ex102triton-pnctermloanx






EXECUTION VERSION  Deal CUSIP No.: 89674JAP14  Facility CUSIP No.: 89674JAQ9  AMENDED AND RESTATED TERM LOAN AGREEMENT  Dated as of October 14, 2021  among  TRITON CONTAINER INTERNATIONAL LIMITED,  and   TAL INTERNATIONAL CONTAINER CORPORATION  as the Borrower,  TRITON INTERNATIONAL LIMITED  as the Guarantor   PNC BANK, NATIONAL ASSOCIATION,  as Administrative Agent,  The LENDERS from Time to Time Party Hereto,  PNC CAPITAL MARKETS LLC,  as Joint Lead Arranger and Bookrunner,  ING BELGIUM SA/NV, as Joint Lead Arranger and Co-Syndication Agent,  MUFG BANK, LTD., as Joint Lead Arranger and Co-Syndication Agent,  BANK OF AMERICA, N.A., as Joint Lead Arranger and Co-Syndication Agent,  TRUIST SECURITIES, INC., as Joint Lead Arranger,  TRUIST BANK, as and Co-Syndication Agent,  CITIBANK, N.A., as Co-Documentation Agent,  CRÉDIT INDUSTRIEL et COMMERCIAL, NEW YORK BRANCH, as Co-Documentation  Agent,  DBS BANK LTD., as Co-Documentation Agent,  FIFTH THIRD BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent,   MIZUHO BANK LTD., as Co-Documentation Agent, and  WELLS FARGO BANK, N.A., as Co-Documentation Agent  Exhibit 10.2 





 






TABLE OF CONTENTS  Page  744308325 i  SECTION 1. DEFINITIONS AND ACCOUNTING TERMS. ........................................ 1 1.1 Definitions.............................................................................................................. 1 1.2 Accounting Terms ................................................................................................ 25 1.3 Other Interpretive Provisions ............................................................................... 25 1.4 Times of Day........................................................................................................ 26 1.5 Joint and Several Liability ................................................................................... 26 1.6 Designation of Lead Borrower as Borrower’s Agent. ......................................... 26 SECTION 2. COMMITMENTS OF THE LENDERS. ................................................... 27 2.1 Commitments to Make Loans .............................................................................. 27 2.2 Loan Options ........................................................................................................ 27 2.3 Borrowing Procedures ......................................................................................... 27 2.4 Continuation of LIBOR Rate Loans .................................................................... 28 2.5 Maturity of Loans ................................................................................................ 28 2.6 Obligations of Lenders Several ............................................................................ 28 2.7 Term Loan Facility .............................................................................................. 29 2.8 Optional Increase in Term Loan Facility ............................................................. 29 SECTION 3. EVIDENCE OF LOANS. ............................................................................ 30 SECTION 4. PRINCIPAL PAYMENT AMOUNTS, INTEREST AND FEES. ........... 31 4.1 Principal Payment Amounts ................................................................................ 31 4.2 Interest.................................................................................................................. 31 4.3 Default Interest..................................................................................................... 31 4.4 Fees ...................................................................................................................... 31 4.5 Method of Calculating Interest and Fees ............................................................. 32 SECTION 5. DEFAULTING LENDERS. ........................................................................ 32 5.1 Defaulting Lenders............................................................................................... 32 SECTION 6. PAYMENTS, OFFSETS, PREPAYMENTS AND REDUCTION  OR TERMINATION OF THE COMMITMENTS. ................................. 33 6.1 Payments Generally ............................................................................................. 33 6.2 Prepayments ......................................................................................................... 33 6.3 Offset.................................................................................................................... 35 





 






TABLE OF CONTENTS  (continued)  Page  744308325 -ii- 6.4 Proration of Payments .......................................................................................... 35 6.5 [Reserved] ............................................................................................................ 35 SECTION 7. ADDITIONAL PROVISIONS RELATING TO EURODOLLAR  RATE LOANS; CAPITAL ADEQUACY; TAXES.................................. 35 7.1 Increased Cost ...................................................................................................... 35 7.2 LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not  Available; LIBOR Undesirable............................................................................ 37 7.3 Indemnity ............................................................................................................. 38 7.4 Designation of a Different Lending Office .......................................................... 38 7.5 Special Prepayment; Replacement of Lender ...................................................... 39 7.6 Taxes .................................................................................................................... 39 7.7 Benchmark Replacement Setting. ........................................................................ 43 SECTION 8. GUARANTY. ............................................................................................... 52 8.1 Guaranty ............................................................................................................... 52 8.2 No Setoff or Deductions; Taxes; Payments ......................................................... 52 8.3 Rights of the Administrative Agent and the Lenders ........................................... 52 8.4 Certain Waivers ................................................................................................... 53 8.5 Obligations Independent ...................................................................................... 53 8.6 Subrogation .......................................................................................................... 53 8.7 Termination; Reinstatement ................................................................................. 54 8.8 Subordination ....................................................................................................... 54 8.9 Stay of Acceleration ............................................................................................. 54 8.10 Miscellaneous ...................................................................................................... 54 8.11 Condition of Borrowers ....................................................................................... 55 SECTION 9. REPRESENTATIONS AND WARRANTIES. ......................................... 55 9.1 Existence .............................................................................................................. 55 9.2 Authorization; Validity and Enforceability ......................................................... 55 9.3 No Conflicts ......................................................................................................... 55 9.4 No Default ............................................................................................................ 56 9.5 [Reserved] ............................................................................................................ 56 9.6 Litigation .............................................................................................................. 56 





 






TABLE OF CONTENTS  (continued)  Page  744308325 -iii- 9.7 Title; Liens ........................................................................................................... 56 9.8 Subsidiaries .......................................................................................................... 56 9.9 Partnerships; Limited Liability Companies ......................................................... 56 9.10 Purpose; Use of Proceeds..................................................................................... 56 9.11 Margin Regulations .............................................................................................. 56 9.12 Compliance .......................................................................................................... 56 9.13 ERISA Compliance .............................................................................................. 57 9.14 Environmental Matters......................................................................................... 57 9.15 Taxes .................................................................................................................... 57 9.16 Investment Company Act Representation ........................................................... 57 9.17 Accuracy of Information ...................................................................................... 57 9.18 Financial Statements ............................................................................................ 58 9.19 No Material Adverse Effect ................................................................................. 58 9.20 [Reserved] ............................................................................................................ 58 9.21 Solvency ............................................................................................................... 58 9.22 Anti-Terrorism Laws ........................................................................................... 58 9.23 [Reserved] ............................................................................................................ 58 9.24 Anti-Corruption Laws .......................................................................................... 58 SECTION 10. LOAN PARTIES’ COVENANTS. ............................................................. 58 10.1 Financial Statements and Other Reports .............................................................. 58 10.2 Notices ................................................................................................................. 60 10.3 Existence .............................................................................................................. 60 10.4 Nature of Business ............................................................................................... 60 10.5 Books, Records and Inspection Rights ................................................................ 60 10.6 Insurance; Reports ............................................................................................... 61 10.7 Maintenance of Property ...................................................................................... 61 10.8 Taxes .................................................................................................................... 61 10.9 Compliance .......................................................................................................... 61 10.10 Merger, Purchase and Sale ................................................................................... 62 10.11 Restricted Payments ............................................................................................. 62 





 






TABLE OF CONTENTS  (continued)  Page  744308325 -iv- 10.12 [Reserved] ............................................................................................................ 62 10.13 [Reserved] ............................................................................................................ 62 10.14 [Reserved] ............................................................................................................ 62 10.15 Total Debt Ratio ................................................................................................... 63 10.16 Minimum Interest Coverage Ratio ....................................................................... 63 10.17 Unencumbered Assets Coverage Ratio ................................................................ 63 10.18 Indebtedness ......................................................................................................... 63 10.19 Liens ..................................................................................................................... 63 10.20 Transactions with Loan-Party Related Parties ..................................................... 64 10.21 Pari Passu ............................................................................................................. 65 10.22 Negative Pledges, Restrictive Agreements, Etc. .................................................. 65 10.23 Use of Proceeds.................................................................................................... 65 10.24 [Reserved] ............................................................................................................ 65 10.25 Anti-Terrorism Laws; International Trade Law Compliance .............................. 65 10.26 Designation of Unrestricted Subsidiaries ............................................................. 66 10.27 [Reserved] ............................................................................................................ 66 10.28 Anti-Corruption Laws .......................................................................................... 66 10.29 Additional Loan Parties ....................................................................................... 66 10.30 Equal and Ratable Security .................................................................................. 66 SECTION 11. CONDITIONS TO CLOSING AND OF EACH BORROWING............ 67 11.1 Conditions to Closing .......................................................................................... 67 11.2 Conditions to each Borrowing ............................................................................. 70 SECTION 12. EVENTS OF DEFAULT AND REMEDIES. ............................................ 70 12.1 Events of Default ................................................................................................. 70 12.2 Remedies .............................................................................................................. 72 12.3 Application of Proceeds ....................................................................................... 72 SECTION 13. ADMINISTRATIVE AGENT. ................................................................... 73 13.1 Appointment and Authority ................................................................................. 73 13.2 Rights as a Lender ................................................................................................ 73 13.3 Exculpatory Provisions ........................................................................................ 73 





 






TABLE OF CONTENTS  (continued)  Page  744308325 -v- 13.4 Reliance by Administrative Agent ....................................................................... 74 13.5 Delegation of Duties ............................................................................................ 74 13.6 Resignation of Administrative Agent .................................................................. 75 13.7 Non-Reliance on Administrative Agent and Other Lenders ................................ 75 13.8 No Other Duties, Etc. ........................................................................................... 76 13.9 Administrative Agent's Fee .................................................................................. 76 13.10 [Reserved]. ........................................................................................................... 76 13.11 No Reliance on Administrative Agent's Customer Identification Program ......... 76 13.12 Funding Reliance ................................................................................................. 76 13.13 Erroneous Payments............................................................................................. 77 SECTION 14. GENERAL. ................................................................................................... 78 14.1 No Waiver; Cumulative Remedies; Enforcement................................................ 78 14.2 Waivers and Amendments ................................................................................... 78 14.3 Notices ................................................................................................................. 79 14.4 USA Patriot Act Notice ....................................................................................... 81 14.5 Expenses; Indemnity; Damage Waiver ................................................................ 81 14.6 Governing Law; Entire Agreement ...................................................................... 83 14.7 Successors and Assigns........................................................................................ 83 14.8 Assignments by Lenders ...................................................................................... 84 14.9 Register ................................................................................................................ 87 14.10 Participation ......................................................................................................... 87 14.11 Certain Pledges; Successors and Assigns Generally ........................................... 88 14.12 Survival ................................................................................................................ 88 14.13 Effect of Amendment and Restatement ............................................................... 88 14.14 Severability .......................................................................................................... 89 14.15 Execution in Counterparts, Effectiveness, Etc. .................................................... 89 14.16 Investment ............................................................................................................ 89 14.17 Other Transactions ............................................................................................... 89 14.18 Forum Selection and Consent to Jurisdiction ...................................................... 90 14.19 Waiver of Jury Trial ............................................................................................. 90 





 






TABLE OF CONTENTS  (continued)  Page  744308325 -vi- 14.20 Treatment of Certain Information; Confidentiality .............................................. 90 14.21 Interest Rate Limitation ....................................................................................... 91 14.22 Payments Set Aside.............................................................................................. 91 14.23 No Advisory or Fiduciary Responsibility ............................................................ 92 14.24 Appointment of Lead Arranger and Bookrunner; No Other Duties .................... 92 14.25 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions............................................................................................................ 93 14.26 Acknowledgement Regarding Any Supported QFCs. ......................................... 93 14.27 Electronic Execution ............................................................................................ 94 





 






-vii- 744308325  SCHEDULES  Schedule I Commitments and Percentages  Schedule II Consolidated Tangible Net Worth  Schedule 9.6 Litigation and Contingent Liabilities   Schedule 9.8 Subsidiaries   Schedule 9.9 Partnerships, Limited Liability Companies  Schedule 9.14 Environmental Matters  Schedule 10.2 Addresses for Notices  Schedule 10.20 Transactions with Related Parties  EXHIBITS  Exhibit A Form of Note   Exhibit B [Reserved]  Exhibit C Form of Loan Request   Exhibit D Form of Compliance Certificate   Exhibit E Form of Assignment and Assumption   Exhibit F [Reserved]  Exhibit G Form of Optional Prepayment Notice  Exhibit H-1 Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are  Not Partnerships For U.S. Federal Income Tax Purposes)  Exhibit H-2 Form of U.S. Tax Compliance Certificate (For Foreign Participants That  Are Not Partnerships For U.S. Federal Income Tax Purposes)  Exhibit H-3 Form of U.S. Tax Compliance Certificate (For Foreign Participants That  Are Partnerships For U.S. Federal Income Tax Purposes)  Exhibit H-4 Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are  Partnerships For U.S. Federal Income Tax Purposes)  





 






744308325  AMENDED AND RESTATED TERM LOAN AGREEMENT  THIS AMENDED AND RESTATED TERM LOAN AGREEMENT, dated as of  October 14, 2021, is among TRITON CONTAINER INTERNATIONAL LIMITED, an  exempted company limited by shares incorporated under the laws of Bermuda (“TCIL” or “Lead  Borrower”), TAL INTERNATIONAL CONTAINER CORPORATION, a corporation organized  and existing under the laws of the State of Delaware (“TALICC”; together with TCIL, the  “Borrowers” and each, individually, a “Borrower”), the LENDERS (as hereinafter defined),  TRITON INTERNATIONAL LIMITED, an exempted company limited by shares incorporated  in Bermuda (the “Guarantor”), as a guarantor and PNC BANK, NATIONAL ASSOCIATION, in  its capacity as administrative agent for the lenders under this Agreement (hereinafter referred to  in such capacity as the “Administrative Agent”).  W I T N E S E T H: WHEREAS, the Borrowers are engaged in the owning and leasing of marine cargo  containers and activities incidental thereto;  WHEREAS, the Borrowers are direct or indirect subsidiaries of the Guarantor;  WHEREAS, the Borrowers, various financial institutions and PNC Bank, National  Association as administrative agent, entered into the Term Loan Agreement, dated as of May 27,  2021 (as amended or otherwise modified prior to the date hereof, the “Existing Term Loan  Agreement”);  WHEREAS, the Borrowers have requested that the Lenders provide a term loan facility  and, subject to and upon the terms set forth herein, the Lenders are willing to make available to  the Borrowers the term loan facility set forth herein;  WHEREAS, the Borrowers, the Guarantor, the Lenders and the Administrative Agent  desire to amend the Existing Term Loan Agreement in certain respects to provide the credit  facilities to the Borrowers and to restate the Existing Term Loan Agreement as so amended; and  NOW, THEREFORE, in consideration of the mutual agreements herein contained, the  parties hereto agree as follows:  SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.  1.1 Definitions.  In addition to terms defined elsewhere in this Agreement, the  following terms shall have the meanings indicated for purposes of this Agreement:  “ABS Subsidiary” means a bankruptcy-remote special purpose entity that is a Subsidiary  of a Borrower or Guarantor created for the sole and exclusive purpose of purchasing or financing  assets of a Borrower through a Permitted Securitization.  “Additional Lender” has the meaning set forth in Section 2.8(c).  





 






2  744308325  “Administrative Agent” means PNC Bank in its capacity as administrative agent under  any of the Loan Documents, or any successor administrative agent.  “Administrative Agent’s Office” means the office of the Administrative Agent specified  as the “Administrative Agent’s Office” on Schedule 10.2.  “Administrative Questionnaire” means an administrative questionnaire in a form supplied  by the Administrative Agent.  “Affected Financial Institution”  means either (a) any EEA Financial Institution or (b)  any UK Financial Institution.  “Affected Lender” has the meaning set forth in Section 7.5.  “Affiliate” means, with respect to any Person, any other Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control  with the Person specified.  “Affiliated Entities” means Affiliates of a Borrower that are engaged in the secondary  sale and/or leasing of Container Equipment.  “Aggregate Commitment Amount” means One Billion Two Hundred Million Dollars  ($1,200,000,000), as such amount may be increased in accordance with Section 2.8 hereof.  “Agreement” means this Amended and Restated Term Loan Agreement.  “Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977,  as amended, the UK Bribery Act 2010, and any other similar anti-bribery or anti-corruption laws  or regulations administered or enforced in any jurisdiction in which the applicable Borrower or  any of its Subsidiaries is located or conducts business.  “Anti-Terrorism Laws” means any laws rules or regulations relating to anti-terrorism,  economic, financial sanctions programs and trade embargoes, import/export licensing, money  laundering or bribery, and any regulation, order, or directive promulgated, issued or enforced  pursuant to such laws, all as amended, supplemented or replaced from time to time. “Applicable Margin” means, as applicable, (a) the percentage to be added to the Base  Rate applicable to Base Rate Loans based on the S&P Rating then in effect as set forth in the  pricing grid below under the heading “Base Rate Percentage” or (b) the percentage to be added  to the LIBOR Rate applicable to LIBOR Rate Loans based on the S&P Rating then in effect as  set forth in the pricing grid below under the heading “LIBOR Rate Percentage”.  Level  S&P  Rating  LIBOR Rate  Percentage  Base Rate  Percentage  Unused Fee  Percentage  I ≥ BBB 1.250% 0.250% 0.150%  II BBB- 1.375% 0.375% 0.200%  III < BBB- 1.625% 0.625% 0.250%  





 






3  744308325  If (i) there is no S&P Rating or (ii) an Event of Default has occurred and is continuing,  the Applicable Margin shall be the highest percentage indicated therefor in the above table. Each  change in the LIBOR Rate Percentage or the Base Rate Percentage, as applicable, resulting from  a publicly announced change in such S&P Rating shall be effective during the period  commencing on the date of the public announcement thereof and ending on the date immediately  preceding the effective date of the next change.  “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.  “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 14.8(a)), and accepted by the Administrative Agent, in substantially the form (including  electronic documentation generated by use of an electronic platform) of Exhibit E or any other  form approved by the Administrative Agent.  “Audited Financial Statements” means the audited consolidated balance sheet of Triton  Holdco and its Subsidiaries as of December 31, 2020 and the related consolidated statements of  operations, stockholder’s equity and comprehensive income, and cash flows for the fiscal year  ended December 31, 2020, including the notes thereto.  “Authorized Officer” means the Chief Executive Officer, President, Chief Financial  Officer, Treasurer or Assistant Treasurer of the Borrowers, or such other individuals, designated  by written notice to the Administrative Agent from the Borrowers, authorized to execute notices,  reports and other documents on behalf of the Borrowers required hereunder.  Either Borrower  may amend such list of individuals from time to time by giving written notice of such  amendment to the Administrative Agent.  “Availability Period” means the period following the Closing Date and ending on  November 24, 2021.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.  “Bail-In Legislation” means, with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the  European Union, the implementing law for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule.  “Base Rate” means, for any day, a fluctuating per annum rate of interest equal to the  highest of (i) the Federal Funds Open Rate, plus 0.5%, (ii) the Prime Rate, and (iii) the Daily  LIBOR Rate, plus 1.00%, so long as Daily LIBOR Rate is offered, ascertainable and not  unlawful; provided that, if the Base Rate as determined pursuant to clauses (i), (ii) or (iii) above  would be less than 0%, the Base Rate will be deemed to be 0% for the purposes of this  Agreement and the other Loan Documents.  Any change in the Base Rate (or any component  thereof) shall take effect at the opening of business on the day such change occurs.  The  





 






4  744308325  Administrative Agent will give notice promptly to each Borrower and the Lenders of changes in  the Base Rate.  “Base Rate Loan” means any Loan or portion thereof during any period in which it bears  interest at a rate determined with reference to the Base Rate.  “Beneficial Ownership Certification” means a certification regarding beneficial  ownership required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Borrower” has the meaning set forth in the preamble.  “Borrower Related Party” means, for purposes of Section 10.18 only, any Person (other  than a Restricted Subsidiary) (a) which directly or indirectly through one or more intermediaries  Controls, or is Controlled by, or is under common Control with, Triton Holdco, (b) which  beneficially owns or holds five percent (5%) or more of the equity interest of Triton Holdco or  (c) five percent or more of the equity interest of which is beneficially owned or held by Triton  Holdco or a Restricted Subsidiary.  “Borrowing” means Loans made by all Lenders on the same Business Day and pursuant  to the same Loan Request in accordance with Section 2.3 or 2.4 and any additional Loans made  pursuant to Section 2.8.  “Business Day” means any day other than a Saturday, Sunday or other day on which  commercial banks are authorized to close under the laws of, or are in fact closed in, (i) the state  where the Administrative Agent’s Office is located or (ii) New York, and, with respect to  LIBOR Rate Loans, means any such day on which dealings in Dollar deposits are conducted by  banks in the London interbank deposit market.  “Capital Stock”  means any and all shares, interests, participations or other equivalents  (however designated) of capital stock of a corporation, any and all equivalent ownership interests  in a Person (other than a corporation) and any and all warrants, rights or options to purchase any  of the foregoing.  “Casualty Loss” means, (x) with respect to Eligible Assets, any of the following: (a) such  Eligible Asset is lost, stolen or destroyed; (b) such Eligible Asset is damaged beyond repair or  permanently rendered unfit for use for any reason whatsoever; or (c) if such Eligible Asset is  subject to a lease agreement, such Eligible Asset shall have been deemed under such lease  agreement to have suffered a casualty loss.  “Casualty Receivables” means all rights of the Borrowers to payment for Eligible Assets  sold and all rights of the Borrowers to payment in connection with a Casualty Loss.  “Cessation Announcements” has the meaning set forth in Section 7.7(a).  “Change in Law” means the occurrence, after the Closing Date, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law,  





 






5  744308325  rule, regulation or treaty or in the administration, interpretation, implementation or application  thereof by any Official Body or (c) the making or issuance of any request, rule, guideline or  directive (whether or not having the force of law) by any Official Body; provided that  notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and  Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in  connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank  for International Settlements, the Basel Committee on Banking Supervision (or any successor or  similar authority) or the United States or foreign regulatory authorities, in each case pursuant to  Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted,  adopted or issued.  “Change of Control” means an event or series of events by which:  (a) Triton Holdco shall cease directly or indirectly to own 100% of the Voting  Stock of each Borrower (or Surviving Entity pursuant to Section 10.10); or  (b) any “person” or “group” of related persons (as such terms are used in  Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any  employee benefit plan of such person or its subsidiaries, and any person or entity acting  in its capacity as trustee, agent or other fiduciary or administrator of any such plan)  becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the  Securities Exchange Act of 1934), directly or indirectly, of more than 40% of the total of  all Voting Stock of Triton Holdco (or, if applicable, a Successor Holding Company (as  defined below));  provided, that notwithstanding the foregoing, a transaction will not be deemed to involve a  Change of Control solely as a result of Triton Holdco becoming a direct or indirect wholly  owned subsidiary of a holding company if the direct or indirect holders of the Voting Stock or  shares of such holding company immediately following that transaction are substantially the  same as the holders of Triton Holdco’s Voting Stock immediately prior to that transaction (and  such holders of Triton Holdco’s Voting Stock immediately prior to such transaction would not  have otherwise caused a Change of Control) (such an entity, a “Successor Holding Company”).  “Closing Date” means the date following execution and delivery of this Agreement on  which the conditions precedent in Section 11.1 have been satisfied or waived as provided therein.   “Code” means the United States Internal Revenue Code of 1986, as amended from time  to time (and any successor statute thereto), and the regulations promulgated and rulings  issued thereunder.  Section references to the Code are to the Code as in effect on the Closing  Date, and any subsequent provisions of the Code, amendments thereto or substitutions therefor.  “Commitment” means, for any Lender, such Lender’s commitment to make Loans under  this Agreement.  The amount of the Commitment of each Lender as of the Closing Date is set  forth on Schedule I, and such amount may be adjusted by increases of the Commitments  pursuant to assignments in accordance with Section 14.8.  “Commitment Increase” has the meaning set forth in Section 2.8(a).  





 






6  744308325  “Compliance Certificate” means a certificate substantially in the form of Exhibit D.  “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 Interest Expense” means, for any period, (a) the sum of (i) the aggregate of  the interest expense of Triton Holdco and its Consolidated Subsidiaries for such period, on a  consolidated basis, as determined in accordance with GAAP and (ii) all realized expenses on  non-designated Interest Rate Agreements which were recorded on the most recent income  statements of Triton Holdco, less (b) all amortization or accretion of original issue discount and  deferred finance charges.  “Consolidated Net Income” means for any period, the aggregate net income (or loss) of  Triton Holdco and its Consolidated Subsidiaries, for such period, determined in accordance with  GAAP; provided, that Triton Holdco’s, or any of its Consolidated Subsidiary’s, equity in the net  income of any Subsidiary of such Person that is not a Consolidated Subsidiary for such period  shall be included in such Consolidated Net Income up to the aggregate amount of cash actually  distributed by such Person during such period to Triton Holdco or such Consolidated Subsidiary  as a dividend or other distribution.  “Consolidated Subsidiaries” means, with respect to any Person, each Restricted  Subsidiary of such Person that is required to be consolidated with such Person in accordance  with GAAP.  “Consolidated Tangible Net Worth” means, as of the date of any determination thereof,   in each case based on the most recent Triton Holdco financial statements, (a) the sum of (x) total  shareholders’ equity of Triton Holdco and its Consolidated Subsidiaries, as determined in  accordance with GAAP (excluding any non-cash gain or loss on any interest rate protection  agreement or similar hedging agreement resulting from the requirements of FASB ASC No. 815  or any similar accounting standard), plus (y) all net deferred income tax liabilities on the balance  sheet of Triton Holdco plus (z) the amount set forth on Schedule II hereto in respect of the  relevant quarter, less (b) all Intangible Assets of Triton Holdco and its Consolidated Subsidiaries.  “Container Equipment” means intermodal dry van and special purpose cargo containers,  (including any generator sets or cooling units used with refrigerated containers, and any related  spare parts, and any substitutions, additions or replacements for, to or of any such associated  generator sets, gps units and refrigeration units) and all special purpose containers, open top  containers, flat rack containers, bulk containers, cellular palletwide containers, rolltrailers and all  other types of special containers and tank containers and chassis.  “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.  





 






7  744308325  “Consolidated EBIT” means, for any period, the sum of Consolidated Net Income, plus the following, without duplication, to the extent deducted in calculating such Consolidated Net  Income:  (a) all income tax expense of Triton Holdco and its Consolidated Subsidiaries,  all taxes incurred by Triton Holdco and its Consolidated Subsidiaries in respect of the  repatriation of income from jurisdictions outside the United States and all amounts paid  by Triton Holdco and its Consolidated Subsidiaries pursuant to the terms of any tax  sharing or similar agreement;  (b) the Consolidated Interest Expense plus, to the extent deducted from  Consolidated Interest Expense, any amortization or accretion of original issue discount  and deferred finance charges;  (c) depreciation and amortization charges of Triton Holdco and its  Consolidated Subsidiaries relating to any increased depreciation or amortization charges  resulting from purchase accounting adjustments or inventory write-ups with respect to  acquisitions or the amortization or write-off of deferred debt or equity issuance costs;  (d) all other non-cash charges of Triton Holdco and its Consolidated  Subsidiaries (other than depreciation expense) minus, with respect to any such non-cash  charge occurring on or after the Restatement Effective Date that was previously added in  a prior period to calculate Consolidated EBIT and that represents an accrual of or reserve  for cash expenditures in any future period, any cash payments made during such period;  (e) any non-capitalized costs incurred in connection with financings,  acquisitions of containers or chassis or dispositions (including financing and refinancing  fees and any premium or penalty paid in connection with redeeming or retiring  Indebtedness prior to the stated maturity thereof pursuant to the agreements governing  such Indebtedness);   (f) all non-cash expenses attributable to (i) earn-out agreements, (ii) stock  appreciation rights, (iii) “phantom” stock plans, (iv) employment agreements, (v) non- competition agreements and (vi) incentive and bonus plans entered into by Triton Holdco  or any of its Consolidated Subsidiaries for the benefit of, and in order to retain, directors,  executives, officers or employees of Persons or businesses;  (g) all non-cash losses with respect to any Interest Rate Agreement;   (h) any loss realized upon the sale or other disposition of assets (other than  Container Equipment and related assets) of Triton Holdco or any Consolidated  Subsidiary of Triton Holdco or any other Person (including pursuant to any sale-and- leaseback arrangement) which is not sold or otherwise disposed of in the ordinary course  of business and any loss realized upon the sale or other disposition of any equity interests  of any Person;  (i) cash related to any loss attributable to discontinued operations (including,  without limitation, operations disposed of during such period whether or not such  





 






8  744308325  operations were classified as discontinued) solely to the extent such cash is received by  Triton Holdco or any Consolidated Subsidiary;  (j) any adjustments, restructuring costs, non-recurring expenses, non- recurring fees, non-operating expenses, charges or other expenses (including bonus and  retention payments and non-cash compensation charges) made or incurred in connection  with the acquisition of a company or acquisitions of containers; and  (k) the aggregate of all expenditures (whether paid in cash or accrued as  liabilities) by Triton Holdco and its Consolidated Subsidiaries in establishing,  implementing, integrating or replacing financial, information technology and other  similar systems of Triton Holdco and its Consolidated Subsidiaries;  minus, the following, to the extent added when calculating Consolidated Net Income:  (l) all non-cash gains with respect to any Interest Rate Agreement;   (m)  any gain realized upon the sale or other disposition of assets (other than  containers and related assets) of Triton Holdco or any Consolidated Subsidiary of Triton  Holdco or any other Person (including pursuant to any sale-and-leaseback arrangement)  which is not sold or otherwise disposed of in the ordinary course of business and any gain  realized upon the sale or other disposition of any equity interests of any Person; and  (n) cash related to any gain attributable to discontinued operations (including,  without limitation, operations disposed of during such period whether or not such  operations were classified as discontinued) solely to the extent such cash is received by  Triton Holdco or any Consolidated Subsidiary;  in each case, for such period and as determined for Triton Holdco and its Consolidated  Subsidiaries in accordance with GAAP.  “Covered Entity” means, (a) each Loan Party and each of such Loan Party’s Subsidiaries,  and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a)  above.  For purposes of this definition, control of a Person shall mean the direct or indirect (x)  ownership of, or power to vote, 25% or more of the issued and outstanding equity interests  having ordinary voting power for the election of directors of such Person or other Persons  performing similar functions for such Person, or (y) power to direct or cause the direction of the  management and policies of such Person whether by ownership of equity interests, contract or  otherwise.  “Covered Party” has the meaning set forth in Section 14.26(b). “Daily LIBOR Rate” means, for any day, the rate per annum determined by the  Administrative Agent by dividing (x) the Published Rate by (y) a number equal to 1.00 minus the  LIBOR Reserve Percentage on such day.  “Debtor Relief Law” means the Bankruptcy Code of the United States, and all other  liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,  





 






9  744308325  rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the  United States or other applicable jurisdictions from time to time in effect and affecting the rights  of creditors generally.  “Default Rate” means an interest rate equal to (i) the Base Rate plus (ii) the Applicable  Margin, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, that with  respect to a LIBOR Rate Loan, the Default Rate shall be an interest rate equal to the interest rate  (including any Applicable Margin) otherwise applicable to such Loan plus 2% per annum.  “Defaulting Lender” means, subject to Section 5.1, any Lender that (a) has failed to (i)  fund all or any portion of its Loans within two Business Days of the date such Loans were  required to be funded hereunder unless such Lender notifies the Administrative Agent and the  Lead 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 or any other Lender any other amount required to be paid by it  hereunder within two (2) Business Days of the date when due, (b) has notified the Lead  Borrower, the Administrative Agent or any Lender in writing that it does not intend to comply  with its funding obligations hereunder, or has made a public statement to that effect (unless such  writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and  states that such position is based on such Lender’s determination that a condition precedent to  funding (which condition precedent, together with any applicable default, shall be specifically  identified in such writing or public statement) cannot be satisfied), (c) has failed, within three  Business Days after written request by the Administrative Agent or a Borrower, to confirm in  writing to the Administrative Agent and such Borrower that it will comply with its prospective  funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender  pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent  and such Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become  the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver,  custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar  Person charged with reorganization or liquidation of its business or assets, including the Federal  Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a  capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a  Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that  Lender or any direct or indirect parent company thereof by an Official Body 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 Official Body) to reject, repudiate, disavow or  disaffirm any contracts or agreements made with such Lender.  Any determination by the  Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a)  through (d) above, and of the effective date of such status, shall be conclusive and binding absent  manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section  5.1) upon delivery of written notice of such determination to the Borrowers and each Lender.  “Disqualified Person” means, on any date, (a) any marine container or chassis leasing  company or their respective subsidiaries, any other Person 30% or more of the issued and  outstanding equity securities of which are owned by a Disqualified Person, or any other Person  





 






10  744308325  that is a competitor of a Borrower or any of its Subsidiaries and has been designated by a  Borrower as a “Disqualified Person” by written notice to the Administrative Agent and the  Lenders and (b) any Affiliate of any Person described in clause (a) above; provided that  “Disqualified Person” shall exclude any Person that such Borrower has designated as no longer  being a “Disqualified Person” by written notice delivered to the Administrative Agent from time  to time.  “Dollars” and the sign “$” means lawful money of the United States.  “DQ List” has the meaning set forth in Section 14.8(b)(iv).  “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country that is subject to the supervision of an EEA Resolution  Authority, (b) any entity established in an EEA Member Country that is a parent of an institution  described in clause (a) of this definition, or (c) any financial institution established in an EEA  Member Country that is a subsidiary of an institution described in clause (a) or (b) of this  definition and is subject to consolidated supervision with its parent.  “EEA Member Country” means any of the member states of the European Union,  Iceland, Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any Person  entrusted with public administrative authority of any EEA Member Country (including any  delegee) having responsibility for the resolution of any EEA Financial Institution.  “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved  Fund; or (d) any other Person (other than a natural person) approved by (i) the Administrative  Agent and (ii) unless an Event of Default has occurred and is continuing, the Borrowers (each  such approval not to be unreasonably withheld or delayed); provided that notwithstanding the  foregoing, “Eligible Assignee” shall not include (w) a Defaulting Lender, (x) the Borrowers, (y)  any of the Borrowers’ Affiliates or Subsidiaries or (z) a Disqualified Person.  “Eligible Assets” means, with respect to the Borrowers and as of any relevant date of  determination, the sum of:  (A) the net investment of each Borrower in Finance Leases of Container  Equipment as recorded on such Borrower’s balance sheet (determined in accordance with  GAAP consistently applied);  (B) the sum of (x) each Borrower’s Container Equipment (not including the  Net Book Value, if any, of (A) any lost, stolen or destroyed Container Equipment to the  extent the aggregate Net Book Value thereof (calculated as though not lost, stolen or  destroyed) exceeds $250,000, and (B) any spare parts comprising any portion of  Container Equipment) minus (y) unsecured purchase money Indebtedness owed to a  vendor and trade payables incurred in connection with the acquisition of such Container  Equipment; and  





 






11  744308325  (C) the book value of Casualty Receivables at such time (as determined in  accordance with GAAP consistently applied) of the Borrowers which are outstanding for  one hundred twenty (120) days or less (excluding Casualty Receivables from Affiliated  Entities in excess of $5,000,000 in the aggregate);  in each case, calculated in accordance with GAAP; provided, that each such container shall be  free and clear of all Liens except for Permitted Encumbrances.  “Environmental Laws” means all applicable federal, state or local statutes, laws,  ordinances, codes, rules, regulations and guidelines (including consent decrees and  administrative orders) relating to public health and safety and protection of the environment.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended. “ERISA Affiliate” means any corporation, trade or business that is, along with TCIL or  TALICC, as applicable, a member of a controlled group of corporations or a controlled group of  trades or businesses, as described in sections 414(b) and 414(c), respectively, of the Code or  section 4001 of ERISA. “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the  withdrawal of a Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of  ERISA during a plan year in which such entity was a “substantial employer” as defined in  Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal  under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Borrower or any  ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is  insolvent (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan  amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the  PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes  grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to  administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk  plan Section 430 of the Code or Section 303 of ERISA; or (h) the imposition of any material  liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under  Section 4007 of ERISA, upon a Borrower or any ERISA Affiliate.  “Erroneous Payment” has the meaning set forth in Section 13.13(a).  “Erroneous Payment Notice” has the meaning set forth in Section 13.13(b).  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association, as in effect from time to time.  “Event of Default” means any of the events described in Section 12.  “Exchange Act” means the Securities Exchange Act of 1934, as in effect on the Closing  Date.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to any  recipient or required to be withheld or deducted from a payment to a recipient, (a) Taxes  





 






12  744308325  imposed on or measured by net income (however denominated), franchise Taxes, and branch  profits Taxes, in each case, (i) imposed as a result of such recipient being organized under the  laws of, or having its principal office or, in the case of any Lender, its lending office located in,  the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other  Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on  amounts payable to or for the account of such Lender with respect to an applicable interest in a  Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires  such interest in the Loan or Commitment (other than pursuant to an assignment request by the  Borrowers under Section 7.5) or (ii) such Lender changes its lending office, except in each case  to the extent that, pursuant to Section 7.6, 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 7.6(g) any U.S. federal withholding Taxes imposed  pursuant to FATCA.  “Executive Order No. 13224” means Executive Order No. 13224 on Terrorist Financing,  effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended,  amended or replaced.  “Existing Term Loan Agreement” has the meaning set forth in the recitals.  “Facility Usage” means, at any time of determination, the sum of the aggregate principal  balances of the Loans outstanding at such time.  “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) and any current or future regulations or official  interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the  Code. “Federal Funds Open Rate” means, for any day, the rate per annum (based on a year of  360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP  North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day  opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such  rate), or as set forth on such other recognized electronic source used for the purpose of  displaying such rate as selected by the Administrative Agent (for purposes of this definition, an  “Alternate Source”), or if such rate for such day does not appear on the Bloomberg Screen  BTMM (or any substitute screen) or on any Alternate Source, or if there shall at any time, for  any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or any  Alternate Source, a comparable replacement rate determined by the Administrative Agent at such  time (which determination shall be conclusive absent manifest error); provided however, that if  such day is not a Business Day, the Federal Funds Open Rate for such day shall be the “open”  rate on the immediately preceding Business Day.  If and when the Federal Funds Open Rate  changes, the rate of interest with respect to any advance to which the Federal Funds Open Rate  applies will change automatically without notice to the Borrower, effective on the date of any  such change.  





 






13  744308325  “Fee Letter” means the fee letter agreement, dated October 14, 2021, between the  Borrowers and the Administrative Agent.  “Finance Lease” means any lease classified as a “finance lease” under GAAP, but  excluding, for the avoidance of doubt, any Operating Lease.  “Finance Lease Obligations” means, as of the date of any determination thereof, the  amount at which the aggregate Rentals due and to become due under all Finance Leases under  which a Borrower or any of its Restricted Subsidiaries is a lessee would be reflected as a liability  on a consolidated balance sheet of such Borrower or any of its Restricted Subsidiaries.  “Fitch Rating” means with respect to any Person, (i) at any time the rating issued by Fitch  Ratings Inc. and then in effect with respect to Indebtedness under this Agreement (it being  understood that if such Person does not have a rating for such Indebtedness but has a rating from  Fitch Ratings Inc. for senior unsecured debt securities, then such rating shall be used for  determining the “Fitch Rating”) and (ii) the corporate family rating for such obligor’s corporate  family.   “FRB” means the Board of Governors of the Federal Reserve System of the United  States.  “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 business.  “Funding Date” means any Business Day during the Availability Period designated by a   Borrower as the day on which a Borrowing shall, subject to terms and conditions of this  Agreement, be made by the Lenders; provided, that the initial Funding Date shall occur no later  than thirty (30) days following the date of this Agreement.  “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, that are applicable to the circumstances as of the date  of determination, consistently applied.  “Guarantor” means Triton Holdco and any other guarantor party hereto from time to  time.  As of the Closing Date, Triton Holdco is the sole guarantor.  “Hedging Obligations” means, with respect to any Person, the obligations of such Person  under an Interest Rate Agreement.  “IBA” has the meaning set forth in Section 7.7(a).  “Increase Effective Date” see Section 2.8(d).  





 






14  744308325  “Indebtedness” of any Person means, without duplication, all obligations of such Person  which in accordance with GAAP shall be classified upon the balance sheet of such Person as  liabilities of such Person, and in any event shall include all (a) obligations of such Person for  borrowed money or which have been incurred in connection with the acquisition of property or  assets, (b) obligations secured by any Lien upon property or assets owned by such Person, even  though such Person has not assumed or become liable for the payment of such obligations, (c)  obligations created or arising under any conditional sale or other title retention agreement with  respect to property acquired by such Person, notwithstanding the fact that the rights and remedies  of the seller, lender or lessor under such agreement in the event of default are limited to  repossession or sale of property, (d) Finance Lease Obligations, (e) obligations of such Person  evidenced by bonds, debentures, notes or similar instruments, (f) obligations of such Person upon  which interest charges are customarily paid, (g) obligations of such Person issued or assumed as  the deferred purchase price of property or services, (h) obligations of such Person, actual or  contingent, as an account party in respect of letters of credit and bankers’ acceptances (other than  any such obligations in respect of undrawn amounts under letters of credit in respect of trade  payables), (i) obligations in respect of guarantees of Indebtedness set forth in clauses (a) through  (h); provided that trade payables, deferred rental income, repair service provision, deferred taxes,  taxes payable, payroll expenses and other accrued expenses incurred in the ordinary course of  business shall not constitute Indebtedness.  “Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of either Borrower under any  Loan Document, and (ii) to the extent not otherwise described in the preceding clause (i), Other  Taxes. “Indemnitee” has the meaning set forth in Section 14.5.  “Intangible Assets” means, with respect to any Person, all intangible assets of such  Person and shall include unamortized debt discount and expense, unamortized deferred charges  and goodwill.  “Interest Period” means the period of time selected by the Lead Borrower in connection  with (and to apply to) any election permitted hereunder by the Lead Borrower to have Loans bear  interest at the LIBOR Rate.  Subject to the last sentence of this definition, such period shall be  one, three or six Months.  Such Interest Period shall commence on the effective date of such  LIBOR Rate Loan, which shall be (i) the applicable Funding Date if the Lead Borrower is  requesting a LIBOR Rate Loan, or (ii) the date of renewal of or conversion to the LIBOR Rate  Loan if the Lead Borrower  is renewing or converting to LIBOR Rate Loans.  Notwithstanding  the second sentence hereof: (A) any Interest Period which would otherwise end on a date which  is not a Business Day shall be extended to the next succeeding Business Day unless such  Business Day falls in the next calendar month, in which case such Interest Period shall end on  the next preceding Business Day, and (B) the Lead Borrower shall not select, convert to or renew  an Interest Period for any portion of a LIBOR Rate Loan that would end after the Maturity Date.  “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap  agreement, interest rate collar agreement or other agreement intended to protect a Borrower  against fluctuations in the rate of interest on its Indebtedness for borrowed money.  





 






15  744308325  “Investment” means any investment, made in cash or by delivery of any kind of property  or asset, in any Person, whether by acquisition of shares of stock or similar interest, Indebtedness  or other obligation or security, or by loan, advance or capital contribution, or otherwise; provided  that, notwithstanding the foregoing, for purposes of calculating the financial covenants under this  Agreement, net investment in Finance Leases are not considered “Investments”.  “IRS” means the United States Internal Revenue Service. “ISP98” means the rules of the International Standby Practices (ICC Publication Number  590) as in effect from time to time.  “Laws” means, collectively, all international, foreign, federal, state and local statutes,  treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial  precedents or authorities, including the interpretation or administration thereof by any Official  Body charged with the enforcement, interpretation or administration thereof, and all applicable  administrative orders, directed duties, requests, licenses, authorizations and permits of, and  agreements with, any Official Body, in each case whether or not having the force of law.  “Lead Borrower” has the meaning set forth in the preamble.  “Lender” means the financial institutions named on Schedule I hereto and their respective  successors and assigns as permitted hereunder, each of which is referred to herein as a Lender.  “Lending Office” means, as to the Administrative Agent or any Lender, the office or  offices of such Person described as such in such Lender’s Administrative Questionnaire, or such  other office or offices as such Person may from time to time notify the Borrowers and the  Administrative Agent.  “Lessee” means a Person that is leasing or renting Container Equipment owned by the a  Borrower.  “Liabilities” means, without duplication, all obligations of the Loan Parties to the  Administrative Agent or any Lender under this Agreement, the Notes, any Interest Rate  Agreement with a Lender or any other Loan Document, howsoever created, arising or evidenced,  whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become  due.  “LIBOR Rate” means, for any Interest Period with respect to the Loans to which the  LIBOR Rate applies, the interest rate per annum determined by the Administrative Agent by  dividing (the resulting quotient rounded upwards to the nearest 1/100 of 1% per annum) (a) the  rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page  that displays rates at which US dollar deposits are offered by leading banks in the London  interbank deposit market), or the rate which is quoted by another source selected by the  Administrative Agent as an authorized information vendor for the purpose of displaying rates at  which US dollar deposits are offered by leading banks in the London interbank deposit market  (an “Alternate Source”), at approximately 11:00 a.m., London time, two (2) Business Days prior  to the commencement of such Interest Period as the London interbank offered rate for U.S.  Dollars for an amount comparable to such Loan and having a borrowing date and a maturity  





 






16  744308325  comparable to such Interest Period (or if there shall at any time, for any reason, no longer exist a  Bloomberg Page BBAM1 (or any substitute page) or any Alternate Source, a comparable  replacement rate determined by the Administrative Agent at such time (which determination  shall be conclusive absent manifest error)), by (b) a number equal to 1.00 minus the LIBOR  Reserve Percentage.  Notwithstanding the foregoing, if the LIBOR Rate as determined under any  method above would be less than zero percent (0.00%), such rate shall be deemed to be zero  percent (0.00%) for purposes of this Agreement.  The LIBOR Rate shall be adjusted with respect to any Loan to which the LIBOR Rate  applies that is outstanding on the effective date of any change in the LIBOR Reserve Percentage  as of such effective date.  The Administrative Agent shall give prompt notice to the Borrowers of  the LIBOR Rate as determined or adjusted in accordance herewith, which determination shall be  conclusive absent manifest error.  “LIBOR Rate Loan” means any Loan that bears interest at a rate determined with  reference to the LIBOR Rate.  “LIBOR Reserve Percentage” means as of any day the maximum effective percentage in  effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or  any successor) for determining the reserve requirements (including supplemental, marginal and  emergency reserve requirements) with respect to eurocurrency funding or in respect of  eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal  Reserve System in New York City.  “Lien” means any mortgage, pledge, hypothecation, judgment lien or similar legal  process, title retention lien, or other lien or security interest, including the interest of a vendor  under any conditional sale or other title retention agreement and the interest of a lessor under any  Finance Lease.  “Loan” has the meaning set forth in Section 2.1(a) and includes any additional loan made  pursuant to Section 2.8.  “Loan Documents” means this Agreement, the Notes, the Fee Letter, any Loan Request  and any other document, instrument or agreement at any time executed and delivered pursuant to  or in connection with any of the foregoing.  “Loan Party” means the Borrowers and the Guarantor.  “Loan Request” has the meaning set forth in Section 2.3(a).  “Majority Lenders” means, as of any date of determination, those Lenders having an  aggregate Percentage of more than 50%; provided that the Commitment of, and the aggregate  outstanding amount of all Loans held or deemed held by, any Defaulting Lender shall be  excluded for purposes of making a determination of Majority Lenders.  “Material Adverse Effect” means a material adverse effect upon (a) the business,  financial condition, operations or properties of the Loan Parties and their Subsidiaries, taken as a  





 






17  744308325  whole or (b) the Loan Parties’ ability to pay when due and/or perform their Liabilities under this  Agreement or any other applicable Loan Document.  “Material Subsidiary” means, on any date, any Subsidiary of a Loan Party that had more  than 10.0% of consolidated assets of Triton Holdco and its Consolidated Subsidiaries as reflected  on the most recent financial statements delivered pursuant to Section 10.1 prior to such date, in  each case excluding any Subsidiaries that are special purpose vehicles.  “Maturity Date” means the earlier to occur of (i) May 27, 2026 and (ii) the date on which  the Liabilities have been declared payable in accordance with the provisions of Section 12.2  hereof.  “Month” means, with respect to an Interest Period for any LIBOR Rate Loan, the interval  between the days in consecutive calendar months numerically corresponding to the first day of  such Interest Period.  If any LIBOR Rate Interest Period begins on a day of a calendar month for  which there is no numerically corresponding day in the month in which such Interest Period is to  end, the final month of such Interest Period shall be deemed to end on the last Business Day of  such final month.  “Multiemployer Plan.” means an employee benefit plan of the type described in Section  4001(a)(3) of ERISA, to which a Borrower or any ERISA Affiliate makes or is obligated to  make contributions, or during the preceding five (5) plan years, has made or been obligated to   make contributions.  “Net Book Value” means with respect to a Borrower’s Container Equipment or Eligible  Assets, as applicable, as of any date of determination, an amount equal to the original equipment  cost thereof, less all accumulated depreciation thereof, determined as of the last day of the most  recently ended fiscal month, in each case, as determined in accordance with GAAP.  “Note” means a promissory note made by the Borrowers, as applicable, in favor of a  Lender substantially in the form of Exhibit A.  “OFAC” means the Office of Foreign Assets Control of the United States Department of  the Treasury.  “Official Body” means the government of the United States of America or any other  nation, or of any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality, regulatory body, court, central bank or other entity exercising executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  government (including any supra-national bodies such as the European Union or the European  Central Bank) and any group or body charged with setting financial accounting or regulatory  capital rules or standards (including the Financial Accounting Standards Board, the Bank for  International Settlements or the Basel Committee on Banking Supervision or any successor or  similar authority to any of the foregoing).   “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 solely from such Recipient having executed, delivered,  





 






18  744308325  become a party to, performed its obligations under, received payments under, received or  perfected a security interest under, engaged in any other transaction pursuant to or enforced any  Loan Document, or sold or assigned an interest in any Loan or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 7.5).   “Participant” has the meaning set forth in Section 14.10.  “Participant Register” has the meaning set forth in Section 14.10.  “Payment Date” means (a) with respect to any Base Rate Loan, the last Business Day of  each month, and (b) with respect to any LIBOR Rate Loan, the last day of the Interest Period  applicable to the Borrowing of which such LIBOR Rate Loan is a part and, in the case of a  Borrowing of a LIBOR Rate Loan with an Interest Period of more than three months’ duration,  each day prior to the last day of such Interest Period that occurs at intervals of three (3) months’  duration after the first day of such Interest Period.  “PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to  any or all of its functions under ERISA.  “Pension Plan” means a “pension plan”, as such term is defined in section 3(2) of ERISA,  which is subject to Title IV of ERISA (other than a Multiemployer Plan), and to which a  Borrower or any ERISA Affiliate has liability, including any liability by reason of having been a  substantial employer within the meaning of section 4063 of ERISA at any time during the  preceding five years, or by reason of being deemed to be a contributing sponsor under section  4069 of ERISA.  “Percentage” means, with respect to any Lender, the percentage which such Lender’s  Commitment is of the Aggregate Commitment Amount (or, if the Commitments have  terminated, the percentage which such Lender’s Loans is of the aggregate principal amount of all  outstanding Loans).  “Permitted Business” means the purchase, operation, management, administration,  storage, leasing, financing and sale of equipment and other capital assets which are used in  connection with the intermodal transportation of freight by containers and related assets and any  activities that are substantially similar, related, complementary, ancillary or incidental thereto.  Such equipment and other capital assets shall include, without limitation, intermodal containers,  containers, port equipment, harbor vessels, trucks, cranes and other equipment and other capital  assets used in connection with the container related transportation of freight. The logistics  business, management services business, the purchase and resale business, the static storage  business, the finance lease business and all other businesses and activities engaged in by a  Borrower or its Subsidiaries or Affiliates on the Closing Date, and any activities that are  





 






19  744308325  substantially similar, related, complementary, ancillary or incidental thereto or extensions  thereof, are also deemed to be a Permitted Business.  “Permitted Encumbrances” means (a) Liens for current taxes, assessments, governmental  charges or levies not delinquent or taxes, assessments, governmental charges or levies being  contested in good faith and by appropriate proceedings and as to which such reserves or other  appropriate provisions as may be required by GAAP are being maintained, (b) carriers’,  warehousemen’s, mechanics’, materialmen’s, repairmen’s, seamen’s, stevedores’, wharfinger’s,  landlord’s, supplies’ and other like statutory liens arising in the ordinary course of business  securing obligations which are not overdue for a period of more than 30 days after receipt of  notice thereof or which are being contested in good faith and by appropriate proceedings and as  to which such reserves or other appropriate provisions as may be required by GAAP are being  maintained, (c) the interest of a Lessee in Container Equipment leased or rented to such Lessee,  and (d) Liens resulting from final judgments or orders that, individually and in the aggregate, are  less than the amount described in Section 12.1(i) (solely to the extent that such Liens arise from  judgments, decrees or attachments in respect of which a Borrower shall in good faith be  prosecuting an appeal or proceedings for review and in respect of which there shall have been  secured a subsisting stay of execution pending such appeal or proceedings (including in  connection with the deposit of cash or other property in connection with the issuance of stay and  appeal bonds)).  “Permitted Liens” means Liens permitted under Section 10.17.  “Permitted Securitization” means any secured lending facility entered into by an ABS  Subsidiary solely for the purpose of purchasing, financing or refinancing of assets of one or more  Borrowers, provided that (i) any Indebtedness incurred in connection with such facility is non- recourse to the Loan Parties or any of their respective Subsidiaries (other than such ABS  Subsidiary) and their respective assets, (ii) other than the initial Investment in such ABS  Subsidiary, none of the Loan Parties or any of their respective Subsidiaries is required to make  additional Investments in such ABS Subsidiary, and (iii) none of the Loan Parties or any of their  respective Subsidiaries has any obligation to maintain such ABS Subsidiary’s financial condition  or cause such ABS Subsidiary to achieve certain levels of operating results other than any  obligation of the Loan Parties or any of their respective Subsidiaries has as an equipment  manager of Container Equipment with respect to such ABS Subsidiary.  “Permitted Transaction” means any of the following transactions:  (a) any lease agreement in the ordinary course of business;  (b) any merger, consolidation, dissolution or liquidation of any Restricted  Subsidiary of a Borrower with and into such Borrower (so long as such Borrower is the  surviving corporation of such merger, consolidation, dissolution or liquidation);  (c) any merger, consolidation, dissolution or liquidation of any Restricted  Subsidiary of a Borrower with and into any other Restricted Subsidiary of such  Borrower;  





 






20  744308325  (d) any sale, assignment, transfer, conveyance or other disposition of assets by  any Restricted Subsidiary of a Borrower to such Borrower or any other Restricted  Subsidiary of such Borrower;  (e) any disposition of used, obsolete, uneconomic, worn-out or surplus assets  of a Borrower and its Restricted Subsidiaries in the ordinary course of business;  (f) any sale, assignment, transfer, conveyance or other disposition by a  Borrower or any Restricted Subsidiary of such Borrower of Container Equipment or other  assets to their respective Lessees in the ordinary course of business pursuant to (A) a  Finance Lease that is originated in the ordinary course of business, (B) a purchase option  contained in any lease agreement with such Lessee that was originated in the ordinary  course of business or (C) any other arm’s length transaction with a Person that is not an  Affiliate of such Borrower entered into in the ordinary course of business;   (g) any transaction pursuant to which a Borrower and/or any of its Restricted  Subsidiaries sells, conveys or otherwise transfers, or grants a security interest in,  containers, leases and other related assets to an ABS Subsidiary or other special purpose  vehicle or any other Person (other than a Borrower or Subsidiary of a Borrower) in  connection with a securitization; provided that no Borrower or Restricted Subsidiary of a  Borrower (other than an ABS Subsidiary or other special purpose vehicle) has any  obligation to maintain such entity’s financial condition or cause such entity to achieve  certain levels of operating results (other than those related to or incidental to the relevant  securitization) and none of the holders of the related Indebtedness shall have recourse to  any Borrower or any of its Restricted Subsidiaries (other than an ABS Subsidiary or other  special purpose vehicle) for credit losses on leases or the inability of the containers or  chassis, in each case subject to the securitization, to generate sufficient cash flow to repay  such Indebtedness issued by such entity; and  (h) any other sale or disposition by such Borrower or any Restricted  Subsidiary of such Borrower of Container Equipment or other assets that will result in net  sales proceeds (after deducting any costs incurred in connection with each such sale) of  not less than the sum of the net book values, determined in accordance with GAAP, of  the Container Equipment or other assets that were sold.  “Person” means an individual, partnership, corporation, limited liability company, trust,  joint venture, joint stock company, association, unincorporated organization, government or  agency or political subdivision thereof or other entity.  “PNC Bank” means PNC Bank, National Association, and its successors.  “Prime Rate” means the interest rate per annum announced from time to time by the  Administrative Agent at its Principal Office as its then prime rate, which rate may not be the  lowest or most favorable rate then being charged commercial borrowers or others by the  Administrative Agent.  Any change in the Prime Rate shall take effect at the opening of business  on the day such change is announced.  





 






21  744308325  “Principal Office” means the main banking office of the Administrative Agent in  Pittsburgh, Pennsylvania.  “Principal Payment Amount” means, for each Principal Payment Date, two percent  (2.00%) of the aggregate outstanding principal amount of the Loans as of the initial Principal  Payment Date, subject to (i) adjustment pursuant to Section 6.2(c)(iii) and (ii) increase pursuant  to Section 2.8.  “Principal Payment Date” means (i) the last Business Day of each of March, June,  September and December, commencing on the earlier of the last day of the calendar quarter in  which the Availability Period ends or the last day of the calendar quarter in which the aggregate  Commitments are fully drawn and (ii) the Maturity Date.  “Published Rate” means the rate of interest published each Business Day in The Wall  Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a  one month period (or, if no such rate is published therein for any reason, then the Published Rate  shall be the rate at which U.S. dollar deposits are offered by leading banks in the London  interbank deposit market for a one month period as published in another publication selected by  the Administrative Agent).  “QFC Credit Support” has the meaning set forth in Section 14.26(a).  “Recipient” means (a) the Administrative Agent and (b) any Lender, as applicable.  “Register” has the meaning set forth in Section 14.9.  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the  partners, directors, officers, employees, agents and advisor of such Person and such Person’s  Affiliates.  “Remaining Lenders” has the meaning set forth in Section 7.5.  “Rentals” means all fixed rents (including as such all payments which the lessee is  obligated to make to the lessor on termination of the lease or surrender of the property) payable  by a Borrower or a Restricted Subsidiary, as lessee or sublessee under a lease of real or personal  property, but shall be exclusive of any amounts required to be paid by a Borrower or a Restricted  Subsidiary (whether or not designated as rents or additional rents) on account of maintenance,  utilities, repairs, insurance, taxes and similar charges.  Fixed rents under any so-called  “percentage lease” shall be computed solely on the basis of the minimum rents, if any, required  to be paid by the lessee, regardless of sales volume or gross revenues.  “Reportable Compliance Event” means that any Covered Entity becomes a Sanctioned  Person, or is charged by indictment, criminal complaint or similar charging instrument,  arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate  crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it  is reasonably likely that any aspect of its operations is in actual or probable violation of any  Anti-Terrorism Law.  





 






22  744308325  “Reportable Event” means any of the events set forth in Section 4043 of ERISA, other  than event for which the thirty (30) day notice period has been waived.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.  “Restricted Subsidiary” means any Subsidiary that is not an Unrestricted Subsidiary.  “S&P” means S&P Global Ratings, acting through Standard & Poor’s Financial Services  LLC.   “S&P Rating” means, with respect to any Person, at any time (i) the rating issued by  S&P and then in effect with respect to Indebtedness under this Agreement (it being understood  that if such Person does not have a rating for such Indebtedness but has a rating from S&P for  senior unsecured debt securities, then such rating shall be used for determining the “S&P  Rating”) and (ii) the corporate family rating for such obligor’s corporate family. “Sanctioned Country” means a country subject to a sanctions program maintained under  any Anti-Terrorism Law. “Sanctioned Person” means (a) a Person named on the list of “Specially Designated  Nationals and Blocked Persons” maintained by OFAC available at  http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, or as otherwise  published from time to time, (b) a Person named on the lists maintained by the European Union  available at http://eeas.europa.eu/cfsp/sanctions/consol-list_en.htm, or as otherwise published  from time to time, (c) a Person named on the lists maintained by Her Majesty’s Treasury  available at http://www.hm-treasury.gov.uk/fin_sanctions_index.htm, or as otherwise published  from time to time, (d) a Person that is specifically targeted by any other relevant sanctions  authority of a jurisdiction in which TCIL or TALICC or any of their respective Subsidiaries  conduct business, (e) (i) an agency of the government of, or an organization controlled by, a  Sanctioned Country, to the extent such agency or organization is subject to a sanctions program  administered by OFAC, or (ii) a Person located, organized or resident in a Sanctioned Country,  to the extent such Person is subject to a sanctions program administered under any Anti- Terrorism Law or (f) a Person controlled by any such Person set forth in clauses (a) through (e)  above. “Secondary Term SOFR Conversion Date” has the meaning set forth in Section 7.7(g).  “Security” has the meaning given to such term in Section 2(1) of the Securities Act of  1933.  “Subsidiary” means any Person of which or in which a Borrower and its other  Subsidiaries own directly or indirectly more than 50% of (a) the combined voting power of all  classes of stock having general voting power under ordinary circumstances to elect a majority of  the board of directors of a Person which is a corporation, (b) the capital, membership or profits  interest of a Person which is a limited liability company, partnership, joint venture or similar  entity, or (c) the beneficial interest of a Person which is a trust, association or other  unincorporated organization.  





 






23  744308325  “Supported QFC” has the meaning set forth in Section 14.26(a).  “Surviving Entity” has the meaning set forth in Section 10.10(a).  “TALICC” has the meaning set forth in the preamble.  “Taxes” with respect to any Person means all present and future taxes, levies, imposts,  duties, deductions, withholdings, assessments, fees or other charges imposed by any Official  Body upon such Person, its income or any of its properties, franchises or assets.  “TCIL” has the meaning set forth in the preamble.  “TCIL Credit Agreement” means the Eleventh Restated and Amended Credit Agreement,  dated as of October 14, 2021, among the Borrowers, the Guarantor, various financial institutions  and Bank of America, N.A., as administrative agent (as amended, restated, supplemented or  otherwise modified from time to time). “Termination Event” with respect to any Pension Plan means (a) the institution by a  Borrower, the PBGC or any other Person of steps to terminate such Pension Plan, (b) the  occurrence of a Reportable Event with respect to such plan which the Majority Lenders  reasonably believe may be a basis for the PBGC to institute steps to terminate such Pension Plan  or (c) the withdrawal from such Pension Plan (or deemed withdrawal under section 4062(e) of  ERISA) by a Borrower or any ERISA Affiliate if such Borrower or such ERISA Affiliate is a  substantial employer within the meaning of section 4063 of ERISA.  “Total Debt” means the sum of (a) the principal amount outstanding under all  Indebtedness of Triton Holdco and its Consolidated Subsidiaries, including capitalized lease  obligations and (b) all accrued interest on, and fees in respect of, such Indebtedness.   Notwithstanding anything to the contrary herein, Indebtedness consisting of Hedging Obligations  shall not be included in the calculation of Total Debt.  “Total Debt Ratio” means, with respect to Triton Holdco and its Consolidated  Subsidiaries the ratio of Total Debt to Consolidated Tangible Net Worth.   “Trade Date” has the meaning set forth in Section 14.8(a)(i)(B).  “Triton Holdco” means Triton International Limited (an exempted company limited by  shares incorporated in Bermuda).  “Type” means, relative to any Borrowing or Loan, the characterization thereof as a  LIBOR Rate Loan or a Base Rate Loan.  “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.  





 






24  744308325  “UK Resolution Authority”  means the Bank of England or any other public  administrative authority having responsibility for the resolution of any UK Financial Institution.  “Unencumbered Assets Coverage Ratio” means, at any time, with respect to the  Borrowers the ratio of (a) the sum of the Net Book Value of Eligible Assets of such Persons at  such time to (b) the result of (i) the aggregate outstanding amount of unsecured Indebtedness of  such Persons at such time (other than Indebtedness consisting of Hedging Obligations), minus  (ii) all unencumbered and unrestricted cash held by such Persons in accounts of such Persons on  such date of determination.  “United States” and “U.S.” mean the United States of America.  “Unmatured Event of Default” means an event or condition which with the lapse of time  or giving of notice, or both, would constitute an Event of Default.  “Unrestricted Subsidiary” means (a) with respect to a Borrower, any Subsidiary identified  as an “Unrestricted Subsidiary” of such Borrower in Schedule 9.9 and (b) any Subsidiary that is  designated by a Borrower as an “Unrestricted Subsidiary” in accordance with the procedures set  forth in Section 10.26.   “Unused Fee” means an unused fee payable on the first Principal Payment Date in an  amount equal to the Unused Fee Percentage times the daily amount by which the Aggregate  Commitment Amount exceeds the Facility Usage.  The Unused Fee shall be calculated for the  period commencing on the sixtieth (60th) day following the Closing Date to the day before the  earlier of the next Principal Payment Date or the end of the Availability Period, as the case may  be.  “Unused Fee Percentage” means the applicable percentage set forth in the definition of  Applicable Margin.  “USA Patriot Act” means the Uniting and Strengthening America by Providing  Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107- 56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.  “U.S. Person” means any Person that is a “United States Person” as defined in Section  7701(a)(30) of the Code.  “U.S. Special Resolutions Regime” has the meaning set forth in Section 14.26(a).  “U.S. Tax Compliance Certificate” has the meaning set forth in Section 7.6(g)(ii)(2)(c).   “Voting Stock” means, with respect to any Person, any Security of any class or classes of  such Person the holders of which are ordinarily, in the absence of contingencies, entitled to elect  a majority of the directors (or Persons performing similar functions) of such Person.  “Wholly-owned” when used in connection with any Subsidiary means a Subsidiary of  which all of the issued and outstanding shares of stock (except shares required as directors’ and  alternate directors’ qualifying shares) or partnership interests, as the case may be, and all  





 






25  744308325  Indebtedness for borrowed money shall be owned by the Borrowers and/or one or more of its  Wholly-owned Subsidiaries.  “Withholding Agent” means the Borrowers and the Administrative Agent.  “Write-Down and Conversion Powers” means, with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time  to time under the Bail-In Legislation for the applicable EEA Member Country, which write- down and conversion powers are described in the EU Bail-In Legislation Schedule.  1.2 Accounting Terms.  (a) Generally.  All accounting terms not specifically or completely defined  herein shall be construed in conformity with, and all financial data (including financial  ratios and other financial calculations) required to be submitted pursuant to this  Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as  in effect from time to time, applied in a manner consistent with that used in preparing the  Audited Financial Statements, except as otherwise specifically prescribed herein.  (b) Changes in GAAP.  If at any time any change in GAAP would affect the  computation of any financial ratio or requirement set forth in any Loan Document, and  any Loan Party or the Majority Lenders shall so request, the Administrative Agent, the  Lenders and the Loan Parties 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 Majority Lenders); provided that, until so amended,  (i) such ratio or requirement shall continue to be computed in accordance with GAAP  prior to such change therein and (ii) the Loan Parties 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.  1.3 Other Interpretive Provisions.  With reference to this Agreement and each  other Loan Document, unless otherwise specified herein or in such other Loan Document:  (a) The definitions of terms herein shall apply equally to the singular and  plural forms of the terms defined.  Whenever the context may require, any pronoun shall  include the corresponding masculine, feminine and neuter forms.  The words “include,”  “includes” and “including” shall be deemed to be followed by the phrase “without  limitation”.  The word “will” shall be construed to have the same meaning and effect as  the word “shall”.  Unless the context requires otherwise, (i) any definition of or reference  to any agreement, instrument or other document (including any organization document)  shall be construed as referring to such agreement, instrument or other document as from  time to time amended, amended and restated, supplemented or otherwise modified  (subject to any restrictions on such amendments, supplements or modifications set forth  herein or in any other Loan Document), (ii) any reference herein to any Person shall be  construed to include such Person’s successors and assigns, (iii) the words “herein,”  





 






26  744308325  “hereof” and “hereunder,” and words of similar import when used in any Loan  Document, shall be construed to refer to such Loan Document in its entirety and not to  any particular provision thereof, (iv) all references in a Loan Document to Articles,  Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to  Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the  Loan Document in which such references appear, (v) any reference to any law shall  include all statutory and regulatory provisions consolidating, amending, replacing or  interpreting such law and any reference to any law or regulation shall, unless otherwise  specified, refer to such law or regulation as amended, modified or supplemented from  time to time, and (vi) the words “asset” and “property” shall be construed to have the  same meaning and effect and to refer to all tangible and intangible assets and properties,  including cash, securities, accounts and contract rights.  (b) In the computation of periods of time from a specified date to a later  specified date, the word “from” means “from and including;” the words “to” and “until”  each mean “to but excluding;” and the word “through” means “to and including”.  (c) Any reference to a “fiscal quarter” or a “fiscal year” means, respectively, a  fiscal quarter or fiscal year of Triton Holdco and its Subsidiaries.  (d) Section headings herein and in the other Loan Documents are included for  convenience of reference only and shall not affect the interpretation of this Agreement or  any other Loan Document.  1.4 Times of Day.  Unless otherwise specified, all references herein to times of day  shall be references to Eastern time zone (daylight or standard, as applicable).  1.5 Joint and Several Liability.  Each Borrower is jointly and severally liable under  this Agreement for all Liabilities including Liabilities incurred by TCIL under the Existing Term  Loan Agreement, regardless of the manner or amount in which proceeds of the Loans are used,  allocated, shared or disbursed by or among the Borrowers themselves, or the manner in which  the Administrative Agent and/or any Lender accounts for such Loans or other extensions of  credit in its book and records.  Notwithstanding the foregoing, all Loans shall be funded to and  received by the Lead Borrower, and the Lead Borrower shall account for such Loans or other  extensions of credit in its books and records consistent with such funding.  1.6 Designation of Lead Borrower as Borrower’s Agent.  (a) Each Borrower hereby irrevocably designates and appoints the Lead  Borrower as such Borrower’s agent to receive notices on behalf of any Borrower, and on  a nonexclusive basis, without prohibiting any Borrower to act on its own account, to  obtain Loans, the proceeds of which shall be available to each Borrower for such uses as  are permitted under this Agreement.  As the disclosed principal for its agent, each  Borrower shall be obligated to the Administrative Agent and each Lender on account of  Loans so made as if made directly by the Lenders to such Borrower, notwithstanding the  manner by which such Loans are recorded on the books and records of the Lead  Borrower and of any other Borrower.  





 






27  744308325  (b) The Lead Borrower shall act as a conduit for each Borrower (including  itself, as a Borrower) on whose behalf the Lead Borrower has requested a Loan.  None of  the Administrative Agent nor any Lender or Issuer shall have any obligation to see to the  application of such proceeds.  (c) The authority of the Lead Borrower to request Loans on behalf of, and to  bind, the Borrowers, shall continue unless and until the Administrative Agent actually  receives written notice of: (i) the termination of such authority, and (ii) the subsequent  appointment of a successor Lead Borrower, which notice is signed by the respective  Authorized Officer of each Borrower; and (iii) written notice from such successive Lead  Borrower accepting such appointment and acknowledging that from and after the date of  such appointment, the newly appointed Lead Borrower shall be bound by the terms  hereof, and that as used herein, the term “Lead Borrower” shall mean and include the  newly appointed Lead Borrower.  SECTION 2. COMMITMENTS OF THE LENDERS.  Subject to the terms and conditions of this Agreement, each Lender, severally but not  jointly, agrees to make Loans, as described in this Section 2.  2.1 Commitments to Make Loans.  (a) Each Lender, severally but not jointly, agrees to make term loans to the  Borrowers (collectively the “Loans” and each individually a “Loan”) from time to time  during the Availability Period, in the amount that the Borrowers may request (as set forth  in Section 2.3) up to, but not exceeding, after giving effect to such Loan and all other  outstanding Loans of such Lender, the unused portion of such Lender’s Commitment;  provided, that the sum of the Loans advanced by the Lenders under this Section 2.1 shall  not exceed the Aggregate Commitment Amount.  (b) All Loans shall be made by the Lenders on a pro rata basis, calculated for  each Lender based on its Percentage.  2.2 Loan Options.  Each Loan shall be a LIBOR Rate Loan or a Base Rate Loan,  as selected by the Lead Borrower.  During any period that any Event of Default or Unmatured  Event of Default exists, the Lead Borrower shall no longer have the option of electing LIBOR  Rate Loans, and during such period all Loans shall be automatically converted to (on the last day  of the Interest Period therefor) Base Rate Loans only, it being understood, however, that the  foregoing shall not be construed to waive, amend or modify any right or power of the Lenders  and the Administrative Agent hereunder, including all rights to terminate the Commitments and  declare the Loans immediately due and payable.  2.3 Borrowing Procedures.  (a) Loan Requests.  The Lead Borrower shall give the Administrative Agent  notice by (x) telephone (promptly confirmed in writing substantially in the form of  Exhibit C (a “Loan Request”)) or (y) by delivering a Loan Request, not later than 11:00  a.m. at least (i) three (3) Business Days (or such later date agreed to by the  





 






28  744308325  Administrative Agent and Majority Lenders) prior to the requested Funding Date or, in  the case of a continuation or conversion, the continuation or conversion date, as  applicable, in the instance of a Borrowing of LIBOR Rate Loans (or continuation or  conversion, as applicable) or (ii) one (1) Business Day prior to the requested Funding  Date in the instance of a Borrowing of Base Rate Loans, of each requested Borrowing,  and the Administrative Agent shall promptly advise each Lender of its receipt of such  Loan Request; provided, that each such Loan Request shall be in a minimum amount of  Fifty Million Dollars ($50,000,000).  Each Loan Request from the Lead Borrower to the  Administrative Agent shall specify (i) the aggregate amount of the Borrowing requested  (or continued or converted, as applicable), (ii) the Type of Loans being borrowed,  continued or converted, as applicable, and (iii) if such Borrowing, continuation or  conversion is of LIBOR Rate Loans, the Interest Period with respect thereto (subject to  the limitations set forth in the definition of Interest Period).  Any Loan Request not  specifying the Type of Borrowing shall be deemed a request for a Borrowing of LIBOR  Rate Loans.  The Lead Borrower shall make no more than four (4) Borrowings during the  Availability Period.  (b) Funding of Administrative Agent.  Not later than 11:00 a.m. on the  Funding Date of each Borrowing, each Lender shall provide the Administrative Agent at  the Administrative Agent’s Office (or such other place as the Administrative Agent shall  designate from time to time) with immediately available funds covering such Lender’s  Percentage of such Borrowing and the Administrative Agent shall pay over such funds to  the Lead Borrower upon the Administrative Agent’s receipt of the documents, if any,  required under Section 11 with respect to such Loan and provided all of the conditions  precedent to the funding of the requested Loans have been satisfied.  2.4 Continuation of LIBOR Rate Loans.  Subject to Section 2.2, each LIBOR Rate  Loan shall automatically continue as a LIBOR Rate Loan on the last day of the current Interest  Period for such LIBOR Rate Loan for an Interest Period of equivalent duration, unless paid in  full on such last day, or unless one or more of the conditions in Section 7.2 are in effect, in which  case such LIBOR Rate Loan shall convert into a Base Rate Loan, to begin on the last day of such  current Interest Period.  Each continuation of LIBOR Rate Loans shall be pro-rated among the  applicable outstanding Loans of all Lenders.  2.5 Maturity of Loans.  Unless required to be sooner paid pursuant to the other  provisions of this Agreement, the Loans shall mature and be due and payable in full on the  Maturity Date.  2.6 Obligations of Lenders Several.  The obligations of each Lender hereunder to  make its Loan and to make payments pursuant to this Agreement are several and not joint.  The  failure of any Lender to make its Loan or to make any payment under this Agreement on any  date required hereunder shall not relieve any other Lender of its corresponding obligation to do  so on such date, and no Lender shall be responsible for the failure of any other Lender to so  make its Loan or to make its payment under this Agreement.  





 






29  744308325  2.7 Term Loan Facility.  The credit facility evidenced by this Agreement is a term  loan facility.  Accordingly, the Lead Borrower will not have the right to reborrow any amounts  repaid or prepaid to the Lenders in accordance with the terms of this Agreement.  2.8 Optional Increase in Term Loan Facility.  (a) The Lead Borrower may at any time, and from time to time, after the  Closing Date and prior to the end of the Availability Period, by a written notice to the  Administrative Agent (which shall promptly notify the Lenders), request that the  Aggregate Commitment Amount be increased (a “Commitment Increase”) by an amount  (in aggregate for all such requests) not to exceed Two Hundred Million Dollars  ($200,000,000) and each such Commitment Increase shall be in the minimum amount of  Twenty Million Dollars ($20,000,000).  At the time of sending such notice, the Lead  Borrower (in consultation with the Administrative Agent) shall specify the time period  within which each Lender is requested to respond (which shall in no event be less than  ten (10) Business Days from the date of delivery of such notice to the Lenders), the  amortization schedule of each additional Loan made pursuant to this Section 2.8.  Any  additional Loan will amortize at the same annual rate of amortization as the Loans that  are in effect when such additional Loan is funded.  Such annual rate of amortization on  the initial Loan will be calculated by comparing the annual aggregate scheduled principal  payments of the initial Loan to the unpaid principal balance of such initial Loan at the  time the additional Loan is funded.  (b) Each Lender shall notify the Administrative Agent within such time period  whether or not it agrees to increase its Commitment and, if so, whether by an amount  equal to, greater than or less than its applicable Percentage of such requested increase.   Any Lender that fails to respond within such time period shall be deemed to have  declined to increase its Commitment.  (c) The Administrative Agent shall notify the Lead Borrower and each Lender  of the Lenders’ responses to each request made hereunder.  To achieve the full amount of  a requested increase and subject to the approval of the Administrative Agent (which  approval shall not be unreasonably withheld, delayed or conditioned), the Lead Borrower  may also invite one or more Eligible Assignees to become parties hereto as Lenders  (each, an “Additional Lender”).  (d) If the Commitments are increased in accordance with this Section, the  Administrative Agent and Lead Borrower shall mutually determine the effective date (the  “Increase Effective Date”) and the final allocation of such increase.  The Administrative  Agent shall promptly notify the Lead Borrower and the Lenders of the final allocation of  such increase and the Increase Effective Date.  (e) As a condition precedent to any Commitment Increase:  (i) the Lead Borrower shall deliver to the Administrative Agent a  certificate signed by an Authorized Officer of such Borrower dated as of the  Increase Effective Date, stating that, with respect to the Borrower: (A) the  





 






30  744308325  representations and warranties contained in Section 9 are true and correct on and  as of such Increase Effective Date, before and after giving effect to the  Commitment Increase, as though made on and as of such Increase Effective Date,  (B) no Material Adverse Effect has occurred since the date of the financial  statements most-recently delivered pursuant to Section 10.1(a), (C) no Unmatured  Event of Default or Event of Default exists before or after giving effect to such  additional Loan and (D) the Borrowers shall be in pro forma compliance with all  covenants set forth in Sections 10.12, 10.13 and 10.14 hereof; and  (ii) on or before such Increase Effective Date, the Administrative  Agent shall have received, for further distribution to each Lender (including each  Additional Lender) a joinder agreement dated as of such Increase Effective Date  from each Additional Lender, if any, in form and substance reasonably  satisfactory to the Lead Borrower and the Administrative Agent.  (f) On each Increase Effective Date, upon fulfillment of the conditions set  forth in Section 2.8(e), (i) the Administrative Agent shall notify the Lenders (including  each Additional Lender) and the Lead Borrower of the occurrence of the Commitment  Increase to be effected on such Increase Effective Date, (ii) each applicable Additional  Lender shall become a party to this Agreement with the rights and obligations of a  “Lender” hereunder, (iii) the Administrative Agent shall record in the Register the  relevant information with respect to each Additional Lender on such date and (iv)  Schedule I shall be deemed amended to reflect the applicable Commitment Increase.   Each Additional Lender shall, before 11:00 a.m. on the Increase Effective Date, make  available for the account of its applicable lending office to the Administrative Agent at  the Administrative Agent’s Office, in same day funds, an aggregate amount to be  distributed to the other Lenders for the account of their respective applicable lending  offices such that, after giving effect to such distribution, each Lender has a ratable share  (calculated based on its Commitment as a percentage of the Aggregate Commitment  Amount after giving effect to such Commitment Increase) of the Loans.  The Principal  Payment Amounts for each Payment Date shall be increased to reflect this Commitment  Increase as necessary based on the amortization schedule provided by the Borrowers  pursuant to Section 2.8(a).  Each Borrower acknowledges that, in order to maintain the  Loans in accordance with each Lender’s ratable share thereof, a reallocation of the  Commitments as a result of a non-pro rata increase in the Aggregate Commitment  Amount may require prepayment of all or portions of the Loans on the date of such  increase (and any such prepayment shall be subject to the provisions of Section 6.2).  SECTION 3. EVIDENCE OF LOANS.  (a) The Loans made by each Lender shall be evidenced by one or more  accounts or records maintained by such Lender and by the Administrative Agent in the  ordinary course of business.  The accounts or records maintained by the Administrative  Agent and each Lender shall be conclusive absent manifest error of the amount of the  Loans made by the Lenders to the Borrowers 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 either Borrower hereunder to pay any amount owing with respect to the  





 






31  744308325  Liabilities.  In the event of any conflict between the accounts and records maintained by  any 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.  (b) Upon the request of any Lender made through the Administrative Agent,  the Borrowers shall execute and deliver to such Lender (through the Administrative  Agent) a Note which shall evidence such Lender’s Loans in addition to such accounts or  records.  Each Lender may attach schedules to its Note and endorse thereon the date,  Type and amount of each of its Loans, the Interest Period therefor (if applicable) and  payments with respect thereto.  SECTION 4. PRINCIPAL PAYMENT AMOUNTS, INTEREST AND FEES.  4.1 Principal Payment Amounts.  On each Principal Payment Date during the term  of this Agreement, the Borrowers shall repay the Loans in an amount equal to the Principal  Payment Amount.  The aggregate principal balances of the Loans, together with accrued interest  thereon and all other amounts owed by the Borrowers pursuant to the terms of the Loan  Documents, shall be payable in full on the earlier to occur of (i) the scheduled Maturity Date and  (ii) the date on which the Liabilities have been declared payable in accordance with the  provisions of Section 12.2 hereto.  4.2 Interest.  Subject to Section 4.3 and Section 7.7,  (a) Base Rate Loans.  The unpaid principal of the Base Rate Loans shall bear  interest prior to maturity at a rate per annum equal to the sum of (i) the Base Rate in  effect from time to time plus (ii) the Applicable Margin in effect from time to time,  payable on each Payment Date and at maturity.  (b) LIBOR Rate Loans.  The unpaid principal of the LIBOR Rate Loans shall  bear interest prior to maturity at a rate per annum equal to the sum of (i) the LIBOR Rate  in effect for each applicable Interest Period plus (ii) the Applicable Margin in effect from  time to time, payable on each Payment Date and at maturity.  (c) Maximum Interest Rate.  The amount of interest charged on the Loans  shall be subject to the provisions of Section 14.21 hereto.  4.3 Default Interest.  The Borrowers shall pay interest on any amount of principal  of any Loan which is not paid when due, whether at stated maturity, by acceleration or  otherwise, after as well as before judgment, accruing from the date such amount shall have  become due to the date of payment thereof in full at the Default Rate.  Interest after maturity  shall be payable on demand.  4.4 Fees.  The Borrowers shall pay to the Administrative Agent and the Lenders,  for their own respective accounts, on (i) the Closing Date the fees described in the Fee Letter,  and (ii) on the first Principal Payment Date, the Unused Fee, if any.  





 






32  744308325  4.5 Method of Calculating Interest and Fees.  Interest calculated based on the  Prime Rate shall be computed on the basis of a year consisting of 365 or 366 days, as the case  may be, and paid for actual days elapsed, calculated as to each applicable period from the first  day thereof to the last day thereof.  All other interest and fees shall be computed on the basis of a  year consisting of 360 days and paid for actual days elapsed, calculated as to each applicable  period from the first day thereof to the last day thereof.  SECTION 5. DEFAULTING LENDERS.  5.1 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 specified in the definition of “Majority Lenders”  and Section 14.2.  (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  Section 12 or otherwise) or received by the Administrative Agent from a  Defaulting Lender pursuant to Section 6.3 shall be applied at such time or times  as may be determined by the Administrative Agent as follows: first, to the  payment of any amounts owing by such Defaulting Lender to the Administrative  Agent hereunder; second, as the Borrowers may request (so long as no Potential  Default or Event of Default exists), to the funding of any Loan in respect of which  such Defaulting Lender has failed to fund its portion thereof as required by this  Agreement, as determined by the Administrative Agent; third, so long as no  Potential Default or Event of Default exists, to the payment of any amounts owing  to the Borrowers as a result of any judgment of a court of competent jurisdiction  obtained by a Borrower against such Defaulting Lender as a result of such  Defaulting Lender's breach of its obligations under this Agreement; and fourth, to  such Defaulting Lender or as otherwise directed by a court of competent  jurisdiction; provided that if (x) such payment is a payment of the principal  amount of any Loans in respect of which such Defaulting Lender has not fully  funded its appropriate share, and (y) such Loans were made or at a time when the  conditions specified in Section 11.1 were satisfied or waived, such payment shall  be applied solely to pay the Loans of, owed to, all Non-Defaulting Lenders on a  pro rata basis prior to being applied to the payment of any Loans of, owed to, such  Defaulting Lender until such time as all Loans to Non-Defaulting Lenders are in  proportion to its Percentage. 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 and each Lender irrevocably consents hereto.  





 






33  744308325  (b) Defaulting Lender Cure.  If the Lead Borrower and the Administrative  Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative  Agent will so notify the parties hereto, whereupon as of the effective date specified in  such notice and subject to any conditions specified therein, that Lender will, to the extent  applicable, purchase at par that portion of outstanding Loans of the other Lenders or take  such other actions as the Administrative Agent may determine to be necessary to cause  the Loans and funded to be held on a pro rata basis by the Lenders in accordance with the  Commitments under the applicable Facility, 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 either 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.  SECTION 6. PAYMENTS, OFFSETS, PREPAYMENTS AND REDUCTION OR  TERMINATION OF THE COMMITMENTS.  6.1 Payments Generally.  Except as otherwise specified in this Agreement, all  payments hereunder (including payments with respect to the Loans) shall be made without set- off or counterclaim and shall be made in coin or currency of the United States which at the time  of payment shall be legal tender for the payment of public and private debts in immediately  available funds by the Borrowers to the Administrative Agent for the account of the Lenders, pro  rata according to the unpaid principal amounts of the Loans held by them.  All such payments  shall be made to the Administrative Agent, prior to 1:00 p.m. on the date due at the  Administrative Agent’s Office or at such other place as may be designated by the Administrative  Agent to the Borrowers in writing.  Any payment received after 1:00 p.m. shall be deemed  received on the next Business Day.  The Administrative Agent shall promptly remit in  immediately available funds to each Lender its share of all such payments received by the  Administrative Agent for the account of such Lender.  Whenever any payment to be made  hereunder or under any Note shall be stated to be due on a date other than a Business Day, such  payment may be made on the next succeeding Business Day, and such extension of time shall be  included in the computation of payment of interest or any fees.  For purposes of the imposition of  any tax (other than taxes on net income and franchises), levy, charge or withholding of any  nature or any variation thereof or any penalty with respect to the maintenance or fulfillment of  the Borrowers’ obligations under this Agreement, whether directly or by such being imposed on  or suffered by the Administrative Agent or any Lender, all payments hereunder shall be made  from sources within the United States by the Borrowers.  Any payments or prepayments to be  applied to the outstanding amount of any Loans shall be applied to the Loans held by the Lenders  that are not Defaulting Lenders ratably (based upon the outstanding amount of all Loans held by  all Lenders that are not Defaulting Lenders) until each Lender (including any Defaulting Lender)  has its Percentage of all of the outstanding amount of the Loans, and the balance, if any, of such  payments or prepayments shall be applied to the Loans of all Lenders in accordance with their  respective Percentages.  6.2 Prepayments.  





 






34  744308325  (a) [Reserved].  (b) Optional.  (i) General Prepayments.  Each Borrower may from time to time  (subject to the notice and minimum prepayment provisions set forth in this  clause (i)), upon prior written or electronic notice, in the form attached as Exhibit  G hereto, received by the Administrative Agent (which shall promptly advise each  Lender thereof, in any case not later than one (1) Business Day after the  Administrative Agent has received the notice) at least three (3) Business Days  prior to any prepayment of LIBOR Rate Loans and one (1) Business Day prior to  any prepayment of Base Rate Loans, prepay the principal of the Loans in whole  or in part without premium or penalty; provided that (x) any partial prepayment of  principal pursuant to this clause (b)(i) shall be in a minimum amount of $500,000  and (y) any prepayment of a LIBOR Rate Loan on a day other than the last day of  an Interest Period therefor shall be subject to Section 7.3.    (ii) Special Prepayments.  Either Borrower may from time to time  prepay without premium or penalty, except as provided in Section 7.3, any Loan  pursuant to the provisions of Section 7.5.  Any prepayment of the principal of the  Loans pursuant to this clause (b)(ii) shall include accrued interest to the date of  prepayment on the principal amount being prepaid.  (c) Prepayments Generally; Application.  (i) Any prepayment pursuant to Section 6.2(a) or 6.2(b) above shall be  applied to such Loans as the applicable Borrower shall direct or, in the absence of  such direction: first, to any LIBOR Rate Loan with an Interest Period ending on  the date of such prepayment, second, to any Base Rate Loans outstanding on such  date, and third, to such other Loans as the Administrative Agent may reasonably  determine.  (ii) Each prepayment under this Section 6.2 shall be made together  with accrued interest and any additional amount which is payable pursuant to  Section 7.1, Section 7.3 or otherwise hereunder.  (iii) Each prepayment under this Section 6.2 shall be applied to reduce  all remaining scheduled Principal Payment Amounts (including the Principal  Payment Amount due on the Maturity Date) by a fraction, stated as a percentage,  the numerator of which is the amount of such prepayment and the denominator of  which is equal to the aggregate unpaid principal balance of all Loans immediately  prior to such prepayment.  (iv) Each Borrower shall promptly confirm in writing any telephonic  notice of prepayment in writing.  The Administrative Agent will promptly notify  each Lender of its receipt of any notice of a prepayment and of the amount of  such Lender’s prepayment, in any case at the latest one Business Day after the  Administrative Agent has received notice thereof.  





 






35  744308325  (v) For the avoidance of doubt, no prepayment of any portion of the  principal balances of the Loans may be reborrowed by the Borrowers.  6.3 Offset.  In addition to and not in limitation of all rights of offset that any  Lender may have under applicable law, each Lender shall, upon the occurrence of any Event of  Default described in Section 12.1 or any Unmatured Event of Default described in  Section 12.1(c), have the right to appropriate and apply to the payment of the Liabilities owing to  it (whether or not due) any and all balances, credits, deposits, accounts or moneys of the Loan  Parties then or thereafter with such Lender or any Affiliate thereof, and each such Affiliate is  hereby irrevocably authorized to permit such setoff, provided that any such appropriation and  application shall be subject to the provisions of Section 6.4.  6.4 Proration of Payments.  If any Lender shall obtain any payment or other  recovery (whether voluntary, involuntary, by application of offset or otherwise) on account of  any Loan in excess of its pro rata share of payments and other recoveries obtained by all Lenders  on account of all Loans (including after giving effect to the loss of any payment or recovery by  any other Lender), such Lender shall purchase from the other Lenders such participations in the  Loans held by them as shall be necessary to cause such purchasing Lender to share the excess  payment or other recovery pro rata with each of them; provided that if all or any portion of the  excess payment or other recovery is thereafter recovered from such purchasing Lender, the  purchase shall be rescinded and the purchase price restored to the extent of such recovery, but  without interest unless the Lender from which such payment is recovered is required to pay  interest thereon, in which case each Lender which is required to restore such purchase price shall  pay its pro rata share of such interest.  The Borrowers agree that any Lender so purchasing a  participation from the other Lenders under this Section 6.4 may, to the fullest extent permitted by  law, exercise all its rights of payment (including the right of set-off pursuant to Section 6.3) with  respect to such participation as fully as if such Lender were the direct creditor of the Borrowers  in the amount of such participation.  If under any applicable bankruptcy, insolvency or other  similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies,  such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in  a manner consistent with the rights of the Lenders entitled under this Section to share in the  benefits of any recovery on such secured claim.  6.5 [Reserved].  SECTION 7. ADDITIONAL PROVISIONS RELATING TO EURODOLLAR RATE  LOANS; CAPITAL ADEQUACY; TAXES.  7.1 Increased Cost.  (a) Increased Costs Generally.  If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit,  compulsory loan, insurance charge or similar requirement against assets of,  deposits with or for the account of, or credit extended or participated in by, any  Lender (except any reserve requirement reflected in the LIBOR Rate);  





 






36  744308325  (ii) subject any Recipient to any Taxes (other than (A) Indemnified  Taxes, (B) Taxes described in clauses (b) through (d) of the definition of  Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal,  letters of credit, commitments, or other obligations, or its deposits, reserves, other  liabilities or capital attributable thereto; or  (iii) impose on any Lender or the London interbank market any other  condition, cost or expense (other than Taxes) affecting this Agreement or Loans  made by such Lender or participation therein;  and the result of any of the foregoing shall be to increase the cost to such Lender or such  other Recipient of making, converting to, continuing or maintaining any Loan or of  maintaining its obligation to make any such Loan, or to increase the cost to such Lender,  or to reduce the amount of any sum received or receivable by such Lender or other  Recipient hereunder (whether of principal, interest or any other amount) then, upon  request of such Lender or other Recipient, the Borrowers will pay to such Lender or other  Recipient, as the case may be, such additional amount or amounts as will compensate  such Lender or the Issuing Lender or other Recipient, as the case may be, for such  additional costs incurred or reduction suffered.  (b) Capital Requirements.  If any Lender determines that any Change in Law  affecting such Lender or any Lending Office of such Lender or such Lender’s or the  Issuing Lender’s holding company, if any, regarding capital or liquidity requirements has  or would have the effect of reducing the rate of return on such Lender’s capital or on the  capital of such Lender’s holding company, if any, as a consequence of this Agreement,  the Commitments of such Lender or the Loans made by, to a level below that which such  Lender or such Lender’s holding company could have achieved but for such Change in  Law (taking into consideration such Lender’s policies and the policies of such Lender’s  holding company with respect to capital adequacy), then from time to time the Borrowers  will pay to such Lender such additional amount or amounts as will compensate such  Lender or such Lender’s holding company for any such reduction suffered.  (c) Certificates for Reimbursement.  A certificate of a Lender setting forth the  amount or amounts necessary to compensate such Lender or its holding company, as the  case may be, as specified in paragraph (a) or (b) of this Section and delivered to the  Borrowers shall be conclusive absent manifest error.  The Borrowers shall pay such  Lender the amount shown as due on any such certificate within ten (10) days after receipt  thereof.  (d) Delay in Requests.  Failure or delay on the part of any Lender Issuing  Lender to demand compensation pursuant to this Section shall not constitute a waiver of  such Lender’s right to demand such compensation, provided that the Borrowers shall not  be required to compensate a Lender pursuant to this Section for any increased costs  incurred or reductions suffered more than nine (9) months prior to the date that such  Lender, notifies the Borrowers of the Change in Law giving rise to such increased costs  or reductions and of such Lender’s intention to claim compensation therefor (except that,  if the Change in Law giving rise to such increased costs or reductions is retroactive, then  





 






37  744308325  the nine (9) month period referred to above shall be extended to include the period of  retroactive effect thereof).  7.2 LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not  Available; LIBOR Undesirable.  (a) Unascertainable.  If on any date on which a LIBOR Rate would otherwise  be determined, the Administrative Agent shall have determined that:  (i) adequate and reasonable means do not exist for ascertaining such  LIBOR Rate, or  (ii) a contingency has occurred which materially and adversely affects  the London interbank eurodollar market relating to the LIBOR Rate,  then the Administrative Agent shall have the rights specified in Section 7.2(c).  (b) Illegality; Increased Costs; Deposits Not Available.  If at any time any  Lender shall have determined that:  (i) the making, maintenance or funding of any Loan to which the  LIBOR Rate Option applies has been made impracticable or unlawful by  compliance by such Lender in good faith with any Law or any interpretation or  application thereof by any Official Body or with any request or directive of any  such Official Body (whether or not having the force of Law), or  (ii) such LIBOR Rate will not adequately and fairly reflect the cost to  such Lender of the establishment or maintenance of any such Loan, or  (iii) after making all reasonable efforts, deposits of the relevant amount  in Dollars for the relevant Interest Period for a Loan, or to banks generally, to  which the LIBOR Rate applies, respectively, are not available to such Lender with  respect to such Loan, or to banks generally, in the interbank eurodollar market,  then the Administrative Agent shall have the rights specified in Section 7.2(c).  (c) Administrative Agent’s and Lender’s Rights.  In the case of any event  specified in Section 7.2 (a) above, the Administrative Agent shall promptly so notify the  Lenders and the Borrowers thereof, and in the case of an event specified in Section 7.2  (b) above, such Lender shall promptly so notify the Administrative Agent and endorse a  certificate to such notice as to the specific circumstances of such notice, and the  Administrative Agent shall promptly send copies of such notice and certificate to the  other Lenders and the Borrowers.  Subject to Section 7.7, upon such date as shall be  specified in such notice (which shall not be earlier than the date such notice is given), the  obligation of (i) the Lenders, in the case of such notice given by the Administrative  Agent, or (ii) such Lender, in the case of such notice given by such Lender, to allow the  Borrowers to select, convert to or renew a LIBOR Rate Loan shall be suspended until the  Administrative Agent shall have later notified the Borrowers, or such Lender shall have  





 






38  744308325  later notified the Administrative Agent, of the Administrative Agent’s or such Lender’s,  as the case may be, determination that the circumstances giving rise to such previous  determination no longer exist.  If at any time the Administrative Agent makes a  determination under Section 7.2(a) and the Borrowers have previously notified the  Administrative Agent of their selection of, conversion to or renewal of a LIBOR Rate  Loan and such interest rate election has not yet gone into effect, such notification shall be  deemed to provide for selection of, conversion to or renewal of such Loan as a Base Rate  Loan.  If any Lender notifies the Administrative Agent of a determination under  Section 7.2(b), the Borrowers shall, subject to the Borrowers’ indemnification obligations  under Section 7.3, as to any LIBOR Rate Loan of the Lender applies, on the date  specified in such notice either convert such LIBOR Rate Loan to a Base Rate Loan  otherwise available with respect to such Loan or prepay such Loan in accordance with  Section 6.2.  Absent due notice from the Borrowers of conversion or prepayment, such  Loan shall automatically be converted to a Base Rate Loan otherwise available with  respect to such Loan upon such specified date.  7.3 Indemnity.  The Borrowers will jointly and severally indemnify each Lender  against any loss or expense which such Lender may sustain or incur, including any loss or  expense sustained or incurred in obtaining, liquidating or employing deposits or other funds  acquired to effect, fund or maintain a Loan, due to (a) any failure by the Borrowers to make any  payment when due of any amount due hereunder in connection with a LIBOR Rate Loan, (b) any  payment or prepayment (including any prepayment pursuant to Section 7.3 or 7.5) of any LIBOR  Rate Loan on a date other than the last day of the Interest Period for such Loan, (c) any  assignment of a LIBOR Rate Loan on a day other than the last day of the Interest Period therefor  as a result of a request by the Borrowers pursuant to Section 7.5, or (d) any failure to convert a  LIBOR Rate Loan into a Base Rate Loan if required hereunder.  If any Lender sustains or incurs  any such loss or expense, it shall from time to time notify the Borrowers, in writing, of the  amount determined in good faith by such Lender (which determination may include such  assumptions, allocations of costs and expenses and averaging or attribution methods as such  Lender shall deem reasonable) to be necessary to indemnify such Lender for such loss or  expense.  Such notice shall set forth in reasonable detail the basis for such determination.  Such  amount shall be due and payable by the Borrowers to such Lender ten (10) Business Days after  such notice is given.  7.4 Designation of a Different Lending Office.  If any Lender requests  compensation under Section 7.1, or either Borrower is or will be required to pay any Indemnified  Taxes or additional amounts to any Lender or any Official Body for the account of any Lender  pursuant to Section 7.6, then such Lender shall (at the request of the Lead 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 7.1 or Section 7.6, 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.  Each Borrower hereby agrees to pay all  reasonable costs and expenses incurred by any Lender in connection with any such designation  or assignment.  





 






39  744308325  7.5 Special Prepayment; Replacement of Lender.  If any Lender makes any  demand for payment of any amount pursuant to Sections 7.1, 7.2 or 7.6, gives any notice  pursuant to Section 7.2 or 7.3 or is a Defaulting Lender (any such Lender, an “Affected  Lender”), then the Borrowers may, with the prior written consent of the Administrative Agent,  either (i) reduce or terminate the Commitments of such Affected Lender and immediately prepay  the applicable outstanding Liabilities owed to such Affected Lender (or all outstanding  Liabilities owed to such Affected Lender in the case of a termination) so that, after giving effect  to such prepayment, such Affected Lender has a pro rata share (based on its revised Percentage  after giving effect to such reduction) of the outstanding Loans, together with all accrued and  unpaid interest thereon, and/or (ii) cause such Affected Lender to assign its Commitments, its  Loans and its interest in this Agreement and the other Loan Documents to one or more other  Eligible Assignees (any such assignee, together with all Lenders other than such Affected  Lender, the “Remaining Lenders”) selected by the Borrowers and acceptable to the  Administrative Agent.  Any assignment made pursuant to clause (ii) above shall be in  accordance with Section 14.8 (but without giving effect to any provision of such Section which  restricts the minimum or maximum amount which is permitted to be assigned).  Any Affected  Lender that is replaced pursuant to clause (ii) of this Section 7.5 shall be entitled to receive (x)  from such Eligible Assignees to which its Commitments and Loans are assigned, its pro rata  share (based on its Percentage prior to giving effect to such assignment) of the outstanding Loans  and (y) from the Borrowers, all accrued and unpaid interest thereon, any other outstanding  Liabilities owed to such Lender (to the extent not paid pursuant to the immediately preceding  clause (x)), and any additional amount which is payable pursuant to Section 7.1 or otherwise  hereunder.  If any reduction or termination of any Affected Lender’s Commitment is made pursuant  to clause (i) above, then (A) the Aggregate Commitment Amount shall be reduced by an amount  equal to the aggregate amount of the Commitment so reduced or terminated, and (B) each  Remaining Lender’s (and, in the case of a reduction, such Affected Lender’s) share or percentage  of the Aggregate Commitment Amount, as so reduced, shall be deemed proportionately adjusted;  it being understood that the amount of any Lender’s Commitment (as opposed to any Lender’s  share or percentage of the Aggregate Commitment Amount) shall not at any time be increased  without the consent of such Lender.  7.6 Taxes. (a) FATCA.  For purposes of this Section 7.6, the term “applicable Law”  includes FATCA.  (b) Payments Free of Taxes.  Any and all payments by or on account of any  obligation of either Borrower 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 Official Body in accordance with applicable Law and, if such Tax is an  Indemnified Tax, then the sum payable by the Borrowers shall be increased as necessary  





 






40  744308325  so that after such deduction or withholding of Indemnified Taxes has been made  (including such deductions and withholdings applicable to additional sums payable under  this Section 7.6) the applicable Recipient receives an amount equal to the sum it would  have received had no such deduction or withholding of Indemnified Taxes been made.  (c) Payment of Other Taxes by the Borrowers.  Each Borrower shall timely  pay to the relevant Official Body in accordance with applicable Law, or at the option of  the Administrative Agent timely reimburse it for the payment of, any Other Taxes.  (d) Indemnification by the Borrowers.  The Borrowers shall jointly and  severally indemnify each Recipient, within ten (10) days after demand therefor, for the  full amount of any Indemnified Taxes applicable to any Borrower (including Indemnified  Taxes imposed or asserted on or attributable to amounts payable under this Section 7.6)  payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient and any reasonable expenses arising therefrom or with respect thereto,  whether or not such Indemnified Taxes were correctly or legally imposed or asserted by  the relevant Official Body.  A certificate as to the amount of such payment or liability  delivered to the Lead Borrower by a Lender (with a copy to the Administrative Agent), or  by the Administrative Agent on its own behalf or on behalf of a Lender, shall be  conclusive absent manifest error.  (e) Indemnification by the Lenders.  Each Lender shall severally indemnify  the Administrative Agent, within ten (10) days after demand therefor, for (i) any  Indemnified Taxes attributable to such Lender (but only to the extent that no Borrower  has already indemnified the Administrative Agent for such Indemnified Taxes and  without limiting the obligation of each Borrower to do so), (ii) any Taxes attributable to  such Lender’s failure to comply with the provisions of Section 14.10 relating to the  maintenance of a Participant Register, and (iii) any Excluded Taxes attributable to such  Lender, in each case, that are payable or paid by the Administrative Agent in connection  with any Loan Document, and any reasonable expenses arising therefrom or with respect  thereto, whether or not such Taxes were correctly or legally imposed or asserted by the  relevant Official Body.  A certificate as to the amount of such payment or liability  delivered to any Lender by the Administrative Agent shall be conclusive absent manifest  error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any  and all amounts at any time owing to such Lender under any Loan Document or  otherwise payable by the Administrative Agent to the Lender from any other source  against any amount due to the Administrative Agent under this Section 7.6(e).  (f) Evidence of Payments.  As soon as practicable after any payment of Taxes  by a Borrower to an Official Body pursuant to this Section 7.6 the Borrowers shall  deliver to the Administrative Agent the original or a certified copy of a receipt issued by  such Official Body evidencing such payment, a copy of the return reporting such  payment or other evidence of such payment reasonably satisfactory to the Administrative  Agent.  (g) Status of Lenders.    





 






41  744308325  (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 a Borrower and the Administrative Agent, at the time or times  reasonably requested by a Borrower or the Administrative Agent, such properly  completed and executed documentation reasonably requested by a 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 a Borrower or the Administrative Agent, shall deliver  such other documentation prescribed by applicable Law or reasonably requested  by such Borrower or the Administrative Agent as will enable such 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 specified  in Section 7.6.(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 a  Borrower is a U.S. Person,  (1) any Lender that is a U.S. Person shall deliver to such  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 such Borrower or the  Administrative Agent), executed originals of IRS Form W-9 certifying  that such Lender is exempt from U.S. federal backup withholding tax;  (2) any Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to such 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 such Borrower or the Administrative Agent), whichever of the  following is applicable:  a. 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-E (or W- 8BEN if applicable) establishing an exemption from, or reduction  of, U.S. federal withholding Tax pursuant to the “interest” article  of such tax treaty and (y) with respect to any other applicable  payments under any Loan Document, IRS Form W-8BEN-E (or  W-8BEN if applicable) establishing an exemption from, or  





 






42  744308325  reduction of, U.S. federal withholding Tax pursuant to the  “business profits” or “other income” article of such tax treaty;  b. executed originals of IRS Form W-8ECI;  c. in the case of a Foreign Lender claiming the  benefits of the exemption for portfolio interest under Section  881(c) of the Code, (x) a certificate substantially in the form of  Exhibit H-1 to the effect that such Foreign Lender is not (A) a  “bank” within the meaning of Section 881(c)(3)(A) of the Code,  (B) a “10 percent shareholder” of the Borrowers within the  meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled  foreign corporation” described in Section 881(c)(3)(C) of the Code  (a “U.S. Tax Compliance Certificate”) and (y) executed originals  of IRS Form W-8BEN-E (or W-8BEN if applicable); or  d. to the extent a Foreign Lender is not the beneficial  owner, executed originals of IRS Form W-8IMY, accompanied by  IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN if  applicable), a U.S. Tax Compliance Certificate substantially in the  form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other  certification documents from each beneficial owner, as applicable;  provided that if the Foreign Lender is a partnership and one or  more direct or indirect partners of such Foreign Lender are  claiming the portfolio interest exemption, such Foreign Lender  may provide a U.S. Tax Compliance Certificate substantially in the  form of Exhibit H-4 on behalf of each such direct and indirect  partner;  (3) any Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to such 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 a Borrower or the Administrative Agent), executed originals of any  other form prescribed by applicable Law as a basis for claiming exemption  from or a reduction in U.S. federal withholding Tax, duly completed,  together with such supplementary documentation as may be prescribed by  applicable Law to permit such Borrower or the Administrative Agent to  determine the withholding or deduction required to be made; and  (4) if a payment made to a Lender under any Loan Document  would be subject to U.S. federal withholding Tax imposed by FATCA if  such Lender were to fail to comply with the applicable reporting  requirements of FATCA (including those contained in Section 1471(b) or  1472(b) of the Code, as applicable), such Lender shall deliver to a  Borrower and the Administrative Agent at the time or times prescribed by  





 






43  744308325  law and at such time or times reasonably requested by such 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 a Borrower or the  Administrative Agent as may be necessary for such 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 such Borrower and the Administrative Agent in writing of its legal  inability to do so.  (h) Treatment of Certain Refunds.  If any party determines, in its sole  discretion exercised in good faith, that it has received a refund of any Taxes as to which it  has been indemnified pursuant to this Section 7.6 (including by the payment of additional  amounts pursuant to this Section 7.6), 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 7.6 with respect to the Taxes giving rise to such refund), net of all out-of-pocket  expenses (including Taxes) of such indemnified party incurred in connection with  obtaining such refund and without interest (other than any interest paid by the relevant  Official Body with respect to such refund).  Such indemnifying party, upon the request of  such indemnified party, shall repay to such indemnified party the amount paid over  pursuant to this Section 7.6 (h) (plus any penalties, interest or other charges imposed by  the relevant Official Body) in the event that such indemnified party is required to repay  such refund to such Official Body.  Notwithstanding anything to the contrary in this  Section 7.6 (h), in no event will the indemnified party be required to pay any amount to  an indemnifying party pursuant to this Section 7.6 (h) the payment of which would place  the indemnified party in a less favorable net after-Tax position than the indemnified party  would have been in if the Tax subject to indemnification and giving rise to such refund  had not been deducted, withheld or otherwise imposed and the indemnification payments  or additional amounts with respect to such Tax had never been paid.  This paragraph shall  not be construed to require any indemnified party to make available its Tax returns (or  any other information relating to its Taxes that it deems confidential) to the indemnifying  party or any other Person.  (i) Survival.  Each party’s obligations under this Section 7.6 shall survive the  resignation of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender, the termination of the Commitments and the repayment,  satisfaction or discharge of all Liabilities.  7.7 Benchmark Replacement Setting.Announcements Related to LIBOR.  On  March 5, 2021, the ICE Benchmark Administration, the administrator of LIBOR (the  





 






44  744308325  “IBA”) and the U.K. Financial Conduct Authority, the regulatory supervisor for the IBA,  announced in a public statement the future cessation or loss of representativeness of  overnight/Spot Next, 1-month, 3-month, 6-month and 12-month USD LIBOR tenor  settings (collectively, the “Cessation Announcements”).  (b) Benchmark Replacement. Notwithstanding anything to the contrary herein  or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in  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 consultation with the Lead Borrower, in  accordance with clause (1) or (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 consultation with the  Lead Borrower, in accordance with clause (3) 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 Majority Lenders.  (c) 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.  (d) Notices; Standards for Decisions and Determinations. The Administrative  Agent will promptly notify the Lead Borrower and the Lenders of (1) any occurrence of a  Benchmark Transition Event (other than a Benchmark Transition Event with respect to  USD LIBOR resulting from the Cessation Announcements), a Term SOFR Transition  Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement  Date, (2) the implementation of any Benchmark Replacement, (3) the effectiveness of  any Benchmark Replacement Conforming Changes, (4) the removal or reinstatement of  any tenor of a Benchmark pursuant to paragraph (e) below and (5) 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 titled “Benchmark Replacement Setting,”  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  





 






45  744308325  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 titled “Benchmark Replacement Setting.”  (e) 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), (1) if the then-current Benchmark is a  term rate (including Term SOFR or USD LIBOR ) and either (A) any tenor for such  Benchmark is not displayed on a screen or other information service that publishes such  rate from time to time as selected by the Administrative Agent in its reasonable discretion  or (B) the regulatory supervisor for the administrator of such Benchmark has provided a  public statement or publication of information announcing that any tenor for such  Benchmark is or will be no longer representative, then the Administrative Agent may  modify the definition of “Interest Period” for any Benchmark settings at or after such  time to remove such unavailable or non-representative tenor and (2) if a tenor that was  removed pursuant to clause (1) above either (A) is subsequently displayed on a screen or  information service for a Benchmark (including a Benchmark Replacement) or (B) is not,  or is no longer, subject to an announcement that it is or will no longer be representative  for a Benchmark (including a Benchmark Replacement), then the Administrative Agent  may modify the definition of “Interest Period” for all Benchmark settings at or after such  time to reinstate such previously removed tenor.  (f) Benchmark Unavailability Period. Upon the Borrowers’ receipt of notice  of the commencement of a Benchmark Unavailability Period, the Lead Borrower may  revoke any request for a Loan bearing interest based on USD LIBOR, conversion to or  continuation of Loans bearing interest based on USD LIBOR to be made, converted or  continued during any Benchmark Unavailability Period and, failing that, the Lead  Borrower will be deemed to have converted any such request into a request for a Loan of  or conversion to Loans bearing interest under the Base Rate. 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.  (g) Secondary Term SOFR Conversion. Notwithstanding anything to the  contrary herein or in any other Loan Document and subject to the proviso below in this  paragraph, 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, subject to consultation with the Lead Borrower, (1) 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  (the “Secondary Term SOFR Conversion Date”) 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 (2) Loans outstanding on the Secondary  Term SOFR Conversion Date bearing interest based on the then-current Benchmark shall  be deemed to have been converted to Loans bearing interest at the Benchmark  





 






46  744308325  Replacement with a tenor approximately the same length as the interest payment period  of the then-current Benchmark; provided that, this paragraph (g) shall not be effective  unless the Administrative Agent has delivered to the Lenders and the Lead Borrower a  Term SOFR Notice.  (h) Certain Defined Terms. As used in this Section titled “Benchmark  Replacement Setting”:  “Available Tenor” means, as of any date of determination and with respect to the  then-current Benchmark, as applicable, (x) if the then current Benchmark is a term rate or  is based on a term rate, any tenor for such Benchmark that is or may be used for  determining the length of an Interest Period pursuant to this Agreement as of such date  and not including, for the avoidance of doubt, any tenor for such Benchmark that is then- removed from the definition of “Interest Period” pursuant to paragraph (v) of this Section  titled “Benchmark Replacement Setting”, or (y) if the then current Benchmark is neither a  term rate nor based on a term rate, any payment period for interest calculated with  reference to such Benchmark pursuant to this Agreement as of such date.  “Benchmark” means, initially, USD LIBOR; provided that if a Benchmark  Transition Event, a Term SOFR Transition Event or an Early Opt-in 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 paragraph (b) or (g) of this Section titled  "Benchmark Replacement Setting.”  “Benchmark Replacement” means, for any Available Tenor, 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;   (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 Lead 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 U.S. dollar- denominated syndicated credit facilities at such time and (B) the related  Benchmark Replacement Adjustment;   provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is  displayed on a screen or other information service that publishes such rate from time to  





 






47  744308325  time as selected by the Administrative Agent in its reasonable discretion; provided,  further, that, with respect to a Term SOFR Transition Event, on the applicable  Benchmark Replacement Date, the “Benchmark Replacement” shall revert to and shall be  determined as set forth in clause (1) of this definition. If the Benchmark Replacement as  determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the  Benchmark Replacement will be deemed to be the Floor for the purposes of this  Agreement and the other Loan Documents.  The Floor for purposes of this Agreement  shall be zero.  “Benchmark Replacement Adjustment” means, with respect to any replacement of  the then-current Benchmark with an Unadjusted Benchmark Replacement for any  applicable Available Tenor for any setting of such Unadjusted Benchmark Replacement:   (1)  for purposes of clauses (1) and (2) of the definition of “Benchmark  Replacement,” the applicable amount(s) set forth below:  Available Tenor Benchmark Replacement Adjustment  (%)*  One-Month 0.11448 (11.448 basis points)  Three-Months 0.26161 (26.161 basis points)  Six-Months 0.42826 (42.826 basis points)  * These values represent the ARRC/ISDA recommended spread adjustment  values available here: https://assets.bbhub.io/professional/sites/10/IBOR- Fallbacks-LIBOR-Cessation_Announcement_20210305.pdf (2)  for purposes of clause (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 Lead Borrower for the  applicable Corresponding Tenor giving due consideration to (A) any selection or  recommendation of a spread adjustment, or method for calculating or determining  such spread adjustment, for the replacement of such Benchmark with the  applicable Unadjusted Benchmark Replacement by the Relevant Governmental  Body on the applicable Benchmark Replacement Date or (B) any evolving or  then-prevailing market convention for determining a spread adjustment, or  method for calculating or determining such spread adjustment, for the  replacement of such Benchmark with the applicable Unadjusted Benchmark  Replacement for U.S. dollar-denominated syndicated credit facilities;   





 






48  744308325  provided that, (x) in the case of clause (1) above, such adjustment is displayed on a  screen or other information service that publishes such Benchmark Replacement  Adjustment from time to time as selected by the Administrative Agent in its reasonable  discretion and (y) if the then-current Benchmark is a term rate, more than one tenor of  such Benchmark is available as of the applicable Benchmark Replacement Date and the  applicable Unadjusted Benchmark Replacement will not be a term rate, the Available  Tenor of such Benchmark for purposes of this definition of “Benchmark Replacement  Adjustment” shall be deemed to be the Available Tenor that has approximately the same  length (disregarding business day adjustments) as the payment period for interest  calculated with reference to such Unadjusted Benchmark Replacement  “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:    (1)  in the case of clause (1) or (2) of the definition of “Benchmark  Transition Event,” the later of (a) the date of the public statement or publication  of information referenced therein (which the parties acknowledge occurred on  March 5, 2021 with respect to USD LIBOR as a result of the Cessation  Announcements) 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);   (2)  in the case of clause (3) of the definition of “Benchmark Transition  Event,” the date determined by the Administrative Agent, which date shall  promptly follow the date of the public statement or publication of information  referenced therein;   (3)  in the case of a Term SOFR Transition Event, the date that is set  forth in the Term SOFR Notice provided to the Lenders and the Borrowers  





 






49  744308325  pursuant to this Section titled “Benchmark Replacement Setting”, which date  shall be at least thirty (30) days from the date of the Term SOFR Notice; or  (4)  in the case of an Early Opt-in Election, the sixth (6th) Business  Day after the date notice of such Early Opt-in Election 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 is provided to the Lenders, written notice of objection to such Early  Opt-in Election from Lenders comprising the Majority Lenders.   For the avoidance of doubt, (i) if the event giving rise to the Benchmark  Replacement Date occurs on the same day as, but earlier than, the Reference Time in  respect of any determination, the Benchmark Replacement Date will be deemed to have  occurred prior to the Reference Time for such determination and (ii) the “Benchmark  Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with  respect to any Benchmark upon the occurrence of the applicable event or events set forth  therein with respect to all then-current 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:   (1)  a public statement or publication of information by or on behalf of  the administrator of such Benchmark (or the published component used in the  calculation thereof) announcing that such administrator has ceased or will cease to  provide all Available Tenors of such Benchmark (or such component thereof),  permanently or indefinitely, provided that, at the time of such statement or  publication, there is no successor administrator that will continue to provide any  Available Tenor of such Benchmark (or such component thereof);   (2)  a public statement or publication of information by an Official  Body having jurisdiction over the Administrative Agent, the regulatory supervisor  for the administrator of such Benchmark (or the published component used in the  calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New  York, an insolvency official with jurisdiction over the administrator for such  Benchmark (or such component), a resolution authority with jurisdiction over the  administrator for such Benchmark (or such component) or a court or an entity  with similar insolvency or resolution authority over the administrator for such  Benchmark (or such component), which states that the administrator of such  Benchmark (or such component) has ceased or will cease to provide all Available  Tenors of such Benchmark (or such component thereof) permanently or  indefinitely, provided that, at the time of such statement or publication, there is no  successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof); or   (3)  a public statement or publication of information by the regulatory  supervisor for the administrator of such Benchmark (or the published component  





 






50  744308325  used in the calculation thereof) or an Official Body having jurisdiction over the  Administrative Agent 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).  The parties hereto acknowledge that a Benchmark Transition Event as defined in clauses  (1) and (2) above occurred on March 5, 2021 with respect to USD LIBOR as a result of  the Cessation Announcements, but no related Benchmark Replacement Date occurred as  of such date.  “Benchmark Unavailability Period” means the period (if any) (x) beginning at the  time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition  has occurred if, at such time, no Benchmark Replacement has replaced the then-current  Benchmark for all purposes hereunder and under any Loan Document in accordance with  this Section titled “Benchmark Replacement Setting” 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 this Section titled  “Benchmark Replacement Setting.”  “Corresponding Tenor” with respect to any Available Tenor means, as applicable,  either a tenor (including overnight) or an interest payment period having approximately  the same length (disregarding business day adjustment) as such Available Tenor.  “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 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.  “Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR,  the occurrence of:   (1)  a notification by the Administrative Agent to (or the request by the  Borrowers to the Administrative Agent to notify) each of the other parties hereto  that at least five currently outstanding U.S. 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   





 






51  744308325  (2)  the joint election by the Administrative Agent and the Borrowers  to trigger a fallback from USD LIBOR and the provision by the Administrative  Agent of written notice of such election to the Lenders.  “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 or, if no floor is specified,  zero.  “ISDA Definitions” means the 2006 ISDA Definitions published by the  International Swaps and Derivatives Association, Inc. or any successor thereto, as  amended or supplemented from time to time, or any successor definitional booklet for  interest rate derivatives published from time to time by the International Swaps and  Derivatives Association, Inc. or such successor thereto.  “Reference Time” 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 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.  “Relevant Governmental Body” means the Federal Reserve Board or the Federal  Reserve Bank of New York, or a committee officially endorsed or convened by the  Federal Reserve Board or the Federal Reserve Bank of New York, or any successor  thereto.  “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 at approximately 8:00 a.m. (New  York City time) 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.  “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 Borrowers of the occurrence of a Term SOFR Transition Event.  “Term SOFR Transition Event” means the determination by the Administrative  Agent that (1) Term SOFR has been recommended for use by the Relevant Governmental  





 






52  744308325  Body, and is determinable for each Available Tenor, (2) the administration of Term  SOFR is administratively feasible for the Administrative Agent and (3) a Benchmark  Transition Event has previously occurred resulting in a Benchmark Replacement in  accordance with Section titled “Benchmark Replacement Setting” that is not Term SOFR.  “Unadjusted Benchmark Replacement” means the applicable Benchmark  Replacement excluding the related Benchmark Replacement Adjustment.  “USD LIBOR” means the London interbank offered rate for U.S. dollars.  SECTION 8. GUARANTY.  8.1 Guaranty. The Guarantor hereby absolutely and unconditionally guarantees to  the Administrative Agent the full and prompt payment when due, whether at stated maturity, by  required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of the  Liabilities and the punctual performance of all of the terms contained in the documents executed  by a Borrower in favor of the Administrative Agent and the Lenders in connection with the  Liabilities.  The agreement of the Guarantor herein is a guaranty of payment and performance  and not merely as a guaranty of collection.  Without limiting the generality of the foregoing, the  Liabilities shall include any such indebtedness, obligations and liabilities which may be or  hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding  or case commenced by or against Guarantor or a Borrower under any Debtor Relief Law, and  shall include interest that accrues after the commencement by or against any of the Borrowers of  any proceeding under any Debtor Relief Laws, in connection with this Agreement (including all  renewals, extensions, amendments, refinancings and other modifications thereof and all  attorneys’ fees and expenses incurred by the Administrative Agent and the Lenders in connection  with the collection or enforcement thereof in accordance with Section 8.10 hereof).  8.2 No Setoff or Deductions; Taxes; Payments.  Guarantor shall make all  payments hereunder without setoff or counterclaim and free and clear of and without deduction  for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans,  restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or  any political subdivision thereof or taxing or other authority therein unless the Guarantor is  compelled by law to make such deduction or withholding.  If any such obligation (other than one  arising with respect to taxes based on or measured by the income or profits of the Lenders) is  imposed upon Guarantor with respect to any amount payable by it hereunder, Guarantor will pay  to each Lender, on the date on which such amount is due and payable hereunder, such additional  amount in U.S. dollars as shall be necessary to enable such Lender to receive the same net  amount which such Lender would have received on such due date had no such obligation been  imposed upon Guarantor.  Guarantor will deliver promptly to the Administrative Agent  certificates or other valid vouchers for all taxes or other charges deducted from or paid with  respect to payments made by Guarantor hereunder.  The obligations of Guarantor under this  paragraph shall survive the payment in full of the Liabilities and termination of this Agreement.  8.3 Rights of the Administrative Agent and the Lenders.  Guarantor consents and  agrees that the Administrative Agent and the Lenders may, at any time and from time to time,  without notice or demand, and without affecting the enforceability or continuing effectiveness  





 






53  744308325  hereof:  (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the  time for payment or the terms of the Liabilities or any part thereof; (b) take, hold, exchange,  enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment  of this Agreement or any Liabilities; and (c) apply such security and direct the order or manner  of sale thereof as the Administrative Agent in its sole discretion may determine.  Without  limiting the generality of the foregoing, Guarantor consents to the taking of, or failure to take,  any action which might in any manner or to any extent vary the risks of Guarantor under this  Agreement or which, but for this provision, might operate as a discharge of Guarantor.  8.4 Certain Waivers.  The Guarantor waives to the fullest extent permitted by law  (a) any defense arising by reason of any disability or other defense of any Borrower, or the  cessation from any cause whatsoever (including any act or omission of any Lender or the  Administrative Agent) of the liability of any Borrower; (b) any defense based on any claim that  Guarantor’s obligations exceed or are more burdensome than those of any Borrower; (c) the  benefit of any statute of limitations affecting Guarantor’s liability hereunder; (d) any right to  require the Administrative Agent or any Lender to proceed against any Borrower, proceed  against or exhaust any security for the Liabilities, or pursue any other remedy in the  Administrative Agent’s or any Lender’s power whatsoever and any defense based upon the  doctrines of marshalling of assets or of election of remedies; (e) any benefit of and any right to  participate in any security now or hereafter held by the Administrative Agent or any Lender; (f)  any fact or circumstance related to the Liabilities which might otherwise constitute a defense to  the obligations of Guarantor under this Agreement; and (g) to the fullest extent permitted by law,  any and all other defenses or benefits that may be derived from or afforded by applicable law  limiting the liability of or exonerating guarantors or sureties, other than the defense that the  Liabilities have been fully performed, and the Liabilities and any other amounts payable under  this Agreement, have been indefeasibly paid in full in cash.  Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for  payment or performance, notices of nonpayment or nonperformance, protests, notices of protest,  notices of dishonor and all other notices or demands of any kind or nature whatsoever with  respect to the Liabilities, and all notices of acceptance of this guaranty or of the existence,  creation or incurrence of new or additional Liabilities. The guaranty of the Guarantor hereunder  shall not be affected by the genuineness, validity, regularity or enforceability of the Liabilities or  any instrument or agreement evidencing any Liabilities, or by the existence, validity,  enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or  circumstance relating to the Liabilities which might otherwise constitute a defense to the  obligations of Guarantor under this guaranty, and Guarantor hereby irrevocably waives any  defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.  8.5 Obligations Independent.  The obligations of Guarantor hereunder are those of  primary obligor, and not merely as surety, and a separate action may be brought against  Guarantor to enforce this guaranty whether or not any Borrower or any other person or entity is  joined as a party.  8.6 Subrogation.  Guarantor shall not exercise any right of subrogation,  contribution, indemnity, reimbursement or similar rights with respect to any payments it makes  under this guaranty until all of the Liabilities and any amounts payable under this Agreement  





 






54  744308325  have been indefeasibly paid and performed in full and any commitments of the Lenders or  facilities provided by the Lenders with respect to the Liabilities are terminated.  If any amounts  are paid to Guarantor in violation of the foregoing limitation, then such amounts shall be held in  trust for the benefit of the Lenders and shall forthwith be paid to the Administrative Agent to  reduce the amount of the Liabilities, whether matured or unmatured.  8.7 Termination; Reinstatement.  This guaranty is a continuing and irrevocable  guaranty of all Liabilities now or hereafter existing and shall remain in full force and effect until  all Liabilities and any other amounts payable under this Agreement are indefeasibly paid in full  in cash and any commitments of the Administrative Agent, the Lenders or any of them or  facilities provided by the Lenders or any of them with respect to the Liabilities are terminated.   Notwithstanding the foregoing, this Section 8 shall continue in full force and effect or be  revived, as the case may be, if any payment by or on behalf of any Borrower or Guarantor is  made, or the Administrative Agent or any Lender exercises its right of setoff, in respect of the  Liabilities and such payment or the proceeds of such setoff or any part thereof is subsequently  invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to  any settlement entered into by the Administrative Agent or any Lender in its discretion) to be  repaid to a trustee, receiver or any other party, in connection with any proceeding under any  Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had  not occurred and whether or not the Administrative Agent or such Lender is in possession of or  has released this guaranty and regardless of any prior revocation, rescission, termination or  reduction.  The obligations of Guarantor under this paragraph shall survive termination of this  Agreement.  8.8 Subordination.  Guarantor hereby subordinates the payment of all obligations  and indebtedness of any Borrower owing to Guarantor, whether now existing or hereafter  arising, including but not limited to any obligation of any Borrower to Guarantor as subrogee of  the Administrative Agent and the Lenders or resulting from Guarantor’s performance under this  Section 8, to the indefeasible payment in full in cash of all Liabilities.  If the Administrative  Agent so requests while an Event of Default has occurred and is continuing, any such obligation  or indebtedness of any Borrower to Guarantor shall be enforced and performance received by  Guarantor as trustee for the Administrative Agent and the Lenders and the proceeds thereof shall  be paid over to the Administrative Agent on account of the Liabilities, but without reducing or  affecting in any manner the liability of Guarantor under this Section 8.  8.9 Stay of Acceleration.  In the event that acceleration of the time for payment of  any of the Liabilities is stayed, in connection with any case commenced by or against any Loan  Party under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable  by Guarantor immediately upon demand by the Administrative Agent.  8.10 Miscellaneous.  The Administrative Agent’s and each Lender’s books and  records showing the amount of the Liabilities shall be admissible in evidence in any action or  proceeding, and shall be binding upon Guarantor and conclusive, absent manifest error for the  purpose of establishing the amount of the Liabilities. No failure by the Administrative Agent or  any Lender to exercise, and no delay in exercising, any right, remedy or power hereunder shall  operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy or power  hereunder preclude any other or further exercise thereof or the exercise of any other right, power  





 






55  744308325  or remedy.  The remedies herein provided are cumulative and not exclusive of any remedies  provided by law or in equity.  The unenforceability or invalidity of any provision of this guaranty  shall not affect the enforceability or validity of any other provision herein.   8.11 Condition of Borrowers.  Guarantor acknowledges and agrees that it has the  sole responsibility for, and has adequate means of, obtaining from each Borrower such  information concerning the financial condition, business and operations of each Borrower as  Guarantor requires, and that the Administrative Agent and the Lenders have no duty, and  Guarantor is not relying on the Administrative Agent or any Lender at any time, to disclose to  Guarantor any information relating to the business, operations or financial condition of any  Borrower (the Guarantor waiving any duty on the part of the Administrative Agent and the  Lenders to disclose such information and any defense relating to the failure to provide the same).    SECTION 9. REPRESENTATIONS AND WARRANTIES.  To induce the Administrative Agent and the Lenders to enter into this Agreement and  make Loans, each Loan Party represents and warrants as of the Closing Date that:  9.1 Existence.  Each Loan Party and all of its Restricted Subsidiaries are duly  organized, validly existing and in good standing (or its equivalent) under the laws of the  jurisdiction of its organization except where the failure to be so duly organized, validly existing  and in good standing, either individually or in the aggregate, would not have a Material Adverse  Effect.  Each Loan Party and all of its respective Restricted Subsidiaries are each in good  standing (or its equivalent) and are duly qualified to do business in each jurisdiction where,  because of the nature of their respective activities or properties, failure to be in such good  standing or so qualified would have a Material Adverse Effect.  9.2 Authorization; Validity and Enforceability.  Each Loan Party has the corporate  power and authority to execute, deliver and carry out the terms and provisions of the Loan  Documents to which it is a party and has taken all necessary corporate action to authorize the  execution, delivery and performance of the Loan Documents to which it is a party, and the  borrowings hereunder, and the granting of any security interest provided for in the Loan  Documents, do not and will not require any consent or approval of any Official Body,  stockholder or any other Person, which has not already been obtained. Each Loan Party has duly  executed and delivered each Loan Document to which it is a party and each such Loan  Document constitutes the legal, valid and binding obligation such Borrower enforceable in  accordance with its terms, except to the extent that the enforceability thereof may be limited by  applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally  affecting creditors’ rights and by equitable principles (regardless of whether enforcement is  sought in equity or at law).  9.3 No Conflicts.  The execution, delivery and performance by each Loan Party of  this Agreement, the Notes and the other Loan Documents to which it is a party do not and will  not present a material conflict with, or constitute a material breach of, or default under (a) any  provision of law, (b) the memorandum of association or bye-laws of such Loan Party, (c) any  material agreement or instrument binding upon the Loan Party or (d) any court or administrative  order or decree applicable to the Loan Party, and do not and will not require, or result in, the  





 






56  744308325  creation or imposition of any Lien on any asset of any Loan Party or any of their Restricted  Subsidiaries.  9.4 No Default.  As of the date hereof, no Unmatured Event of Default or Event of  Default has occurred and is continuing or would result from the consummation of the  transactions consummated by this Agreement or any other Loan Document.  9.5 [Reserved].  9.6 Litigation.  Except as disclosed on Schedule 9.6, there are no actions, suits,  proceedings or investigations pending or, to any Loan Party’s knowledge, threatened in writing  that with respect to (a) any Loan Document or (b) any other matter as to which there is a  reasonable possibility of an adverse determination and, if adversely determined, either  individually or in the aggregate, would have a Material Adverse Effect.  9.7 Title; Liens.  Each Loan Party and its Restricted Subsidiaries have good, legal  and marketable title to each of their respective assets, and none of such assets is subject to any  Lien, except for Permitted Liens and such defects in title would not, individually or in the  aggregate, have a Material Adverse Effect.  9.8 Subsidiaries.  As of the Closing Date, the Loan Parties have no Subsidiaries  except as listed on Schedule 9.8, and the Loan Parties and their Subsidiaries own the percentage  of its Subsidiaries as set forth on Schedule 9.8. All equity interests in each Loan Party’s  respective Subsidiaries have been validly issued, are fully paid and are non-assessable.  9.9 Partnerships; Limited Liability Companies.  As of the Closing Date, no Loan  Party nor any of its Restricted Subsidiaries is a partner, member or joint venturer in any  partnership, limited liability company or joint venture with any Person unaffiliated with the Loan  Parties or any Subsidiaries other than the partnerships, limited liability companies and joint  ventures, if any, listed on Schedule 9.9.  9.10 Purpose; Use of Proceeds.  The proceeds of the Loans will be used by the  Borrowers for working capital, for the refinancing of existing Indebtedness and for its purchase  of Container Equipment and for general corporate purposes (including the payment of dividends  to its shareholders).  9.11 Margin Regulations.  Neither Borrower nor any of its Subsidiaries are engaged  in the business of purchasing or selling “margin stock”, as such term is defined in Regulation U  of the FRB, or extending credit to others for the purpose of purchasing or carrying margin stock  and no part of the proceeds of any Loan will be used to purchase or carry any margin stock or for  any other purpose which would violate any of Regulation T, U or X of the FRB.  9.12 Compliance.  (a) Each Loan Party and its Restricted Subsidiaries are in  compliance with all statutes and governmental rules and regulations applicable to them, their  businesses and properties, except for any noncompliance which would not have a Material  Adverse Effect.  





 






57  744308325  (b) No Covered Entity (i) is a person whose property or interest in property is  blocked or subject to blocking pursuant to Section 1 of Executive Order No. 13224 or (ii)  engages in any dealings or transactions prohibited by Section 2 of such executive order,  or is otherwise associated with any such person in any manner violative of Section 2.  (c) Each Covered Entity is in compliance, in all material respects, with (i) the  Trading with the Enemy Act, and each of the foreign assets control regulations of the  United States Treasury Department (31 CFR, Subtitle B, Chapter V) and any other  enabling legislation or executive order relating thereto, and (ii) the Uniting And  Strengthening America By Providing Appropriate Tools Required To Intercept And  Obstruct Terrorism (USA Patriot Act of 2001).  9.13 ERISA Compliance.  Each Borrower and its ERISA Affiliates are each in  compliance in all material respects with the applicable provisions of ERISA and the regulations  and published interpretations thereunder with respect to each Pension Plan and Multiemployer  Plan.  No ERISA Event has occurred or is reasonably expected to occur that, when taken  together with all other such ERISA Events, could reasonably be expected to result in any liability  of any Borrower or any of their respective ERISA Affiliates in excess of $20,000,000.   9.14 Environmental Matters.  Each Loan Party, to the best of its knowledge, is and  has been in material compliance with applicable Environmental Laws except as disclosed on  Schedule 9.14; provided that such matters so disclosed would not in the aggregate result in a  Material Adverse Effect.  9.15 Taxes.  As of the date of this Agreement, each Loan Party and each of its  Restricted Subsidiaries has filed all tax returns which are required to have been filed and has  paid, or made adequate provisions for the payment of, all of its Taxes which are due and payable,  except such Taxes, if any, (a) as are being contested in good faith and by appropriate proceedings  and as to which such reserves or other appropriate provisions as may be required by GAAP have  been maintained; or (b) the amount of which if paid would not be material to such Loan Party  and its Restricted Subsidiaries taken as a whole.  As of the date of this Agreement, no Loan Party  is aware of any proposed assessment against such Loan Party or any of its Restricted  Subsidiaries for additional Taxes (or any basis for any such assessment) which would be material  to such Loan Party and its Restricted Subsidiaries taken as a whole.  9.16 Investment Company Act Representation.  Neither Borrower is, nor is required  to be, registered as an “investment company” under the Investment Company Act of 1940, as  amended.  9.17 Accuracy of Information.  No report, financial statement, certificate or other  written information furnished by or on behalf of any Loan Party to the Administrative Agent or  any Lender in connection with the transactions contemplated hereby and the negotiation of this  Agreement or delivered hereunder or under any other Loan Document (in each case, as modified  or supplemented by other information so furnished) when taken as a whole contains any material  misstatement of fact or omits to state any material fact necessary to make the statements therein,  in the light of the circumstances under which they were made, not misleading; provided that,  with respect to projected financial information, each Borrower represents only that such  





 






58  744308325  information was prepared in good faith based upon assumptions believed to be reasonable at the  time.  9.18 Financial Statements.  The Audited Financial Statements, copies of which have  been furnished to the Lenders, have been prepared in conformity with GAAP applied on a basis  consistent with that of the preceding fiscal year end period and, except as otherwise expressly  noted therein, present fairly, in all material respects, the financial condition of the applicable  Loan Party and its Subsidiaries as at such dates and the results of their operations for the period  then ended.  9.19 No Material Adverse Effect.  Since the date of the Audited Financial  Statements, there has been no material adverse change in the financial condition of Triton  Holdco and its Subsidiaries, taken as a whole.  9.20 [Reserved].  9.21 Solvency.  On the Closing Date and after giving effect to the Loans hereunder,  the Loan Parties are Solvent.  9.22 Anti-Terrorism Laws.  (i) No Covered Entity is a Sanctioned Person, and (ii)  no Covered Entity, either in its own right or through any third party, (a) has any of its assets in a  Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation  of any Anti-Terrorism Law, (b) does business in or with, or derives any of its income from  investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of  any Anti-Terrorism Law; or (c) engages in any dealings or transactions prohibited by any Anti- Terrorism Law.  Each of the Loan Parties and their respective Subsidiaries have conducted their  business in compliance with all Anti-Terrorism Laws and have instituted and maintained policies  and procedures reasonably designed to promote and achieve compliance with such laws.  9.23 [Reserved].    9.24 Anti-Corruption Laws.  Each of the Loan Parties and each of their Subsidiaries  have conducted their business in compliance with all Anti-Corruption Laws and have instituted  and maintained policies and procedures reasonably designed to promote and achieve compliance  with such laws.  SECTION 10. LOAN PARTIES’ COVENANTS.  From the date of this Agreement and thereafter until the expiration or termination of the  Commitments and until the Loans and other Liabilities are paid and performed in full, each Loan  Party agrees that, unless at any time the Majority Lenders shall otherwise expressly consent in  writing, it will perform and fulfill its obligations set forth in this Section 10.  10.1 Financial Statements and Other Reports.  The Loan Parties will furnish or will  cause to be furnished to the Administrative Agent and each of the Lenders:  (a) Annual Audit Reports.  Within one-hundred twenty (120) days after the  end of each fiscal year, a copy of the annual audit report of Triton Holdco, prepared on a  





 






59  744308325  consolidated basis in conformity with GAAP and certified, without qualification, by  independent certified public accountants of recognized national standing.  Such annual  audit reports shall each contain a schedule showing the consolidated balance sheets of  Triton Holdco and its Subsidiaries, as applicable, as of the end of such fiscal year, and the  related consolidated statements of operations, stockholder’s equity and comprehensive  income, and cash flows for the fiscal year then ended, setting forth in each case in  comparative form the figures for the previous fiscal year (which report shall be without a  “going concern” or like qualification or exception and without any qualification or  exception as to the scope of such audit); provided, however, that any such “going  concern” qualification that is specifically related to the upcoming maturity of the Loans  shall not cause a breach under the provisions of this Section 10.1(a);  (b) Quarterly Financial Statements.  Within sixty (60) days after the end of  each fiscal quarter (other than the last fiscal quarter of each fiscal year), a copy of the  unaudited financial statements of Triton Holdco and its Subsidiaries, in each case for  such fiscal quarter prepared on a consolidated basis in conformity with GAAP (subject to  year-end audit adjustments and the absence of footnotes).  Such financial statements shall  contain the consolidated balance sheets of Triton Holdco and its Subsidiaries, as  applicable, as of the end of such fiscal quarter and related consolidated statements of (i)  income for the fiscal quarter then ended and the fiscal year through that date and (ii)  stockholders' equity and cash flows for the fiscal year through that date, all in reasonable  detail and certified (subject to normal year-end audit adjustments) by an Authorized  Officer of Triton Holdco as having been prepared in accordance with GAAP, consistently  applied, and setting forth in comparative form the respective financial statements for the  corresponding date and period in the previous fiscal year;  (c) Officer’s Certificate and Report.  Together with the financial statements  furnished by the Loan Parties under the preceding clauses (a) and (b), a Compliance  Certificate signed by an Authorized Officer dated the date of delivery of such financial  statements; provided that with respect to any financial ratios and restrictions contained in  this Section 10, (x) the certification contained in the applicable Compliance Certificate  shall be effective only as of the date of such financial statements and (y) such financial  ratios and restrictions shall contain detail reasonably sufficient for the Administrative  Agent to confirm compliance with Section 10.15, Section 10.16 and Section 10.17;  (d) [Reserved].    (e) Container Equipment Reports.  Concurrently with the financial statements  of furnished to the Administrative Agent and to the Lenders pursuant to Sections 10.1(a)  and 10.1(b) above, a Container Equipment report containing the following information:  (A) a separate listing of the number and types of Container Equipment owned, rented,  leased or managed by such Borrower, (B) their aggregate Net Book Value, (C) a separate  listing of such Borrower's ten (10) largest customers, as measured by Net Book Value of  Container Equipment, and (D) their aggregate original cost (or upon the Administrative  Agent’s request during the existence of an Event of Default or Unmatured Event of  Default, a detailed report with respect to each unit of Container Equipment then owned  





 






60  744308325  by a Borrower its (w) serial or other identifying number, (x) in-service date, (y) Net Book  Value (including totals thereof), and (z) original cost (including totals thereof)); and   (f) Requested Information.  Promptly from time to time, such other financial  data and reports concerning a Loan Party (including accountants management letters) as  the Administrative Agent or any Lender may reasonably request and which is readily  available to such applicable Loan Party.  10.2 Notices.  The Loan Parties will notify the Lenders in writing of any of the  following promptly upon learning of the occurrence thereof, describing the same and, if  applicable, the steps being taken by the Person(s) affected with respect thereto:  (a) Default.  The occurrence of an Event of Default or an Unmatured Event of  Default;  (b) Litigation.  The institution of any litigation, arbitration proceeding or  governmental proceeding which is material to any Borrower and its Subsidiaries taken as  a whole and which, if adversely determined, would constitute a Material Adverse Effect;  (c) ERISA Compliance.  Any ERISA Event.  (d) S&P Rating and Fitch Rating.  Promptly after each announcement by S&P  or Fitch of any change in the S&P Rating or Fitch Rating, as applicable; and  (e) Other Information.  Promptly following any reasonable request therefor  and subject to Section 14.20, such other information regarding the operations, business  affairs and financial condition of a Borrower or any Subsidiary, or compliance with the  terms of this Agreement, as the Administrative Agent may reasonably request, including,  without limitation, information or certifications as may be required under the Beneficial  Ownership Regulation, if applicable.  10.3 Existence.  Except as otherwise permitted under Section 10.10, each Loan  Party will maintain and preserve and cause each of its Restricted Subsidiaries to maintain and  preserve, its existence as a limited liability company, partnership or corporation, as the case may  be, and keep in force and effect all rights, privileges, licenses, patents, patent rights, copyrights,  trademarks, trade names, franchises and other authority to the extent material and necessary for  the conduct of its business in the ordinary course as conducted from time to time, except in the  case to the extent such failure to so maintain would not have a Material Adverse Effect.  10.4 Nature of Business.  Neither Borrower will, nor will it permit any of its  Restricted Subsidiaries to, engage in any business other than a Permitted Business; provided that  each Borrower and its Restricted Subsidiaries may engage in a business other than a Permitted  Business if at least ninety-five percent (95%) of the consolidated assets of such Borrower and its  Restricted Subsidiaries are held in connection with Permitted Businesses.  10.5 Books, Records and Inspection Rights.  Each Loan Party will, and will cause  each of its Restricted Subsidiaries to, keep proper books of record and accounts in which full,  true and correct entries which permit the preparation of financial statements in accordance with  





 






61  744308325  GAAP and which conform in all material respects to all requirements of law, shall be made of all  dealings and transactions in relation to its business and activities. At the expense of the Loan  Parties, each Loan Party will, and will cause each of its Restricted Subsidiaries to, permit officers  and designated representatives of the Administrative Agent to visit and inspect, under guidance  of officers of such Loan Party or its Restricted Subsidiary, any of the properties of such Loan  Party or its Restricted Subsidiaries, and subject to appropriate confidentiality limitations, to  examine and make copies of the books of account of such Loan Party or its Restricted  Subsidiaries and discuss the affairs, finances and accounts of such Loan Party or its Restricted  Subsidiaries with, and be advised as to the same by, its and its officers and independent  accountants, all upon reasonable prior notice and at such reasonable times and intervals (during  regular working hours) and to such reasonable extent as the Administrative Agent or a Lender  may reasonably request; provided, however, (i) any such visit and inspection and examinations  and verifications shall not materially interfere with the conduct of the business of such Loan  Party and (ii) that unless an Event of Default or an Unmatured Event of Default shall have  occurred and then be continuing at the time of such inspection, and examinations and  verifications, the Loan Parties shall be required to reimburse the Administrative Agent and their  respective officers and designated representatives for reasonable and documented costs and  expenses incurred in connection with such inspections only once during any twelve (12) month  period.  10.6 Insurance; Reports.  Each Loan Party shall, and shall cause each of its  Subsidiaries to, insure its properties with financially sound and reputable insurance companies  not Affiliates of the Loan Parties, in such amounts (after giving effect to any self-insurance  compatible with the following standards), with such deductibles and covering such risks as are  customarily carried by companies engaged in similar businesses and owning similar properties in  localities where each Loan Party or the applicable Subsidiary operates (provided that the  possession by lessees of property owned by the Borrowers or any of their Subsidiaries in any  locality shall not be deemed to constitute the engagement in business or owning of property by  the Borrowers or such Subsidiary in such locality).  10.7 Maintenance of Property.  Each Loan Party will maintain, preserve and keep,  and cause each of its Restricted Subsidiaries to maintain, preserve and keep, in good repair,  working order and condition, all of those properties useful or necessary to its business, and from  time to time make, and cause each of its Restricted Subsidiaries to make, all necessary and  proper repairs, renewals or replacements thereof, ordinary wear and tear excepted, and excepting  disposal of obsolete or damaged equipment and except where the failure to do so would not have  a Material Adverse Effect.  10.8 Taxes.  Each Loan Party will pay, and cause each of its Restricted Subsidiaries  to pay, when due, all of its Taxes, except such Taxes (a) as are being contested in good faith and  by appropriate proceedings and as to which such Loan Party or such Restricted Subsidiary has  set aside on its books such reserves or other appropriate provisions therefor as may be required  by GAAP; or (b) the amount of which individually or in the aggregate would not have a Material  Adverse Effect.  10.9 Compliance.  Each Loan Party will comply, and cause each of its Restricted  Subsidiaries to comply, with all statutes and governmental rules and regulations applicable to it,  





 






62  744308325  its businesses and its properties, including Environmental Laws, the failure to comply with  which would have a Material Adverse Effect.  10.10 Merger, Purchase and Sale.  Except in connection with a Permitted  Transaction, no Loan Party will, nor permit any of its Restricted Subsidiaries to, in a single  transaction or series of related transactions, consolidate or merge with or into any Person, or sell,  assign, transfer, lease, convey or otherwise dispose of (or cause or permit any of its Restricted  Subsidiaries to sell, assign, transfer, convey or otherwise dispose of) all, or substantially all, of  the assets of such Loan Party and its Restricted Subsidiaries (determined on a consolidated basis  for such Loan Party and its Restricted Subsidiaries), whether as an entirety or substantially as an  entirety, to any Person unless:  (a) such Loan Party or a Restricted Subsidiary, if such Loan Party has been  consolidated or merged with or into such Restricted Subsidiary, shall be the surviving or  continuing corporation (the “Surviving Entity”);  (b) immediately after giving effect to such transaction (i) no Unmatured Event  of Default or Event of Default shall have occurred or be continuing, (ii) at least eighty- five percent (85%) of the consolidated assets of the Surviving Entity and its Restricted  Subsidiaries shall be held in connection with Permitted Businesses and (iii) Loan Parties  shall be in pro forma compliance with the covenants set forth in Sections 10.17; and  (c) the Administrative Agent shall receive for the Lenders such documents  and legal opinions, including, without limitation, “know your customer” documents and  legal opinions as to the consummation and legal effect of the merger, as the  Administrative Agent may reasonably request.   Upon any consolidation, combination or merger or any transfer of all or substantially all of a  Loan Party’s assets to a Restricted Subsidiary in accordance with the foregoing, in which such  Loan Party is not the Surviving Entity, such Restricted Subsidiary as the Surviving Entity shall  succeed to, and be substituted for, and may exercise every right and power of such Loan Party  under this Agreement with the same effect as if the Surviving Entity had been named as such.  10.11 Restricted Payments.  Neither Borrower will make, directly or indirectly or  through any of its Subsidiaries, any capital distribution to any equity holder of such Borrower  unless (i) the Loan Parties shall be in pro forma compliance with the covenants set forth in  Sections 10.15, 10.16, and 10.17, (ii) no Event of Default or Unmatured Event of Default  specified in Section 12.1(a) or 12.1(b) shall have occurred and be continuing, and (iii) no  Unmatured Event of Default or Event of Default specified in Section 12.1(c) (and that is not  otherwise addressed in clause (i) above) shall have occurred or be continuing which would have  a Material Adverse Effect.  10.12 [Reserved].    10.13 [Reserved].  10.14 [Reserved].    





 






63  744308325  10.15 Total Debt Ratio. The Loan Parties will not at any time permit the Total Debt  Ratio to exceed 4.0 to 1.0.  10.16 Minimum Interest Coverage Ratio. The Loan Parties will not permit the ratio  of (a) Consolidated EBIT to (b) Consolidated Interest Expense, in each case, determined on the  last day of each fiscal quarter for the period of the most recent six (6) consecutive fiscal quarters  then ending, to be less than 1.25 to 1.00.Unencumbered Assets Coverage Ratio. The Borrowers  will not permit the Unencumbered Assets Coverage Ratio to be less than 1.20 to 1.00 at any  time.  The Unencumbered Assets Coverage Ratio will be tested as of the last day of each fiscal  quarter of Triton Holdco and on the date of and after giving effect to any Borrowing.  10.18 Indebtedness.  No Loan Party will permit any Restricted Subsidiary that is not  a Loan Party to incur or permit to exist any Indebtedness, except:  (a) intercompany Indebtedness owing to a Loan Party or a wholly-owned  Subsidiary;  (b) Indebtedness incurred by an ABS Subsidiary in connection with a  Permitted Securitization; and  (c) other Indebtedness, provided that (i) the principal amount of all  Indebtedness permitted by this clause (c) and (ii) the principal amount of all Indebtedness  secured by Liens permitted by Section 10.20 shall not exceed, at any time, the greater of  (A) $100,000,000 and (B) 5% of Triton Holdco’s Consolidated Tangible Net Worth,  determined as of the most recently ended fiscal quarter of Triton Holdco for which  consolidated financial statements are available (or are required to be delivered pursuant to  Section 10.1(b));  provided that no Indebtedness otherwise permitted under this Section 10.18 shall be permitted if,  immediately after giving effect to the incurrence thereof, an Event of Default or Unmatured  Event of Default shall exist (which shall include, without limitation, compliance with the   covenants contained in Section 10.15, Section 10.16 and Section 10.17 as of the most recently  ended fiscal quarter for which financial statements have been delivered to the Lenders, or as of  such more recent date as the Loan Parties may determine, calculated on a pro forma basis giving  effect to the incurrence of such Indebtedness and the granting of any related Lien, as if such  Indebtedness had been incurred and such Lien granted as of such quarter end or more recent  date).  10.19 Liens. No Loan Party will, nor permit any of its Restricted Subsidiaries to,  create or permit to exist any Lien with respect to any assets now owned or hereafter acquired  securing Indebtedness unless (a) such Liens secure the Indebtedness permitted under Section  10.18(b), or (b) after giving effect thereto, the sum of (x) all Indebtedness secured by such Liens  and (y) the principal amount of all Indebtedness of Restricted Subsidiaries which are not Loan  Parties permitted by Section 10.18(c) does not, at any time, exceed the greater of (A)  $100,000,000 or (B) 5% of Triton Holdco’s Consolidated Tangible Net Worth, determined as of  the most recently ended fiscal quarter of Triton Holdco for which consolidated financial  statements are available (or are required to be delivered pursuant to Section 10.1(b)) unless (i)  





 






64  744308325  the Administrative Agent is equally and ratably secured by any property of the Loan Parties that  is collateral for such Indebtedness, and (ii) any Loan Party or Affiliate that guarantees such  Indebtedness also guarantees the Indebtedness under this Agreement; provided that no Liens  otherwise permitted under this Section 10.20 shall be permitted if, immediately after giving  effect to the incurrence thereof, an Event of Default or Unmatured Event of Default shall exist  (which shall include, without limitation, compliance with the covenants contained in Section  10.15, Section 10.16 and Section 10.17 as of the most recently ended fiscal quarter for which  financial statements have been delivered to the Lenders, or as of such more recent date as the  Loan Parties may determine, calculated on a pro forma basis giving effect to the granting of such  Lien and any related incurrence of such Indebtedness, as if such Lien had been granted and such  Indebtedness had been incurred as of such quarter end or more recent date).  10.20 Transactions with Loan-Party Related Parties.  No Loan Party will, nor permit  any of its Restricted Subsidiaries to, enter into or be a party to any transaction or arrangement,  including the purchase, sale, discounting, lease or exchange of property or the rendering of any  service, with any Borrower-Related Party, except in the ordinary course of, and pursuant to the  reasonable requirements of such Loan Party’s or such Restricted Subsidiary’s business, unless on  terms comparable to those which such Borrower would obtain in a comparable arm’s-length  transaction with a Person not a Borrower-Related Party; provided that the following shall in any  event be permitted: (a) the payment of consulting or other fees to a Loan Party by any of its  Subsidiaries; (b) employee and officer salaries and bonuses, and loans to employees or officers  reasonable fees and compensation (including employee and officer salaries and bonuses) paid to,  and indemnity provided on behalf of, officers, directors, employees or consultants of a Loan  Party or any of its Subsidiaries; (c) transactions exclusively between or among a Loan Party and  any Restricted Subsidiary of such Loan Party, exclusively between Restricted Subsidiaries of a  Loan Party, or exclusively between a Loan Party or any of its Restricted Subsidiaries and any of  its respective joint ventures or between or among a Loan Party and any Subsidiary of such  Borrower in respect of tax sharing agreements or operations, governance, administration and  corporate overhead on customary terms; (d) any agreement as in effect as of the Restatement  Effective Date as set forth on Schedule 10.20 or any transaction contemplated thereby and any  amendment thereto or any replacement agreement thereto, so long as any such amendment or  replacement agreement is not more disadvantageous to such Loan Party or any of its Restricted  Subsidiaries in any material respect than the original agreement as in effect on the Restatement  Effective Date; (e) any reasonable employment, stock option, stock or share repurchase,  employee benefit compensation, business expense reimbursement, severance, termination, or  other employment-related agreements, arrangements or plans entered into in good faith a Loan  Party or any of its Subsidiaries in the ordinary course of business; (f) any issuance of equity  interests of a Loan Party; (g) employment and severance arrangements in a Loan Party’s  reasonable business judgment with respect to the procurement of services with officers and  employees of such Loan Party and its Subsidiaries; (h) except as limited by Section 10.27, the  payment of a dividend or distribution on or in respect of equity interests or the purchase,  redemption or other acquisition or retirement for value of any equity interests; and (i) Permitted  Securitizations.  The parties agree that any sale of Container Equipment from a Loan Party or  any Restricted Subsidiary of such Loan Party to any Unrestricted Subsidiary of such Borrower at  the original equipment cost or Net Book Value thereof shall be deemed to be an arm’s-length  transaction.  





 






65  744308325  10.21 Pari Passu.  The Loan Parties agree that the Indebtedness hereunder shall rank  at least pari passu with the claims of holders of other senior Indebtedness of the Loan Parties  (without taking into account any claims such holders may have in respect of collateral for such  Indebtedness).  10.22 Negative Pledges, Restrictive Agreements, Etc..  No Loan Party will, nor  permit any of its Restricted Subsidiaries to, (x) enter into or suffer to exist any agreement  creating or purporting to create any Lien, pledge or security interest (other than a Permitted Lien)  with respect to the property of the Loan Parties and their Restricted Subsidiaries or (y) enter into  or suffer to exist any agreement (excluding this Agreement and any other Loan Document)  prohibiting or purporting to prohibit the creation or assumption of any Lien upon such Loan  Party’s properties, revenues or assets, whether now owned or hereafter acquired, or the ability of  the Loan Parties to amend or otherwise modify this Agreement or any other Loan Document;  provided that the Loan Parties and their Restricted Subsidiaries may enter into such agreements  described in the foregoing clause (x) or clause (y) that provide for the counterparties to such  agreements to be secured on a ratable basis with the Administrative Agent, the Lenders and the  Issuers.  No Loan Party will, nor permit any of its Restricted Subsidiaries to, enter into any  agreement containing any provision which would be violated or breached by such Loan Party’s  performance of its obligations hereunder or under any other Loan Document.  10.23 Use of Proceeds.  Each Borrower will use the proceeds of the Loans solely for  the purposes set forth in Section 9.10.  Neither Borrower shall, directly or (to the knowledge of  such Borrower) indirectly, use the proceeds of any Loan, or lend, contribute or otherwise make  available such proceeds to any Subsidiary, joint venture partner or other Person, to fund any  activities of or business with any Person in any manner that will result in a violation by a  Borrower, any Subsidiary, or, to the knowledge of such Borrower, any other Person (including  any Person party to this Agreement, whether as Lender, Lead Arranger, Administrative Agent or  otherwise), of any Anti-Terrorism Law; provided that, the provisions in this Section 10.21 shall  not apply to the extent that it would cause the Administrative Agent or any Lender to breach  European Union Regulation 2271/96/EC (as amended) or any law or regulation implementing  the terms thereof into the law of the United Kingdom in connection with the United Kingdom’s  withdrawal from the European Union.  10.24 [Reserved].   10.25 Anti-Terrorism Laws; International Trade Law Compliance.  (a) No Loan  Party nor of its respective Subsidiaries will become a Sanctioned Person, (b) no Loan Party nor  any of its respective Subsidiaries, either in their own right or through any third party, will (i)  have any of its assets in a Sanctioned Country or in the possession, custody or control of a  Sanctioned Person in violation of any Anti-Terrorism Law; (ii) do business in or with, or derive  any of its income from investments in or transactions with, any Sanctioned Country or  Sanctioned Person in violation of any Anti-Terrorism Law; (iii) engage in any dealings or  transactions prohibited by any Anti-Terrorism Law or (iv) use the Loans to fund any operations  in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or  Sanctioned Person in violation of any Anti-Terrorism Law, (c) the funds used to repay the  obligations hereunder will not be derived from any unlawful activity, (d) each of the Loan Parties  and their respective Subsidiaries shall comply with all Anti-Terrorism Laws, and (e) each Loan  





 






66  744308325  Party shall promptly notify the Administrative Agent in writing if any of its Covered Entities  becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar  charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism  Law or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or  circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual  or probable violation of any Anti-Terrorism Law.  10.26 Designation of Unrestricted Subsidiaries. Either Borrower may designate any  of its Subsidiaries (other than a Subsidiary that is a Borrower) to be an Unrestricted Subsidiary or  remove any such designation by giving written notice from an Authorized Officer to the  Administrative Agent that such Borrower has made such designation, provided that, at the time  of such action and after giving effect thereto, (i) no Event of Default or Unmatured Event of  Default shall have occurred and be continuing and (ii) the Loan Parties shall be in pro forma  compliance with the covenants set forth in Sections 10.15, 10.16 and 10.17.  The Borrowers, will  not permit at any time, the aggregate consolidated assets of all Unrestricted Subsidiaries to  exceed an amount equal to 5% of the consolidated assets of Triton Holdco’s and its Consolidated  Subsidiaries as reflected on the most recent financial statements delivered pursuant to Section  10.1 prior to such date.  10.27 [Reserved].  10.28 Anti-Corruption Laws.  Neither Borrower nor any of their respective  Subsidiaries, directly or indirectly, shall use the Loans or any proceeds thereof for any purpose  which would breach any Anti-Corruption Laws in any jurisdiction in which such Borrower or  any of its Subsidiaries conduct business.  10.29 Additional Loan Parties.  In the event that:  (a)  any holding company acquires Voting Stock of Triton Holdco or any  Borrower through a transaction that does not constitute a Change of Control, or  (b)  any Restricted Subsidiary is a Material Subsidiary, then  such holding company or Material Subsidiary shall be joined as a Guarantor within fifteen (15)  Business Days of such acquisition of Voting Stock or, with respect to a Material Subsidiary, the  date of delivery of financial statements pursuant to Section 10.1 showing that such Restricted  Subsidiary is a Material Subsidiary; provided that in no event shall any ABS Subsidiary be  required to be a Guarantor. Such joinder shall be effectuated by the Loan Parties delivering to the  Administrative Agent a joinder or guaranty agreement, legal opinion, evidence of corporate  authority to become a Guarantor, and such other documents as the Administrative Agent or its  counsel may reasonably request, each in form and substance reasonably acceptable to the  Administrative Agent.  10.30 Equal and Ratable Security.  In the event that, notwithstanding the provisions  of this Agreement, a Borrower grants or suffers to exist any Lien that is not a Permitted Lien, this  Agreement shall be deemed to be secured on a ratable basis with the Indebtedness secured by  such Lien, and the Loan Parties shall promptly execute and deliver, or cause to be executed and  delivered, to the Administrative Agent such documents, agreements and instruments that may be  





 






67  744308325  required by law to perfect such Lien or which the Administrative Agent may, from time to  time, reasonably request to ensure perfection and priority of the Liens created or intended to be  created by such documents, all in form and substance reasonably satisfactory to the  Administrative Agent and all at the expense of the Loan Parties.     SECTION 11. CONDITIONS TO CLOSING AND OF EACH BORROWING.  11.1 Conditions to Closing.  This Agreement, and the obligation of each Lender  to make Loans hereunder, shall become effective upon execution and delivery of this Agreement  by all parties hereto, subject to the satisfaction (or waiver in accordance with Section 14.2(a))  of each of the following conditions:  (a) Good Standing.  The Administrative Agent shall have received certificates of good standing (or its equivalent) from the applicable public officials dated as of a  current date issued by (i) with respect to Triton Holdco and TCIL, the Registrar of  Companies in Bermuda, (ii) with respect to TALICC, the Secretary of State of the State  of Delaware.  (b) Payment of Interest, Fees and Expenses.  The Administrative Agent shall have received (i) (for its own account or for the account of the Lenders, as applicable)  payment in full of all of the fees that are described in Section 4.4 that are due and payable  on the Closing Date; and (ii) all reasonable and documented costs and expenses  (including reasonable attorneys’ fees and charges) incurred by the Administrative Agent  in connection with the preparation, execution and delivery of this Agreement, to the  extent then billed.  (c) Receipt of Documents.  The Administrative Agent shall have received all of the following, each duly executed, as appropriate, and dated as of the date hereof (or  such other date as shall be reasonably satisfactory to the Administrative Agent), in form  and substance reasonably satisfactory to the Administrative Agent, and each (except for  the Notes, of which only the originals shall be signed) in sufficient number of signed  counterparts to provide one for each Lender:  (i) Loan Documents.  This Agreement and each of the other Loan Documents.  (ii) Notes.  A Note with respect to each Borrower for the account of each Lender that has requested a Note prior to the Closing Date.  (iii) Resolutions; Consents.  Copies, duly certified by the secretary or an assistant secretary of each Borrower or Triton Holdco, as applicable of (x)  resolutions of (i) such Borrower’s board of directors authorizing or ratifying the  execution and delivery of this Agreement, the Notes and the other applicable  Loan Documents, and authorizing the borrowings by such Borrower hereunder  and (ii) Triton Holdco’s board of directors authorizing or ratifying the execution  and delivery of this Agreement, (y) all documents evidencing other necessary  corporate action and (z) all approvals, licenses or consents, if any, required in  connection with the consummation of the transactions contemplated by this  





 






68  744308325  Agreement, the Notes and the other applicable Loan Documents, or a statement  that no such approvals, licenses or consents are so required.  (iv) Incumbency.  certificate of the secretary or an assistant secretary of  each Borrower certifying the names of such Borrower’s officers authorized to  sign this Agreement, the Notes and all other Loan Documents to be delivered  hereunder, together with the true signatures of such officers and a certificate of  the secretary or an assistant secretary of Triton Holdco certifying the names of  Triton Holdco’s officers authorized to sign this Agreement.  (v) Release of Collateral.  Evidence of the release of all security  interests (including filings of UCCs and terminations of security registrations in  Bermuda) related to (i) the Existing Term Loan Agreement, (ii) the Indenture,  dated as of April 15, 2021, among TCIL, Triton Holdco and Wilmington Trust,  National Association, as trustee, with respect to the issuance of $600,000,000  aggregate principal amount of 2.050% senior secured notes due 2026, (iii) the  Indentures, dated as of June 7, 2021, among TCIL, Triton Holdco and  Wilmington Trust, National Association, as trustee, with respect to the issuance of  $500,000,000 aggregate principal amount of 1.150% senior secured notes due  2024 and the $600,000,000 aggregate principal amount of 3.150% senior secured  notes due 2031, respectively, (iv) the Indenture, dated as of August 6, 2021,  among TCIL, Triton Holdco and Wilmington Trust, National Association, as  trustee, with respect to the issuance of $600,000,000 aggregate principal amount  of 0.800% senior secured notes due 2023, (v) and the Eleventh Amended and  Restated Credit Agreement, dated as of the date hereof, among the Borrowers, the  Guarantor, Bank of America, N.A., as administrative agent, and the lenders from  time to time party thereto, (vi) the Amended and Restated Credit Agreement,  dated as of July 9, 2021, among TALICC, PNC Equipment Finance, LLC, as  administrative agent and collateral agent, PNC Capital Markets LLC, as sole lead  arranger and the lenders party thereto and (vii) the Credit Agreement, dated as of  July 8, 2019, among TALICC, People’s United Bank, National Association, as  administrative agent and the lenders party thereto  (vi) Opinion Letters.  Favorable opinion letters of (A) Mayer Brown  LLP, counsel to the Borrowers and Triton Holdco and (B) Appleby (Bermuda)  Limited, special Bermuda counsel to the Borrowers and Triton Holdco, each  covering such matters, in such form and having such content, as shall be  reasonably acceptable to the Administrative Agent and its counsel.  (vii) Organizational Documents.  A certificate of the secretary or  assistant secretary of each Borrower and Triton Holdco certifying as to and  attaching the memorandum of association or the certificate of incorporation of  such Borrower and bye-laws of such Borrower or Triton Holdco, including all  amendments or restatements thereto, as in effect on the Closing Date.  (viii) Closing Certificate.  A certificate of an Authorized Officer of each  Borrower and Triton Holdco certifying (w) that all representations and warranties  





 






69  744308325  of such Borrower and Triton Holdco in this Agreement and the other applicable  Loan Documents are true and correct on the Restatement Effective Date, (x) that  no Event of Default or Unmatured Event of Default exists or will result from the  transactions contemplated to occur on the proposed Closing Date, and that since  the date of the Audited Financial Statements no event has occurred which has had  a Material Adverse Effect.  (d) Beneficial Ownership Certification; USA Patriot Act Diligence.  The  Administrative Agent shall have received all documentation and other information  required by bank regulatory authorities or reasonably requested by the Administrative  Agent or any Lender under or in respect of applicable “know your customer” and anti- money laundering legal requirements, including the USA Patriot Act and a Beneficial  Ownership Certification.  (e) Rating.  Triton Holdco shall have obtained S&P Ratings and Fitch Ratings  of at least BBB- with a stable outlook.  (f) Request for Borrowing.  The Administrative Agent shall have received a  Loan Request in accordance with Section 2.3 setting forth the initial Funding Date, which  Funding Date may be modified as mutually agreed between the Lead Borrower and the  Administrative Agent following the date of this Agreement.  (g) Funds Flow.  The Administrative Agent and the Borrowers shall have  agreed on a funds flow memorandum for the Loan.  (h) No Material Adverse Change.  There shall not have occurred a material  adverse change since December 31, 2020 in the business, assets, liabilities (actual or  contingent), operations, condition (financial or otherwise) or prospects of the Loan  Parties and their Restricted Subsidiaries taken as a whole or, in either case, the facts and  information regarding such entities as represented to the Closing Date.  (i) Compliance Certificate.  A duly completed Compliance Certificate as of  the last fiscal quarter of the Borrowers prior to the Closing Date for which financial  statements are available.  Without limiting the generality of the provisions of the last paragraph of Section 13.3(e), for  purposes of determining compliance with the conditions specified in this Section 11.1, each  Lender that has signed this Agreement shall, upon authorization of a Lender to release the  signature page of such Lender, be deemed to have consented to, approved or accepted, and 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;  provided, that, for the avoidance of doubt, each Lender hereby authorizes and instructs the  Administrative Agent to execute, deliver and acknowledge, such instruments or releases as shall  be reasonably requested by any Loan Party or otherwise required to evidence or effectuate such  release of collateral pursuant to Section 11.1(c)(v) hereof.   





 






70  744308325  11.2 Conditions to each Borrowing.  Following the initial Funding Date, the  obligation of each Lender to make one or more Loans hereunder, shall be subject to the  satisfaction (or waiver in accordance with Section 14.2(a)) of each of the following conditions:  (a) Representations and Warranties. Before and after giving effect to such  Loan, the representations and warranties in Section 9, and in any other agreement or  certification given by a Borrower or any of its Restricted Subsidiaries or any officer  thereof pursuant to this Agreement, shall be true and correct in all material respects as  though made on the date of such Loan.  (b) Default.  Before and after giving effect to such Loan, no Event of Default  or Unmatured Event of Default shall have occurred and be continuing.  (c) Request for Borrowing.  The Administrative Agent shall have received a  Loan Request from the Lead Borrower in accordance with Section 2.3 setting forth the  Funding Date.   (d) Unencumbered Assets Coverage Ratio. The Loan Parties shall be in  compliance with Section 10.17 after giving effect to such Borrowing.  SECTION 12. EVENTS OF DEFAULT AND REMEDIES.  12.1 Events of Default.  Each of the following shall constitute an Event of Default  under this Agreement:  (a) Non-Payment.  Default in the payment, when due, (i) of any principal of  any Loan (including any mandatory prepayment) or (ii) of any interest on any Loan or  any fee or other amount payable hereunder and the continuance thereof for five (5) days;  provided, however, the Borrowers shall be entitled to make such principal payment or  mandatory prepayment on the next succeeding Business Day if (x) such payment is due  on a Payment Date or Maturity Date that is not a Business Day or (y) the Borrowers fail  to make such payment on its due date as the result of an administrative or technical error  not caused by the Borrowers.  (b) Default or Acceleration of other Indebtedness.  A default or event of  default shall occur at any time under the terms of any other agreement involving any  Indebtedness under which the Guarantor, a Borrower or any Subsidiary of a Borrower  may be obligated as a borrower or guarantor, which individually or in the aggregate,  exceeds $100,000,000 (other than (i) any Indebtedness of a Restricted Subsidiary of such  Borrower to such Borrower or to any other Restricted Subsidiary of such Borrower and  (ii) a default described in Section 12.1(a)), and such breach, default or event of default  consists of either (1) the failure to pay (any required notice of default having been given  and any period of grace permitted with respect thereto having expired) any Indebtedness  when due (whether at stated maturity, by acceleration, required mandatory prepayment or  otherwise), or (2) a breach of a financial covenant thereunder.  (c) Insolvency.  Any Loan Party or any of a Loan Party’s Restricted  Subsidiaries becomes insolvent, or generally fails to pay, or admits in writing its inability  





 






71  744308325  to pay, its debts as they mature, or applies for, consents to, or acquiesces in the  appointment of a trustee, receiver or other custodian for any Loan Party or a Restricted  Subsidiary or a substantial part of the property of any Loan Party or a Restricted  Subsidiary, or makes a general assignment for the benefit of creditors; or, in the absence  of such application, consent or acquiescence, a trustee, receiver or other custodian is  appointed for any Loan Party or a Restricted Subsidiary or for a substantial part of the  property of a Loan Party or a Restricted Subsidiary and is not discharged within sixty  (60) days; or any proceeding under any Debtor Relief Law is instituted by or against any  Loan Party or any Restricted Subsidiary and, if instituted against a Loan Party or any  Restricted Subsidiary, is consented to or acquiesced in by a Loan Party or any Restricted  Subsidiary or remains for sixty (60) days undismissed; or any warrant of attachment is  issued against any substantial part of the property of a Loan Party or a Restricted  Subsidiary which is not released within sixty (60) days of service.  (d) ERISA.  A Termination Event occurs with respect to any Pension Plan  that, alone or together with any other Termination Events that occurred, would  reasonably be expected to result in material liability of the Borrowers in an aggregate  amount exceeding $100,000,000.  (e) Specific Defaults.  Failure by a Loan Party to comply with or perform any  covenant set forth in (i) Section 10.2(a), 10.10, 10.11, 10.15, 10.16, 10.17, 10.23, 10.25,  10.28, 10.29, or 10.30 or (ii) Section 10.5, 10.18, 10.19, 10.22, and 10.26 and, in the case  of this clause (e)(ii), such failure to comply shall continue for ten (10) Business Days  after the earlier of (x) the date upon which an Authorized Officer of the Loan Parties or  any Restricted Subsidiary had actual knowledge of such default or (y) the date upon  which written notice thereof is given to a Loan Party by the Administrative Agent or any  Lender.  (f) Other Defaults; Obligations Under other Loan Documents.  Default in the  performance of any Loan Party’s agreements herein set forth or in any other Loan  Document (subject to any applicable grace period in any such Loan Document) in any  material respect (and not constituting an Event of Default under any of the other clauses  of this Section 12.1) and continuance of such default for thirty (30) days after the earlier  of (i) the date upon which an Authorized Officer of a Loan Party or any of their  Restricted Subsidiaries had actual knowledge of such default or (ii) the date upon which  written notice thereof is given to a Loan Party by the Administrative Agent or any  Lender.  (g) Representations and Warranties.  Any representation or warranty of a  Loan Party made in any Loan Document or any schedules, notices, certificates, reports or  instruments delivered in connection therewith shall prove incorrect in any material  respect when made and which (if curable) remains unremedied for a period of thirty (30)  days after the first date on which an Authorized Officer has received written notice  thereof.  (h) Change of Control.  A Change of Control shall occur.  





 






72  744308325  (i) Final Judgments and Orders.  There shall be entered against any Loan  Party or any of their Restricted Subsidiaries one or more judgments or decrees which in  the aggregate are in excess of the greater of (x) $100,000,000 and (y) 3.0% of the  Consolidated Tangible Net Worth in the aggregate at any one time outstanding  (excluding any judgments or decrees (i) that shall have been outstanding less than sixty  (60) calendar days from the entry thereof or (ii) for and to the extent which the Loan  Parties or the applicable Restricted Subsidiary is insured and with respect to which the  insurer has assumed responsibility therefor in writing or for and to the extent which such  Person is otherwise indemnified if the terms of such indemnification are satisfactory to  the Majority Lenders), and either (A) enforcement proceedings shall have been  commenced by any creditor upon such judgment or order or (B) there shall be any period  of thirty (30) consecutive days during which a stay of enforcement of such judgment or  order, by reason of a pending appeal or otherwise, shall not be in effect.  12.2 Remedies.  If any Event of Default described in Section 12.1 shall exist, the  Administrative Agent may, or upon request of the Majority Lenders, declare all or a portion of  the Commitments to be terminated and/or all or a portion of the Loans and other Liabilities to be  due and payable, whereupon to the extent so declared the Commitments shall immediately  terminate and/or the outstanding Loans and other Liabilities shall become immediately due and  payable, all without notice of any kind (except that if an event described in Section 12.1(c)  occurs, the Commitments shall immediately terminate and all outstanding Loans and other  Liabilities shall become immediately due and payable without declaration or notice of any kind).   The Administrative Agent shall promptly advise the Lead Borrower of any such declaration, but  failure to do so shall not impair the effect of such declaration.  Without limiting the foregoing  provisions of this Section 12.2, if an Event of Default exists, the Administrative Agent may  exercise all rights and remedies available upon an Event of Default pursuant to any Loan  Document and applicable law.  12.3 Application of Proceeds.  Upon the occurrence and during the continuance of  an Event of Default, proceeds from the exercise of its rights hereunder and received by the  Administrative Agent pursuant thereto shall be applied as follows:  (a) First, to the payment of, or (as the case may be) the reimbursement of the  Administrative Agent for or in respect of all reasonable and documented costs, expenses,  disbursements and losses which shall have been incurred or sustained by the  Administrative Agent in connection with the collection of such monies by the  Administrative Agent, for the exercise, protection or enforcement by the Administrative  Agent of all or any of the rights, remedies, powers and privileges of the Administrative  Agent under this Agreement or any of the other Loan Documents;  (b) Second, to all other obligations hereunder; provided that distributions shall  be made (A) with respect to any fees owing to the Administrative Agent and the Lenders,  ratably among the Administrative Agent and any Lenders to which such fees are owed,  and (B) with respect to each type of other Liabilities owing to the Lenders such as  interest, principal, fees and expenses, ratably among the Lenders, and (C) otherwise in  such order or preference as the Majority Lenders may determine.  In determining the  obligations under this Agreement for purposes of clauses (A) and (B), the Administrative  





 






73  744308325  Agent may in its reasonable discretion make proper allowance to take into account any  obligations hereunder not then due and payable; and  (c) Third, the excess, if any, shall be returned to the Borrowers or to such  other Persons as are entitled thereto.  SECTION 13. ADMINISTRATIVE AGENT.  13.1 Appointment and Authority.  Each of the Lenders hereby irrevocably appoints  PNC Bank to act on its behalf as the Administrative Agent hereunder and under the other Loan  Documents and, subject to obtaining any consent of the requisite Lenders pursuant to Section  14.2(a), take such other actions on its behalf and exercise such powers as are delegated to the  Administrative Agent by the terms hereof, together with such actions and powers as are  reasonably incidental thereto.  The provisions of this Section 13.1 are solely for the benefit of the  Administrative Agent and the Lenders, and the Loan Parties shall not have rights as a third party  beneficiary of any of such provisions.  13.2 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, act as the financial  advisor or in any other advisory capacity for and generally engage in any kind of business with  the Loan Parties 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.  13.3 Exculpatory Provisions.  The Administrative Agent shall not have any duties  or obligations except those expressly set forth herein and in the other Loan Documents.  Without  limiting the generality of the foregoing, the Administrative Agent:  (a) shall not be subject to any fiduciary or other implied duties, regardless of  whether a Unmatured Event of Default or Event of Default has occurred and is  continuing;  (b) 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 Majority 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; and  (c) shall not, except as expressly set forth herein and in the other Loan  Documents, have any duty to disclose, and shall not be liable for the failure to disclose,  any information relating to the Loan Parties or any of its Affiliates that is communicated  





 






74  744308325  to or obtained by the Person serving as the Administrative Agent or any of its Affiliates  in any capacity.  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 Majority Lenders (or such other number or percentage  of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith  shall be necessary, under the circumstances as provided in Sections 14.2 and 12.2) or (ii) in the  absence of its own gross negligence or willful misconduct as determined by a court of competent  jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be deemed  not to have knowledge of any Unmatured Event of Default or Event of Default unless and until  notice describing such Unmatured Event of Default or Event of Default is given to the  Administrative Agent in writing by a Loan Party or a Lender.  The Administrative Agent shall not be responsible for or have any duty to ascertain or  inquire into (i) any statement, warranty or representation made in or in connection with this  Agreement or any other Loan Document, (ii) the contents of any certificate, report or other  document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the  performance or observance of any of the covenants, agreements or other terms or conditions set  forth herein or therein or the occurrence of any Unmatured Event of Default or Event of Default,  (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan  Document or any other agreement, instrument or document or (v) the satisfaction of any  condition set forth in Section 11 or elsewhere herein, other than to confirm receipt of items  expressly required to be delivered to the Administrative Agent.  13.4 Reliance by Administrative Agent.  The Administrative Agent shall be entitled  to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,  consent, statement, instrument, document or other writing (including any electronic message,  Internet or intranet website posting or other distribution) believed by it to be genuine and to have  been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent  also may rely upon any statement made to it orally or by telephone and believed by it to have  been made by the proper Person, and shall not incur any liability for relying thereon.  In  determining compliance with any condition hereunder to the making of a Loan that by its terms  must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such  condition is satisfactory to such Lender unless the Administrative Agent shall have received  notice to the contrary from such Lender prior to the making of such Loan.  The Administrative  Agent may consult with legal counsel (who may be counsel for a 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.  13.5 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 Section  13.5 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  





 






75  744308325  syndication of the credit facilities provided for herein as well as activities as Administrative  Agent.  13.6 Resignation of Administrative Agent.  The Administrative Agent may at any  time give notice of its resignation to the Lenders and the Lead Borrower.  Upon receipt of any  such notice of resignation, the Majority Lenders shall have the right, with approval from the  Lead Borrower (so long as no Event of Default has occurred and is continuing), 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 that in each case is a Lender.  If no such successor shall  have been so appointed by the Majority Lenders and shall have accepted such appointment  within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then  the retiring Administrative Agent may on behalf of the Lenders, appoint a successor  Administrative Agent; provided that if the Administrative Agent shall notify the Borrowers and  the Lenders that no qualifying Person has accepted such appointment, then such resignation shall  nonetheless become effective in accordance with such notice and (i) the retiring 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 under any of the Loan Documents, the retiring Administrative Agent  shall continue to hold such collateral security until such time as a successor Administrative  Agent is appointed) and (ii) all payments, communications and determinations provided to be  made by, to or through the Administrative Agent shall instead be made by or to each Lender  directly, until such time as the Majority Lenders appoint a successor Administrative Agent as  provided for above in this Section 13.6.  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 retired) Administrative Agent, and the  retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder  or under the other Loan Documents (if not already discharged therefrom as provided above in  this Section).  The fees payable by the Borrowers to a successor Administrative Agent shall be  the same as those payable to its predecessor unless otherwise agreed between each Borrower and  such successor.  After the retiring Administrative Agent's resignation hereunder and under the  other Loan Documents, the provisions of this Section 13.6 and Section 14.5 shall continue in  effect for the benefit of such retiring 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 Administrative Agent was acting as Administrative Agent.  Upon the appointment of a successor Administrative Agent hereunder, such successor  shall succeed to all of the rights, powers, privileges and duties of PNC Bank as the retiring  Administrative Agent and PNC Bank shall be discharged from all of its respective duties and  obligations as Administrative Agent under the Loan.  13.7 Non-Reliance on Administrative Agent and Other Lenders.  Each 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 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  





 






76  744308325  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.  13.8 No Other Duties, Etc..  Anything herein to the contrary notwithstanding, none  of the Joint Lead Arrangers, Co-Syndication Agents, Co-Documentation Agents or the  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, or a Lender hereunder.  13.9 Administrative Agent's Fee.  The Borrowers shall pay to the Administrative  Agent a nonrefundable fee under the terms of the Fee Letter.  13.10 [Reserved].  13.11 No Reliance on Administrative Agent's Customer Identification Program.   Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates,  participants or assignees, may rely on the Administrative Agent to carry out such Lender's,  Affiliate's, participant's or assignee's customer identification program, or other obligations  required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder,  including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the  “CIP Regulations”), or any other Anti-Terrorism Law, including any programs involving any of  the following items relating to or in connection with any of the Borrowers, its Affiliates or their  agents, the Loan Documents or the transactions hereunder or contemplated hereby: (i) any  identity verification procedures, (ii) any recordkeeping, (iii) comparisons with government lists,  (iv) customer notices or (v) other procedures required under the CIP Regulations or such other  Laws.  13.12 Funding Reliance.  (a) Unless the Administrative Agent shall have received notice from a Lender  prior to the proposed date of any Borrowing of LIBOR Rate Loans (or, in the case of any  Borrowing of Base Rate Loans, prior to 11:00 a.m. on the date of such Borrowing) that  such Lender will not make available to the Administrative Agent such Lender’s share of  such Borrowing, the Administrative Agent may assume that such Lender has made such  share available on such date in accordance with Section 2.3(b) (or, in the case of a  Borrowing of Base Rate Loans, that such Lender has made such share available in  accordance with and at the time required by Section 2.3(b)) and may, in reliance upon  such assumption, make available to the Borrowers a corresponding amount.  In such  event, if a Lender has not in fact made its share of the applicable Borrowing available to  the Administrative Agent, then the applicable Lender and the Borrowers jointly and  severally agree to pay to the Administrative Agent forthwith on demand such  corresponding amount in immediately available funds with interest thereon, for each day  from the date such amount is made available to the Borrowers to the date of payment to  the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the  greater of the Federal Funds Open Rate and a rate determined by the Administrative  Agent in accordance with banking industry rules on interbank compensation and (ii) in  the case of a payment to be made by the Borrowers, the interest rate applicable to Base  





 






77  744308325  Rate Loans.  If the Borrowers and such Lender shall pay such interest to the  Administrative Agent for the same or an overlapping period, the Administrative Agent  shall promptly remit to the Borrowers the amount of such interest paid by the Borrowers  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 a Borrower shall be without prejudice to  any claim a Borrower may have against a Lender that shall have failed to make such  payment to the Administrative Agent.  (b) Unless the Administrative Agent shall have received notice from the  Borrowers prior to the date on which any payment is due to the Administrative Agent for  the account of the Lenders hereunder that the Borrowers will not make such payment, the  Administrative Agent may assume that the Borrowers have made such payment on such  date in accordance herewith and may, in reliance upon such assumption, distribute to the  Lenders, as the case may be, the amount due.  In such event, if the Borrowers have not in  fact made such payment, then each of the Lenders, as the case may be, severally agrees to  repay to the Administrative Agent forthwith on demand the amount so distributed to such  Lender, in immediately available funds with interest thereon, for each day from the date  such amount is distributed to it to the date of payment to the Administrative Agent, at the  greater of the Federal Funds Open Rate and a rate determined by the Administrative  Agent in accordance with banking industry rules on interbank compensation.  13.13 Erroneous Payments.  (a) Each Lender hereby agrees that (i) if the Administrative Agent notifies  such Lender that the Administrative Agent has determined in its sole discretion that any  funds received by such Lender from the Administrative Agent or any of its Affiliates  were erroneously transmitted to, or otherwise erroneously or mistakenly received by,  such Lender (whether or not known to such Lender (whether as a payment, prepayment  or repayment of principal, interest, fees or otherwise), individually and collectively, an  “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion  thereof), such Lender shall promptly, but in no event later than one (1) 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 (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  Lender to the date such amount is repaid to the Administrative Agent in same day funds  at the greater of the Federal Funds Open Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank  compensation from time to time in effect, and (ii) such Lender shall not assert any right  or claim to the 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 Administrative Agent for the return of any Erroneous Payments received, including  without limitation waiver of any defense based on “discharge for value” or any similar  doctrine. A notice of the Administrative Agent to any Lender under this clause (a) shall  be conclusive, absent manifest error.  





 






78  744308325  (b) Without limiting immediately preceding clause (a), each Lender hereby  further agrees that if it receives an Erroneous Payment from the Administrative Agent (or  any of its Affiliates) (i) that is in an amount different than (other than a de minimis  difference), or on a different date from, that specified in a notice of payment sent by the  Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment  (an “Erroneous Payment Notice”), or (ii) that was not preceded or accompanied by an  Erroneous Payment Notice, it shall be on notice that, in each such case, an error has been  made with respect to such Erroneous Payment.  Each Lender further agrees that, in each  such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof)  may have been sent in error, such Lender shall promptly notify the Administrative Agent  of such occurrence and, upon demand from the Administrative Agent, it shall promptly,  but in no event later than one (1) Business Day thereafter, return to the Administrative  Agent the amount of any such Erroneous Payment (or portion thereof) that was received  by such Lender to the date such amount is repaid to the Administrative Agent in same  day funds at the greater of the Federal Funds Open Rate and a rate determined by the  Administrative Agent in accordance with banking industry rules on interbank  compensation from time to time in effect.  (c) The parties hereto agree that (i) in the event an Erroneous Payment (or  portion thereof) is not recovered from any Lender that has received such Erroneous  Payment (or portion thereof) for any reason, the Administrative Agent shall be  subrogated to all the rights of such Lender with respect to such amount and (ii) an  Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any  Liabilities owed by the Borrowers, 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 Borrowers for the  purpose of making such Erroneous Payment.  (d) Each party’s obligations under this Section 13.13 shall survive the  resignation or replacement of the Administrative Agent or any transfer of rights or  obligations by, or the replacement of, a Lender, the termination of the Commitments or  the repayment, satisfaction or discharge of all Liabilities (or any portion thereof) under  any Loan Document.  SECTION 14. GENERAL.  14.1 No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender or  the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,  remedy, power or privilege hereunder or under any other Loan Document shall operate as a  waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege  hereunder preclude any other or further exercise thereof or the exercise of any other right,  remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and  provided under each other Loan Document, are cumulative and not exclusive of any rights,  remedies, powers and privileges provided by law.  14.2 Waivers and Amendments.  





 






79  744308325  (a) Generally.  Except as otherwise specifically provided for in this  Agreement, no amendment, modification or waiver of, or consent with respect to, any  provision of this Agreement, the Notes or any other Loan Document shall in any event be  effective unless the same shall be in writing and signed and delivered by the Majority  Lenders and acknowledged by the Administrative Agent, and then any such amendment,  modification, waiver or consent shall be effective only in the specific instance and for the  specific purpose for which given; provided that no amendment, waiver or consent shall:  (i) unless consented to by each Lender affected thereby, (A) increase  or extend a Commitment of any Lender or subject any Lender to any additional  obligation, (B) reduce the principal of, or rate of interest on, any Loan or any fee  or other Liability payable hereunder (provided that any (x) change in the  definition, or component thereof, of any ratio used in the calculation of such  principal, rate of interest, fee or other Liability payable hereunder, (y) waiver or  amendment in respect of a default rate of interest, or (z) change in the mandatory  prepayment requirements, shall not, in each case, constitute a reduction in the  principal of, or rate of interest on, any Loan or any fee or other Liability payable  hereunder), or (C) postpone any date fixed for any payment of principal of, or  interest on, any Loan or any fee or other Liability hereunder;  (ii) unless consented to by each Lender, (A) waive any condition  specified in Section 11.1, (B) change the Percentages or the aggregate unpaid  principal amount of the Loans, or the number of Lenders which shall be required  to take action hereunder, or the definition of “Majority Lenders”, (C) change  Section 6.1, Section 6.4 or Section 12.3, in each case, in a manner that would alter  the pro rata sharing of payments required thereby, or (D) change any provision of  this Section 14.2; or  (iii) No provision of this Agreement (including Section 13) or of any  other Loan Document which relates to the rights or duties of the Administrative  Agent shall be amended, modified or waived without the written consent of the  Administrative Agent.  (b) (i) Notwithstanding anything to the contrary herein, no Defaulting Lender  will have any right to approve or disapprove any amendment, waiver or consent  hereunder (and any amendment, waiver or consent which by its terms requires the  consent of all Lenders or each affected Lender may be effected with the consent of the  applicable Lenders other than Defaulting Lenders), except that (1) the Commitment of  any Defaulting Lender may not be increased or extended without the consent of such  Lender and (2) any waiver, amendment or modification requiring the consent of all  Lenders or each affected Lender that by its terms affects any Defaulting Lender more  adversely than other affected Lenders will require the consent of such Defaulting Lender.  14.3 Notices.  (a) Notices Generally.  Except as otherwise expressly provided herein, any  notice hereunder to the Borrower, the Administrative Agent or any Lender shall be in  





 






80  744308325  writing (including facsimile communication) and shall be given (i) if to a Loan Party or  the Administrative Agent, at its address or facsimile number set forth on Schedule 10.2,  and (ii) if to any Lender, at its address or facsimile number set forth in its Administrative  Questionnaire or, in each case, at such other address or facsimile number as the recipient  may, by written notice, designate as its address or facsimile number for purposes of  notices hereunder.  All such notices shall be deemed to be given when transmitted by  facsimile, when personally delivered or, in the case of a mailed notice, when sent by  registered or certified mail, postage prepaid, in each case addressed as specified in this  Section 14.3; provided that notices to the Administrative Agent under Section 2,  Section 6 and this Section 14.3 shall not be effective until actually received by the  Administrative Agent.  (b) Electronic Communications.  Notices and other communications to the  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 pursuant to Section 2 if such Lender, as applicable, has notified the  Administrative Agent that it is incapable of receiving notices under such Article by  electronic communication.  The Administrative Agent or each Loan Party may, in its  discretion, agree to accept notices and other communications to it hereunder by electronic  communications pursuant to procedures approved by it, provided that approval of such  procedures may be limited to particular notices or communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other  communications sent to an e-mail address shall be deemed received upon the sender’s receipt of  an acknowledgement from the intended recipient (such as by the “return receipt requested”  function, as available, return e-mail or other written acknowledgement), provided that if such  notice or other communication is not sent during the normal business hours of the recipient, such  notice or communication shall be deemed to have been sent at the opening of business on the  next business day for the recipient, and (ii) notices or communications posted to an Internet or  intranet website shall be deemed received upon the deemed receipt by the intended recipient at  its e-mail address as described in the foregoing clause (i) of notification that such notice or  communication is available and identifying the website address therefor.  (c) The Platform.  Each Loan Party hereby acknowledges that the  Administrative Agent and will make available to the Lenders materials and/or  information provided by or on behalf of the Loan Parties hereunder (collectively,  “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another  similar electronic system (the “Platform”).  THE PLATFORM IS PROVIDED “AS IS”  AND “AS AVAILABLE”.  THE ADMINISTRATIVE AGENT PARTIES (AS  DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS  OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM,  AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS  FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND,  EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR  





 






81  744308325  OTHER CODE DEFECTS, IS MADE BY ANY ADMINISTRATIVE AGENT PARTY  IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In  no event shall the Administrative Agent or any of its Related Parties (collectively, the  “Administrative Agent Parties”) have any liability to either Borrower, any Lender or any  other Person for losses, claims, damages, liabilities or expenses of any kind (whether in  tort, contract or otherwise) arising out of the Borrowers’ or the Administrative Agent’s  transmission of Borrower Materials through the Internet, except to the extent that such  losses, claims, damages, liabilities or expenses are determined by a court of competent  jurisdiction by a final and non-appealable judgment to have resulted from the gross  negligence or willful misconduct of such Administrative Agent Party; provided that in no  event shall any Administrative Agent Party have any liability to any Loan Party, any  Lender or any other Person for indirect, special, incidental, consequential or punitive  damages (as opposed to direct or actual damages).  (d) Reliance by the Administrative Agent and the Lenders.  The  Administrative Agent and the Lenders shall be entitled to rely and act upon any notices  (including telephonic notices, Loan Requests) purportedly given by or on behalf of a  Loan Party even if (i) such notices were not made in a manner specified herein, were  incomplete or were not preceded or followed by any other form of notice specified  herein, or (ii) the terms thereof, as understood by the recipient, varied from any  confirmation thereof.  Each Loan Party shall indemnify the Administrative Agent, each  Lender and the Related Parties of each of them from all losses, costs, expenses and  liabilities resulting from the reliance by such Person on each notice purportedly given by  or on behalf of each Loan Party.  All telephonic notices to and other telephonic  communications with the Administrative Agent may be recorded by the Administrative  Agent, and each of the parties hereto hereby consents to such recording.  14.4 USA Patriot Act Notice.  Each Lender that is subject to the USA Patriot Act  and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the  Loan Parties that pursuant to the requirements of the USA Patriot Act, it is required to obtain,  verify and record information that identifies the Loan Parties, which information includes the  name and address the Loan Parties and other information that will allow such Lender or  Administrative Agent, as applicable, to identify the Loan Parties in accordance with the USA  Patriot Act.  The Administrative Agent and each Lender hereby notifies the Loan Parties that,  pursuant to the Beneficial Ownership Regulation, it is required to obtain a Beneficial Ownership  Certificate.  14.5 Expenses; Indemnity; Damage Waiver.  (a) The Borrowers agree that they shall pay (i) all reasonable and documented  out of pocket expenses incurred by the Administrative Agent and its Affiliates (including  the reasonable and documented fees, charges and disbursements of one transaction  counsel for the Administrative Agent and of one local counsel, if any, who may be  retained by such counsel), in connection with the syndication of the credit facilities  provided for herein, the preparation, negotiation, execution, delivery and administration  of this Agreement and the other Loan Documents or any amendments, modifications or  waivers of the provisions hereof or thereof (whether or not the transactions contemplated  





 






82  744308325  hereby or thereby shall be consummated), and (ii) all reasonable and documented out of  pocket expenses incurred by the Administrative Agent or any Lender (including the  reasonable and documented fees, charges and disbursements of one counsel (not  including local counsel) for the Administrative Agent or any 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 hereunder, including all such out of pocket expenses incurred during any  workout, restructuring or negotiations in respect of such Loans, and (iii) any civil penalty  or fine assessed by OFAC against, and all reasonable costs and expenses (including  counsel fees and disbursements) incurred in connection with defense thereof, by the  Administrative Agent or any Lender as a result of conduct of the Borrowers that violates  a sanction enforced by OFAC.  (b) The Borrowers agree that they shall indemnify the Administrative Agent  (and any subagent thereof), each Lender, and each Related Party of any of the foregoing  Persons (each such Person being called an “Indemnitee”) against, and hold each  Indemnitee harmless from, any and all losses, claims, damages, liabilities and related  expenses (including the reasonable and documented fees, charges and disbursements of  any counsel (not including local counsel) for any Indemnitee), incurred by any  Indemnitee or asserted against any Indemnitee by any third party or by the Borrowers  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, the consummation of the transactions contemplated hereby or  thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its  Related Parties only, the administration of this Agreement and the other Loan  Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any  liability under any Environmental Law related in any way to a Borrower or any of its  Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or  proceeding relating to any of the foregoing, whether based on contract, tort or any other  theory, whether brought by a third party or by a Borrower, and regardless of whether any  Indemnitee is a party thereto; provided that such indemnity shall not, as to any  Indemnitee, be available to the extent that such losses, claims, damages, liabilities or  related expenses (x) are determined by a court of competent jurisdiction by final and non- appealable judgment to have resulted from the gross negligence or willful misconduct of  such Indemnitee or (y) result from a claim brought by a Borrower against an Indemnitee  for breach in bad faith of such Indemnitee’s obligations hereunder or under any other  Loan Document, if a Borrower has obtained a final and non-appealable judgment in its  favor on such claim as determined by a court of competent jurisdiction.  This Section  14.5 shall not apply with respect to any Taxes other than any Taxes that represent losses,  claims, damages, etc. arising from any non-Tax claim.  (c) To the extent that a Borrower for any reason fails to indefeasibly pay any  amount required under clause (a) or (b) above to be paid by it to the Administrative  Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each  Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or  such Related Party, as the case may be, such Lender’s Percentage (determined as of the  





 






83  744308325  time that the applicable unreimbursed expense or indemnity payment is sought) of such  unpaid amount, provided that the unreimbursed expense or indemnified loss, claim,  damage, liability or related expense, as the case may be, was incurred by or asserted  against the Administrative Agent (or any such sub-agent) 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) in connection with such capacity.  The obligations of the Lenders  under this clause (c) are several and not joint.  (d) To the fullest extent permitted by applicable law, no party hereto shall  assert, and each party hereto 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 the use of the  proceeds thereof.  No Indemnitee referred to in clause (b) above shall be liable for any  damages arising from the use by unintended recipients of any information or other  materials distributed 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) All amounts due under this Section shall be payable on demand.  (f) The agreements in this Section and the indemnity provisions in Section  14.3(d) shall survive the resignation of the Administrative Agent, the replacement of any  Lender, the termination of the Commitments and the repayment, satisfaction or discharge  of all the other obligations of the Borrowers under this Agreement and the other Loan  Documents.  14.6 Governing Law; Entire Agreement.  THIS AGREEMENT AND EACH NOTE  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS  OF THE STATE OF NEW YORK.  All obligations of the Borrowers and rights of the Lenders  and the Administrative Agent expressed herein, in the Notes or in any other Loan Document  shall be in addition to and not in limitation of those provided by applicable law.  This  Agreement, the Notes and the other Loan Documents constitute the entire understanding among  the parties hereto with respect to the subject matter hereof and supersede any prior agreements,  written or oral, with respect thereto.  14.7 Successors and Assigns.  The provisions of this Agreement shall be binding  upon, and inure to the benefit of, the parties hereto and their respective successors and assigns  permitted hereby, except that no Loan Party shall assign or otherwise transfer any of its rights or  obligations hereunder without the prior written consent of the Administrative Agent and each  Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder  except (i) to an assignee in accordance with the provisions of Section 14.8, (ii) by way of  participation in accordance with the provisions of Section 14.10, or (iii) by way of pledge or  assignment of a security interest subject to the restrictions of Section 14.11 (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  





 






84  744308325  parties hereto, their respective successors and assigns permitted hereby, Participants to the extent  provided in Section 14.10 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.  14.8 Assignments by Lenders.    (a) Assignments by Lenders.  Any Lender may at any time assign to one or  more assignees all or a portion of its rights and obligations under this Agreement  (including all or a portion of its Commitment and the Loans at the time owing to it);  provided that any such assignment shall be subject to the following conditions:  (i) Minimum Amounts.  (A) in the case of an assignment of the entire remaining amount  of the assigning Lender's applicable Commitment and the Loans at the  time owing to it or in the case of an assignment to a Lender, an Affiliate of  a Lender or an Approved Fund, no minimum amount need be assigned;  and  (B) in any case not described in clause (i)(A) of this Section  14.8, the principal outstanding balance of the Loans of the assigning  Lender subject to each such assignment (determined as of the date the  Assignment and Assumption Agreement with respect to such assignment  is delivered to the Administrative Agent or, if the “Trade Date” is  specified in the Assignment and Assumption Agreement, as of the Trade  Date) shall not be less than $10,000,000, in the case of the Loan of such  assigning Lender, unless each of the Administrative Agent and, so long as  no Event of Default has occurred and is continuing, the Lead Borrower  otherwise consents (each such consent not to be unreasonably withheld or  delayed).  (ii) Proportionate Amounts.  Each partial assignment shall be made as  an assignment of a proportionate part of all the assigning Lender's rights and  obligations under this Agreement with respect to the Loan assigned.  (iii) Required Consents.  No consent shall be required for any  assignment except for the consent of the Administrative Agent (which shall not be  unreasonably withheld or delayed) to the extent that such assignment is to a  Person other than another Lender, an Affiliate of a Lender or an Approved Fund  and the consent of the Borrowers (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; and  (iv) Assignment and Assumption Agreement.  The parties to each  assignment shall execute and deliver to the Administrative Agent an Assignment  and Assumption Agreement, together with a processing and recordation fee of  





 






85  744308325  $5,000 (unless waived by the Administrative Agent in its sole discretion), and the  Eligible Assignee, if it is not a Lender, shall deliver to the Administrative Agent  an administrative questionnaire provided by the Administrative Agent.  (v) No Assignment to Borrower.  No such assignment shall be made to  a Borrower or any Affiliate or Subsidiary of a Borrower.  (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 by or for the primary benefit of a natural Person).  Subject to acceptance and recording thereof by the Administrative Agent pursuant to  Section 14.9, from and after the effective date specified in each Assignment and  Assumption Agreement, the Eligible Assignee thereunder shall be a party to this  Agreement and, to the extent of the interest assigned by such Assignment and  Assumption Agreement, have the rights and obligations of a Lender under this  Agreement, and the assigning Lender thereunder shall, to the extent of the interest  assigned by such Assignment and Assumption Agreement, be released from its  obligations under this Agreement (and, in the case of an Assignment and Assumption  Agreement covering all of the assigning Lender's rights and obligations under this  Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled  to the benefits of Sections 7.1, 7.2, and 14.5 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 such  Lender having been a Defaulting Lender.  If requested by the assignee Lender, each  Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any  assignment or transfer by a Lender of rights or obligations under this Agreement that  does not comply with this Section 14.8 shall be treated for purposes of this Agreement as  a sale by such Lender of a participation in such rights and obligations in accordance with  Section 14.10.  (b) Disqualified Persons.   (i) No assignment or participation shall be made to, and no portion of  any Commitment Increase shall be provided by, any Person that was a  Disqualified Person 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 or the  applicable Increase Effective Date, as the case may be (unless the Borrowers (in  their sole and absolute discretion) have consented, in writing, to such assignment  or the portion of the Commitment Increase to be provided by such Disqualified  Person, in which case such Person will not be considered a Disqualified Person  for the purpose of such assignment, participation or Commitment Increase).  For  the avoidance of doubt, with respect to any assignee or participant or any Lender  that provides any portion of a Commitment Increase that becomes a Disqualified  Person after the applicable Trade Date (including as a result of the delivery of a  





 






86  744308325  notice pursuant to, and/or the expiration of the notice period referred to in, the  definition of “Disqualified Person”), (x) such assignee or Lender shall not  retroactively be disqualified from becoming a Lender or participant and (y) the  execution by the Borrowers of an Assignment and Assumption or Joinder  Agreement with respect to such assignee will not by itself result in such assignee  no longer being considered a Disqualified Person. Any assignment or  Commitment Increase in violation of this clause (b)(i) shall not be void, but the  other provisions of this clause (b) shall apply.  (ii) If any assignment or participation is made to, or any portion of a  Commitment Increase is provided by, any Disqualified Person without the  Borrowers’ prior written consent in violation of clause (i) above, or if any Person  becomes a Disqualified Person after the applicable Trade Date, the Borrowers  may, at their sole expense and effort, upon notice to the applicable Disqualified  Person and the Administrative Agent, (A) terminate the Commitment of such  Disqualified Person and repay all obligations of the Borrowers owing to such  Disqualified Person in connection with such Commitment and/or (B) require such  Disqualified Person to assign and delegate, without recourse (in accordance with  and subject to the restrictions contained in this Section), all of its interest, rights  and obligations under this Agreement and related Loan Documents to one or more  Eligible Assignees that shall assume such obligations at the lesser of (x) the  principal amount thereof and (y) the amount that such Disqualified Person paid to  acquire such interests, rights and obligations, in each case plus accrued interest,  accrued fees and all other amounts (other than principal amounts) payable to it  hereunder and the Loan Documents.  (iii) Notwithstanding anything to the contrary contained in this  Agreement, Disqualified Persons (A) will not (x) have the right to receive  information, reports or other materials provided to Lenders by the Borrowers, the  Administrative Agent or any other Lender, (y) attend or participate in meetings  attended by the Lenders and the Administrative Agent, or (z) access any  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 Person will  be deemed to have consented in the same proportion as the Lenders that are not  Disqualified Persons consented to such matter, and (y) for purposes of voting on  any Debtor Relief Plan, each Disqualified Person party hereto hereby agrees  (1) not to vote on such Debtor Relief Plan, (2) if such Disqualified Person does  vote on such Debtor Relief 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 Debtor  Relief Plan in accordance with Section 1126(c) of the Bankruptcy Code (or any  





 






87  744308325  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 the Borrowers  hereby expressly authorize the Administrative Agent, to (A) post the list of  Disqualified Persons provided by the Borrowers 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.  14.9 Register.  The Administrative Agent, acting solely for this purpose as an agent  of the Borrowers, shall maintain a record of the names and addresses of the Lenders, and the  Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the  terms hereof from time to time (the “Register”).  Such Register shall be conclusive, and the  Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is in  such Register pursuant to the terms hereof as a Lender hereunder for all purposes of this  Agreement, notwithstanding notice to the contrary.  Such Register shall be available for  inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon  reasonable prior notice.  14.10 Participation.  Any Lender may at any time, without the consent of, or notice  to, the Borrowers or the Administrative Agent, sell participations to any Person (other than to  (w) a natural person, or a holding company, investment vehicle or trust for, or owned and  operated for the primary benefit of a natural Person, (x) a Defaulting Lender, (y) a Borrower or  any of the Borrower's Affiliates or Subsidiaries or (z) a Disqualified Person) (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, (iii) such Participant shall be bound by Section 14.20 and (iv) the Borrower, the  Administrative Agent and the 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 14.5(b) without  regard to the existence of any participation.  Any agreement or instrument pursuant to which a Lender sells such a participation shall  provide that such Lender shall retain the sole right to enforce this Agreement and to approve any  amendment, modification or waiver of any provision of this Agreement; provided that such  agreement or instrument may provide that such Lender will not, without the consent of the  Participant, agree (other than as is already provided for herein) to any amendment, modification  or waiver with respect to Sections 14.2(a)(i) or 14.2(a)(iii) that affects such Participant.  The  Borrowers agree that each Participant shall be entitled to the benefits of Sections 7.1, 7.2, 7.3 and  7.6 (subject to the requirements and limitations therein) to the same extent as if it were a Lender  and had acquired its interest by assignment pursuant to Section 14.8; provided that such  Participant (A) agrees to be subject to the provisions of Sections 7.4 and 7.5 as if it were an  assignee under Section 14.8; and (B) shall not be entitled to receive any greater payment under  





 






88  744308325  Sections 7.1 or 7.6, with respect to any participation, than its participating Lender would have  been entitled to receive, except to the extent such entitlement to receive a greater payment results  from a Change in Law that occurs after the Participant acquired the applicable participation.   Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use  reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Sections 7.4  and 7.5 with respect to any Participant.  To the extent permitted by law, each Participant also  shall be entitled to the benefits of Section 6.3 as though it were a Lender; provided that such  Participant agrees to be subject to Section 6.4 as though it were a Lender.  Each Lender that sells  a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers,  maintain a register on which it enters the name and address of each Participant and the principal  amounts (and stated interest) of each Participant's interest in the 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.  14.11 Certain Pledges; Successors and Assigns Generally.  Any Lender may at any  time pledge or assign a security interest in all or any portion of its rights under this Agreement to  secure obligations of such Lender, including any pledge or assignment to secure obligations to a  Federal Reserve Bank, the European Central or any other applicable central bank or Official  Body; 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.  14.12 Survival.  The obligations of the Borrowers under Sections 7 and 14.5, and the  obligations of the Lenders under Section 14.5(c), shall in each case survive any termination of  this Agreement, the payment in full of all Liabilities and the termination of all Commitments.   The representations and warranties made by the Loan Parties in this Agreement and in each other  Loan Document shall survive the execution and delivery of this Agreement and each such other  Loan Document.  14.13 Effect of Amendment and Restatement.    (a) This Agreement is an amendment and restatement of the terms and  provisions of the Existing Term Loan Agreement.  Neither the execution and delivery of  this Agreement by any Loan Party or any Lender, nor any of the terms or provisions  contained herein, shall be construed to be a payment on or with respect to the  Indebtedness outstanding under the Existing Term Loan Agreement.    





 






89  744308325  (b) When counterparts executed by all the parties shall have been lodged with  the Administrative Agent (or, in the case of any Lender as to which an executed  counterpart shall not have been so lodged, the Administrative Agent shall have received  facsimile or other written confirmation from such Lender) and all of the conditions set  forth in Section 11 shall have been satisfied, this Agreement shall become effective as of  the date hereof, and at such time the Administrative Agent shall notify the Lead Borrower  and each Lender.  (c) The Loan Parties, the Lenders that are party to the Existing Term Loan  Agreement and PNC Bank, National Association, as administrative agent under the  Existing Term Loan Agreement, acknowledge and agree that upon the effectiveness of  this Agreement on the Closing Date, the Existing Term Loan Agreement shall be  superseded by this Agreement, and shall terminate and be of no further force or effect  (except that any provision thereof which by its terms survives termination thereof shall  continue in full force and effect for the benefit of the applicable party or parties), all  without any other action by any Person.  14.14 Severability.  If any provision of this Agreement or the other Loan Documents  is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the  remaining provisions of this Agreement and the other Loan Documents shall not be affected or  impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the  illegal, invalid or unenforceable provisions with valid provisions the economic effect of which  comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The  invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable  such provision in any other jurisdiction.  14.15 Execution in Counterparts, Effectiveness, Etc..  This Agreement may be  executed by the parties hereto in several counterparts, each of which shall be deemed to be an  original, but all such counterparts shall constitute together but one and the same Agreement.   Delivery of a counterpart hereof, or a signature page hereto, by facsimile or in a .pdf or similar  file shall be effective as delivery of a manually-executed original counterpart hereof.  14.16 Investment.  Each Lender represents and warrants that: (a) it is acquiring any  Note to be issued to it hereunder for its own account as a result of making a loan in the ordinary  course of its commercial banking or lending business and not with a view to the public  distribution or sale thereof, nor with any present intention of selling or distributing such Note,  but subject, nevertheless, to possible assignments or participations thereof pursuant to Section  14.8 and to any legal or administrative requirement that the disposition of such Lender’s property  at all times be within its control, and (b) in good faith it has not and will not rely upon any  margin stock (as such term is defined in Regulation U of the FRB) as collateral in the making  and maintaining of its Loans.  14.17 Other Transactions.  Nothing contained herein shall preclude the  Administrative Agent or any other Lender from engaging in any transaction, in addition to those  contemplated by this Agreement or any other Loan Document, with either Borrower or any of its  Affiliates in which such Borrower or such Affiliate is not restricted hereby from engaging with  any other Person.  





 






90  744308325  14.18 Forum Selection and Consent to Jurisdiction.  ANY LITIGATION BASED  HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS  AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF CONDUCT,  COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR  ACTIONS OF THE ADMINISTRATIVE AGENT, ANY LENDER OR THE LOAN PARTIES  SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE  STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE  SOUTHERN DISTRICT OF NEW YORK. EACH BORROWER HEREBY EXPRESSLY AND  IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE  OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE  SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH  LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY  ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.   EACH LOAN PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF  PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE  WITHIN OR WITHOUT THE STATE OF NEW YORK.  EACH LOAN PARTY HEREBY  EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED  BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE  LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT  REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN  BROUGHT IN AN INCONVENIENT FORUM.  TO THE EXTENT THAT A LOAN PARTY  HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY  COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR  NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF  EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH  LOAN PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF  ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.  14.19 Waiver of Jury Trial.  THE ADMINISTRATIVE AGENT, THE LENDERS  AND EACH LOAN PARTY HEREBY KNOWINGLY, VOLUNTARILY AND  INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN  RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN  CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY  COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL  OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR A  LOAN PARTY.  EACH LOAN PARTY ACKNOWLEDGES AND AGREES THAT IT HAS  RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND  EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A  PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE  ADMINISTRATIVE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT  AND EACH OTHER LOAN DOCUMENT.  14.20 Treatment of Certain Information; Confidentiality.  Each of the Administrative  Agent and each Lender 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 Affiliates’  respective partners, directors, officers, employees, agents, advisors and representatives (it being  understood that the Persons to whom such disclosure is made will be informed of the  





 






91  744308325  confidential nature of such Information and instructed to keep such Information confidential), (b)  to the extent requested by any governmental regulatory authority purporting to have jurisdiction  over it (including any self-regulatory authority, such as the National Association of Insurance  Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena  or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any  remedies hereunder or under any other Loan Document or any action or proceeding relating to  this Agreement or any other Loan Document or the enforcement of rights hereunder or  thereunder, (f) subject to an agreement containing provisions substantially the same as those of  this Section, to (i) any Eligible Assignee of or Participant in, or any prospective Eligible  Assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any  actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating  to the Borrowers and its obligations, (g) with the consent of the Borrowers or (h) to the extent  such Information (i) becomes publicly available other than as a result of a breach of this Section  or (ii) becomes available to the Administrative Agent, any Lender or any of their respective  Affiliates on a nonconfidential basis from a source other than a Borrower.  For purposes of this Section, “Information” means all information of a non-public,  confidential and proprietary nature received from a Loan Party or any Subsidiary relating to such   Loan Party or any Subsidiary or any of their respective businesses, other than any such  information that is available to the Administrative Agent or any Lender on a nonconfidential  basis prior to disclosure by such Loan Party or any Subsidiary.  Any Person required to maintain  the confidentiality of Information as provided in this Section shall be considered to have  complied with its obligation to do so if such Person has exercised the same degree of care to  maintain the confidentiality of such Information as such Person would accord to its own  confidential information.  The Administrative Agent and the Lenders acknowledge that (a) the Information may  include material non-public information concerning a Loan Party or a Subsidiary thereof, as the  case may be, (b) it has developed compliance procedures regarding the use of material non- public information and (c) it will handle such material non-public information in accordance  with applicable law, including Federal and state securities laws.  14.21 Interest Rate Limitation.  Notwithstanding anything to the contrary contained  in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall  not exceed the maximum rate of non-usurious interest permitted by applicable law (the  “Maximum Rate”).  If the Administrative Agent or any Lender shall receive interest in an  amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of  the Loans or, if it exceeds such unpaid principal, refunded to the Borrowers.  In determining  whether the interest contracted for, charged, or received by the Administrative Agent or a Lender  exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a)  characterize any payment that is not principal as an expense, fee, or premium rather than interest,  (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate,  and spread in equal or unequal parts the total amount of interest throughout the contemplated  term of the obligations hereunder.  14.22 Payments Set Aside.  To the extent that any payment by or on behalf of either  Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any  





 






92  744308325  Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part  thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required  (including pursuant to any settlement entered into by the Administrative Agent or such Lender in  its discretion) to be repaid to a trustee, receiver or any other party, in connection with any  proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery,  the obligation or part thereof originally intended to be satisfied shall be revived and continued in  full force and effect as if such payment had not been made or such setoff had not occurred, and  (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable  share (without duplication) of any amount so recovered from or repaid by the Administrative  Agent, plus interest thereon from the date of such demand to the date such payment is made at a  rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of  the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the  Liabilities and the termination of this Agreement.  14.23 No Advisory or Fiduciary Responsibility.  In connection with all aspects of  each transaction contemplated hereby (including in connection with any amendment, waiver or  other modification hereof or of any other Loan Document), each Borrower acknowledges and  agrees that: (i) (A) the arranging and other services regarding this Agreement provided by the  Administrative Agent are arm’s-length commercial transactions between such Borrower and its  Affiliates, on the one hand, and the Administrative Agent, on the other hand, (B) such Borrower  has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed  appropriate, and (C) such Borrower is capable of evaluating, and understands and accepts, the  terms, risks and conditions of the transactions contemplated hereby and by the other Loan  Documents; (ii) (A) the Administrative Agent is and has been acting solely as a principal and,  except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be  acting as an advisor, agent or fiduciary for such Borrower or any of its Affiliates, or any other  Person and (B) the Administrative Agent nor has no obligation to such Borrower or any of its  Affiliates with respect to the transactions contemplated hereby except those obligations expressly  set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and its  Affiliates may be engaged in a broad range of transactions that involve interests that differ from  those of such Borrower and its Affiliates, and the Administrative Agent has no obligation to  disclose any of such interests to such Borrower or its Affiliates.  To the fullest extent permitted  by law, each Borrower hereby waives and releases any claims that it may have against the  Administrative Agent with respect to any breach or alleged breach of agency or fiduciary duty in  connection with any aspect of any transaction contemplated hereby.  14.24 Appointment of Lead Arranger and Bookrunner; No Other Duties.  The  Borrowers hereby appoints (i) PNC Capital Markets LLC, as Joint Lead Arranger and  Bookrunner, (ii) ING Belgium SA/NV, as Joint Lead Arranger and Co-Syndication Agent, (iii)  MUFG Bank, Ltd., as Joint Lead Arranger and Co-Syndication Agent, (iv) Bank of America,  N.A., as Joint Lead Arranger and Co-Syndication Agent, (v) Truist Securities, Inc., as Joint Lead  Arranger and Co-Syndication Agent, (vi) Citibank, N.A., as Co-Documentation Agent, (vii)  Crédit Industriel et Commercial, New York Branch, as Co-Documentation Agent, (viii) DBS  Bank Ltd., as Co-Documentation Agent, (ix) Fifth Third Bank, National Association, as Co- Documentation Agent, (x) Mizuho Bank Ltd., as Co-Documentation Agent, and (xi) Wells Fargo  Bank, N.A., as Co-Documentation Agent.  Anything herein to the contrary notwithstanding, no  Joint Lead Arranger, Bookrunner, Co-Syndication Agent or Co-Documentation Agent shall have  





 






93  744308325  any powers, duties or responsibilities under this Agreement or any other Loan Documents,  except in its capacity as a Lender hereunder.  14.25 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   Notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any the parties hereto, each party hereto acknowledges that  any liability of any Lender that is an 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 an 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 an applicable Resolution Authority to any such liabilities arising hereunder that may  be payable to it by any Lender 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 (iii) the variation of the  terms of such liability in connection with the exercise of the Write-Down and Conversion  Powers of any applicable Resolution Authority.  14.26 Acknowledgement Regarding Any Supported QFCs.  (a) To the extent that the Loan Documents provide support, through a  guarantee or otherwise, for any Interest Rate Agreement or any other agreement or  instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a  “Supported QFC”), the parties acknowledge and agree as follows with respect to the  resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit  Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer  Protection Act (together with the regulations promulgated thereunder, the “U.S. Special  Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with  the provisions below applicable notwithstanding that the Loan Documents and any  Supported QFC may in fact be stated to be governed by the laws of the State of New  York and/or of the United States or any other state of the United States):  (i) 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  





 






94  744308325  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.  (ii) As used in this Section 14.26, the following terms have the  following meanings:  “BHC Act Affiliate” of a party means, with respect to any Person, an “affiliate”  (as such term is defined under, and interpreted in accordance with, 12 U.S.C.  1841(k)) of such Person.  “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).  14.27 Electronic Execution.  The words “execution,” “signed,” “signature,” and  words of like import in this Agreement a shall be deemed to include electronic signatures or  electronic records, each of which shall be of the same legal effect, validity or enforceability as a  manually executed signature or the use of a paper-based recordkeeping system, as the case may  be, to the extent and as provided for in any applicable law, including the Federal Electronic  Signatures in Global and National Commerce Act, the New York State Electronic Signatures and  Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.  [Remainder of page intentionally left blank.]  





 






A&R Term Loan Agreement  744308325  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed  by their respective officers thereunto duly authorized as of the day and year first above written.  TRITON CONTAINER INTERNATIONAL  LIMITED as a Borrower,  By:/s/ Michael S. Pearl  Name:  Michael S. Pearl Title:    Vice President & Treasurer  





 






A&R Term Loan Agreement  744308325  TAL INTERNATIONAL CONTAINER  CORPORATION, as a Borrower By:/s/ Michael S. Pearl  Name:  Michael S. Pearl Title:    Vice President & Treasurer 





 






A&R Term Loan Agreement  744308325  TRITON INTERNATIONAL   LIMITED, as Guarantor  By:/s/ Michael S. Pearl  Name:  Michael S. Pearl Title:    Vice President & Treasurer 





 






TCIL A&R Term Loan Agreement  744308325  PNC BANK, NATIONAL ASSOCIATION,   as Administrative Agent  By:/s/ Matthew Titus  Name:  Matthew Titus Title:    Senior Vice President  





 






TCIL A&R Term Loan Agreement  744308325  PNC BANK, NATIONAL ASSOCIATION,   as a Lender  By:/s/ Matthew Titus  Name:  Matthew Titus Title:    Senior Vice President  





 






TCIL A&R Term Loan Agreement  744308325  PNC CAPITAL MARKETS LLC, as  Joint Lead Arranger and Bookrunner  By:/s/ Jackson Langham  Name:  Jackson Langham  Title:    Vice President  





 






TCIL A&R Term Loan Agreement  744308325  MUFG BANK, LTD.,  As Lender, Joint Lead Arranger and Co-Syndication Agent  By:/s/ George Stoecklein  Name:  George Stoecklein  Title:    Managing Director  





 






TCIL A&R Term Loan Agreement  744308325  ING BELGIUM SA/NV,  as a Lender, Joint Lead Arranger and Co-Syndication Agent  By:/s/ Arnaud Barbanel  Name:  Arnaud Barbanel  Title:   Director  By:/s/ Luc Missoorten  Name:  Luc Missoorten  Title:   Program Manager      





 






TCIL A&R Term Loan Agreement  744308325  BANK OF AMERICA, N.A.,   as a Lender, Joint Lead Arranger and Co-Syndication Agent  By: /s/ Jason Yakabu  Name:  Jason Yakabu  Title:    Vice President  





 






TCIL A&R Term Loan Agreement  744308325  CRÉDIT INDUSTRIEL ET COMMERCIAL, NEW YORK BRANCH,  as a Lender and Co-Documentation Agent  By:/s/ Adrienne Molloy  Name:  Adrienne Molloy  Title:    Managing Director  By:/s/ Andrew McKuin  Name:  Andrew McKuin  Title:    Managing Director  





 






TCIL A&R Term Loan Agreement  744308325  TRUIST BANK,  as a Lender, Joint Lead Arranger and Co-Syndication Agent  By:/s/ Madison Waterfield  Name:  Madison Waterfield  Title:    Vice President  





 






TCIL A&R Term Loan Agreement  744308325  FIFTH THIRD BANK, NATIONAL ASSOCIATION,  as a Lender and Co-Documentation Agent  By:/s/ Michael Kratofil  Name:  Michael Kratofil  Title:    Director  





 






TCIL A&R Term Loan Agreement  744308325  DBS BANK, LTD.,  as a Lender and Co-Documentation Agent  By:/s/ Josephine Lim  Name:  Josephine Lim  Title:    Senior Vice President  





 






TCIL A&R Term Loan Agreement  744308325  WELLS FARGO BANK, N.A.,  as a Lender and Co-Documentation Agent  By:/s/ Jerri Kallam  Name:  Jerri Kallam  Title:    Director  





 






TCIL A&R Term Loan Agreement  744308325  CITIBANK, N.A.,  as a Lender and Co-Documentation Agent  By:/s/ Martin Dineen  Name:  Martin Dineen  Title:    Authorized Signer  





 






TCIL A&R Term Loan Agreement  744308325  ROYAL BANK OF CANADA, NEW YORK BRANCH,  as a Lender   By:/s/ Scott Umbs  Name:  Scott Umbs  Title:    Authorized Signatory  





 






TCIL A&R Term Loan Agreement  744308325  SUMITOMO MITSUI BANKING CORPORATION,  as a Lender   By:/s/ Laurent Levy  Name:  Laurent Levy  Title:    Managing Director  





 






TCIL A&R Term Loan Agreement  744308325  CITIZENS BANK, N.A.,  as a Lender   By:/s/ William J. O’Meara  Name:  William J. O’Meara  Title:     Senior Vice President  





 






TCIL A&R Term Loan Agreement  744308325  CITY NATIONAL BANK, A NATIONAL BANKING ASSOCIATION,  as a Lender   By:/s/ Marguerite Sutton  Name:  Marguerite Sutton  Title:    Vice President  





 






TCIL A&R Term Loan Agreement  744308325  MIZUHO BANK, LTD.,  as a Lender   By:/s/ Donna DeMagistris  Name:  Donna DeMagistris  Title:    Executive Director  





 






TCIL A&R Term Loan Agreement  744308325  REGIONS BANK,  as a Lender   By:/s/ Daniel Leonard   Name:  Daniel Leonard  Title:   Vice President  





 






TCIL A&R Term Loan Agreement  744308325  ZIONS BANCORPORATION, N.A. DBA CALIFORNIA BANK & TRUST,  as a Lender   By:/s/ Melissa Chang  Name:  Melissa Chang  Title:    1st Vice President  





 






Schedule I  744308325  SCHEDULE I  COMMITMENTS AND PERCENTAGES  Name of Lender Commitment Percentage  PNC BANK  $158,333,333.34  13.19444%  ING BELGIUM  $150,000,000.00  12.50000%  BANK OF AMERICA  $113,333,333.33  9.44444%  TRUIST BANK  $113,333,333.33  9.44444%  MUFG BANK  $95,000,000.00  7.91667%  CITIBANK  $60,000,000.00  5.00000%  DBS BANK  $60,000,000.00  5.00000%  FIFTH THIRD BANK   $60,000,000.00  5.00000%  MIZUHO BANK  $60,000,000.00  5.00000%  WELLS FARGO BANK  $60,000,000.00  5.00000%  CRÉDIT INDUSTRIEL ET  COMMERCIAL   $40,000,000.00  3.33333%  CITIZENS BANK  $45,000,000.00  3.75000%  REGIONS BANK  $45,000,000.00  3.75000%  ROYAL BANK OF CANADA  $45,000,000.00  3.75000%  SUMITOMO MITSUI BANKING  CORPORATION   $45,000,000.00  3.75000%  CALIFORNIA BANK & TRUST  $25,000,000.00  2.08333%  CITY NATIONAL BANK  $25,000,000.00  2.08333%  TOTALS $1,200,000,000 100.00%