Lenders and Wells Fargo Bank, National Association, as  Administrative Agent for the Lenders (as amended, modified, extended, restated,  replaced, or supplemented from time to time, the “Credit Agreement”; capitalized  terms used herein and not otherwise defined shall have the meanings set forth in  the Credit Agreement)    DATE: [Date]        Pursuant to the provisions of Section 5.11(g) of the Credit Agreement, the undersigned  hereby certifies that (a) it is the sole record and beneficial owner of the participation in respect of  which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A)  of the Code, (c) it is not a ten percent shareholder of the Borrower within the meaning of Section  871(h)(3)(B) of the Code, (d) it is not a controlled foreign corporation related to the Borrower as  described in Section 881(c)(3)(C) of the Code, and (e) the interest payments with respect to such  participation are not effectively connected with the undersigned’s conduct of a U.S. trade or  business or are effectively connected but are not includible in the undersigned’s gross income for  U.S. federal income tax purposes under an income tax treaty.    The undersigned has furnished its participating Lender and the Company with a certificate  of its non-U.S. person status on Internal Revenue Service Form [W-8BEN][W-8BEN-E]1.  By  executing this certificate, the undersigned agrees that (i) if the information provided on this  certificate changes, the undersigned shall promptly so inform such Lender in writing, and (ii) the  undersigned shall have at all times furnished such Lender with a properly completed and currently  effective certificate in either the calendar year in which each payment is to be made to the  undersigned, or in either of the two calendar years preceding such payments.       1 Fill in as applicable.  





 






  DMSLIBRARY01\30151656.v6  Delivery of this Certificate by telecopy or other electronic means shall be effective as an  original.          ,  as a Participant    By:        Name:        Title:        





 






  DMSLIBRARY01\30151656.v6    EXHIBIT H-3    [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE    (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)    TO:  Wells Fargo Bank, National Association, as Administrative Agent    RE: Amended and Restated Credit Agreement, dated as of October 20, 2021, by and  among KFORCE INC., a Florida corporation (the “Borrower”), the other Credit  Parties, the Lenders and Wells Fargo Bank, National Association, as  Administrative Agent for the Lenders (as amended, modified, extended, restated,  replaced, or supplemented from time to time, the “Credit Agreement”; capitalized  terms used herein and not otherwise defined shall have the meanings set forth in  the Credit Agreement)    DATE: [Date]        Pursuant to the provisions of Section 5.11(g) of the Credit Agreement, the undersigned  hereby certifies that (a) it is the sole record owner of the participation in respect of which it is  providing this certificate, (b) its partners/members are the sole beneficial owners of such  participation, (c) with respect such participation, neither the undersigned nor any of its  partners/members is a bank extending credit pursuant to a loan agreement entered into in the  ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,  (d) none of its partners/members is a ten percent shareholder of the Borrower within the meaning  of Section 871(h)(3)(B) of the Code, (e) none of its partners/members is a controlled foreign  corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (f) the  interest payments with respect to such participation are not effectively connected with the  undersigned’s or its partners/members’ conduct of a U.S. trade or business or are effectively  connected but are not includible in the partners/members’ gross income for U.S. federal income  tax purposes under an income tax treaty.     The undersigned has furnished its participating Lender and the Company with Internal  Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form [W- 8BEN][W-8BEN-E]9 from each of its partners/members claiming the portfolio interest exemption.   By executing this certificate, the undersigned agrees that (i) if the information provided on this  certificate changes, the undersigned shall promptly so inform such Lender and (ii) the undersigned  shall have at all times furnished such Lender with a properly completed and currently effective  certificate in either the calendar year in which each payment is to be made to the undersigned, or  in either of the two calendar years preceding such payments.       9 Fill in as applicable.  





 






  DMSLIBRARY01\30151656.v6  Delivery of this Certificate by telecopy or other electronic means shall be effective as an  original.            ,  as a Participant    By:        Name:        Title:        





 






  DMSLIBRARY01\30151656.v6  EXHIBIT H-4    [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE    (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)    TO:  Wells Fargo Bank, National Association, as Administrative Agent    RE: Amended and Restated Credit Agreement, dated as of October 20, 2021, by and  among KFORCE INC., a Florida corporation (the “Borrower”), the other Credit  Parties, the Lenders and Wells Fargo Bank, National Association, as  Administrative Agent for the Lenders (as amended, modified, extended, restated,  replaced, or supplemented from time to time, the “Credit Agreement”; capitalized  terms used herein and not otherwise defined shall have the meanings set forth in  the Credit Agreement)    DATE: [Date]      Pursuant to the provisions of Section 5.11(g) of the Credit Agreement, the undersigned  hereby certifies that (a) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing  such Loan(s)) in respect of which it is providing this certificate, (b) its partners/members are the  sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (c) with  respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document,  neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a  loan agreement entered into in the ordinary course of its trade or business within the meaning of  Section 881(c)(3)(A) of the Code, (d) the undersigned is not, and none of its partners/members is  a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code,  (e) none of its partners/members is a controlled foreign corporation related to the Borrower as  described in Section 881(c)(3)(C) of the Code, and (f) the interest payments on the Loan(s) are not  effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or  business or are effectively connected but are not includible in the partners/members’ gross income  for U.S. federal income tax purposes under an income tax treaty.    The undersigned has furnished the Administrative Agent and the Borrower with Internal  Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form [W- 8BEN][W-8BEN-E]1 from each of its partners/members claiming the portfolio interest exemption.   By executing this certificate, the undersigned agrees that (i) if the information provided on this  certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative  Agent, and (ii) the undersigned shall have at all times furnished the Borrower and the  Administrative Agent with a properly completed and currently effective certificate in either the  calendar year in which each payment is to be made to the undersigned, or in either of the two  calendar years preceding such payments.       1 Fill in as applicable.  





 






  DMSLIBRARY01\30151656.v6  Delivery of this Certificate by telecopy or other electronic means shall be effective as an  original.            ,  as a Lender    By:        Name:        Title:          





 






  DMSLIBRARY01\30151656.v6  EXHIBIT I    [FORM OF]  FUNDING INDEMNITY LETTER    TO:  Wells Fargo Bank, National Association, as Administrative Agent    RE: Amended and Restated Credit Agreement, dated as of October 20, 2021, by and  among KFORCE INC., a Florida corporation (the “Borrower”), the other Credit  Parties, the Lenders and Wells Fargo Bank, National Association, as  Administrative Agent for the Lenders (as amended, modified, extended, restated,  replaced, or supplemented from time to time, the “Credit Agreement”; capitalized  terms used herein and not otherwise defined shall have the meanings set forth in  the Credit Agreement)    DATE: [    ]       This letter is delivered in anticipation of the closing of the above-referenced Credit  Agreement.  Capitalized terms used herein and not otherwise defined shall have the meanings  assigned thereto in the most recent draft of the Credit Agreement (including all exhibits and  schedules thereto) circulated to the Borrower and the Lenders.    The Borrower anticipates that all conditions precedent to the closing of the Credit  Agreement and the initial Extensions of Credit will be satisfied on or about October 20, 2021 (the  “Closing Date”).  The Borrower wishes to borrow [a portion of] [the initial Revolving Credit  Loans], described in the Notice of Borrowing delivered in connection with this letter agreement,  on the Closing Date as LIBOR Rate Loans (the “Closing Date LIBOR Rate Loans”).      In order to induce the Lenders to accept this request prior to the Closing Date, the Borrower  hereby agrees that, in the event the Borrower fails to borrow the Closing Date LIBOR Rate Loans  on the Closing Date for any reason whatsoever attributable to Borrower (including the failure of  the Credit Agreement to become effective but excluding as a result of the failure of any applicable  Lender to advance funds in breach of its obligations under the Credit Agreement), the Borrower  hereby unconditionally agrees to reimburse each applicable Lender in respect of its Closing Date  LIBOR Rate Loans upon its demand as set forth in Section 5.9 of the Credit Agreement as if it  were in effect with respect to the requested Closing Date LIBOR Rate Loans.       





 






  2  DMSLIBRARY01\30151656.v6  This letter agreement shall be governed by, and shall be construed and enforced in  accordance with, the law of the State of New York.  This letter may (a) be executed in any number  of counterparts by the different signatories hereto on separate counterparts, each of which  counterparts when executed and delivered shall be an original, but all of which together shall  constitute one and the same letter and (b) upon execution, be delivered by facsimile or electronic  mail, which shall be deemed for all purposes to be an original signature.      [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 





 






  DMSLIBRARY01\30151656.v6  KFORCE INC.,  a Florida corporation    By:       Name:       Title:           





 






    Schedule 1.1(b)  Commitments and Commitment Percentages  Lender Commitment Commitment Percentage  Wells Fargo Bank, National  Association  $68,000,000 34.0%  Bank of America, N.A. $46,000,000 23.0%  BMO Harris Bank, N.A. $26,000,000 13.0%  City National Bank $15,000,000 7.5%  MUFG Bank Ltd. $15,000,000 7.5%  Santander Bank, N.A. $15,000,000 7.5%  US Bank National  Association  $15,000,000 7.5%  Total $200,000,000 100.00%    LC/Commitments  Issuing Lender L/C Commitment  Wells Fargo Bank, National  Association  $10,000,000  Total $10,000,000