a151-211028creditagreeme






    CHAR1\1834980v7        CREDIT AGREEMENT    Dated as of October 28, 2021    among    CINER WYOMING LLC,  as the Borrower,    CERTAIN SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,  as the Guarantors,    BANK OF AMERICA, N.A.,  as Administrative Agent, Swing Line Lender and an L/C Issuer,    and    THE OTHER LENDERS PARTY HERETO      Arranged By:  BOFA SECURITIES, INC.  and  PNC CAPITAL MARKETS LLC,  as Joint Lead Arrangers and Joint Bookrunners                  





 






  i  CHAR1\1834980v7  TABLE OF CONTENTS  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ...................................................................... 1  1.01 Defined Terms. ................................................................................................................... 1  1.02 Other Interpretive Provisions. ........................................................................................... 30  1.03 Accounting Terms; Changes in GAAP; Calculation of Financial Covenants on a  Pro Forma Basis. ............................................................................................................... 31  1.04 Rounding. .......................................................................................................................... 32  1.05 Times of Day. ................................................................................................................... 33  1.06 Letter of Credit Amounts. ................................................................................................. 33  1.07 Rates. ................................................................................................................................ 33  ARTICLE II THE REVOLVING COMMITMENTS AND CREDIT EXTENSIONS ............................. 33  2.01 Revolving Loans. .............................................................................................................. 33  2.02 Borrowings, Conversions and Continuations of Loans. ................................................... 35  2.03 Letters of Credit. ............................................................................................................... 37  2.04 Swing Line Loans. ............................................................................................................ 47  2.05 Prepayments. ..................................................................................................................... 50  2.06 Termination or Reduction of Aggregate Revolving Commitments. ................................. 51  2.07 Repayment of Loans. ........................................................................................................ 51  2.08 Interest. ............................................................................................................................. 52  2.09 Fees. .................................................................................................................................. 52  2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate............. 53  2.11 Evidence of Debt. ............................................................................................................. 53  2.12 Payments Generally; Administrative Agent’s Clawback. ................................................. 54  2.13 Sharing of Payments by Lenders. ..................................................................................... 56  2.14 Cash Collateral. ................................................................................................................. 56  2.15 Defaulting Lenders. .......................................................................................................... 58  ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY ....................................................... 60  3.01 Taxes. ................................................................................................................................ 60  3.02 Illegality. ........................................................................................................................... 65  3.03 Inability to Determine Rates. ............................................................................................ 65  3.04 Increased Costs. ................................................................................................................ 68  3.05 Compensation for Losses. ................................................................................................. 69  3.06 Mitigation of Obligations; Replacement of Lenders. ........................................................ 69  3.07 Survival. ............................................................................................................................ 70  ARTICLE IV GUARANTY ....................................................................................................................... 70  4.01 The Guaranty. ................................................................................................................... 70  4.02 Obligations Unconditional. ............................................................................................... 71  4.03 Reinstatement. ................................................................................................................... 71  4.04 Certain Additional Waivers. ............................................................................................. 72  4.05 Remedies. .......................................................................................................................... 72  4.06 Rights of Contribution. ..................................................................................................... 72  4.07 Guarantee of Payment; Continuing Guarantee. ................................................................ 72  4.08 Keepwell. .......................................................................................................................... 73  4.09 Appointment of Borrower. ................................................................................................ 73  ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS ............................................... 73  5.01 Conditions of Effectiveness. ............................................................................................. 73  





 






  ii  CHAR1\1834980v7  5.02 Conditions to all Credit Extensions. ................................................................................. 76  ARTICLE VI REPRESENTATIONS AND WARRANTIES .................................................................... 77  6.01 Existence, Qualification and Power. ................................................................................. 77  6.02 Authorization; No Contravention. .................................................................................... 77  6.03 Governmental Authorization; Other Consents. ................................................................. 77  6.04 Binding Effect. .................................................................................................................. 78  6.05 Financial Statements; No Material Adverse Effect........................................................... 78  6.06 Litigation. .......................................................................................................................... 78  6.07 No Default......................................................................................................................... 78  6.08 Ownership of Property; Liens. .......................................................................................... 79  6.09 Environmental Compliance. ............................................................................................. 79  6.10 Insurance. .......................................................................................................................... 80  6.11 Taxes. ................................................................................................................................ 80  6.12 ERISA Compliance. .......................................................................................................... 80  6.13 Subsidiaries. ...................................................................................................................... 81  6.14 Use of Proceeds; Margin Regulations; Investment Company Act.................................... 81  6.15 Disclosure. ........................................................................................................................ 82  6.16 Compliance with Laws. .................................................................................................... 82  6.17 Intellectual Property; Licenses, Etc. ................................................................................. 82  6.18 Solvency............................................................................................................................ 83  6.19 Business Locations; Taxpayer Identification Number. ..................................................... 83  6.20 OFAC. ............................................................................................................................... 83  6.21 Patriot Act; Anti-Corruption Laws. .................................................................................. 83  6.22 Anti-Money Laundering Laws. ......................................................................................... 84  6.23 EEA Financial Institution. ................................................................................................ 84  6.24 Covered Entities. ............................................................................................................... 84  6.25 Beneficial Ownership Certification. ................................................................................. 84  6.26 Perfection of Security Interests in the Collateral. ............................................................. 84  ARTICLE VII AFFIRMATIVE COVENANTS ........................................................................................ 84  7.01 Financial Statements. ........................................................................................................ 85  7.02 Certificates; Other Information. ........................................................................................ 86  7.03 Notices. ............................................................................................................................. 88  7.04 Payment of Taxes. ............................................................................................................. 88  7.05 Preservation of Existence, Etc. ......................................................................................... 88  7.06 Maintenance of Properties. ............................................................................................... 89  7.07 Maintenance of Insurance. ................................................................................................ 89  7.08 Compliance with Laws. .................................................................................................... 89  7.09 Books and Records. .......................................................................................................... 89  7.10 Inspection Rights. ............................................................................................................. 89  7.11 Use of Proceeds. ............................................................................................................... 90  7.12 Additional Guarantors. ...................................................................................................... 90  7.13 Anti-Corruption Laws. ...................................................................................................... 90  7.14 Pledged Assets. ................................................................................................................. 90  ARTICLE VIII NEGATIVE COVENANTS ............................................................................................. 92  8.01 Liens. ................................................................................................................................ 92  8.02 Investments. ...................................................................................................................... 94  8.03 Indebtedness...................................................................................................................... 95  8.04 Fundamental Changes. ...................................................................................................... 96  





 






  iii  CHAR1\1834980v7  8.05 Dispositions. ..................................................................................................................... 97  8.06 Restricted Payments. ......................................................................................................... 97  8.07 Change in Nature of Business. .......................................................................................... 98  8.08 Transactions with Affiliates. ............................................................................................. 98  8.09 Burdensome Agreements. ................................................................................................. 98  8.10 Use of Proceeds. ............................................................................................................... 98  8.11 Financial Covenants. ......................................................................................................... 99  8.12 Organization Documents; Fiscal Year; Changes in Accounting Policy; Legal  Name, State of Formation and Form of Entity.................................................................. 99  8.13 Ownership of Subsidiaries. ............................................................................................... 99  8.14 Sale Leasebacks and Securitization Transactions. ............................................................ 99  8.15 Sanctions. .......................................................................................................................... 99  8.16 Anti-Corruption Laws. .................................................................................................... 100  ARTICLE IX EVENTS OF DEFAULT AND REMEDIES .................................................................... 100  9.01 Events of Default. ........................................................................................................... 100  9.02 Remedies Upon Event of Default. .................................................................................. 102  9.03 Application of Funds. ..................................................................................................... 103  ARTICLE X ADMINISTRATIVE AGENT ............................................................................................ 104  10.01 Appointment and Authority. ........................................................................................... 104  10.02 Rights as a Lender. .......................................................................................................... 104  10.03 Exculpatory Provisions. .................................................................................................. 104  10.04 Reliance by Administrative Agent. ................................................................................. 106  10.05 Delegation of Duties. ...................................................................................................... 106  10.06 Resignation or Removal of Administrative Agent. ......................................................... 106  10.07 Non-Reliance on Administrative Agent, the Arranger and the Other Lenders. .............. 107  10.08 No Other Duties, Etc. ...................................................................................................... 107  10.09 Authorization to Release Collateral and Guarantors. ...................................................... 108  10.10 No Reliance on Administrative Agent’s Customer Identification Program. .................. 108  10.11 Secured Cash Management Agreements and Secured Hedge Agreements. ................... 109  ARTICLE XI MISCELLANEOUS .......................................................................................................... 109  11.01 Amendments, Etc. ........................................................................................................... 109  11.02 Notices; Effectiveness; Electronic Communications. ..................................................... 112  11.03 No Waiver; Cumulative Remedies; Enforcement. .......................................................... 114  11.04 Expenses; Indemnity; Damage Waiver. .......................................................................... 114  11.05 Payments Set Aside. ....................................................................................................... 116  11.06 Successors and Assigns. ................................................................................................. 117  11.07 Treatment of Certain Information; Confidentiality. ........................................................ 123  11.08 Right of Setoff. ............................................................................................................... 125  11.09 Interest Rate Limitation. ................................................................................................. 125  11.10 Counterparts; Integration; Effectiveness. ........................................................................ 125  11.11 Survival of Representations and Warranties. .................................................................. 126  11.12 Severability. .................................................................................................................... 126  11.13 Replacement of Lenders. ................................................................................................ 126  11.14 Governing Law; Jurisdiction; Etc. .................................................................................. 127  11.15 Waiver of Jury Trial. ....................................................................................................... 128  11.16 No Advisory or Fiduciary Responsibility. ...................................................................... 128  11.17 Electronic Execution; Electronic Records. ..................................................................... 129  11.18 Subordination of Intercompany Indebtedness................................................................. 129  





 






  iv  CHAR1\1834980v7  11.19 Release of Collateral and Guarantee Obligations; Subordination of Liens. ................... 130  11.20 USA PATRIOT Act Notice. ........................................................................................... 130  11.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. .............. 131  11.22 ERISA Representation. ................................................................................................... 131  11.23 Flood Matters. ................................................................................................................. 132  11.24 Acknowledgement Regarding Any Supported QFCs. .................................................... 132  





 






  v  CHAR1\1834980v7  SCHEDULES    2.01  Revolving Commitments and Applicable Percentages  2.03  Existing Letters of Credit  6.12  Pension Plans  6.13  Subsidiaries  6.17  IP Rights  6.19-1  Locations of Real Property  6.19-2  Location of Chief Executive Office, Taxpayer Identification Number, Etc.  6.19-3  Changes in Legal Name, State of Formation and Structure  8.01  Liens Existing on the Closing Date  8.02  Investments Existing on the Closing Date  8.03  Indebtedness Existing on the Closing Date  11.02  Administrative Agent’s Office; Certain Addresses for Notices  11.06  Competitors  EXHIBITS    2.02  Form of Loan Notice  2.04  Form of Swing Line Loan Notice  2.05  Form of Notice of Loan Prepayment  2.11  Form of Note  3.01 (1-4) Forms of U.S. Tax Compliance Certificates  7.02  Form of Compliance Certificate  7.12  Form of Guarantor Joinder Agreement  9.03  Form of Secured Party Designation Notice  11.06  Form of Assignment and Assumption    





 






  1  CHAR1\1834980v7  CREDIT AGREEMENT  This CREDIT AGREEMENT is entered into as of October 28, 2021 among CINER WYOMING  LLC, a Delaware limited liability company (the “Borrower”), the Guarantors (defined herein), the  Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender  and an L/C Issuer.  The Borrower has requested that the Lenders provide a revolving credit facility for the purposes  set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.  In consideration of the mutual covenants and agreements herein contained, the parties hereto  covenant and agree as follows:  ARTICLE I    DEFINITIONS AND ACCOUNTING TERMS  1.01 Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:  “2020 Financial Statements” means the audited consolidated balance sheet of the Borrower and  its Subsidiaries for the fiscal year ended December 31, 2020, and the related consolidated statements of  income or operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such  fiscal year, including the notes thereto.  “Accepting Lenders” has the meaning specified in Section 11.06(g).  “Acquisition” means, with respect to any Person, the acquisition by such Person, in a single  transaction or in a series of related transactions, of either (a) all or substantially all of the property of, or a  line of business, division or operating group of, another Person or (b) at least a majority of the Voting  Equity Interests of another Person, in each case whether or not involving a merger or consolidation with  such other Person.  “Administrative Agent” means Bank of America in its capacity as administrative agent under any  of the Loan Documents, or any successor administrative agent.  “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 11.02 or such other address or account as the Administrative Agent may  from time to time notify the Borrower and the Lenders.  “Administrative Questionnaire” means an Administrative Questionnaire in a form approved by  the Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  Person specified.  





 






  2  CHAR1\1834980v7  “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.   The amount of the Aggregate Revolving Commitments in effect on the Closing Date is Two Hundred  Twenty-Five Million Dollars ($225,000,000).  “Agreement” means this Credit Agreement.  “Applicable Percentage” means with respect to any Lender at any time, with respect to such  Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of  the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such  time; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the  L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the  Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be  determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to  any subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite the  name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such  Lender becomes a party hereto.  The Applicable Percentages shall be subject to adjustment as provided in  Section 2.15.  “Applicable Rate” means the following percentages per annum, based upon the Consolidated  Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative  Agent pursuant to Section 7.02(a):    Pricing  Tier  Consolidated Leverage Ratio  BSBY Rate  Loans  Base Rate  Loans  Commitment  Fee        1 < 1.25:1.00 1.50% 0.50% 0.225%  2 > 1.25:1.00 but < 1.75:1.00 1.75% 0.75% 0.250%  3 > 1.75:1.00 but < 2.25:1.00 2.00% 1.00% 0.275%  4 > 2.25:1.00 but < 3.00:1.00 2.25% 1.25% 0.300%  5 > 3.00:1.00 but < 3.50:1.00 2.50% 1.50% 0.325%  6  > 3.50:1.00 2.75% 1.75% 0.350%    Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated  Leverage Ratio shall become effective as of the first Business Day immediately following the earlier of (i)  the date a Compliance Certificate is delivered, or (ii) the date a Compliance Certificate is required to be  delivered, in each case pursuant to Section 7.02(a); provided, however, that if a Compliance Certificate is  not delivered when due in accordance with such Section, then, upon the request of the Required Lenders,  Pricing Tier 4 shall apply as of the first Business Day after the date on which such Compliance Certificate  was required to have been delivered and shall remain in effect until the first Business Day immediately  following the date on which such Compliance Certificate is delivered in accordance with Section 7.02(a)  whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Leverage  Ratio contained in such Compliance Certificate. The Applicable Rate in effect from the Closing Date  through the first Business Day immediately following the date a Compliance Certificate is required to be  delivered pursuant to Section 7.02(a) for the fiscal quarter ending December 31, 2021 shall be determined  based upon Pricing Tier 2. Notwithstanding anything to the contrary contained in this definition, the  determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).  “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.  





 






  3  CHAR1\1834980v7  “Arranger” means BofA Securities, Inc. and PNC Capital Markets LLC, in their capacities as  joint lead arrangers and joint bookrunners.  “Assignment and Assumption” means an assignment and assumption entered into by a Lender  and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)),  and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06 or any other form  (including electronic documentation generated by MarkitClear or other electronic platform) approved by  the Administrative Agent.  “Attributable Indebtedness” means, with respect to any Person on any date, (a) in respect of any  capital lease, the capitalized amount thereof that would appear on a balance sheet of such Person prepared  as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the  capitalized amount of the remaining lease payments under the relevant lease that would appear on a  balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were  accounted for as a capital lease, (c) in respect of any Securitization Transaction, the outstanding principal  amount of such financing, after taking into account reserve accounts and making appropriate adjustments,  determined by the Administrative Agent in its reasonable judgment and (d) in respect of any Sale and  Leaseback Transaction, the present value (discounted in accordance with GAAP at the debt rate implied  in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.  “Availability Period” means, with respect to the Revolving Commitments, the period from and  including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the  Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the date of termination of the  commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit  Extensions pursuant to Section 9.02.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law, rule, regulation or requirement for such EEA Member Country from time to time  which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law,  regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks,  investment firms or other financial institutions or their affiliates (other than through liquidation,  administration or other insolvency proceedings).  “Bank of America” means Bank of America, N.A. and its successors.  “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal  Funds Rate plus 1/2 of 1% (b) the rate of interest in effect for such day as publicly announced from time  to time by Bank of America as its “prime rate”, (c) the BSBY Rate plus 1.00% and (d) 1.00%.  The  “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s  costs and desired return, general economic conditions and other factors, and is used as a reference point  for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in  such prime rate announced by Bank of America shall take effect at the opening of business on the day  specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of  interest pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of clauses (a), (b) and (d)  above and shall be determined without reference to clause (c) above.  





 






  4  CHAR1\1834980v7  “Base Rate Loan” means a Loan that bears interest based on the Base Rate.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership  required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.  “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject  to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Internal Revenue Code  or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of  Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit  plan” or “plan”.  “Bloomberg” means Bloomberg Index Services Limited.  “Borrower” has the meaning specified in the introductory paragraph hereto.  “Borrower Materials” has the meaning specified in Section 7.02.  “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the  case of BSBY Rate Loans, having the same Interest Period made by each of the Lenders pursuant to  Section 2.01.  “BSBY” means the Bloomberg Short-Term Bank Yield Index rate.  “BSBY Rate” means:  (a) for any Interest Period with respect to a BSBY Rate Loan, the rate per annum equal to the  BSBY Screen Rate two Business Days prior to the commencement of such Interest Period with a term  equivalent to such Interest Period; provided that if the rate is not published on such determination date  then BSBY Rate means the BSBY Screen Rate on the first Business Day immediately prior thereto; and  (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per  annum equal to the BSBY Screen Rate with a term of one month commencing that day;  provided that if the BSBY Rate determined in accordance with either of the foregoing clauses (a)  or (b) of this definition would otherwise be less than zero (0), the BSBY Rate shall be deemed zero (0) for  purposes of this Agreement.  “BSBY Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition  of BSBY Rate.  “BSBY Screen Rate” means the Bloomberg Short-Term Bank Yield Index rate administered by  Bloomberg (or any successor administrator satisfactory to the Administrative Agent) and published on the  applicable Reuters screen page (or such other commercially available source providing such quotations as  may be designated by the Administrative Agent from time to time).  “Business” has the meaning specified in Section 6.09.  “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks are authorized to close under the Laws of, or are in fact closed in, the state where the  





 






  5  CHAR1\1834980v7  Administrative Agent’s Office is located and, if such day relates to any BSBY Rate Loan, in New York  City.  “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for  the benefit of one or more of the L/C Issuer or the Lenders, as collateral for L/C Obligations or  obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account  balances or, if the Administrative Agent and the L/C Issuer shall agree in their reasonable discretion,  other credit support, in each case pursuant to documentation in form and substance reasonably  satisfactory to the Administrative Agent and the L/C Issuer. “Cash Collateral” shall have a meaning  correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.  “Cash Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or  insured by the United States or any agency or instrumentality thereof (provided that the full faith and  credit of the United States is pledged in support thereof) having maturities of not more than twenty-four  (24) months from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit  of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in  excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least  A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank  being an “Approved Bank”), in each case with maturities of not more than two hundred seventy (270)  days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any  Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by,  any domestic entity rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent  thereof) or better by Moody’s and maturing within six (6) months of the date of acquisition,  (d) repurchase agreements entered into by any Person with a bank or trust company (including any  Lender) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct  obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected  first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair  market value of at least 100% of the amount of the repurchase obligations and (e) investments, classified  in accordance with GAAP as current assets, in money market investment programs registered under the  Investment Company Act of 1940 which are administered by reputable financial institutions having  capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character  described in the foregoing clauses (a) through (d).  “Cash Management Agreement” means any agreement that is  not prohibited by the terms hereof  to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards,  debit cards, p cards (including, purchasing cards and commercial cards), funds transfer, automated  clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox,  account reconciliation and reporting and trade finance services and other cash management services.  “Cash Management Bank” means any Person that (a) at the time it enters into a Cash  Management Agreement, is a Lender or the Administrative Agent or an Affiliate of a Lender or the  Administrative Agent, (b) in the case of any Cash Management Agreement in effect on or prior to the  Closing Date, is, as of the Closing Date or within thirty (30) days thereafter, a Lender or the  Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Cash  Management Agreement or (c) within thirty (30) days after the time it enters into the applicable Cash  Management Agreement, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the  Administrative Agent, in each case, in its capacity as a party to such Cash Management Agreement.  “Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the  adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation,  implementation or application thereof by any Governmental Authority or (c) the making or issuance of  





 






  6  CHAR1\1834980v7  any request, rule, guideline or directive (whether or not having the force of law) by any Governmental  Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd Frank Wall Street  Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued  in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for  International Settlements, the Basel Committee on Banking Supervision (or any successor or similar  authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in  each case (of clause (i) and clause (ii)) 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, except as a result of a  Foreclosure Event, the Specified Owners cease at any time to (a) own and control, of record and  beneficially, directly or indirectly, at least fifty-one percent (51%) of the Voting Equity Interests in the  Borrower or (b) have the ability to elect a majority of the board of directors, board of managers or  equivalent governing body of the Borrower.  “Closing Date” means the date hereof.  “Collateral” means all of the property and assets indicated in the Collateral Documents as being  subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.  “Collateral Documents” means a collective reference to the Security Agreement, each of the  collateral assignments, pledge agreements, account control agreements or other similar agreements  delivered by any Loan Party pursuant to the terms of Section 7.14 or any of the other Loan Documents.  “Commitment Fee” has the meaning specified in Section 2.09(a).  “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. Section 1 et seq.).  “Competitor” means each Person listed in Schedule 11.06, as such Schedule may be updated from  time to time with the approval of the Administrative Agent (such approval not to be unreasonably  withheld or delayed); provided that (i) no such updates may be made during the continuance of an Event  of Default and (ii) the addition of any Person to Schedule 11.06 shall not apply retroactively to disqualify  a Person from being a Lender or participant if such Person had acquired an assignment or participation  interest in the Revolving Loans or Revolving Commitments prior to the addition of such Person to  Schedule 11.06.  “Compliance Certificate” means a certificate substantially in the form of Exhibit 7.02.  “Conforming Changes” means, with respect to the use, administration of or any conventions  associated with BSBY or any proposed Successor Rate, as applicable, any conforming changes to the  definitions of Base Rate, BSBY and Interest Period, timing and frequency of determining rates and  making payments of interest and other technical, administrative or operational matters (including, for the  avoidance of doubt, the definition of Business Day, timing of borrowing requests or prepayment,  conversion or continuation notices and length of lookback periods) as may be appropriate, in the  discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate,  and to permit the administration thereof by the Administrative Agent in a manner substantially consistent  with market practice (or, if the Administrative Agent determines that adoption of any portion of such  market practice is not administratively feasible or that no market practice for the administration of such  rate exists, in such other manner of administration as the Administrative Agent determines is reasonably  necessary in connection with the administration of this Agreement and any other Loan Document).  





 






  7  CHAR1\1834980v7  “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 EBITDA” means, for any period, for the Borrower and its Subsidiaries on a  consolidated basis, an amount equal to Consolidated Net Income for such period plus the following to the  extent deducted (and not previously added-back) in calculating such Consolidated Net Income: (a)  Consolidated Interest Charges for such period, (b) the provision for federal, state, local and foreign  income taxes payable for such period, (c) depreciation and amortization expense for such period, (d) all  transaction, fees, costs and expenses (including reasonable fees, expenses and disbursement of counsel  and professional advisors) incurred through the Closing Date in connection with the financings evidenced  by this Agreement, (e) non-cash mark-to-market adjustments to carrying values of derivative instruments,  (f) non-recurring non-cash restructuring charges, (g) any losses realized from the disposal, abandonment  or discontinuance of operations (exclusive of its operating loss); minus (h) any (i) non-cash gain items  corresponding to clauses (e) and (f) above and (ii) any gain items corresponding to clause (g) above  (exclusive of its operating income), in each case to the extent included in calculating Consolidated Net  Income; provided that in the event that the Borrower or any of its Subsidiaries makes any cash payment in  respect of any non-cash item corresponding to clause (e) or (f) above, such cash payment shall be  deducted from Consolidated EBITDA in the period in which such cash payment is made.   Notwithstanding anything herein or in the application of GAAP to the contrary, Consolidated EBITDA  shall include the full amount of EBITDA of the Borrower and its Subsidiaries on a consolidated basis,  regardless of whether any such Subsidiary is required to be consolidated under GAAP.  The historical  Consolidated EBITDA for any entities (A) that are acquired by the Borrower or any of its Subsidiaries  (whether before or after the Closing Date) as permitted under the Loan Documents will be included in the  calculation of Consolidated EBITDA for any period ending on or after the effective date of such  acquisition and (B) that are disposed of by the Borrower or any of its Subsidiaries (whether before or after  the Closing Date) will be excluded in the calculation of EBITDA for any period ending on or after the  effective date of such disposition, in each case in accordance with the definition of “Pro Forma Basis”.  “Consolidated Funded Indebtedness” means, as of any date of determination, Funded  Indebtedness of the Borrower and its Subsidiaries on a consolidated basis.  “Consolidated Interest Charges” means, for any period, for the Borrower and its Subsidiaries on a  consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related  expenses in connection with borrowed money (including capitalized interest) or in connection with the  deferred purchase price of assets (other than trade accounts payable in the ordinary course of business), in  each case to the extent treated as interest in accordance with GAAP, plus (b) the portion of rent expense  with respect to such period under capital leases that is treated as interest in accordance with GAAP plus  (c) the implied interest component of Synthetic Lease Obligations with respect to such period.  “Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of  (a) Consolidated EBITDA for the period of the four fiscal quarters most recently ended to  (b) Consolidated Interest Charges for the period of the four fiscal quarters most recently ended.  “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)  Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four  fiscal quarters most recently ended.  “Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries on a  consolidated basis, net income for such period; provided that Consolidated Net Income shall exclude  (a) extraordinary gains and extraordinary losses for such period, (b) the net income of any Subsidiary  during such period to the extent that the declaration or payment of dividends or similar distributions by  





 






  8  CHAR1\1834980v7  such Subsidiary of such income is not permitted by operation of the terms of its Organization Documents,  any agreement or instrument to which any Loan Party is party or Law applicable to such Subsidiary  during such period (unless any such terms are waived by the applicable parties), except that the  Borrower’s equity in any net loss of any such Subsidiary for such period shall be included in determining  Consolidated Net Income and (c) any income (or loss) for such period of any Person if such Person is not  a Subsidiary, except that the Borrower’s equity in the net income of any such Person for such period shall  be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such  Person during such period to the Borrower or a Subsidiary as a dividend or other distribution (and in the  case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further  distributing such amount to the Borrower as described in clause (b) of this proviso).  “Contractual Obligation” means, as to any Person, any provision of any obligation of such Person  under any agreement, instrument or other undertaking to which such Person is a party or by which it or  any of its property is bound.  “Control” means the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the ability to exercise voting power,  by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.  Without  limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if  such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having  ordinary voting power for the election of directors, managing general partners or the equivalent 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).  “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit  Extension.  “Daily Simple SOFR”  with respect to any applicable determination date means the secured  overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as  the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New  York’s website (or any successor source).  “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other  applicable jurisdictions from time to time in effect.  “Default” means any event or condition that constitutes an Event of Default or that, with the  giving of any notice, the passage of time, or both, would be an Event of Default.  “Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees,  an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate  Loans plus (iii) 2% per annum; provided, however, that with respect to a BSBY Rate Loan, the Default  Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise  applicable to such Loan plus 2% per annum and (b) when used with respect to Letter of Credit Fees, a rate  equal to the Applicable Rate for Revolving Loans that are BSBY Rate Loans plus 2% per annum.  





 






  9  CHAR1\1834980v7  “Defaulting Lender” means, subject to Section 2.15(d), any Lender that (a) has failed to (i) fund  all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be  funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that  such failure is the result of such Lender’s good faith determination that one or more conditions precedent  to funding under Section 5.02 (each of which conditions precedent, together with any applicable default,  shall be specifically identified with supporting facts in such writing) has not been satisfied, or (ii) pay to  the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount  required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing  Line Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the  Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to  comply with its funding obligations hereunder, or has made a public statement to that effect (unless such  writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that  such position is based on such Lender’s good faith determination that a condition precedent to funding  under Section 5.02 (which condition precedent, together with any applicable default, shall be specifically  identified with supporting facts in such writing or public statement) cannot be satisfied), (c) has failed,  within three (3) Business Days after written request by the Administrative Agent or the Borrower, to  confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective  funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant  to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the  Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a  proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator,  trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization  or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other  state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In  Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or  acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a  Governmental Authority so long as such ownership interest does not result in or provide such Lender with  immunity from the jurisdiction of courts within the United States or from the enforcement of judgments  or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject,  repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination  by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a)  through (d) above, and 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 2.15(d)) as  of the date established therefor by the Administrative Agent in a written notice of such determination,  which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swing Line  Lender and each other Lender promptly following such determination.  “Designated Jurisdiction” means any country or territory to the extent that such country or  territory itself is the subject of any Sanction.  “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition of any  property by the Borrower or any Subsidiary, including any Sale and Leaseback Transaction and any sale,  assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or  any rights and claims associated therewith, but excluding (a) the sale, lease, license, transfer or other  disposition of inventory in the ordinary course of business; (b) the sale, lease, license, transfer or other  disposition of any property that is obsolete, worn-out, replaced, excess or no longer used or useful in the  conduct of business of the Borrower and its Subsidiaries; (c) the sale, lease, license, transfer or other  disposition of property to the Borrower or any Subsidiary; provided, that if the transferor of such property  is a Loan Party then the transferee thereof must be a Loan Party; (d) the sale, lease, license, transfer or  other disposition (including providing any discount) of accounts receivable in connection with the  collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to others not  





 






  10  CHAR1\1834980v7  interfering in any material respect with the business of the Borrower and its Subsidiaries; (f) the sale,  transfer or other disposition of cash or Cash Equivalents for fair market value; (g) any Recovery Event;  (h) the abandonment of intellectual property or other proprietary rights of such Person that are, in the  reasonable business judgment of such Person, of no material value and no longer practicable to maintain  or useful in the conduct of the business of such Person; (i) dispositions of property to the extent that (1)  such property is substantially simultaneously exchanged for credit against the purchase price of similar or  replacement property or (2) the proceeds of such disposition are promptly applied to the purchase price of  such replacement property in any event within one hundred eighty (180) days, (j) lease or sublease of real  property in the ordinary course of business to any third party in an arm’s length commercial transaction  that does not interfere in any material respect with the business of the Borrower or any of its Subsidiaries;  and (k) the surrender or waiver of contractual rights or settlement, release or surrender of any contract,  test or other litigation claims in the ordinary course of business.  “Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of  any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon  the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking  fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on  or prior to the date which is ninety-one (91) days after the Maturity Date, (b) is convertible into or  exchangeable for (i) debt securities or (ii) any Equity Interests referred to in clause (a) above, in each case  at any time prior to the date which is ninety-one (91) days after the Maturity Date, (c) contains any  repurchase obligation that may come into effect either (i) prior to payment in full of all Obligations (other  than (x) contingent indemnification or reimbursement obligations for which no claim has been asserted,  (y) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge  Agreements as to which arrangements reasonably satisfactory to the applicable Cash Management Bank  or Hedge Bank shall have been made and (z) Letters of Credit as to which other arrangements reasonably  satisfactory to the Administrative Agent and the L/C Issuer shall have been made or that have been Cash  Collateralized in the amount of the Minimum Collateral Amount) or (ii) prior to the date that is ninety- one (91) days after the Maturity Date or (d) provides for scheduled payments of cash dividends or  distributions prior to the date that is ninety-one (91) days after the Maturity Date.  “Dollar” and “$” mean lawful money of the United States.  “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any state of the  United States or the District of Columbia.  “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of  an institution described in 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.  





 






  11  CHAR1\1834980v7  “Eligible Assignee” means any Person that meets the requirements to be an assignee under  Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section  11.06(b)(iii)).  “Enterprises” means Ciner Enterprises, Inc., a Delaware corporation.  “Environmental Laws” means any and all federal, state, local and foreign statutes, laws,  regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises,  licenses, agreements or governmental restrictions relating to pollution and the protection of the  environment or the release of any materials of potential environmental concern into the environment,  including those related to releases of hazardous substances or wastes, air emissions and discharges to  waste or public sewer systems.  “Environmental Liability” means any liability, contingent or otherwise (including any liability for  damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any  Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b)  the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,  (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials  into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which  liability is assumed or imposed with respect to any of the foregoing.  “Equity Interests”  means, with respect to any Person, all of the shares of capital stock of (or other  ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase  or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in)  such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other  ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition  from such Person of such shares (or such other interests), and all of the other ownership or profit interests  in such Person (including partnership, member or trust interests therein), whether voting or nonvoting,  and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of  determination.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the  rules and regulations promulgated thereunder.  “ERISA Affiliate” means any trade or business (whether or not incorporated) under common  control with a Loan Party within the meaning of Sections 414(b) or (c) of the Internal Revenue Code (and  Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412  of the Internal Revenue Code).  “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal  of a Loan Party 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 Loan Party or any ERISA Affiliate from a Multiemployer Plan;  (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a  termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to  terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of  ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the  determination by the actuary of a Loan Party that any Pension Plan is considered an at-risk plan or a plan  in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Internal Revenue  Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA,  





 






  12  CHAR1\1834980v7  other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan  Party or any ERISA Affiliate or (i) a failure by any Loan Party or any ERISA Affiliate to meet all  applicable requirements under the Pension Funding Rules in respect of a Pension Plan or the failure by  any Loan Party or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.  “Event of Default” has the meaning specified in Section 9.01.  “Excluded Property” means, with respect to any Loan Party, (a) any owned or leased real  property, (b) unless reasonably requested by the Administrative Agent or the Required Lenders, any IP  Rights for which a perfected Lien thereon is not effected either by filing of a Uniform Commercial Code  financing statement or by appropriate evidence of such Lien being filed in either the United States  Copyright Office or the United States Patent and Trademark Office, (c) unless reasonably requested by  the Administrative Agent or the Required Lenders, any personal property (other than personal property  described in clause (b) above) for which the attachment or perfection of a Lien thereon is not governed by  the Uniform Commercial Code, (d) the Equity Interests of any Foreign Subsidiary to the extent not  required to be pledged to secure the Obligations pursuant to Section 7.14(a), (e) any property which,  subject to the terms of Section 8.03(e), is subject to a Lien of the type described in Section 8.01(i) to the  extent the document providing such Lien prohibits such Loan Party from granting any other Liens in such  property, (f) any lease, license, contract, property right or agreement to which any Loan Party is a party or  any of its rights or interests thereunder if and only for so long as the grant of a Lien in any such lease,  license, contract, property right or agreement will (i) violate any law, rule or regulation applicable to such  Loan Party, (ii) result in or will constitute a breach, termination, or default under any such lease, license,  contract, property right or agreement, (iii) result in or will constitute the abandonment, invalidation or  enforceability of any right, title or interest of such Loan Party in any such lease, license, contract,  property right or agreement, or (iv) requires any third-party consent not obtained by such Loan Party  under any such lease, license, contract, property right or agreement except (A) in the case of clauses (i)  through (iv), other than to the extent that any such term would be rendered ineffective pursuant to Section  9-406, 9-407, 9-408 or 9-409 of the applicable UCC or any other applicable Law or principles of equity  and (B) the foregoing exclusions with respect to  this clause (f) shall not apply to (1) monies due or to  become due to a Loan Party in respect of such lease, license, contract, property right or agreement, or (2)  any and all proceeds from the sale, transfer, assignment, license, lease or other dispositions of such lease,  license, contract, property right or agreement; (g) deposit accounts maintained solely for the purpose of  funding payroll, payroll taxes, withholding tax, employee wage and benefit payments and other tax and  employee fiduciary accounts, (h) trust accounts maintained solely on behalf of a Loan Party’s customers  in the ordinary course of business; (i) any trademark application of a Loan Party filed with the United  States Patent and Trademark Office on an “intent-to-use” basis, until such time as a statement of use is  filed with and duly accepted by the United States Patent and Trademark Office (only to the extent that,  and solely during the period in which, the grant of a security interest therein would impair the validity or  enforceability of such intent-to-use trademark applications under applicable federal law); and (j) any  assets for which the Administrative Agent determines that (i) the costs of obtaining a security interest is  excessive in relation to the value of the security to be afforded thereby or (ii) obtaining such security  interest is not commercially practicable.  “Excluded Subsidiaries” means, collectively, (a) any non-Wholly Owned Subsidiary of the  Borrower (until such time as such Subsidiary becomes a Wholly Owned Subsidiary of the Borrower), (b)  any Foreign Subsidiary and (c) any Domestic Subsidiary that is not a Material Domestic Subsidiary.  





 






  13  CHAR1\1834980v7  “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and  to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant under a Loan  Document by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee  thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the  Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by  virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined  in the Commodity Exchange Act (determined after giving effect to Section 4.08 and any and all  guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such  Guarantor, or grant by such Guarantor of a security interest, becomes effective with respect to such Swap  Obligation.  If a Swap Obligation arises under a Master Agreement governing more than one Swap  Contract, such exclusion shall apply to only the portion of such Swap Obligation that is attributable to  Swap Contracts for which such Guaranty or security interest is or becomes illegal.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient   or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured  by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i)  imposed as a result of such Recipient being organized under the laws of, or having its principal office or,  in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any  political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S.  federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect  to an applicable interest in a Loan or Revolving Commitment pursuant to a law in effect on the date on  which (i) such Lender acquires such interest in the Loan or Revolving Commitment (other than pursuant  to an assignment request by the Borrower under Section 11.13) or (ii) such Lender changes its Lending  Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), amounts with  respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender  became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes  attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal  withholding Taxes imposed pursuant to FATCA.  “Existing Indebtedness” has the meaning specified in Section 5.01(f).  “Existing Letters of Credit” means those Letters of Credit outstanding on the Closing Date and  identified on Schedule 2.03.  “Existing WE Soda Facility” means that certain Facilities Agreement originally dated as of  August 1, 2018 by and among Ciner Enterprises Inc., a Delaware corporation, and WE Soda Ltd., a U.K.  corporation, as borrowers, Lucid Agency Services Limited, as agent, and the lenders from time to time  party thereto, as amended pursuant to that certain  Amendment Letter dated as of August 6, 2018, as  further amended and restated pursuant to the 2020 Amendment and Restatement Agreement, as further  amended pursuant to a Consent Letter dated November 10, 2020, as further amended and restated  pursuant to the 2021 Amendment and Restatement Agreement, and as m ay be further amended, modified  or restated from time to time.  “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board.  “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Closing  Date (or any amended or successor version that is substantively comparable and not materially more  onerous to comply with), any current or future regulations or official interpretations thereof and any  agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.  





 






  14  CHAR1\1834980v7  “Federal Funds Open Rate” for any day shall mean the rate per annum (based on a year of three  hundred sixty (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.  “Federal Funds Rate” for any day shall mean the rate per annum (based on a year of three  hundred sixty (360) days and actual days elapsed and rounded upward to the nearest 1/100 of 1%)  announced by the Federal Reserve Bank of New York (or any successor) on such day as being the  weighted average of the rates on overnight federal funds transactions, as computed and announced by  such Federal Reserve Bank (or any successor) in substantially the same manner as such Federal Reserve  Bank computes and announces the weighted average it refers to as the “Federal Funds Rate” as of the date  of this Agreement; provided, if such Federal Reserve Bank (or its successor) does not announce such rate  on any day, the “Federal Funds Rate” for such day shall be the Federal Funds Rate for the last day on  which such rate was announced.  “Fee Letter” means (a) the fee letter agreement dated October 27, 2021 among the Borrower,  Bank of America and BofA Securities, Inc. and (b) the fee letter agreement dated October 27, 2021  among the Borrower, PNC Bank, National Association and PNC Capital Markets LLC.  “Foreclosure Event” means any foreclosure upon, and or involuntary sale or other transfer of  direct or indirect ownership in the Borrower that causes the Specified Owners to cease to (a) own and  control, of record and beneficially, directly or indirectly at least fifty-one percent (51%) of the Voting  Equity Interests in the Borrower or (b) have the ability to elect a majority of the board of directors, board  of managers or equivalent governing body of the Borrower.  “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person,  and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a  jurisdiction other than that in which the Borrower is resident for tax purposes.  For purposes of this  definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute  a single jurisdiction.  “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.  “FRB” means the Board of Governors of the Federal Reserve System of the United States.  “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C  Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than  L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the  Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than  





 






  15  CHAR1\1834980v7  Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to  other Lenders in accordance with the terms hereof.  “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,  purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the  ordinary course of its activities.  “Funded Indebtedness” of any Person means all Indebtedness of such Person other than  Indebtedness described in clause (f) of the definition thereof; provided, that, any Indebtedness that arises  under a revolving credit agreement or revolving credit line shall only constitute “Funded Indebtedness” to  the extent of (a) any amount actually drawn and outstanding under such agreement or credit line plus (b)  the aggregate maximum face amount of letters of credit issued thereunder or in connection therewith.  “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  consistently applied.  “Governmental Authority” means the government of the United States or any other nation, or of  any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,  regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,  regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).  “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person  guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable  or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly,  and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or  supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or  lease property, securities or services for the primary purpose of assuring the obligee in respect of such  Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,  (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or  level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such  Indebtedness or other obligation, or (iv) entered into for the primary purpose of assuring in any other  manner the obligee in respect of such Indebtedness or other obligation of the payment or performance  thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on  any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or  not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or  otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term  “Guarantee” shall not include endorsements of instruments for deposit or collection in the ordinary course  of business or customary and reasonable indemnity obligations.  The amount of any Guarantee shall be  the lesser of (x) an amount equal to the stated or determinable amount of the related primary obligation,  or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the  maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in  good faith and (y) the value of the property subject to a lien, to the extent that such obligation is non- recourse other than to such property.  The term “Guarantee” as a verb has a corresponding meaning.  “Guarantor Joinder Agreement” means a joinder agreement substantially in the form of Exhibit  7.12 executed and delivered by a Domestic Subsidiary (other than an Excluded Subsidiary) in accordance  with the provisions of Section 7.12 or any similar other documents as the Administrative Agent shall  reasonably deem appropriate for such purpose.  





 






  16  CHAR1\1834980v7  “Guarantors” means, collectively, (a) each Domestic Subsidiary identified as a “Guarantor” on  the signature pages hereto, (b) each Person that joins as a Guarantor pursuant to Section 7.12, (c) with  respect to (i) Obligations under any Secured Hedge Agreement, (ii) Obligations under any Secured Cash  Management Agreement and (iii) any Swap Obligation of a Specified Loan Party (determined before  giving effect to Sections 4.01 and 4.08) under the Guaranty, the Borrower, and (d) the successors and  permitted assigns of the foregoing; provided, that no Excluded Subsidiary will be required to be a  Guarantor hereunder.  “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent,  the L/C Issuer, the Lenders and the other holders of the Obligations pursuant to Article IV.  “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous  or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or  asbestos-containing materials, polychlorinated biphenyls, infectious or medical wastes and all other  substances or wastes of any nature regulated pursuant to any Environmental Law.  “Hedge Bank” means any Person in its capacity as a party to a Swap Contract with the Borrower  or any Subsidiary provided that (a) at the time such Person enters into such Swap Contract, such Person is  a Lender or an Affiliate of a Lender or (b) such Swap Contract exists on the Closing Date and such Person  is a Lender or an Affiliate of a Lender on the Closing Date.  “Honor Date” has the meaning set forth in Section 2.03(c).  “IFRS” means international accounting standards within the meaning of IAS Regulation  1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to  herein.  “Indebtedness” means, as to any Person at a particular time, without duplication, all of the  following, whether or not included as indebtedness or liabilities in accordance with GAAP:  (a) all obligations, whether current or long-term, for borrowed money (including  Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan  agreements or other similar instruments;  (b) all purchase money indebtedness;  (c) the maximum amount available to be drawn under letters of credit (including  standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar  instruments;  (d) all obligations (including earn-out obligations) in respect of the deferred purchase  price of property or services (other than trade accounts payable in the ordinary course of  business);  (e) the Attributable Indebtedness of capital leases, Synthetic Lease Obligations, Sale  and Leaseback Transactions and Securitization Transactions;  (f) the Swap Termination Value of any Swap Contract;  (g) indebtedness (excluding prepaid interest thereon) secured by a Lien on property  owned or being purchased by such Person (including indebtedness arising under conditional sales  





 






  17  CHAR1\1834980v7  or other title retention agreements), whether or not such indebtedness shall have been assumed by  such Person or is limited in recourse (with the amount thereof being measured as the lesser of the  amount of such Indebtedness or that fair market value of such property);  (h) all obligations to purchase, redeem, retire, defease or otherwise make any  payment prior to the Maturity Date in respect of any Equity Interests or any warrant, right or  option to acquire such Equity Interests, valued, in the case of a redeemable preferred interest, at  the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid  dividends; provided that in no event shall obligations in respect of any of the following constitute  Indebtedness: (i) any of the foregoing obligations with respect to any Equity Interests of the  Borrower set forth in the respective Organization Documents of the Borrower; (ii) Permitted Tax  Distributions; and (iii) the declaration or approval by, or consent of, a board of directors,  partnership committee or general partner (or similar governing body or Person) of, and the  corresponding making or payment of, any such purchase, redemption, retirement, defeasance or  payment permitted hereunder;  (i) without duplication, all Guarantees in respect of any of the foregoing; and  (j) all Indebtedness of the types referred to in clauses (a) through (i) above of any  partnership or joint venture (other than a joint venture that is itself a corporation or limited  liability company) in which such Person is a general partner or a joint venturer, except to the  extent that such Indebtedness is expressly made non-recourse to such Person.  Notwithstanding the foregoing, the term Indebtedness shall not include (1) Intercompany  Indebtedness, (2) deferred or prepaid revenue or (3) any earn-out obligation or other contingent obligation  in respect of Indebtedness under clause (d) of this definition until such obligation becomes a liability on  the balance sheet of such Person in accordance with GAAP.   “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to  any payment made by or on account of any obligation of any Loan Party under any Loan Document and  (b) to the extent not otherwise described in (a), Other Taxes.  “Indemnitee” has the meaning specified in Section 11.04(b).  “Information” has the meaning specified in Section 11.07.  “Intercompany Indebtedness” means (a) Indebtedness owing by a Loan Party or a Subsidiary of a  Loan Party to another Loan Party or a Subsidiary of a Loan Party if the corresponding Investment is  permitted under Section 8.02, (b) Indebtedness owing by a Loan Party to a Loan Party and (c)  Indebtedness owing by a Subsidiary that is not a Loan Party to a Subsidiary that is not a Loan Party.  “Interest Payment Date” means (a) as to any BSBY Rate Loan, the last day of each Interest  Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a  BSBY Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the  beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan  (including a Swing Line Loan), the last Business Day of each March, June, September and December and  the Maturity Date.  “Interest Period” means, as to each BSBY Rate Loan, the period commencing on the date such  BSBY Rate Loan is disbursed or converted to or continued as a BSBY Rate Loan and ending on the date  





 






  18  CHAR1\1834980v7  one, three or six months thereafter (in each case, subject to availability), as selected by the Borrower in its  Loan Notice; provided that:  (a) any Interest Period that would otherwise end on a day that is not a Business Day  shall be extended to the next succeeding Business Day unless, in the case of a BSBY Rate Loan,  such Business Day falls in another calendar month, in which case such Interest Period shall end  on the next preceding Business Day;  (b) any Interest Period pertaining to a BSBY Rate Loan that begins on the last  Business Day of a calendar month (or on a day for which there is no numerically corresponding  day in the calendar month at the end of such Interest Period) shall end on the last Business Day of  the calendar month at the end of such Interest Period; and  (c) no Interest Period shall extend beyond the Maturity Date.  “Interim Financial Statements” means the unaudited consolidated financial statements of the  Borrower and its Subsidiaries for the fiscal quarter ending June 30, 2021, including balance sheets and  statements of income or operations, shareholders’ equity and cash flows.  “Internal Revenue Code” means the Internal Revenue Code of 1986.  “Investment” means, as to any Person, any direct or indirect acquisition or investment by such  Person, pursuant to (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan,  advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of  any other debt or equity participation or interest in, another Person, including any partnership or joint  venture interest in such other Person, or (c) an Acquisition. For purposes of covenant compliance, the  amount of any Investment shall be the amount actually invested, without adjustment for subsequent  increases or decreases in the value of such Investment.  “IP Rights” has the meaning specified in Section 6.17.  “IRS” means the United States Internal Revenue Service.  “ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”  published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as  may be in effect at the time of issuance).  “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application,  and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or  any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.  “Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties,  rules, binding guidelines, regulations, ordinances, codes and administrative or judicial precedents or  authorities, including the binding interpretation or administration thereof by any Governmental Authority  charged with the enforcement, interpretation or administration thereof, and all applicable administrative  orders, directed duties, binding requests, licenses, authorizations and permits of, and agreements with, any  Governmental Authority, in each case having the force of law.  “L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in  any L/C Borrowing in accordance with its Applicable Percentage.  





 






  19  CHAR1\1834980v7  “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of  Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of Revolving  Loans.  “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or  extension of the expiry date thereof, or the increase of the amount thereof.  “L/C Issuer” means each of (a) Bank of America in its capacity as issuer of Letters of Credit  hereunder or (b) any successor issuer of Letters of Credit hereunder. The term “L/C Issuer” when used  with respect to a Letter of Credit or the L/C Obligations relating to a Letter of Credit shall refer to the L/C  Issuer that issued such Letter of Credit.  “L/C Obligations” means, as at any date of determination, without duplication, the aggregate  amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all  Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available  to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in  accordance with Section 1.06.  For all purposes of this Agreement, if on any date of determination a  Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the  operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount  so remaining available to be drawn.  “Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, each  other Person that becomes a “Lender” in accordance with this Agreement and their successors and assigns  and, unless the context requires otherwise, includes the Swing Line Lender.  “Lender Party” and “Lender Recipient Party” means collectively, the Lenders, the Swing Line  Lender and the L/C Issuer.  “Lending Office” means, as to any Lender, the office or offices of such Lender described as such  in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time  to time notify the Borrower and the Administrative Agent.  “Letter of Credit” means (a) any letter of credit issued hereunder providing for the payment of  cash upon the honoring of a presentation thereunder, (b) the Existing Letters of Credit and (c) any  replacements of any of the foregoing.  A Letter of Credit may be a commercial letter of credit or a  standby letter of credit.  “Letter of Credit Application” means an application and agreement for the issuance or  amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.  “Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date  then in effect (or, if such day is not a Business Day, the next preceding Business Day).  “Letter of Credit Fee” has the meaning specified in Section 2.03(h).  “Letter of Credit Sublimit” means an amount equal to Forty Million Dollars ($40,000,000).  The  Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.  “Lien” means any mortgage, pledge, hypothecation, encumbrance, lien (statutory or other),  charge, or preference, priority or other security interest or preferential arrangement in the nature of a  security interest of any kind or nature whatsoever (including any conditional sale or other title retention  





 






  20  CHAR1\1834980v7  agreement, any easement, right of way or other encumbrance on title to real property, and any assignment,  deposit arrangement, financing lease having substantially the same economic effect as any of the  foregoing).  “Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a  Revolving Loan or Swing Line Loan.  “Loan Documents” means this Agreement, each Note, each Issuer Document, each Guarantor  Joinder Agreement, the Fee Letter, the Collateral Documents, and any agreement creating or perfecting  rights in Cash Collateral pursuant to the provisions of Section 2.14 (but specifically excluding Secured  Hedge Agreements and Secured Cash Management Agreements).  “Loan Modification Agreement” has the meaning specified in Section 11.06(g).  “Loan Modification Offer” has the meaning specified in Section 11.06(g).  “Loan Notice” means a notice of (a) a Borrowing of Revolving Loans, (b) a conversion of Loans  from one Type to the other, or (c) a continuation of BSBY Rate Loans, in each case pursuant to Section  2.02(a), which, if in writing, shall be substantially in the form of Exhibit 2.02 or such other form as may  be approved by the Administrative Agent  (including any form on an electronic platform or electronic  transmission system as shall be approved by the Administrative Agent), appropriately completed and  signed by a Responsible Officer of the Borrower.  “Loan Parties” means, collectively, the Borrower and each Guarantor.  “Master Agreement” has the meaning specified in the definition of “Swap Contract.”  “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect  upon, the operations, business, assets, properties, liabilities (actual or contingent) or condition (financial  or otherwise) of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the  ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c)  a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan  Party of any Loan Document to which it is a party.  “Material Domestic Subsidiary” means any Material Subsidiary that is a Domestic Subsidiary.  “Material Indebtedness” means any Indebtedness (other than Indebtedness arising under the Loan  Documents and Indebtedness arising under Swap Contracts) of the Borrower or any of the Borrower’s  Subsidiaries having an aggregate principal amount (including undrawn committed or available amounts  and including amounts owing to all creditors under any combined or syndicated credit arrangement) of  more than the Threshold Amount.  “Material Subsidiary” means, at any date of determination, any (a) Subsidiary of the Borrower  that individually has or (b) Subsidiary of the Borrower that, when taken together with all other  Subsidiaries that are not Material Subsidiaries, in the aggregate has, in either case, revenues, assets or  earnings in an amount equal to at least 5% of (i) the consolidated revenues of the Borrower and its  Subsidiaries for the most recently completed fiscal quarter for which the Administrative Agent has  received financial statements of the Borrower and its Subsidiaries pursuant to Section 7.01(a) or (b), (ii)  the consolidated assets of the Borrower and its Subsidiaries as of the last day of the most recently  completed fiscal quarter for which the Administrative Agent has received financial statements of the  Borrower and its Subsidiaries pursuant to Section 7.01(a) or (b), or (iii) the consolidated net earnings of  





 






  21  CHAR1\1834980v7  the Borrower and its Subsidiaries for the most recently completed fiscal quarter for which the  Administrative Agent has received financial statements of the Borrower and its Subsidiaries pursuant to  Section 7.01(a) or (b), in each case determined in accordance with GAAP for such period.  “Maturity Date” means October 28, 2026; provided, however, that, if such date is not a Business  Day, the Maturity Date shall be the next preceding Business Day.  “Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting  of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the  existence of a Defaulting Lender, an amount equal to 102% of the Fronting Exposure of the L/C Issuer  with respect to Letters of Credit issued and outstanding at such time and (ii) with respect to Cash  Collateral consisting of cash or deposit account balances provided in accordance with the provisions of  Section 2.14(a)(i), (a)(ii) or (a)(iii), an amount equal to 102% of the Outstanding Amount of all L/C  Obligations.  “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.  “Multiemployer Plan” means any employee benefit plan of the type described in  Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to  make contributions, or during the preceding five (5) plan years, has made or been obligated to make  contributions.  “Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including  any Loan Party or any ERISA Affiliate) at least two of whom are not under common control, as such a  plan is described in Section 4064 of ERISA.  “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or  amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the  terms of Section 11.01 and (b) has been approved by the Required Lenders.  “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such  time.  “Note” has the meaning specified in Section 2.11(a).  “Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall  be substantially in the form of Exhibit 2.05 or such other form as may be approved by the Administrative  Agent (including any form on an electronic platform or electronic transmission system as shall be  approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.  “Obligations” means, with respect to each Loan Party, (a) all advances to, and debts, liabilities,  obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with  respect to any Loan or Letter of Credit and (b) all obligations of the Borrower or any Subsidiary owing to  a Cash Management Bank or a Hedge Bank in respect of Secured Cash Management Agreements or  Secured Hedge Agreements, in each case whether direct or indirect (including those acquired by  assumption), absolute or contingent, due or to become due, now existing or hereafter arising and  including interest and fees that accrue after the commencement by or against any Loan Party or any  Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in  such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding;  provided that the “Obligations” of a Guarantor shall exclude any Excluded Swap Obligations with respect  to such Guarantor.  





 






  22  CHAR1\1834980v7  “OFAC” means the Office of Foreign Assets Control of the United States Department of the  Treasury.  “Organization Documents” means, (a) with respect to any corporation, the certificate or articles  of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any  non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of  formation or organization and operating agreement; and (c) with respect to any partnership, joint venture,  trust or other form of business entity, the partnership, joint venture or other applicable agreement of  formation or organization and any agreement, instrument, filing or notice with respect thereto filed in  connection with its formation or organization with the applicable Governmental Authority in the  jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or  organization of such entity.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Tax (other than  connections arising from such Recipient having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under, engaged in  any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any  Loan or Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible, recording,  filing or similar Taxes that arise from any payment made under, from the execution, delivery,  performance, enforcement or registration of, from the receipt or perfection of a security interest under, or  otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes  imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).  “Outstanding Amount” means (a) with respect to any Loans on any date, the aggregate  outstanding principal amount thereof after giving effect to any borrowings and prepayments or  repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date,  the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension  occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such  date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.  “Participant” has the meaning specified in Section 11.06(d).  “Participant Register” has the meaning specified in Section 11.06(d).  “PBGC” means the Pension Benefit Guaranty Corporation.  “Pension Funding Rules” means the rules of the Internal Revenue Code and ERISA regarding  minimum funding standards with respect to Pension Plans and set forth in Sections 412, 430, 431, 432  and 436 of the Internal Revenue Code and Sections 302, 303, 304 and 305 of ERISA.  “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or  a Multiemployer Plan) that is maintained or is contributed to by any Loan Party and any ERISA Affiliate  or with respect to which any Loan Party or any ERISA Affiliate has any liability and is either covered by  Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Internal  Revenue Code.  “Permitted Acquisition” means an Investment consisting of an Acquisition by the Borrower or  any Subsidiary, provided that (a) no Default or Event of Default shall have occurred and be continuing or  





 






  23  CHAR1\1834980v7  would result from such Acquisition, (b) the property acquired (or the property of the Person acquired) in  such Acquisition is used or useful in the same or a similar line of business as the Borrower and its  Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof),  (c) in the case of an Acquisition of the Equity Interests of another Person, the board of directors (or other  comparable governing body) of such other Person shall have duly approved such Acquisition, (d) the  Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate  demonstrating that the Loan Parties would be in compliance with the financial covenants set forth in  Section 8.11 recomputed as of the end of the period of the four fiscal quarters most recently ended for  which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b) after giving  effect to such Acquisition on a Pro Forma Basis, (e) the representations and warranties made by the Loan  Parties in each Loan Document shall be true and correct in all material respects at and as if made as of the  date of such Acquisition (after giving effect thereto) and (f) there shall be no cash and non-cash  consideration limitation with respect to any such Acquisition so long as the financial covenant set forth in  Section 8.11(a) (as set forth in a Pro Forma Compliance Certificate with calculations recomputed as of the  end of the period of the four fiscal quarters most recently ended for which the Borrower has delivered  financial statements pursuant to Section 7.01(a) or (b) after giving effect to such Acquisition on a Pro  Forma Basis) is less than 3.25:1.0; otherwise, the aggregate cash and non-cash consideration (including  assumed Indebtedness (in the case of an asset (as opposed to Equity Interest) acquisition), the good faith  estimate by the Borrower of the maximum amount of any deferred purchase price obligations (including  earn-out payments), but excluding the fair market value of Equity Interests issued or transferred to the  sellers of such Person or assets, and provided that any portion of any deferred purchase price or assumed  obligations that at any time after the consummation of such Acquisition that have been determined by the  parties to the Acquisition to no longer be required to be paid in accordance with the underlying  acquisition documents shall not be included for purposes of this calculation) for any such Acquisition  shall not exceed $10,000,000.  “Permitted Amendments” has the meaning specified in Section 11.06(g).  “Permitted Liens” means, at any time, Liens in respect of property of the Borrower or any  Subsidiary permitted to exist at such time pursuant to the terms of Section 8.01.  “Permitted Tax Distributions” shall mean, with respect to any fiscal year or portion thereof that  the Borrower (a) is treated as a partnership, S corporation or other or disregarded entity under the Internal  Revenue Code, or (b) files a consolidated, combined, unitary or similar Tax return with its direct or  indirect parent, cash distributions paid by the Borrower to its equityholder(s) in respect of federal, state  and local income tax liabilities (including estimates thereof and any tax deficiencies or other subsequent  adjustments to tax liabilities) attributable to the ultimate taxpayers’ ownership interests.  “Person” means any natural person, corporation, limited liability company, trust, joint venture,  association, company, partnership, Governmental Authority or other entity.  “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including  a Pension Plan), maintained for employees of any Loan Party or any ERISA Affiliate or any such Plan to  which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.  “Platform” has the meaning specified in Section 7.02.  “Pro Forma Basis” means, with respect to any transaction, that for purposes of calculating the  financial covenants set forth in Section 8.11, such transaction shall be deemed to have occurred as of the  first day of the most recent four fiscal quarter period preceding the date of such transaction for which the  Borrower was required to deliver financial statements pursuant to Section 7.01(a) or (b).  In connection  





 






  24  CHAR1\1834980v7  with the foregoing, (a) with respect to any Disposition or Recovery Event, (i) income statement and cash  flow statement items (whether positive or negative) attributable to the property disposed of shall be  excluded to the extent relating to any period occurring prior to the date of such transaction and  (ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of  the applicable period and (b) with respect to any Acquisition, (i) income statement and cash flow  statement items attributable to the Person or property acquired shall be included to the extent relating to  any period applicable in such calculations to the extent (A) such items are not otherwise included in such  income statement and cash flow statement items for the Borrower and its Subsidiaries in accordance with  GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported  by financial statements or other information reasonably satisfactory to the Administrative Agent, (ii) any  Indebtedness incurred or assumed by the Borrower or any Subsidiary (including the Person or property  acquired) in connection with such transaction and any Indebtedness of the Person or property acquired  which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of  the first day of the applicable period and (B) if such Indebtedness has a floating or formula rate, shall  have an implied rate of interest for the applicable period for purposes of this definition determined by  utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of  determination and (iii) the Pro Forma Cost Savings with respect to any period shall be included in the  calculation of Consolidated EBITDA.  “Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the Borrower  containing reasonably detailed calculations of the financial covenants set forth in Section 8.11  recomputed as of the end of the period of the four fiscal quarters most recently ended for which the  Borrower has delivered financial statements pursuant to Section 7.01(a) or (b) after giving effect to the  applicable transaction on a Pro Forma Basis.  “Pro Forma Cost Savings” means, with respect to any period, the reduction in net costs and  related adjustments that, without duplication, were directly attributable to any Acquisition, merger,  reorganization or consolidation permitted hereunder that occurred during such period; provided that any  such reductions in net costs and related adjustments are set forth in an officers’ certificate signed by the  Borrower’s (or its general partner’s) chief financial officer which states (a) the amount of such reduction  in net costs and related adjustments and (b) that such reduction in net costs and related adjustments are  based on the reasonable good faith beliefs of the officers executing such officers’ certificate at the time of  such execution.  “Public Lender” has the meaning specified in Section 7.02.  “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has  total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security  interest becomes effective with respect to such Swap Obligation or such other Person that constitutes an  “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated  thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by  entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  “Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of  any payment to be made by or on account of any obligation of any Loan Party hereunder.  “Recovery Event” means any loss of, damage to or destruction of, or any condemnation or other  taking for public use of, any property of the Borrower or any Subsidiary.  “Register” has the meaning specified in Section 11.06(c).  





 






  25  CHAR1\1834980v7  “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors, officers, employees, agents, trustees, administrators, managers, advisors, consultants, service  providers and representatives of such Person and of such Person’s Affiliates.  “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve  Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or  the Federal Reserve Bank of New York or any successor thereto.  “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty (30) day notice period has been waived.  “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or  continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit  Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.  “Required Approval” has the meaning specified in Section 11.06(g).  “Required Lenders” means, at any time, at least two (2) Lenders having Total Credit Exposures  representing more than 50% of the Total Credit Exposures of all Lenders (provided that if (i) there is only  one Lender, then such Lender shall constitute the Required Lenders and (ii) for purposes of this  definition, a Lender, its Affiliates and its Approved Funds shall collectively be deemed to constitute a  single Lender).  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining  Required Lenders at any time; provided that the amount of any participation in any Swing Line Loan and  Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to  and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or  L/C Issuer, as the case may be, in making such determination.  “Rescindable Amount” has the meaning set forth in Section 2.12(b)(ii).  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means (a) the chief executive officer, president, chief financial officer,  treasurer, assistant treasurer or controller of a Loan Party, (b) solely for purposes of the delivery of  incumbency certificates pursuant to Section 5.01 or 7.12, the secretary or any assistant secretary of a Loan  Party and any other officer or employee of the applicable Loan Party so designated by any of the  foregoing officers in a notice to the Administrative Agent (including, without limitation, a designation of  any such officer or employee as an attorney in fact) and (c) solely for purposes of notices given pursuant  to Article II, any other officer or employee of the applicable Loan Party so designated by any of the  foregoing officers in a notice to the Administrative Agent or any other officer or employee of the  applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and  the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of  a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,  partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be  conclusively presumed to have acted on behalf of such Loan Party.  To the extent requested by the  Administrative Agent, the Borrower will provide an incumbency certificate and appropriate authorization  documentation, in form and substance reasonably satisfactory to the Administrative Agent with respect to  any Responsible Officer.  “Restricted Payment” means, with respect to any Person, any dividend or other distribution  (whether in cash, securities or other property) with respect to any Equity Interests of such Person, or any  





 






  26  CHAR1\1834980v7  payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on  account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of  any such Equity Interests or on account of any return of capital to such Person’s stockholders, partners or  members (or the equivalent Person thereof); provided, for clarity, neither the conversion of convertible  debt into capital stock nor the purchase, redemption, retirement, acquisition, cancellation or termination  of convertible debt in exchange for the issuance of Equity Interests (other than Disqualified Equity  Interests) shall be a Restricted Payment hereunder.  “Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans  to the Borrower pursuant to Section 2.01 (subject to Section 2.01(b)), (b) purchase participations in L/C  Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any  one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or  in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as such  amount may be adjusted from time to time in accordance with this Agreement (including pursuant to  Section 2.01(b)).  “Revolving Credit Exposure” means, as to any Lender at any time, without duplication, the  aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s  participation in L/C Obligations and Swing Line Loans at such time.  “Revolving Loan” has the meaning specified in Section 2.01(a).  “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and  any successor thereto.  “Sale and Leaseback Transaction” means, with respect to any Person, any arrangement, directly  or indirectly, whereby such Person shall sell or transfer any property used or useful in its business,  whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that  it intends to use for substantially the same purpose or purposes as the property being sold or transferred.  “Sanction(s)” means any international economic sanction administered or enforced by the United  States Government, including OFAC, the United Nations Security Council, the European Union, Her  Majesty’s Treasury or other relevant sanctions authority.  “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.  “Secured Cash Management Agreement” means any Cash Management Agreement that is  entered into by and between the Borrower or any Subsidiary and any Cash Management Bank with  respect to such Cash Management Agreement.  For the avoidance of doubt, a holder of Obligations in  respect of Secured Cash Management Agreements shall be subject to the last paragraph of Section 9.03  and Section 10.11.  “Secured Hedge Agreement” means any Swap Contract that is entered into by and between the  Borrower or any Subsidiary and any Hedge Bank with respect to such Swap Contract.  For the avoidance  of doubt, a holder of Obligations in respect of Secured Hedge Agreements shall be subject to the last  paragraph of Section 9.03 and Section 10.11.  “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the  Hedge Banks, the Cash Management Banks, the Indemnitees and each co-agent or sub-agent appointed by  the Administrative Agent from time to time pursuant to Section 10.05.  





 






  27  CHAR1\1834980v7  “Secured Party Designation Notice” shall mean a notice from any Lender or an Affiliate of a  Lender substantially in the form of Exhibit 9.03.  “Securitization Transaction” means, with respect to any Person, any financing transaction or  series of financing transactions (including factoring arrangements) pursuant to which such Person or any  Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts,  payments, receivables, rights to future lease payments or residuals or similar rights to payment to a  special purpose subsidiary or affiliate of such Person.  “Security Agreement” means the security and pledge agreement executed by each of the Loan  Parties in favor of the Administrative Agent, for the benefit of the holders of the Obligations.  “SOFR Adjustment” with respect to Daily Simple SOFR means 0.26161% (26.161 basis points);  and with respect to Term SOFR means 0.11448% (11.448 basis points) for an interest period of one- month’s duration, 0.26161% (26.161 basis points;) for an interest period of three-month’s duration,  0.42826% (42.826 basis points) for an interest period of six-months’ duration, and 0.71513% (71.513  basis points) for an interest period of twelve–months’ duration.  “Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on such  date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other  commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and  does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and  liabilities as they mature in the ordinary course of business, (c) such Person is not engaged in a business  or a transaction, and is not about to engage in a business or a transaction, for which such Person’s  property would constitute unreasonably small capital under applicable Laws and after giving due  consideration to the prevailing practice in the industry in which such Person is engaged or is to engage,  (d) the fair value of the property of such Person is greater than the total amount of liabilities, including  contingent liabilities, of such Person and (e) the present fair salable value of the property of such Person  is not less than the amount that will be required to pay the probable liability of such Person on its debts as  they become absolute and matured.  In computing the amount of contingent liabilities at any time, it is  intended that such liabilities will be computed at the amount which, in light of all the facts and  circumstances existing at such time, represents the amount that can reasonably be expected to become an  actual or matured liability.  “Specified Capital Expansion Holiday” means the period consisting of four (4) full fiscal quarters  after the Borrower has (i) made capital expenditures related to the Specified Capital Expansion (or other  capital expansion project approved by the board of directors, board of managers or equivalent governing  body of the Borrower) of at least $200,000,000 and (ii) provided written notice to the Administrative  Agent that the Borrower is electing to initiate such Specified Capital Expansion Holiday.  “Specified Capital Expansion” means expansion activities related to the Borrower’s soda ash  operations in Wyoming which have been approved in writing by the Borrower’s board of directors, board  of managers or equivalent governing body.  “Specified Loan Party” has the meaning specified in Section 4.08.  “Specified Owners” means, collectively, any or all of the following: (a) Turgay Ciner, (b) any  trust or other estate-planning vehicle established for the benefit of Turgay Ciner, or (c) the estate of  Turgay Ciner.  





 






  28  CHAR1\1834980v7  “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability  company or other business entity of which a majority of the shares of Voting Equity Interests is at the  time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly  through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references  herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.  “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative  transactions, forward rate transactions, commodity swaps, commodity options, forward commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward bond or forward bond price or forward bond index transactions, interest rate options, forward  foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement (any such master agreement, together with any related schedules, a “Master Agreement”),  including any such obligations or liabilities under any Master Agreement.  “Swap Obligation” means with respect to any Guarantor any obligation to pay or perform under  any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of  the Commodity Exchange Act.  “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking  into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a)  for any date on or after the date such Swap Contracts have been closed out and termination value(s)  determined in accordance therewith, such termination value(s) and (b) for any date prior to the date  referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap  Contracts, as determined based upon one or more mid-market or other readily available quotations  provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate  of a Lender).  “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or  any successor swing line lender hereunder.  “Swing Line Loan” has the meaning specified in Section 2.04(a).  “Swing Line Loan Notice” means a notice of a Borrowing of Swing Line Loans pursuant to  Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit 2.04 or such other form  as approved by the Administrative Agent (including any form on an electronic platform or electronic  transmission system as shall be approved by the Administrative Agent), appropriately completed and  signed by a Responsible Officer of the Borrower.  “Swing Line Sublimit” means an amount equal to Twenty Million Dollars ($20,000,000).  The  Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.  “Syndication Agent” means Bank of America, in its capacity as Syndication Agent.  “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called  synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of  





 






  29  CHAR1\1834980v7  property creating obligations that do not appear on the balance sheet of such Person but which, upon the  insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person  (without regard to accounting treatment).  “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.  “Term SOFR” means, for the applicable corresponding Interest Period of BSBY (or if any  Interest Period does not correspond to an interest period applicable to SOFR, the closest corresponding  interest period of SOFR, and if such interest period of SOFR corresponds equally to two Interest Periods  of BSBY, the corresponding interest period of the shorter duration shall be applied) the forward-looking  term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.  “Threshold Amount” means, with respect to the Borrower and its Subsidiaries, $5,000,000.  “Total Credit Exposure” means, as to any Lender at any time, without duplication, the unused  Revolving Commitments of such Lender at such time, the outstanding Loans of such Lender at such time  and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.  “Total Revolving Outstandings” means the aggregate Outstanding Amount of, without  duplication, all Revolving Loans, all Swing Line Loans and all L/C Obligations.  “Type” means, with respect to any Loan, its character as a Base Rate Loan or a BSBY Rate Loan.  “UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for  Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later  version thereof as may be in effect at the time of issuance).  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time  to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit  institutions and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  “United States” and “U.S.” mean the United States of America.  “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).  “U.S. Person” means any Person that is a “United States Person” as defined in Section  7701(a)(30) of the Internal Revenue Code.  “U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(f)(ii)(B)(3).  “Voting Equity Interests” means, with respect to any Person, Equity Interests issued by such  Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the  election of directors (or persons performing similar functions) of such Person, even though the right so to  vote has been suspended by the happening of such a contingency.  





 






  30  CHAR1\1834980v7  “Wholly Owned Subsidiary” means, with respect to any Person, any other Person 100% of whose  Equity Interests are at the time owned by such Person directly or indirectly through other Persons 100%  of whose Equity Interests are at the time owned, directly or indirectly, by such Person.  Unless otherwise  specified, all references herein to a “Wholly Owned Subsidiary” or to “Wholly Owned Subsidiaries” shall  refer to a Wholly Owned Subsidiary or Wholly Owned Subsidiaries of the Borrower.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the  Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers  are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any  powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or  change the form of a liability of any UK Financial Institution or any contract or instrument under which  that liability arises, to convert all or part of that liability into shares, securities or obligations of that  person or any other person, to provide that any such contract or instrument is to have effect as if a right  had been exercised under it or to suspend any obligation in respect of that liability or any of the powers  under that Bail-In Legislation that are related to or ancillary to any of those powers.  1.02 Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified  herein or in such other Loan Document:  (a) The definitions of terms herein shall apply equally to the singular and plural  forms of the terms defined.  Whenever the context may require, any pronoun shall include the  corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and  “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will”  shall be construed to have the same meaning and effect as the word “shall.”  Unless the context  requires otherwise, (i) any definition of or reference to any agreement, instrument or other  document (including 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, replaced, refinanced or otherwise modified (subject to any restrictions on such  amendments, restatements, supplements, replacements, refinancings or modifications set forth  herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed  to include such Person’s successors and assigns, (iii) the words “hereto”, “herein,” “hereof” and  “hereunder,” and words of similar import when used in any Loan Document, shall be construed to  refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all  references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to  refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which  such references appear, (v) any reference to any Law or law shall include all statutory and  regulatory rules, regulations, orders and provisions consolidating, amending, replacing or  interpreting such Law or 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 any and all assets and properties, tangible and intangible, real and personal,  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.”  





 






  31  CHAR1\1834980v7  (c) Section headings herein and in the other Loan Documents are included for  convenience of reference only and shall not affect the interpretation of this Agreement or any  other Loan Document.  (d) Wherever the phrase “to the knowledge of any Loan Party” or words of similar  import relating to the knowledge or the awareness of any Loan Party are used in this Agreement  or any other Loan Document, such phrase shall mean and refer to the actual knowledge of a  Responsible Officer of any Loan Party.  (e) Any requirement under this Agreement that a matter be appropriate, satisfactory  or acceptable to the Administrative Agent (or any words of similar import) shall mean, in each  case, the Administrative Agent acting reasonably.  (f) All references to the “payment in full” of the Obligations or “as long as any of  the Obligations shall be outstanding” or words of similar import shall mean to exclude (x)  contingent indemnification or reimbursement obligations for which no claim has been asserted,  (y) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge  Agreements as to which arrangements reasonably satisfactory to the applicable Cash  Management Bank or Hedge Bank shall have been made and (z) Letters of Credit as to which  other arrangements reasonably satisfactory to the Administrative Agent and the L/C Issuer shall  have been made or that have been Cash Collateralized in the amount of the Minimum Collateral  Amount.  (g) All references to the payment of fees and expenses of the Administrative Agent  or any Lender (other than counsel fees and expenses) shall mean the reasonable and documented  out-of-pocket fees; and, with respect to the fees and expenses of counsel, shall not include any  fees or expenses of internal counsel to the Administrative Agent or any Lender.  (h) Any reference herein to a merger, transfer, consolidation, amalgamation,  assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of  or by a limited liability company, or an allocation of assets to a series of a limited liability  company (or the unwinding of such a division or allocation), as if it were a merger, transfer,  consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as  applicable, to, of or with a separate Person. Any division of a limited liability company shall  constitute a separate Person hereunder (and each division of any limited liability company that is  a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).  1.03 Accounting Terms; Changes in GAAP; Calculation of Financial Covenants on a Pro  Forma Basis.  (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 2020 Financial Statements, except as otherwise  specifically prescribed herein.  Notwithstanding the foregoing, for purposes of determining  compliance with any covenant (including the computation of any financial covenant) contained  herein, (i) Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at  100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB  ASC 470-20 on financial liabilities shall be disregarded, (ii) all liability amounts shall be  determined excluding any liability relating to any operating lease, all asset amounts shall be  





 






  32  CHAR1\1834980v7  determined excluding any right-of-use assets relating to any operating lease, all amortization  amounts shall be determined excluding any amortization of a right-of-use asset relating to any  operating lease, and all interest amounts shall be determined excluding any deemed interest   comprising a portion of fixed rent payable under any operating lease, in each case to the extent  that such liability, asset, amortization or interest pertains to an operating lease under which the  covenantor or a member of its consolidated group is the lessee and would not have been  accounted for as such under GAAP as in effect on December 31, 2015, and (iii) all terms of an  accounting or financial nature used herein shall be construed, and all computations of amounts  and ratios referred to herein shall be made, without giving effect to any election under FASB  ASC Topic 825 “Financial Instruments” (or any other financial accounting standard having a  similar result or effect) to value any Indebtedness of the Borrower or any Subsidiary at “fair  value”, as defined therein. For purposes of determining the amount of any outstanding  Indebtedness, no effect shall be given to any election by the Borrower to measure an item of  Indebtedness using fair value (as permitted by Financial Accounting Standards Board Accounting  Standards Codification 825–10–25 (formerly known as FASB 159) or any similar accounting  standard).  (b) Changes in GAAP.  If at any time any change in GAAP (including the adoption  of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan  Document, and either the Borrower or the Required Lenders shall so request, the Administrative  Agent, the Lenders and the 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 Borrower and the Required Lenders); provided that, until so amended, (i) such  ratio or requirement shall continue to be computed in accordance with GAAP prior to such  change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders  financial statements and other documents required under this Agreement or as reasonably  requested hereunder setting forth a reconciliation between calculations of such ratio or  requirement made before and after giving effect to such change in GAAP.  Without limiting the  foregoing, leases shall continue to be classified and accounted for on a basis consistent with that  reflected in the 2020 Financial Statements for all purposes of this Agreement, notwithstanding  any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually  acceptable amendment addressing such changes, as provided for above.  (c) Consolidation of Variable Interest Entities.  All references herein to consolidated  financial statements of the Borrower and its Subsidiaries or to the determination of any amount  for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in  each case, be deemed to include each variable interest entity that the Borrower is required to  consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as  defined herein.  (d) Calculation of Financial Covenants on a Pro Forma Basis.  Notwithstanding the  above, the parties hereto acknowledge and agree that all calculations of the financial covenants in  Section 8.11 (including for purposes of determining the Applicable Rate) shall be made on a Pro  Forma Basis with respect to any Acquisition, Disposition or Recovery Event occurring during the  applicable period.  1.04 Rounding.  Any financial ratios required to be maintained by the Loan Parties pursuant to this Agreement (or  required to be satisfied in order for a specific action to be permitted under this Agreement) shall be  calculated by dividing the appropriate component by the other component, carrying the result to one place  





 






  33  CHAR1\1834980v7  more than the number of places by which such ratio is expressed herein and rounding the result up or  down to the nearest number.  1.05 Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern  time (daylight or standard, as applicable).  1.06 Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to  be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect  to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for  one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be  deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases,  whether or not such maximum stated amount is in effect at such time.  1.07 Rates.  The Administrative Agent does not warrant, nor accept responsibility, nor shall the  Administrative Agent have any liability with respect to the administration, submission or any other matter  related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of  doubt, the selection  of such rate and any related spread or other adjustment) that is an alternative or  replacement for or successor to any such rate (including, without limitation, any Successor Rate) (or any  component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes.   The Administrative Agent and its affiliates or other related entities may engage in transactions or other  activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate  (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any  related spread or other adjustments thereto, in each case, in a manner adverse to the Borrower.  The  Administrative Agent may select information sources or services in its reasonable discretion to ascertain  any reference rate referred to herein or any alternative, successor or replacement rate (including, without  limitation, any Successor Rate) (or any component of any of the foregoing), in each case pursuant to the  terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or  entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential  damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity),  for any error or other action or omission related to or affecting the selection, determination, or calculation  of any rate (or component thereof) provided by any such information source or service.  ARTICLE II    THE REVOLVING COMMITMENTS AND CREDIT EXTENSIONS  2.01 Revolving Loans.  (a) Subject to the terms and conditions set forth herein, each Lender severally agrees  to make loans (each such loan, a “Revolving Loan”) to the Borrower in Dollars from time to time  on any Business Day during the Availability Period in an aggregate amount not to exceed at any  time outstanding the amount of such Lender’s Revolving Commitment; provided, however, that  after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings  shall not exceed the Aggregate Revolving Commitments, and (ii) the Revolving Credit Exposure  of any Lender shall not exceed such Lender’s Revolving Commitment.  Within the limits of each  





 






  34  CHAR1\1834980v7  Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the  Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under  this Section 2.01.  Revolving Loans may be Base Rate Loans or BSBY Rate Loans, or a  combination thereof, as further provided herein.  (b) Increases of the Aggregate Revolving Commitments.  The Borrower shall have  the right, upon at least five (5) Business Days’ prior written notice to the Administrative Agent, to  increase the Aggregate Revolving Commitments by up to $250,000,000 in the aggregate in one or  more increases from time to time at any time prior to the date that is six (6) months prior to the  Maturity Date then in effect, subject, however, in any such case, to satisfaction of the following  conditions precedent:  (i) any such increase shall be in a minimum principal amount of $5,000,000  and in integral multiples of $1,000,000 in excess thereof;  (ii) no Default or Event of Default shall exist before and immediately after  giving effect to such increase;  (iii) no existing Lender shall be under any obligation to increase its  Revolving Commitment and any such decision whether to increase its Revolving  Commitment shall be in such Lender’s sole and absolute discretion;  (iv) (1) any new Lender providing a Revolving Commitment in connection  with any increase in Aggregate Revolving Commitments shall be approved (such  approval not to be unreasonably withheld or delayed) by the Administrative Agent and  join this Agreement by executing such joinder documents reasonably satisfactory to the  Borrower and the Administrative Agent and/or (2) any existing Lender electing to  increase its Revolving Commitment shall have executed a commitment agreement  reasonably satisfactory to such existing Lender, the Borrower and the Administrative  Agent;  (v) any such increase in the Aggregate Revolving Commitments shall be  subject to receipt by the Administrative Agent of (x) reasonably satisfactory opinions of  legal counsel to the Loan Parties (including, to the extent required, local counsel to the  Loan Parties), addressed to the Administrative Agent and each Lender, (y) a certificate of  each Loan Party dated as of the date of such increase signed by a Responsible Officer of  such Loan Party, (I) certifying and attaching the Organization Documents of such Loan  Party, (II) certifying and attaching the resolutions adopted by such Loan Party approving  or consenting to such increase, (III) certifying that the conditions set forth in Section 5.02  (other than the delivery of a Loan Notice) have been satisfied and (IV) certifying that the  Loan Parties shall be in compliance, on a Pro Forma Basis after giving effect to the  incurrence of any such increase in the Aggregate Revolving Commitments, with the  financial covenants set forth in Section 8.11 and (z) such documents and certifications as  the Administrative Agent may reasonably require to evidence that each Loan Party is  duly organized or formed, and is validly existing, in good standing and qualified to  engage in business in its state of organization or formation;  (vi) to the extent that the joinder or commitment agreements described in  clause (iv) above provide for an applicable margin of, and/or commitment fee for,  additional Revolving Commitments greater than the Applicable Rate and/or Commitment  Fee with respect to the existing Revolving Commitments at such time, the Applicable  





 






  35  CHAR1\1834980v7  Rate and/or the Commitment Fee (as applicable) for the existing Revolving  Commitments shall be increased automatically (without the consent of any Person) such  that the Applicable Rate and/or the Commitment Fee (as applicable) for such existing  Revolving Commitments is not less than the applicable margin and/or the commitment  fee (as applicable) for such additional Revolving Commitments;  (vii) subject to clause (vi) above, the terms and conditions of any Loan  Document applicable to any increased Revolving Commitments shall be the same as the  terms and conditions applicable to the Revolving Commitments immediately prior to  giving effect to such increase;  (viii) if any Revolving Loans are outstanding at the time of the increase in the  Aggregate Revolving Commitments, the Borrower shall, if applicable, prepay one or  more existing Revolving Loans (such prepayment to be subject to Section 3.05) in an  amount necessary such that after giving effect to the increase in the Aggregate Revolving  Commitments, each Lender will hold its pro rata share (based on its Applicable  Percentage of the increased Aggregate Revolving Commitments) of outstanding  Revolving Loans; provided, that, for the avoidance of doubt, immediately after such  prepayment, the Borrower shall automatically borrow from such new or increased  Revolving Commitments the exact amount so prepaid such that the aggregate amount of  Revolving Loans outstanding immediately prior to such prepayment, and immediately  after such borrowing, shall be the same;  (ix) None of the Lenders, the Administrative Agent and the Arranger shall  have any responsibility for arranging any such increase without such party’s prior written  agreement; and  (x) The Letter of Credit Sublimit and the Swing Line Sublimit shall not be  increased as a result of any increase in the Aggregate Revolving Commitments (without  the consent of the Required Lenders and the L/C Issuer and/or Swing Line Lender, as  appropriate).  2.02 Borrowings, Conversions and Continuations of Loans.  (a) Each Borrowing, each conversion of Loans from one Type to the other, and each  continuation of BSBY Rate Loans shall be made upon the Borrower’s irrevocable notice to the  Administrative Agent, which may be given by (A) telephone or (B) a Loan Notice.  Each such  notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three (3)  Business Days prior to the requested date of any Borrowing of, conversion to or continuation of,  BSBY Rate Loans or of any conversion of BSBY Rate Loans to Base Rate Loans, and (ii) on the  requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower  pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative  Agent of a Loan Notice.  Each Borrowing of, conversion to or continuation of BSBY Rate Loans  shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof.   Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate  Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess  thereof.  Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower  is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of  BSBY Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the  case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,  converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to  





 






  36  CHAR1\1834980v7  be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.  If the  Borrower fails to specify a Type of a Loan in a Loan Notice or if the Borrower fails to give a  timely notice requesting a conversion or continuation, then the applicable Loans shall be made as,  or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be  effective as of the last day of the Interest Period then in effect with respect to the applicable  BSBY Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of  BSBY Rate Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to  have specified an Interest Period of one (1)  month.  (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly  notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no  timely notice of a conversion or continuation is provided by the Borrower, the Administrative  Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans  described in the preceding clause.  In the case of a Borrowing, each Lender shall make the  amount of its Loan available to the Administrative Agent in immediately available funds at the  Administrative Agent’s Office not later than 2:00 p.m. on the Business Day specified in the  applicable Loan Notice provided that if any Lender fails to remit such funds to the Administrative  Agent prior to such time, the Administrative Agent may elect in its sole discretion to fund with its  own funds such Lender’s Applicable Percentage of such Loans on such borrowing date, and such  Lender shall be subject to the repayment obligation in Section 2.12(b).  Upon satisfaction of the  applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial Credit  Extension, Section 5.01), the Administrative Agent shall make all funds so received available to  the Borrower in like funds as received by the Administrative Agent either by (i) crediting the  account of the Borrower on the books of Bank of America with the amount of such funds or (ii)  wire transfer of such funds, in each case in accordance with instructions provided to (and  reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if,  on the date the Loan Notice with respect to a Borrowing of Revolving Loans is given by the  Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall  be applied to the payment in full of any such L/C Borrowings and second, shall be made available  to the Borrower as provided above.  (c) Except as otherwise provided herein, a BSBY Rate Loan may be continued or  converted only on the last day of the Interest Period for such BSBY Rate Loan.  Upon the  occurrence and during the continuance of an Event of Default, no Loans may be requested as,  converted to or continued as BSBY Rate Loans without the consent of the Required Lenders.  (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of  the interest rate applicable to any Interest Period for BSBY Rate Loans upon determination of  such interest rate.  (e) After giving effect to all Borrowings, all conversions of Loans from one Type to  the other, and all continuations of Loans as the same Type, there shall not be more than eight (8)  Interest Periods in effect.  (f) Notwithstanding anything to the contrary in this Agreement, any Lender may  exchange, continue or rollover all of the portion of its Loans in connection with any refinancing,  extension, loan modification or similar transaction permitted by the terms of this Agreement,  pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative  Agent, and such Lender.  





 






  37  CHAR1\1834980v7  (g) With respect to BSBY, the Administrative Agent will have the right to make  Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in  any other Loan Document, any amendments implementing such Conforming Changes will  become effective without any further action or consent of any other party to this Agreement or  any other Loan Document; provided that, with respect to any such amendment effected, the  Administrative Agent shall post each such amendment implementing such Conforming Changes  to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.  (h) This Section 2.02 shall not apply to Swing Line Loans.  2.03 Letters of Credit.  (a) The Letter of Credit Commitment.  (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer  agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1)  from time to time on any Business Day during the period from the Closing Date until the  Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of  the Borrower or any Subsidiary, and to amend or extend Letters of Credit previously  issued by it, in accordance with clause (b) below, and (2) to honor drawings under the  Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit  issued for the account of the Borrower or any Subsidiary and any drawings thereunder;  provided that after giving effect to any L/C Credit Extension with respect to any Letter of  Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving  Commitments, (y) the Revolving Credit Exposure of any Lender shall not exceed such  Lender’s Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations  shall not exceed the Letter of Credit Sublimit.  Each request by the Borrower for the  issuance or amendment of a Letter of Credit shall be deemed to be a representation by the  Borrower that the L/C Credit Extension so requested complies with the conditions set  forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to  the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be  fully revolving, and accordingly the Borrower may, during the foregoing period, obtain  Letters of Credit to replace Letters of Credit that have expired or that have been drawn  upon and reimbursed.  All Existing Letters of Credit shall be deemed to have been issued  pursuant hereto, and from and after the Closing Date shall be subject to and governed by  the terms and conditions hereof and shall be deemed to be a Letter of Credit hereunder.   (ii) The L/C Issuer shall not issue any Letter of Credit if:  (A) subject to Section 2.03(b)(iii), the expiry date of the requested  Letter of Credit would occur more than twelve (12) months after the date of  issuance or last extension, unless the L/C Issuer and the Lenders (other than  Defaulting Lenders) holding a majority of the Revolving Credit Exposure  (other than the Revolving Credit Exposure with respect to any Defaulting  Lender) have approved such expiry date; or  (B) the expiry date of such requested Letter of Credit would occur  after the Letter of Credit Expiration Date, unless the L/C Issuer and all the  Lenders that have Revolving Commitments have approved such expiry date.  





 






  38  CHAR1\1834980v7  (iii) The L/C Issuer shall not be under any obligation to issue any Letter of  Credit if:  (A) any order, judgment or decree of any Governmental Authority or  arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from  issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any  request or directive (whether or not having the force of law) from any  Governmental Authority with jurisdiction over the L/C Issuer shall prohibit the  issuance of letters of credit generally or such Letter of Credit in particular or  shall impose upon the L/C Issuer with respect to such Letter of Credit any  material restriction, reserve or capital requirement (for which the L/C Issuer is  not otherwise compensated hereunder) not in effect on the Closing Date, or  shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which  was not applicable on the Closing Date and which the L/C Issuer in good faith  deems material to it;  (B) the issuance of such Letter of Credit would violate one or more  policies of the L/C Issuer applicable to letters of credit generally;  (C) except as otherwise agreed by the Administrative Agent and the  L/C Issuer, such Letter of Credit is in an initial stated amount less than  $500,000;  (D) such Letter of Credit is to be denominated in a currency other  than Dollars;  (E) any Lender is at that time a Defaulting Lender, unless the L/C  Issuer has entered into arrangements, including the delivery of Cash Collateral,  reasonably satisfactory to the L/C Issuer (in its sole discretion reasonably  exercised) with the Borrower or such Defaulting Lender to eliminate the L/C  Issuer’s actual or potential Fronting Exposure (after giving effect to  Section 2.15(b)) with respect to the Defaulting Lender arising from either the  Letter of Credit then proposed to be issued or that Letter of Credit and all other  L/C Obligations as to which the L/C Issuer has actual or potential Fronting  Exposure, as it may elect in its sole discretion reasonably exercised; or  (F) such Letter of Credit contains any provisions for automatic  reinstatement of the stated amount after any drawing thereunder.  (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer  would not be permitted at such time to issue such Letter of Credit in its amended form  under the terms hereof.  (v) The L/C Issuer shall be under no obligation to amend any Letter of  Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of  Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter  of Credit does not accept the proposed amendment to such Letter of Credit.  (vi) The L/C Issuer shall act on behalf of the Lenders with respect to any  Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer  shall have all of the benefits and immunities (A) provided to the Administrative Agent in  





 






  39  CHAR1\1834980v7  Article X with respect to any acts taken or omissions suffered by the L/C Issuer in  connection with Letters of Credit issued by it or proposed to be issued by it and Issuer  Documents pertaining to such Letters of Credit as fully as if the term “Administrative  Agent” as used in Article X included the L/C Issuer with respect to such acts or  omissions, and (B) as additionally provided herein with respect to the L/C Issuer.  (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension  Letters of Credit.  (i) Each Letter of Credit shall be issued or amended, as the case may be,  upon the request of the Borrower delivered to the L/C Issuer (with a copy to the  Administrative Agent) in the form of a Letter of Credit Application, appropriately  completed and signed by a Responsible Officer of the Borrower.  Such Letter of Credit  Application may be sent by facsimile, by United States mail, by overnight courier, by  electronic transmission using the system provided by the L/C Issuer, by personal delivery  or by any other means acceptable to the L/C Issuer.  Such Letter of Credit Application  must be received by the L/C Issuer and the Administrative Agent not later than 11:00  a.m. at least three (3) Business Days (or such later date and time as the Administrative  Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior  to the proposed issuance date or date of amendment, as the case may be.  In the case of a  request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall  specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed  issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the  amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary  thereof; (E) the documents to be presented by such beneficiary in case of any drawing  thereunder; (F) the full text of any certificate to be presented by such beneficiary in case  of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit;  and (H) such other matters as the L/C Issuer may reasonably require.  In the case of a  request for an amendment of any outstanding Letter of Credit, such Letter of Credit  Application shall specify in form and detail reasonably satisfactory to the L/C Issuer (A)  the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which  shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other  matters as the L/C Issuer may reasonably require.  Additionally, the Borrower shall  furnish to the L/C Issuer and the Administrative Agent such other documents and  information pertaining to such requested Letter of Credit issuance or amendment,  including any Issuer Documents, as the L/C Issuer or the Administrative Agent may  reasonably require.  (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer  will confirm with the Administrative Agent (by telephone or in writing) that the  Administrative Agent has received a copy of such Letter of Credit Application from the  Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy  thereof.  Unless the L/C Issuer has received written notice from any Lender, the  Administrative Agent or any Loan Party, at least one (1) Business Day prior to the  requested date of issuance or amendment of the applicable Letter of Credit, that one or  more applicable conditions contained in Article V shall not then be satisfied, then, subject  to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a  Letter of Credit for the account of the Borrower or the applicable Subsidiary or enter into  the applicable amendment, as the case may be, in each case in accordance with the L/C  Issuer’s usual and customary business practices.  Immediately upon the issuance of each  Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and  





 






  40  CHAR1\1834980v7  unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter  of Credit in an amount equal to the product of such Lender’s Applicable Percentage times  the amount of such Letter of Credit.  (iii) If the Borrower so requests in any applicable Letter of Credit  Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit  that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);  provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to  prevent any such extension at least once in each twelve (12) month period (commencing  with the date of issuance of such Letter of Credit) by giving prior notice to the  beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such  twelve (12) month period to be agreed upon at the time such Letter of Credit is issued.   Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a  specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter  of Credit has been issued, the Lenders shall be deemed to have authorized (but may not  require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an  expiry date not later than the Letter of Credit Expiration Date; provided, however, that  the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined  that it would not be permitted, or would have no obligation, at such time to issue such  Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the  provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received  notice (which may be by telephone or in writing) on or before the day that is seven (7)  Business Days before the Non-Extension Notice Date (1) from the Administrative Agent  that the Required Lenders have elected not to permit such extension or (2) from the  Administrative Agent, any Lender or any Loan Party that one or more of the applicable  conditions specified in Section 5.02 is not then satisfied, and in each case directing the  L/C Issuer not to permit such extension.  (iv) If the Borrower so requests in any applicable Letter of Credit  Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit  that permits the automatic reinstatement of all or a portion of the stated amount thereof  after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”).  Unless  otherwise directed by the L/C Issuer, the Borrower shall not be required to make a  specific request to the L/C Issuer to permit such reinstatement.  Once an Auto- Reinstatement Letter of Credit has been issued, except as provided in the following  sentence, the Lenders shall be deemed to have authorized (but may not require) the L/C  Issuer to reinstate all or a portion of the stated amount thereof in accordance with the  provisions of such Letter of Credit.  Notwithstanding the foregoing, if such Auto- Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any  portion of the stated amount thereof after a drawing thereunder by giving notice of such  non-reinstatement within a specified number of days after such drawing (the “Non- Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if it has  received a notice (which may be by telephone or in writing) on or before the day that is  seven (7) Business Days before the Non-Reinstatement Deadline (A) from the  Administrative Agent that the Required Lenders have elected not to permit such  reinstatement or (B) from the Administrative Agent, any Lender or any Loan Party that  one or more of the applicable conditions specified in Section 5.02 is not then satisfied  (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and,  in each case, directing the L/C Issuer not to permit such reinstatement.  





 






  41  CHAR1\1834980v7  (v) Promptly after its delivery of any Letter of Credit or any amendment to a  Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the  L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and  complete copy of such Letter of Credit or amendment.  (c) Drawings and Reimbursements; Funding of Participations.  (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of  drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the  Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any payment by  the L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower  shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to  the amount of such drawing; provided that the Borrower has received notice of such  payment by 11:00 a.m. on such Honor Date, and if the Borrower receives notice of such  payment after such time, the Borrower shall make such payment not later than 11:00 a.m.  on the Business Day following receipt of such notice (together with interest thereon).  If  the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent  shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed  drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable  Percentage thereof.  In such event, the Borrower shall be deemed to have requested a  Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to  the Unreimbursed Amount, without regard to the minimum and multiples specified in  Section 2.02 for the principal amount of Base Rate Loans, but subject to the unutilized  portion of the Aggregate Revolving Commitments and the conditions set forth in Section  5.02 (other than the delivery of a Loan Notice).  Any notice given by the L/C Issuer or  the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if  immediately confirmed in writing; provided that the lack of such an immediate  confirmation shall not affect the conclusiveness or binding effect of such notice.  (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make  funds available (and the Administrative Agent may apply Cash Collateral provided for  this purpose) for the account of the L/C Issuer at the Administrative Agent’s Office in an  amount equal to its Applicable Percentage of the Unreimbursed Amount not later than  2:00 p.m. on the Business Day specified in such notice by the Administrative Agent,  whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes  funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan  to the Borrower in such amount.  The Administrative Agent shall remit the funds so  received to the L/C Issuer.  (iii) With respect to any Unreimbursed Amount that is not fully refinanced by  a Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 (other  than delivery of a Loan Notice) cannot be satisfied or for any other reason, the Borrower  shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of  the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due  and payable on demand (together with interest) and shall bear interest at the Default Rate.   In such event, each Lender’s payment to the Administrative Agent for the account of the  L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its  participation in such L/C Borrowing and shall constitute an L/C Advance from such  Lender in satisfaction of its participation obligation under this Section 2.03.  





 






  42  CHAR1\1834980v7  (iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to  this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter  of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall  be solely for the account of the L/C Issuer.  (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to  reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by  this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any  circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right  which such Lender may have against the L/C Issuer, the Borrower, any Subsidiary or any  other Person for any reason whatsoever; (B) the occurrence or continuance of a Default;  or (C) any other occurrence, event or condition, whether or not similar to any of the  foregoing; provided, however, that each Lender’s obligation to make Revolving Loans  pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 5.02 (other  than delivery by the Borrower of a Loan Notice).  No such making of an L/C Advance  shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C  Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit,  together with interest as provided herein.  (vi) If any Lender fails to make available to the Administrative Agent for the  account of the L/C Issuer any amount required to be paid by such Lender pursuant to the  foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),  then, without limiting the other provisions of this Agreement, the L/C Issuer shall be  entitled to recover from such Lender (acting through the Administrative Agent), on  demand, such amount with interest thereon for the period from the date such payment is  required to the date on which such payment is immediately available to the L/C Issuer at  a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by  the L/C Issuer in accordance with banking industry rules on interbank compensation, plus  any administrative, processing or similar fees customarily charged by the L/C Issuer in  connection with the foregoing.  If such Lender pays such amount (with interest and fees  as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included  in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as  the case may be.  A certificate of the L/C Issuer submitted to any Lender (through the  Administrative Agent) with respect to any amounts owing under this clause (vi) shall be  conclusive absent manifest error.  (d) Repayment of Participations.  (i) At any time after the L/C Issuer has made a payment under any Letter of  Credit and has received from any Lender such Lender’s L/C Advance in respect of such  payment in accordance with Section 2.03(c), if the Administrative Agent receives for the  account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or  interest thereon (whether directly from the Borrower or otherwise, including proceeds of  Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent  will distribute to such Lender its Applicable Percentage thereof in the same funds as  those received by the Administrative Agent.  (ii) If any payment received by the Administrative Agent for the account of  the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the  circumstances described in Section 11.05 (including pursuant to any settlement entered  into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative  





 






  43  CHAR1\1834980v7  Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of  the Administrative Agent, plus interest thereon from the date of such demand to the date  such amount is returned by such Lender, at a rate per annum equal to the Federal Funds  Rate from time to time in effect.  The obligations of the Lenders under this clause shall  survive the payment in full of the Obligations and the termination of this Agreement.  (e) Obligations Absolute.  The obligation of the Borrower to reimburse the L/C  Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing and the  obligation of each Lender to make L/C Advances shall be absolute, unconditional and  irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all  circumstances, including the following:  (i) any lack of validity or enforceability of such Letter of Credit, this  Agreement or any other Loan Document;  (ii) the existence of any claim, counterclaim, setoff, defense or other right  that the Borrower or any Subsidiary may have at any time against any beneficiary or any  transferee of such Letter of Credit (or any Person for whom any such beneficiary or any  such transferee may be acting), the L/C Issuer or any other Person, whether in connection  with this Agreement, the transactions contemplated hereby or by such Letter of Credit or  any agreement or instrument relating thereto, or any unrelated transaction;  (iii) any draft, demand, certificate or other document presented under such  Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or  any statement therein being untrue or inaccurate in any respect; or any loss or delay in the  transmission or otherwise of any document required in order to make a drawing under  such Letter of Credit;  (iv) waiver by the L/C Issuer of any requirement that exists for the L/C  Issuer’s protection and not the protection of the Borrower or any waiver by the L/C Issuer  which does not in fact materially prejudice the Borrower;  (v) honor of a demand for payment presented electronically even if such  Letter of Credit requires that demand be in the form of a draft;  (vi) any payment made by the L/C Issuer in respect of an otherwise  complying item presented after the date specified as the expiration date of, or the date by  which documents must be received under such Letter of Credit if presentation after such  date is authorized by the UCC or the ISP, as applicable;  (vii) any payment by the L/C Issuer under such Letter of Credit against  presentation of a draft or certificate that does not strictly comply with the terms of such  Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to  any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for  the benefit of creditors, liquidator, receiver or other representative of or successor to any  beneficiary or any transferee of such Letter of Credit, including any arising in connection  with any proceeding under any Debtor Relief Law;  (viii) the failure of the Borrower or any other Person to comply with the  conditions set forth in Sections 2.02 or 5.02 or as otherwise set forth in this Agreement  





 






  44  CHAR1\1834980v7  for the making of a Loan, it being acknowledged that such conditions are not required for  the making of L/C Borrowings and the obligation of the Lenders to make L/C Advances;  (ix) the solvency of, or any acts or omissions by, any beneficiary of any  Letter of Credit, or any other Person having a role in any transaction or obligation  relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value  or other characteristic of any property or services relating to a Letter of Credit;  (x) any failure by the L/C Issuer or any of its Affiliates to issue any Letter of  Credit in the form requested by the Borrower, unless the L/C Issuer has received written  notice from the Borrower of such failure within three (3) Business Days after the L/C  Issuer shall have furnished such Borrower and the Administrative Agent a copy of such  Letter of Credit and such error is material and no drawing has been made thereon prior to  receipt of such notice;  (xi) any adverse change in the business, operations, properties, assets,  condition (financial or otherwise) or prospects of the Borrower or the subsidiaries of the  Borrower;  (xii) any breach of this Agreement or any other Loan Document by any party  thereto;  (xiii) the occurrence or continuance of a proceeding under any Debtor Relief  Law with respect to the Borrower or any subsidiary;  (xiv) the fact that an Event of Default shall have occurred and be continuing;  (xv) the fact that the Letter of Credit Expiration Date shall have passed or this  Agreement or the Revolving Commitments hereunder shall have been terminated; or  (xvi) any other circumstance or happening whatsoever, whether or not similar  to any of the foregoing, including any other circumstance that might otherwise constitute  a defense available to, or a discharge of, the Borrower or any Subsidiary.  The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is  delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other  irregularity, the Borrower will immediately notify the L/C Issuer.  The Borrower shall be conclusively  deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is  given as aforesaid.  (f) Role of L/C Issuer.  Each Lender and the Borrower agree that, in paying any  drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any  document (other than any sight draft, certificates and documents expressly required by such  Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or  the authority of the Person executing or delivering any such document.  None of the L/C Issuer,  the Administrative Agent, any of their respective Related Parties nor any correspondent,  participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or  omitted in connection herewith at the request or with the approval of the Lenders or the Required  Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence, bad  faith or willful misconduct; (iii) the due execution, effectiveness, validity or enforceability of any  document or instrument related to any Letter of Credit or Issuer Document even if it should in  





 






  45  CHAR1\1834980v7  fact prove to be in any or all respects invalid, insufficient, inaccurate,  fraudulent or forged (even  if the L/C Issuer or its Affiliates shall have been notified thereof); (iv) errors,  omissions,  interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph,   telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms;  (vi) any loss or delay in the transmission or otherwise of any document required in order to make  a drawing  under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by  the beneficiary of  any such Letter of Credit of the proceeds of any drawing under such Letter of  Credit; or (viii) any  consequences arising from causes beyond the control of the L/C Issuer or its  Affiliates, as applicable,  including any act or omission of any governing authority, and none of  the above shall affect or impair,  or prevent the vesting of, any of the L/C Issuer’s or its Affiliates  rights or powers hereunder.  The Borrower hereby assumes all risks of the acts or omissions of  any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however,  that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such  rights and remedies as it may have against the beneficiary or transferee at law or under any other  agreement.  None of the L/C Issuer, the Administrative Agent, any of their respective Related  Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or  responsible for any of the matters described in clauses (i) through (xvi) of Section 2.03(e);  provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower  may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the  extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages  suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful  misconduct, bad faith or gross negligence or the L/C Issuer’s willful failure to pay under any  Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s)  strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in  limitation of the foregoing, the L/C Issuer (i) may accept documents that appear on their face to  be in order, without responsibility for further investigation, regardless of any notice or  information to the contrary, (ii) shall not be responsible for the validity or sufficiency of any  instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the  rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be  invalid or ineffective for any reason, (iii) may rely on any oral or other communication  believed  in good faith by the L/C Issuer to have been authorized or given by or on behalf of the applicant  for a Letter of Credit, (iv) may honor a previously dishonored presentation under a Letter of  Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of  wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if  such presentation  had initially been honored, together with any interest paid by the L/C Issuer;  (v) may honor any drawing that is payable upon presentation of a statement advising negotiation  or payment, upon receipt of such  statement (even if such statement indicates that a draft or other  document is being delivered separately), and shall not be liable for any failure of any such draft or  other document to arrive, or to conform in anyway with the relevant Letter of Credit; (vi) may  pay any paying or negotiating bank claiming that it  rightfully honored under the laws or practices  of the place where such bank is located; and (vii) may  settle or adjust any claim or demand made  on the L/C Issuer in any way related to any order issued at the  applicant’s request to an air  carrier, a letter of guarantee or of indemnity issued to a carrier or any similar  document (each an  “Order”) and honor any drawing in connection with any Letter of Credit that is the  subject of  such Order, notwithstanding that any drafts or other documents presented in connection with   such Letter of Credit fail to conform in any way with such Letter of Credit.  The L/C Issuer shall  provide to the Administrative Agent a list of outstanding Letters of Credit (together with type,  amounts and denominated currency) issued by it on a monthly basis.  The L/C Issuer may send a  Letter of Credit or conduct any communication to or from the beneficiary via the Society for  Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or  any other commercially reasonable means of communicating with a beneficiary.  





 






  46  CHAR1\1834980v7  (g) Applicability of ISP; Limitation of Liability.  Unless otherwise expressly agreed  by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such  agreement applicable to an Existing Letter of Credit), such Letter of Credit shall be subject either  to the rules of the UCP or the rules of ISP, as determined by the L/C Issuer.  Notwithstanding the  foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights  and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C  Issuer required or permitted under any Law, order, or practice that is required or permitted to be  applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction  where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or in the  decisions, opinions, practice statements, or official commentary of the ICC Banking Commission,  the Bankers Association for Finance and Trade - International Financial Services Association  (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any  Letter of Credit chooses such Law or practice.  (h) Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for  the account of each Lender in accordance, subject to Section 2.15, with its Applicable Percentage  a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable  Rate for Revolving Loans that are BSBY Rate Loans times the daily amount available to be  drawn under such Letter of Credit.  For purposes of computing the daily amount available to be  drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in  accordance with Section 1.06.  Letter of Credit Fees shall be (i) due and payable on the first  Business Day after the end of each March, June, September and December, commencing with the  first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit  Expiration Date and thereafter on demand; and (ii) computed on a quarterly basis in arrears.  If  there is any change in the Applicable Rate during any quarter, the daily amount available to be  drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate  separately for each period during such quarter that such Applicable Rate was in effect.   Notwithstanding anything to the contrary contained herein, upon the request of the Required  Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default  Rate.  (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.   The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with  respect to each commercial Letter of Credit, at the rate specified in the Fee Letter, computed on  the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to  any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit,  at a rate separately agreed between the Borrower and the L/C Issuer, computed on the amount of  such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to  each standby Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the  daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.   Such fronting fee shall be due and payable on the tenth Business Day after the end of each March,  June, September and December in respect of the most recently-ended quarterly period (or portion  thereof, in the case of the first payment), commencing with the first such date to occur after the  issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on  demand. For purposes of computing the daily amount available to be drawn under any Letter of  Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.   In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary  issuance, presentation, amendment and other processing fees, and other standard out-of-pocket  costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect.   Such customary fees and standard out-of-pocket costs and charges are due and payable on  demand and are nonrefundable.  





 






  47  CHAR1\1834980v7  (j) Conflict with Issuer Documents.  The Borrower agrees to be bound by the terms  of the  L/C Issuer’s application and agreement for Letters of Credit and the L/C Issuer’s written  regulations and  customary practices relating to Letters of Credit, though such interpretation may  be different from the  Borrower’s own.  In the event of any conflict between the terms hereof and  the terms of any Issuer Document, the terms hereof shall control.  (k) Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit  issued or outstanding hereunder is in support of any obligations of, or is for the account of, a  Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all  drawings under such Letter of Credit.  The Borrower hereby acknowledges that the issuance of  Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the  Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.  2.04 Swing Line Loans.  (a) Swing Line Facility.  Subject to the terms and conditions set forth herein, the  Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section  2.04, may in its sole discretion, cancelable at any time for any reason whatsoever, make loans  (each such loan, a “Swing Line Loan”) to the Borrower in Dollars from time to time on any  Business Day during the Availability Period in an aggregate amount not to exceed at any time  outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing  Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of  Revolving Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed  the amount of such Lender’s Revolving Commitment; provided, however, that (i) after giving  effect to any Swing Line Loan, (A) the Total Revolving Outstandings shall not exceed the  Aggregate Revolving Commitments and (B) the Revolving Credit Exposure of any Lender shall  not exceed such Lender’s Revolving Commitment, (ii) the Borrower shall not use the proceeds of  any Swing Line Loan to refinance any outstanding Swing Line Loan and (iii) the Swing Line  Lender shall not be under any obligation to make any Swing Line Loan if it shall determine  (which determination shall be conclusive and binding absent manifest error) that it has, or by such  Credit Extension would reasonably be expected to have, Fronting Exposure.  Within the  foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow  under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04.  Each  Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing Line  Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,  purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount  equal to the product of such Lender’s Applicable Percentage times the amount of such Swing  Line Loan.  (b) Borrowing Procedures.  Each Borrowing of Swing Line Loans shall be made  upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent,  which may be given by (A) telephone (and promptly confirmed in writing) or (B) a Swing Line  Loan Notice.  Each such notice must be received by the Swing Line Lender and the  Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify  (i) the amount to be borrowed, which shall be a minimum principal amount of $100,000 and  integral multiples of $100,000 in excess thereof, and (ii) the requested borrowing date, which  shall be a Business Day.  Each such telephonic notice must be confirmed promptly by delivery to  the Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice.  Promptly  after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing  Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the  Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line  





 






  48  CHAR1\1834980v7  Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.   Unless the Swing Line Lender has received notice (by telephone or in writing) from the  Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of  the proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make  such Swing Line Loan as a result of the limitations set forth in the first proviso to the first  sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in  Article V is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line  Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan  Notice, make the amount of its Swing Line Loan available to the Borrower at its office by either,  at the option of the Borrower, by crediting the account of the Borrower on the books of the Swing  Line Lender in immediately available funds or by wire transfer of such funds in accordance with  instructions provided by the Borrower.  (c) Refinancing of Swing Line Loans.  (i) The Swing Line Lender at any time in its sole discretion may request, on  behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so  request on its behalf), that each Lender make a Base Rate Loan in an amount equal to  such Lender’s Applicable Percentage of the amount of Swing Line Loans then  outstanding.  Such request shall be made in writing (which written request shall be  deemed to be a Loan Notice for purposes hereof) and in accordance with the  requirements of Section 2.02, without regard to the minimum and multiples specified  therein for the principal amount of Base Rate Loans, but subject to the unutilized portion  of the Aggregate Revolving Commitments and the conditions set forth in Section 5.02.   The Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan  Notice promptly after delivering such notice to the Administrative Agent.  Each Lender  shall make an amount equal to its Applicable Percentage of the amount specified in such  Loan Notice available to the Administrative Agent in immediately available funds (and  the Administrative Agent may apply Cash Collateral available with respect to the  applicable Swing Line Loan) for the account of the Swing Line Lender at the  Administrative Agent’s Office not later than 2:00 p.m. on the day specified in such Loan  Notice (provided that such Lender receives such Loan Notice from the Administrative  Agent by 12:00 noon on such Business Day), whereupon, subject to Section 2.04(c)(ii),  each Lender that so makes funds available shall be deemed to have made a Revolving  Loan that is a Base Rate Loan to the Borrower in such amount.  The Administrative  Agent shall remit the funds so received to the Swing Line Lender.  (ii) If for any reason any Swing Line Loan cannot be refinanced by such a  Borrowing of Revolving Loans in accordance with Section 2.04(c)(i), the request for  Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed  to be a request by the Swing Line Lender that each of the Lenders fund its risk  participation in the relevant Swing Line Loan and each Lender’s payment to the  Administrative Agent for the account of the Swing Line Lender pursuant to Section  2.04(c)(i) shall be deemed payment in respect of such participation.  (iii) If any Lender fails to make available to the Administrative Agent for the  account of the Swing Line Lender any amount required to be paid by such Lender  pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in  Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender  (acting through the Administrative Agent), on demand, such amount with interest thereon  for the period from the date such payment is required to the date on which such payment  





 






  49  CHAR1\1834980v7  is immediately available to the Swing Line Lender at a rate per annum equal to the  greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in  accordance with banking industry rules on interbank compensation, plus any  administrative, processing or similar fees customarily charged by the Swing Line Lender  in connection with the foregoing.  If such Lender pays such amount (with interest and  fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan  included in the relevant Borrowing or funded participation in the relevant Swing Line  Loan, as the case may be.  A certificate of the Swing Line Lender submitted to any  Lender (through the Administrative Agent) with respect to any amounts owing under this  clause (iii) shall be conclusive absent manifest error.  (iv) Each Lender’s obligation to make Revolving Loans or to purchase and  fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be  absolute and unconditional and shall not be affected by any circumstance, including (A)  any setoff, counterclaim, recoupment, defense or other right that such Lender may have  against the Swing Line Lender, the Borrower, any Subsidiary or any other Person for any  reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other  occurrence, event or condition, whether or not similar to any of the foregoing; provided,  however, that each Lender’s obligation to make Revolving Loans pursuant to this Section  2.04(c) is subject to the conditions set forth in Section 5.02 (other than receipt of a Loan  Notice).  No such funding of risk participations shall relieve or otherwise impair the  obligation of the Borrower to repay Swing Line Loans, together with interest as provided  herein.  (d) Repayment of Participations.  (i) At any time after any Lender has purchased and funded a risk  participation in a Swing Line Loan, if the Swing Line Lender receives any payment on  account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender  its Applicable Percentage thereof in the same funds as those received by the Swing Line  Lender.  (ii) If any payment received by the Swing Line Lender in respect of principal  or interest on any Swing Line Loan is required to be returned by the Swing Line Lender  under any of the circumstances described in Section 11.05 (including pursuant to any  settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay  to the Swing Line Lender its Applicable Percentage thereof on demand of the  Administrative Agent, plus interest thereon from the date of such demand to the date such  amount is returned, at a rate per annum equal to the Federal Funds Rate.  The  Administrative Agent will make such demand upon the request of the Swing Line  Lender.  The obligations of the Lenders under this clause shall survive the payment in full  of the Obligations and the termination of this Agreement.  (e) Interest for Account of Swing Line Lender.  The Swing Line Lender shall be  responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each Lender  funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this Section  2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in  respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.  (f) Payments Directly to Swing Line Lender.  The Borrower shall make all payments  of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.  





 






  50  CHAR1\1834980v7  2.05 Prepayments.  (a) Voluntary Prepayments of Loans.  (i) Revolving Loans.  The Borrower may, upon delivery to the  Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time  voluntarily prepay Revolving Loans in whole or in part without premium or penalty;  provided that (A) such notice must be received by the Administrative Agent not later than  11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of BSBY Rate  Loans and (2) on the date of prepayment of Base Rate Loans; (B) any such prepayment of  BSBY Rate Loans shall be in a principal amount of $500,000 or a whole multiple of  $100,000 in excess thereof (or, if less, the entire principal amount thereof then  outstanding); and (C) any prepayment of Base Rate Loans shall be in a principal amount  of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire  principal amount thereof then outstanding).  Each such notice shall specify the date and  amount of such prepayment and the Type(s) of Loans to be prepaid and, if BSBY Rate  Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent  will promptly notify each Lender of its receipt of each such notice, and of the amount of  such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the  Borrower, the Borrower shall make such prepayment and the payment amount specified  in such notice shall be due and payable on the date specified therein.  Any prepayment of  a BSBY Rate Loan shall be accompanied by all accrued interest on the amount prepaid,  together with any additional amounts required pursuant to Section 3.05.  Subject to  Section 2.15, each such prepayment shall be applied to the Loans of the Lenders in  accordance with their respective Applicable Percentages.  (ii) Swing Line Loans.  The Borrower may, upon delivery to the Swing Line  Lender of a Notice of Loan Prepayment (with a copy to the Administrative Agent), at any  time or from time to time, voluntarily prepay Swing Line Loans in whole or in part  without premium or penalty; provided that (i) such notice must be received by the Swing  Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the  prepayment, and (ii) any such prepayment shall be in a minimum principal amount of  $100,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire  principal thereof then outstanding).  Each such notice shall specify the date and amount  of such prepayment.  If such notice is given by the Borrower, the Borrower shall make  such prepayment and the payment amount specified in such notice shall be due and  payable on the date specified therein.  (iii) Notwithstanding anything herein to the contrary, the Borrower may  rescind any notice of prepayment under this Section 2.05(a) if such prepayment would  have resulted from the refinancing of all or a portion of the Loans, which refinancing  shall not be consummated or shall otherwise be delayed.  (b) Mandatory Prepayments of Loans.  (i) Revolving Commitments.  If for any reason the Total Revolving  Outstandings at any time exceed the Aggregate Revolving Commitments then in effect,  the Borrower shall immediately prepay Revolving Loans and/or Swing Line Loans and/or  Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess;  provided, however, that the Borrower shall not be required to Cash Collateralize the L/C  Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the  





 






  51  CHAR1\1834980v7  Revolving Loans and Swing Line Loans the Total Revolving Outstandings exceed the  Aggregate Revolving Commitments then in effect.   (ii) Foreclosure Event. After the occurrence of a Foreclosure Event, no later  than the earlier of (x) fifteen (15) months and one (1) day following the last date the  filing of Ciner Resources LP’s next quarterly report on Form 10-Q or annual report on  Form 10-K (as applicable) with the U.S. Securities and Exchange Commission is due (or,  if Ciner Resources LP is no longer required by applicable law to file such reports, the last  date such filing would have been due) and (y) eighteen (18) months and one (1) day  following the Foreclosure Event, the Borrower shall prepay in full the outstanding  principal amount of all Revolving Loans and/or Swing Line Loans and Cash Collateralize  all L/C Obligations; provided, for purposes of clarity, no additional Borrowing or L/C  Borrowing shall be permitted upon the occurrence of a Foreclosure Event.   (iii) Application of Mandatory Prepayments.  All amounts required to be paid  pursuant to this Section 2.05(b) shall be applied first, ratably to the L/C Borrowings and  the Swing Line Loans, second, to the outstanding Revolving Loans, and, third, to Cash  Collateralize the remaining L/C Obligations.  Within the parameters of the applications  set forth above, prepayments shall be applied first to Base Rate Loans and then to  Eurodollar Rate Loans in direct order of Interest Period maturities.  All prepayments  under this Section 2.05(b) shall be subject to Section 3.05, but otherwise without  premium or penalty, and shall be accompanied by interest on the principal amount  prepaid through the date of prepayment.  2.06 Termination or Reduction of Aggregate Revolving Commitments.  The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving  Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments;  provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m.  three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall  be in an aggregate amount of $500,000 or any whole multiple of $500,000 in excess thereof, (iii) the  Borrower shall not terminate or reduce the Aggregate Revolving Commitments if, after giving effect  thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed  the Aggregate Revolving Commitments and (iv) if, after giving effect to any reduction of the Aggregate  Revolving Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of  the Aggregate Revolving Commitments, such sublimit shall be automatically reduced by the amount of  such excess.  The Administrative Agent will promptly notify the Lenders of any such notice of  termination or reduction of the Aggregate Revolving Commitments.  Any reduction of the Aggregate  Revolving Commitments shall be applied to the Revolving Commitment of each Lender according to its  Applicable Percentage.  All fees accrued until the effective date of any termination of the Aggregate  Revolving Commitments shall be paid on the effective date of such termination.  Notwithstanding  anything herein to the contrary, the Borrower may rescind any notice of termination of Aggregate  Revolving Commitments under this Section 2.06 if such termination would have resulted from the  refinancing of all or a portion of the Loans, which refinancing shall not be consummated or shall  otherwise be delayed.  2.07 Repayment of Loans.  (a) Revolving Loans.  The Borrower shall repay to the Lenders on the Maturity Date,  unless accelerated sooner pursuant to Section 9.02, the aggregate principal amount of all  Revolving Loans outstanding on such date.  





 






  52  CHAR1\1834980v7  (b) Swing Line Loans.  The Borrower shall repay each Swing Line Loan on the  earlier to occur of (i) the date ten (10) Business Days after such Swing Line Loan is made and (ii)  the Maturity Date unless accelerated sooner pursuant to Section 9.02.  2.08 Interest.  (a) Subject to the provisions of clause (b) below, (i) each BSBY Rate Loan shall  bear interest on the outstanding principal amount thereof for each Interest Period at a rate per  annum equal to the BSBY Rate for such Interest Period plus the Applicable Rate; (ii) each Base  Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable  borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each  Swing Line Loan shall bear interest on the outstanding principal amount thereof from the  applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.  (b) (i) If any amount payable by the Borrower under any Loan Document is not  paid when due (after giving effect to any applicable grace periods), whether at stated maturity, by  acceleration or otherwise, then such unpaid amount shall thereafter bear interest at a fluctuating  interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by  applicable Laws.  (ii) Accrued and unpaid interest on past due amounts (including interest on  past due interest) shall be due and payable upon demand.  (c) Interest on each Loan shall be due and payable in arrears on each Interest  Payment Date applicable thereto and at such other times as may be specified herein.  Interest  hereunder shall be due and payable in accordance with the terms hereof before and after  judgment, and before and after the commencement of any proceeding under any Debtor Relief  Law.  2.09 Fees.  In addition to certain fees described in clauses (h) and (i) of Section 2.03:  (a) Commitment Fee.  The Borrower shall pay to the Administrative Agent, for the  account of each Lender in accordance with its Applicable Percentage, a commitment fee (the  “Commitment Fee”) equal to the product of (i) the Applicable Rate times (ii) the actual daily  amount by which the Aggregate Revolving Commitments exceed the sum of (A) the Outstanding  Amount of Revolving Loans and (B) the Outstanding Amount of L/C Obligations, subject to  adjustment as provided in Section 2.15.  For the avoidance of doubt, the Outstanding Amount of  Swing Line Loans shall not be counted towards or considered usage of the Aggregate Revolving  Commitments for purposes of determining the Commitment Fee.  The Commitment Fee shall  accrue at all times during the Availability Period, including at any time during which one or more  of the conditions in Article V is not met, and shall be due and payable quarterly in arrears on the  last Business Day of each March, June, September and December, commencing with the first  such date to occur after the Closing Date, and on the last day of the Availability Period; provided,  that (A) no Commitment Fee shall accrue on the Revolving Commitment of a Defaulting Lender  so long as such Lender shall be a Defaulting Lender and (B) subject to Section 2.15, any  Commitment Fee accrued with respect to the Revolving Commitment of a Defaulting Lender  during the period prior to the time such Lender became a Defaulting Lender and unpaid at such  time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender.   The Commitment Fee shall be calculated quarterly in arrears, and if there is any change in the  





 






  53  CHAR1\1834980v7  Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by  the Applicable Rate separately for each period during such quarter that such Applicable Rate was  in effect.  (b) Other Fees.  (i) The Borrower shall pay to the Arranger and the Administrative Agent for  their own respective accounts fees in the amounts and at the times specified in the Fee  Letter.  Such fees shall be fully earned when paid and shall not be refundable for any  reason whatsoever.  (ii) The Borrower shall pay to the Lenders such fees as shall have been  separately agreed upon in writing in the amounts and at the times so specified.  Such fees  shall be fully earned when paid and shall not be refundable for any reason whatsoever.  2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.  (a) All computations of interest for Base Rate Loans (including Base Rate Loans  determined by reference to the BSBY Rate) shall be made on the basis of a year of three hundred  sixty-five (365) or three hundred sixty-six (366) days, as the case may be, and actual days  elapsed.  All other computations of fees and interest shall be made on the basis of a three hundred  sixty (360) day year and actual days elapsed (which results in more fees or interest, as applicable,  being paid than if computed on the basis of a three hundred sixty-five (365) day year).  Interest  shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan,  or any portion thereof, for the day on which the Loan or such portion is paid, provided that any  Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear  interest for one (1) day.  Each determination by the Administrative Agent of an interest rate or fee  hereunder shall be conclusive and binding for all purposes, absent manifest error.  (b) If, as a result of any restatement of or other adjustment to the financial statements  of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the  Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was  inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in  higher pricing for such period, the Borrower shall promptly and retroactively be obligated to pay  to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the  case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an  actual or deemed entry of an order for relief with respect to the Borrower under Debtor Relief  Laws, automatically and without further action by the Administrative Agent, any Lender or the  L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have  been paid for such period over the amount of interest and fees actually paid for such period.  This  paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as  the case may be, under this Agreement.  The Borrower’s obligations under this paragraph shall  survive the termination of the Aggregate Revolving Commitments and the repayment of all other  Obligations hereunder.  2.11 Evidence of Debt.  (a) The Credit Extensions 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 Credit Extensions made by  





 






  54  CHAR1\1834980v7  the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or  any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower  hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict  between the accounts and records maintained by any Lender and the accounts and records of the  Administrative Agent in respect of such matters, the accounts and records of the Administrative  Agent shall control in the absence of manifest error.  Upon the request of any Lender made  through the Administrative Agent, the Borrower shall execute and deliver to such Lender  (through the Administrative Agent) a promissory note, which shall evidence such Lender’s Loans  in addition to such accounts or records.  Each such promissory note shall be in the form of  Exhibit 2.11 (a “Note”).  Each Lender may attach schedules to its Note and endorse thereon the  date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.  (b) In addition to the accounts and records referred to in clause (a) above, each  Lender and the Administrative Agent shall maintain in accordance with its usual practice  accounts or records evidencing the purchases and sales by such Lender of participations in Letters  of Credit and Swing Line Loans.  In the event of any conflict between the accounts and records  maintained by the Administrative Agent and the accounts and records of any Lender in respect of  such matters, the accounts and records of the Administrative Agent shall control in the absence of  manifest error.  2.12 Payments Generally; Administrative Agent’s Clawback.  (a) General.  All payments to be made by the Borrower or any other Loan Party shall  be made free and clear of and without condition or deduction for any counterclaim, defense,  recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the  Borrower hereunder shall be made to the Administrative Agent, for the account of the respective  Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in  immediately available funds not later than 2:00 p.m. on the date specified herein.  The  Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other  applicable share as provided herein) of such payment in like funds as received by wire transfer to  such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00  p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or  fee shall continue to accrue.  Except as set forth in the definition of “Interest Period”, if any  payment to be made by the Borrower shall come due on a day other than a Business Day,  payment shall be made on the next following Business Day, and such extension of time shall be  reflected in computing interest or fees, as the case may be.  (b) (i) Funding by Lenders; Presumption by Administrative Agent.  Unless the  Administrative Agent shall have received notice from a Lender prior to the proposed date of any  Borrowing of BSBY Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to  12:00 noon on the date of such Borrowing) that such Lender will not make available to the  Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may  assume that such Lender has made such share available on such date in accordance with Section  2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share  available in accordance with and at the time required by Section 2.02) and may, in reliance upon  such assumption, make available to the Borrower a corresponding amount.  In such event, if a  Lender has not in fact made its share of the applicable Borrowing available to the Administrative  Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative  Agent forthwith on demand such corresponding amount in immediately available funds with  interest thereon, for each day from and including the date such amount is made available to the  Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of  





 






  55  CHAR1\1834980v7  a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate  determined by the Administrative Agent in accordance with banking industry rules on interbank  compensation, plus any administrative, processing or similar fees customarily charged by the  Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be  made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such  Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,  the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid  by the Borrower for such period.  If such Lender pays its share of the applicable Borrowing to the  Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in  such Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the  Borrower may have against a Lender that shall have failed to make such payment to the  Administrative Agent.  (ii) Payments by Borrower; Presumptions by Administrative Agent.  Unless  the Administrative Agent shall have received notice from the Borrower prior to the time  at which any payment is due to the Administrative Agent for the account of the Lenders  or the L/C Issuer hereunder that the Borrower will not make such payment, the  Administrative Agent may assume that the Borrower has made such payment on such  date in accordance herewith and may, in reliance upon such assumption, distribute to the  Lenders or the L/C Issuer, as the case may be, the amount due.  With respect to any payment that the Administrative Agent makes for the account of the  Lenders or the L/C Issuer hereunder as to which the Administrative Agent determines (which  determination shall be conclusive absent manifest error) that any of the following applies (such  payment referred to as the “Rescindable Amount”) : (1) the Borrower has not in fact made such  payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by  the Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason  otherwise erroneously made such payment; then each of the Lenders or the L/C Issuer, as the case  may be, severally agrees to repay to the Administrative Agent forthwith on demand the  Rescindable Amount so distributed to such Lender or the L/C Issuer, in immediately available  funds with interest thereon, for each day from and including the date such amount is distributed to  it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal  Funds Rate and a rate determined by the Administrative Agent in accordance with banking  industry rules on interbank compensation.  A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount  owing under this clause (b) shall be conclusive, absent manifest error.  (c) Failure to Satisfy Conditions Precedent.  If any Lender makes available to the  Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing  provisions of this Article II, and such funds are not made available to the Borrower by the  Administrative Agent because the applicable conditions to the applicable Credit Extension set  forth in Article V are not satisfied or waived in accordance with the terms hereof, the  Administrative Agent promptly shall return such funds (in like funds as received from such  Lender) to such Lender, without interest.  (d) Obligations of Lenders Several.  The obligations of the Lenders hereunder to  make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make  payments pursuant to Section 11.04(c) are several and not joint.  The failure of any Lender to  make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on  any date required hereunder shall not relieve any other Lender of its corresponding obligation to  





 






  56  CHAR1\1834980v7  do so on such date, and no Lender shall be responsible for the failure of any other Lender to so  make its Loan, to purchase its participation or to make its payment under Section 11.04(c).  (e) Funding Source.  Nothing herein shall be deemed to obligate any Lender to  obtain the funds for any Loan in any particular place or manner or to constitute a representation  by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or  manner.  (f) Insufficient Funds.  If at any time insufficient funds are received by and available  to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and  fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees  then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of  interest and fees then due to such parties, and (ii) second, toward payment of principal and L/C  Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the  amounts of principal and L/C Borrowings then due to such parties.  2.13 Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain  payment in respect of any principal of or interest on any of the Loans made by it, or the participations in  L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a  proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater  than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall  (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in  the Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make  such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the  Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their  respective Loans and other amounts owing them, provided that:  (i) if any such participations or subparticipations are purchased and all or  any portion of the payment giving rise thereto is recovered, such participations or  subparticipations shall be rescinded and the purchase price restored to the extent of such  recovery, without interest; and  (ii) the provisions of this Section shall not be construed to apply to (A) any  payment made by or on behalf of the Borrower pursuant to and in accordance with the  express terms of this Agreement (including the application of funds arising from the  existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in  Section 2.14 or (C) any payment obtained by a Lender as consideration for the  assignment of or sale of a participation in any of its Loans or subparticipations in L/C  Obligations or Swing Line Loans to any assignee or participant, other than an assignment  to the Borrower or any Subsidiary (as to which the provisions of this Section shall apply).  Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under  applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may  exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as  fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.  2.14 Cash Collateral.  





 






  57  CHAR1\1834980v7  (a) Certain Credit Support Events.  If (i) the L/C Issuer has honored any full or  partial drawing request under any Letter of Credit and such drawing has resulted in an L/C  Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason  remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to  Section 9.02(c) or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in  the case of clause (iii) above) or within two (2) Business Days (in all other cases) following any  request by the Administrative Agent or the L/C Issuer provide Cash Collateral in an amount not  less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral  provided pursuant to clause (iv) above, after giving effect to Section 2.15(b) and any Cash  Collateral provided by the Defaulting Lender).  (b) Grant of Security Interest.  The Borrower, and to the extent provided by any  Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the  Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the  Lenders, and agrees to maintain, a first priority security interest (subject to Liens permitted under  Section 8.01(m)) in all Cash Collateral, all as security for the obligations to which such Cash  Collateral may be applied pursuant to Section 2.14(c).  If at any time the Administrative Agent  determines that Cash Collateral is subject to any right or claim of any Person other than the  Administrative Agent or the L/C Issuer as herein provided (other than Liens permitted under  Section 8.01(m)), or that the total amount of such Cash Collateral is less than the Minimum  Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay  or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to  eliminate such deficiency (provided that if the Cash Collateral is more than the Minimum  Collateral Amount, upon the request of the Borrower, the Administrative Agent will promptly  pay, provide or distribute to the Borrower a portion of the Cash Collateral equal to the amount of  such excess or surplus). All Cash Collateral (other than credit support not constituting funds  subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at the  Administrative Agent or an Affiliate thereof. The Borrower shall pay on demand therefor from  time to time all customary and reasonable account opening, activity and other administrative fees  and charges in connection with the maintenance and disbursement of Cash Collateral.  (c) Application.  Notwithstanding anything to the contrary contained in this  Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15  or 9.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific  L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral  provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations  for which the Cash Collateral was so provided, prior to any other application of such property as  may otherwise be provided for herein.  (d) Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce  Fronting Exposure or to secure other obligations shall be released promptly following (i) the  elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including  by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its  assignee following compliance with Section 11.06(b)(vi))) or (ii) the determination by the  Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided,  however, (x) any such release shall be without prejudice to, and any disbursement or other  transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the  Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person  providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released  but instead held to support future anticipated Fronting Exposure or other obligations.  





 






  58  CHAR1\1834980v7  2.15 Defaulting Lenders.  (a) Adjustments.  Notwithstanding anything to the contrary contained in this  Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no  longer a Defaulting Lender, to the extent permitted by applicable Law:  (i) Waivers and Amendments.  Such Defaulting Lender’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be  restricted as set forth in the definition of “Required Lenders” and Section 11.01.  (ii) Defaulting Lender Waterfall.  Any payment of principal, interest, fees or  other amounts received by the Administrative Agent for the account of such Defaulting  Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or  otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to  Section 11.08 shall be applied at such time or times as may be reasonably determined by  the Administrative Agent as follows: first, to the payment of any amounts owing by such  Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a  pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or  Swing Line Lender hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting  Exposure with respect to such Defaulting Lender in accordance with Section 2.14; fourth,  as the Borrower may request (so long as no Default 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 reasonably determined by the Administrative Agent; fifth, if so  reasonably determined by the Administrative Agent and the Borrower, to be held in a  deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s  potential future funding obligations with respect to Loans under this Agreement and (y)  Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such  Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in  accordance with Section 2.14; sixth, to the payment of any amounts owing to the  Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of  competent jurisdiction obtained by any Lender, the L/C Issuer or the Swing Line Lender  against such Defaulting Lender as a result of such Defaulting Lender’s breach of its  obligations under this Agreement; seventh, so long as no Default exists, to the payment of  any amounts owing to the Borrower as a result of any judgment of a court of competent  jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such  Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such  Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided  that if (x) such payment is a payment of the principal amount of any Loans or L/C  Borrowings in respect of which such Defaulting Lender has not fully funded its  appropriate share, and (y) such Loans were made or the related Letters of Credit were  issued at a time when the conditions set forth in Section 5.02 were satisfied or waived,  such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to,  all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of  any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all  Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans  are held by the Lenders pro rata in accordance with the Revolving Commitments  hereunder without giving effect to Section 2.15(b). Any payments, prepayments or other  amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts  owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section  2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each  Lender irrevocably consents hereto.  





 






  59  CHAR1\1834980v7  (iii) Certain Fees.  (A) No Defaulting Lender shall be entitled to receive any fee payable  under Section 2.09(a) for any period during which that Lender is a Defaulting  Lender (and the Borrower shall not be required to pay any such fee that  otherwise would have been required to have been paid to that Defaulting  Lender).  (B) Each Defaulting Lender shall be entitled to receive Letter of  Credit Fees for any period during which that Lender is a Defaulting Lender  only to the extent allocable to its Applicable Percentage of the stated amount of  Letters of Credit for which it has provided Cash Collateral pursuant to Section  2.14.  (C) With respect to any Letter of Credit Fee not required to be paid  to any Defaulting Lender pursuant to clause (B) above, the Borrower shall (x)  pay to each Non-Defaulting Lender that portion of any such fee otherwise  payable to such Defaulting Lender with respect to such Defaulting Lender’s  participation in L/C Obligations that has been reallocated to such Non- Defaulting Lender pursuant to Section 2.15(b) below, (y) pay to the L/C Issuer  the amount of any such fee otherwise payable to such Defaulting Lender to the  extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting  Lender, and (z) not be required to pay the remaining amount of any such fee.  (b) Reallocation of Applicable Percentages to Reduce Fronting Exposure.  All or any  part of such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans shall be  reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable  Percentages (calculated without regard to such Defaulting Lender’s Revolving Commitment) but  only to the extent that (x) the applicable conditions set forth in Section 5.02 are satisfied at the  time of such reallocation (and, unless the Borrower shall have otherwise notified the  Administrative Agent at such time, the Borrower shall be deemed to have represented and  warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause  the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non- Defaulting Lender’s Revolving Commitment. Subject to Section 11.21, no reallocation hereunder  shall constitute a waiver or release of any claim of any party hereunder against a Defaulting  Lender arising from that Lender having become a Defaulting Lender, including any claim of a  Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following  such reallocation.  (c) Cash Collateral, Repayment of Swing Line Loans.  If the reallocation described  in Section 2.15(b) above cannot, or can only partially, be effected, the Borrower shall, without  prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first,  prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and  (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the  procedures set forth in Section 2.14.  (d) Defaulting Lender Cure.  If the Borrower, the Administrative Agent, the Swing  Line Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender,  the Administrative Agent will so notify the parties hereto, whereupon as of the effective date  specified in such notice and subject to any conditions set forth therein (which may include  arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable,  





 






  60  CHAR1\1834980v7  purchase at par that portion of outstanding Loans of the other Lenders or take such other actions  as the Administrative Agent may reasonably determine to be necessary to cause the Loans and  funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro  rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect  to Section 2.15(b)), whereupon such Lender will cease to be a Defaulting Lender; provided that  no adjustments will be made retroactively with respect to fees accrued or payments made by or on  behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that  except to the extent otherwise expressly agreed by the affected parties, no change hereunder from  Defaulting Lender to Lender will constitute a waiver or release of any claim of any party  hereunder arising from that Lender’s having been a Defaulting Lender.  (e) New Swing Line Loans/Letters of Credit. So long as any Lender is a Defaulting  Lender, (i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is  satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and  (ii) the L/C Issuer shall not be required to issue, extend, increase, reinstate or renew any letter of  Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.  ARTICLE III    TAXES, YIELD PROTECTION AND ILLEGALITY  3.01 Taxes.  (a) Defined Terms. For purposes of this Section 3.01, the term “applicable Law”  includes FATCA and the term “Lender” includes any L/C Issuer.  (b) Payments Free of Taxes; Obligation to Withhold; Payments on Account of  Taxes.  (i) Any and all payments by or on account of any obligation of any Loan  Party under any Loan Document shall be made without deduction or withholding for any  Taxes, except as required by applicable Laws.  If any applicable Laws (as determined in  the good faith discretion of the Administrative Agent) require the deduction or  withholding of any Tax from any such payment by the Administrative Agent or a Loan  Party, then the Administrative Agent or such Loan Party shall be entitled to make such  deduction or withholding, upon the basis of the information and documentation to be  delivered pursuant to clause (f) below.  (ii) If any Loan Party or the Administrative Agent shall be required by the  Internal Revenue Code to withhold or deduct any Taxes, including both United States  Federal backup withholding and withholding taxes, from any payment, then (A) the  Administrative Agent shall withhold or make such deductions as are determined by the  Administrative Agent to be required based upon the information and documentation it has  received pursuant to clause (f) below, (B) the Administrative Agent shall timely pay the  full amount withheld or deducted to the relevant Governmental Authority in accordance  with the Internal Revenue Code, and (C) to the extent that the withholding or deduction is  made on account of Indemnified Taxes, the sum payable by the applicable Loan Party  shall be increased as necessary so that after any required withholding or the making of all  required deductions (including deductions applicable to additional sums payable under  this Section 3.01) the applicable Recipient receives an amount equal to the sum it would  have received had no such withholding or deduction been made for Indemnified Taxes.  





 






  61  CHAR1\1834980v7  (iii) If any Loan Party or the Administrative Agent shall be required by any  applicable Laws other than the Internal Revenue Code to withhold or deduct any Taxes  from any payment, then (A) such Loan Party or the Administrative Agent, as required by  such Laws, shall withhold or make such deductions as are determined by it to be required  based upon the information and documentation it has received pursuant to clause (f)  below, (B) such Loan Party or the Administrative Agent, to the extent required by such  Laws, shall timely pay the full amount withheld or deducted to the relevant  Governmental Authority in accordance with such Laws, and (C) to the extent that the  withholding or deduction is made on account of Indemnified Taxes, the sum payable by  the applicable Loan Party shall be increased as necessary so that after any required  withholding or the making of all required deductions (including deductions applicable to  additional sums payable under this Section 3.01) the applicable Recipient receives an  amount equal to the sum it would have received had no such withholding or deduction  been made for Indemnified Taxes.  (c) Payment of Other Taxes by the Loan Parties.  Without limiting the provisions of  clause (b) above, the Loan Parties shall timely pay to the relevant Governmental Authority in  accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it  for the payment of, any Other Taxes.  (d) Tax Indemnifications.  (i) Each of the Loan Parties shall, and does hereby, jointly and severally  indemnify each Recipient, and shall make payment in respect thereof within ten (10) days  after demand therefor, for the full amount of any Indemnified Taxes (including  Indemnified Taxes imposed or asserted on or attributable to amounts payable under this  Section 3.01) payable or paid by such Recipient or required to be withheld or deducted  from a payment to such Recipient, and any penalties, interest and reasonable expenses  arising therefrom or with respect thereto (except for any penalties or interest with respect  to such Indemnified Taxes that are determined by a court of competent jurisdiction by a  final and nonappealable judgment to have resulted from the bad faith, gross negligence or  willful misconduct of the Administrative Agent, any Lender or the L/C Issuer), whether  or not such Indemnified Taxes were correctly or legally imposed or asserted by the  relevant Governmental Authority.  A certificate as to the amount of such payment or  liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the  Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of  a Lender or the L/C Issuer, shall be conclusive absent manifest error.  Each of the Loan  Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent,  and shall make payment in respect thereof within ten (10) days after demand therefor, for  any amount which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to  the Administrative Agent as required pursuant to Section 3.01(d)(ii) below.  (ii) Each Lender and the L/C Issuer shall, and does hereby, severally  indemnify, and shall make payment in respect thereof within ten (10) days after demand  therefor, (A) the Administrative Agent against any Indemnified Taxes attributable to such  Lender or the L/C Issuer (but only to the extent that any Loan Party has not already  indemnified the Administrative Agent for such Indemnified Taxes and without limiting  the obligation of the Loan Parties to do so), (B) the Administrative Agent and the Loan  Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply  with the provisions of Section 11.06(d) relating to the maintenance of a Participant  Register and (C) the Administrative Agent and the Loan Parties, as applicable, against  





 






  62  CHAR1\1834980v7  any Excluded Taxes attributable to such Lender or the L/C Issuer, in each case, that are  payable or paid by the Administrative Agent or a Loan Party in connection with any Loan  Document, and any reasonable expenses arising therefrom or with respect thereto,  whether or not such Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority.  A certificate as to the amount of such payment or liability  delivered to any Lender by the Administrative Agent shall be conclusive absent manifest  error.  Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set  off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as  the case may be, under this Agreement or any other Loan Document against any amount  due to the Administrative Agent under this clause (ii).  (e) Evidence of Payments.  Upon request by any Loan Party or the Administrative  Agent, as the case may be, after any payment of Taxes by such Loan Party or by the  Administrative Agent to a Governmental Authority as provided in this Section 3.01, such Loan  Party shall deliver to the Administrative Agent or the Administrative Agent shall deliver to such  Loan Party, as the case may be, the original or a certified copy of a receipt issued by such  Governmental Authority evidencing such payment, a copy of any return required by Laws to  report such payment or other evidence of such payment reasonably satisfactory to such Loan  Party or the Administrative Agent, as the case may be.  (f) Status of Lenders; Tax Documentation.  (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document shall deliver  to the Borrower and the Administrative Agent, at the time or times reasonably requested  by the Borrower or the Administrative Agent, such properly completed and executed  documentation reasonably requested by the Borrower or the Administrative Agent as will  permit such payments to be made without withholding or at a reduced rate of  withholding.  In addition, any Lender, if reasonably requested by the Borrower or the  Administrative Agent, shall deliver such other documentation prescribed by applicable  law or reasonably requested by the Borrower or the Administrative Agent as will enable  the Borrower or the Administrative Agent to determine whether or not such Lender is  subject to backup withholding or information reporting requirements.  Notwithstanding  anything to the contrary in the preceding two sentences, the completion, execution and  submission of such documentation (other than such documentation set forth in Section  3.01(f)(ii)(A), 3.01(f)(ii)(B) and 3.01(f)(ii)(D) below) shall not be required if in the  Lender’s reasonable judgment such completion, execution or submission would subject  such Lender to any material unreimbursed cost or expense or would materially prejudice  the legal or commercial position of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that the  Borrower is a U.S. Person,  (A) any Lender that is a U.S. Person shall deliver to the Borrower  and the Administrative Agent on or prior to the date on which such Lender  becomes a Lender under this Agreement (and from time to time thereafter upon  the reasonable request of the Borrower or the Administrative Agent), executed  originals of IRS Form W-9 certifying that such Lender is exempt from U.S.  federal backup withholding tax;  





 






  63  CHAR1\1834980v7  (B) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number of  copies as shall be requested by the recipient) on or prior to the date on which  such Foreign Lender becomes a Lender under this Agreement (and from time to  time thereafter upon the reasonable request of the Borrower or the  Administrative Agent), whichever of the following is applicable:  (1) in the case of a Foreign Lender claiming the benefits of  an income tax treaty to which the United States is a party (x) with respect  to payments of interest under any Loan Document, executed originals of  IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or  reduction of, U.S. federal withholding Tax pursuant to the “interest”  article of such tax treaty and (y) with respect to any other applicable  payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E  establishing an exemption from, or reduction of, U.S. federal  withholding Tax pursuant to the “business profits” or “other income”  article of such tax treaty;  (2) executed originals of IRS Form W-8ECI;  (3) in the case of a Foreign Lender claiming the benefits of  the exemption for portfolio interest under Section 881(c) of the Internal  Revenue Code, (x) a certificate substantially in the form of Exhibit 3.01- 1 to the effect that such Foreign Lender is not a “bank” within the  meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10  percent shareholder” of the Borrower within the meaning of Section  881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign  corporation” described in Section 881(c)(3)(C) of the Internal Revenue  Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals  of IRS Form W-8BEN or W-8BEN-E; or  (4) to the extent a Foreign Lender is not the beneficial  owner, executed originals of IRS Form W-8IMY, accompanied by IRS  Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax  Compliance Certificate substantially in the form of Exhibit 3.01-2 or  Exhibit 3.01-3, 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 3.01-4 on behalf of each such direct  and indirect partner;  (C) any Foreign Lender shall, to the extent it is legally entitled to do  so, deliver to the Borrower and the Administrative Agent (in such number of  copies as shall be requested by the recipient) on or prior to the date on which  such Foreign Lender becomes a Lender under this Agreement (and from time to  time thereafter upon the reasonable request of the Borrower or the  Administrative Agent), executed originals of any other form prescribed by  applicable law as a basis for claiming exemption from or a reduction in U.S.  federal withholding Tax, duly completed, together with such supplementary  





 






  64  CHAR1\1834980v7  documentation as may be prescribed by applicable law to permit the Borrower  or the Administrative Agent to determine the withholding or deduction required  to be made; and  (D) if a payment made to a Lender under any Loan Document would  be subject to U.S. federal withholding Tax imposed by FATCA if such Lender  were to fail to comply with the applicable reporting requirements of FATCA  (including those contained in Section 1471(b) or 1472(b) of the Internal  Revenue Code, as applicable), such Lender shall deliver to the Borrower and  the Administrative Agent at the time or times prescribed by law and at such  time or times reasonably requested by the Borrower or the Administrative  Agent such documentation prescribed by applicable law (including as  prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such  additional documentation reasonably requested by the Borrower or the  Administrative Agent as may be necessary for the Borrower and the  Administrative Agent to comply with their obligations under FATCA and to  determine that such Lender has complied with such Lender’s obligations under  FATCA or to determine the amount to deduct and withhold from such payment.   Solely for purposes of this clause (D), “FATCA” shall include any amendments  made to FATCA after the Closing Date.  (iii) Each Lender agrees that if any form or certification it previously  delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any  respect, it shall update such form or certification or promptly notify the Borrower and the  Administrative Agent in writing of its legal inability to do so.  (g) Treatment of Certain Refunds.  Unless required by applicable Laws, at no time  shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a  Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any  refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C  Issuer, as the case may be.  If any Recipient determines, in its sole discretion exercised in good  faith, that it has received a refund (including any application or carryover of such refund amount  to reduce any amount otherwise payable to the refunding Governmental Authority) of any Taxes  as to which it has been indemnified by any Loan Party or with respect to which any Loan Party  has paid additional amounts pursuant to this Section 3.01, it shall pay to the Loan Party an  amount equal to such refund (but only to the extent of indemnity payments made, or additional  amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to  such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and  without interest (other than any interest paid by the relevant Governmental Authority with respect  to such refund), provided that the Loan Party, upon the request of the Recipient, agrees to repay  the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by  the relevant Governmental Authority) to the Recipient in the event the Recipient is required to  repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in  this clause, in no event will the applicable Recipient be required to pay any amount to the Loan  Party pursuant to this clause the payment of which would place the Recipient in a less favorable  net after-Tax position than such Recipient would have been in if the Tax subject to  indemnification and giving rise to such refund had not been deducted, withheld or otherwise  imposed and the indemnification payments or additional amounts with respect to such Tax had  never been paid.  This clause shall not be construed to require any Recipient to make available its  tax returns (or any other information relating to its taxes that it deems confidential) to any Loan  Party or any other Person.  





 






  65  CHAR1\1834980v7  (h) Survival.  Each party’s obligations under this Section 3.01 shall survive the  resignation or replacement of the Administrative Agent or any assignment of rights by, or the  replacement of, a Lender or the L/C Issuer, the termination of the Aggregate Revolving  Commitments and the repayment, satisfaction or discharge of all other Obligations.  3.02 Illegality.  If any Lender determines in good faith that any Law has made it unlawful, or that any  Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to perform  any of its obligations hereunder or to make, maintain or fund or charge interest with respect to any Credit  Extension, or to determine or charge interest rates based upon the BSBY Rate, or any Governmental  Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take  deposits of, Dollars in the London interbank market, then, upon notice thereof by such Lender to the  Borrower (through the Administrative Agent), (a) any obligation of such Lender to make or continue  BSBY Rate Loans or to convert Base Rate Loans to BSBY Rate Loans shall be suspended, and (b) if such  notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on  which is determined by reference to the BSBY Rate component of the Base Rate, the interest rate on  which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the  Administrative Agent without reference to the BSBY Rate component of the Base Rate, in each case until  such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to  such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand  from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all BSBY  Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such  Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without  reference to the BSBY Rate component of the Base Rate), either on the last day of the Interest Period  therefor, if such Lender may lawfully continue to maintain such BSBY Rate Loans to such day, or  immediately, if such Lender may not lawfully continue to maintain such BSBY Rate Loans and (y) if  such notice asserts the illegality of such Lender determining or charging interest rates based upon the  BSBY Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate  applicable to such Lender without reference to the BSBY Rate component thereof until the  Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to  determine or charge interest rates based upon the BSBY Rate. Upon any such prepayment or conversion,  the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any  additional amounts required pursuant to Section 3.05.  3.03 Inability to Determine Rates.  (a) If in connection with any request for a BSBY Rate Loan or a conversion to or  continuation thereof, as applicable, (i)  the Administrative Agent determines (which  determination shall be conclusive absent manifest error) that (A) no Successor Rate has been  determined in accordance with Section 3.03(b), and the circumstances under clause (i) of Section  3.03(b) or the Scheduled Unavailability Date has occurred (as applicable), or (B) adequate and  reasonable means do not otherwise exist for determining BSBY for any requested Interest Period  with respect to a proposed BSBY Rate Loan or in connection with an existing or proposed Base  Rate Loan or (ii) the Administrative Agent or the Required Lenders determine that for any reason  that the BSBY Rate for any requested Interest Period with respect to a proposed BSBY Rate Loan  does not adequately and fairly reflect the cost to such Lenders of funding such BSBY Rate Loan,  the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter,  (x) the obligation of the Lenders to make or maintain BSBY Rate Loans or to convert Base Rate  Loans to BSBY Rate Loans shall be suspended (to the extent of the affected BSBY Rate Loans or  Interest Periods), and (y) in the event of a determination described in the preceding sentence with  





 






  66  CHAR1\1834980v7  respect to the BSBY component of the Base Rate, the utilization of the BSBY Rate component in  determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in  the case of a determination by the Required Lenders described in clause (ii) of this Section  3.03(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such  notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a  Borrowing of, or conversion to, or continuation of BSBY Rate Loans (to the extent of the affected  BSBY Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such  request into a request for a Borrowing of Base Rate Loans in the amount specified therein and (ii)  any outstanding BSBY Rate Loans shall be deemed to have been converted to Base Rate Loans  immediately at the end of their respective applicable Interest Period.  (b) Notwithstanding anything to the contrary in this Agreement or any other Loan  Documents, if the Administrative Agent determines (which determination shall be conclusive  absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent  (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required  Lenders (as applicable) have determined, that:  (i) adequate and reasonable means do not exist for ascertaining one  month, three month and six month interest periods of BSBY, including, without  limitation, because the BSBY Screen Rate is not available or published on a  current basis and such circumstances are unlikely to be temporary; or  (ii) Bloomberg or any successor administrator of the BSBY Screen  Rate or a Governmental Authority having jurisdiction over the Administrative  Agent or Bloomberg or such administrator with respect to its publication of  BSBY, in each case acting in such capacity, has made a public statement  identifying a specific date after which one month,  three month and six month   interest periods of BSBY or the BSBY Screen Rate shall or will no longer be  made available, or permitted to be used for determining the interest rate of U.S.  dollar denominated syndicated loans, or shall or will otherwise cease; provided,  that, at the time of such statement, there is no successor administrator that is  satisfactory to the Administrative Agent, that will continue to provide such  interest periods of BSBY after such specific date (the latest date on which one  month, three month and six month interest periods of BSBY or the BSBY  Screen Rate are no longer available permanently or indefinitely, the “Scheduled  Unavailability Date”);  then, on a date and time determined by the Administrative Agent (any such date, the “BSBY Replacement  Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as  applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled  Unavailability Date, BSBY will be replaced hereunder and under any Loan Document with, subject to the  proviso below, the first available alternative set forth in the order below for any payment period for  interest calculated that can be determined by the Administrative Agent, in each case, without any  amendment to, or further action or consent of any other party to, this Agreement or any other Loan  Document (the “Successor Rate”):  (x) Term SOFR plus the SOFR Adjustment; and  (y) Daily Simple SOFR plus the SOFR Adjustment;  





 






  67  CHAR1\1834980v7  provided that, if initially BSBY is replaced with the rate contained in clause (y) above (Daily Simple  SOFR plus the SOFR Adjustment) and subsequent to such replacement, the Administrative Agent  determines that Term SOFR has become available and is administratively feasible for the Administrative  Agent in its sole discretion, and the Administrative Agent notifies the Borrower and each Lender of such  availability, then from and after the beginning of the Interest Period, relevant interest payment date or  payment period for interest calculated, in each case, commencing no less than thirty (30) days after the  date of such notice, the Successor Rate shall be Term SOFR  plus the SOFR Adjustment.  If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments  will be payable on a quarterly basis.  Notwithstanding anything to the contrary herein, (i) if the Administrative Agent determines that  neither of the alternatives set forth in clauses (x) and (y) above is available on or prior to the BSBY  Replacement Date or (ii) if the events or circumstances of the type described in Section 3.03(b)(i) or (ii)  have occurred with respect to the Successor Rate then in effect, then in each case, the Administrative  Agent and the Borrower may amend this Agreement solely for the purpose of replacing BSBY or any  then current Successor Rate in accordance with this Section 3.03 at the end of any Interest Period,  relevant interest payment date or payment period for interest calculated, as applicable, with another  alternate benchmark rate giving due consideration to any evolving or then existing convention for similar  U.S. dollar denominated credit facilities syndicated and agented in the United States for such alternative  benchmarks and, in each case, including any mathematical or other adjustments to such benchmark giving  due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit  facilities syndicated and agented in the United States for such benchmarks, which adjustment or method  for calculating such adjustment shall be published on an information service as selected by the  Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For  the avoidance of doubt, any such proposed rate and adjustments shall constitute a Successor Rate. Any  such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative  Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such  time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice  that such Required Lenders object to such amendment.  The Administrative Agent will promptly (in one or more notices) notify the Borrower and each  Lender of the implementation of any Successor Rate.  Any Successor Rate shall be applied in a manner consistent with market practice; provided that to  the extent such market practice is not administratively feasible for the Administrative Agent, such  Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative  Agent.  Notwithstanding anything else herein, if at any time any Successor Rate so determined would  otherwise be less than zero percent (0%), the Successor Rate will be deemed to be zero percent (0%) for  the  purposes of this Agreement and the other Loan Documents.  If the Successor Rate includes a SOFR-based rate, then, as of the BSBY Replacement Date, the  Applicable Rate that applies to the Commitment Fee set forth in Section 2.09(a) shall increase by the  percentage points equal to the SOFR Adjustment for an interest period of one month’s duration.   In connection with the implementation of a Successor Rate, the Administrative Agent will have  the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary  herein or in any other Loan Document, any amendments implementing such Conforming Changes will  become effective without any further action or consent of any other party to this Agreement; provided  





 






  68  CHAR1\1834980v7  that, with respect to any such amendment effected, the Administrative Agent shall post each such  amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably  promptly after such amendment becomes effective.  For purposes of this Section 3.03, those Lenders that either have not made, or do not have an  obligation under this Agreement to make, the relevant Loans in Dollars shall be excluded from any  determination of Required Lenders.  3.04 Increased Costs.  (a) Increased Costs Generally.  If any Change in Law shall:  (i) impose, modify or deem applicable any reserve, special deposit,  compulsory loan, insurance charge or similar requirement against assets of, deposits with  or for the account of, or credit extended or participated in by, any Lender (except any  reserve requirement reflected in the BSBY Rate) or the L/C Issuer;  (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes,  (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and  (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,  or other obligations, or its deposits, reserves, other liabilities or capital attributable  thereto; or  (iii) impose on any Lender or the L/C Issuer or the London interbank market  any other condition, cost or expense affecting this Agreement or BSBY Rate Loans made  by such Lender or any Letter of Credit or participation therein;  and the result of any of the foregoing shall be to increase the cost to such Lender of making,  converting to, continuing or maintaining any Loan the interest on which is determined by  reference to the BSBY Rate (or of maintaining its obligation to make any such Loan), or to  increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any  Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit),  or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer  hereunder (whether of principal, interest or any other amount) then, upon request of such Lender  or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be,  such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case  may be, for such additional costs incurred or reduction suffered.  (b) Capital Requirements.  If any Lender or the L/C Issuer determines that any  Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or  such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity  requirements has or would have the effect of reducing the rate of return on such Lender’s or the  L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if  any, as a consequence of this Agreement, the Revolving Commitments of such Lender or the  Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender,  or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the  L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for  such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the  policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy),  then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may  





 






  69  CHAR1\1834980v7  be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such  Lender’s or the L/C Issuer’s holding company for any such reduction suffered.  (c) Certificates for Reimbursement.  A certificate of a Lender or the L/C Issuer  setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its  holding company, as the case may be, as specified in clause (a) or (b) of this Section and  delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such  Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate  within ten (10) days after receipt thereof.  (d) Delay in Requests.  Failure or delay on the part of any Lender or the L/C Issuer  to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a  waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that the  Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the  foregoing provisions of this Section for any increased costs incurred or reductions suffered more  than nine (9) months prior to the date that such Lender or the L/C Issuer, as the case may be,  notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and  of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the  Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9)  month period referred to above shall be extended to include the period of retroactive effect  thereof).  3.05 Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the  Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost  or expense incurred by it as a result of:  (a) any continuation, conversion, payment or prepayment of any BSBY Rate Loan  on a day other than the last day of the Interest Period for such Loan (whether voluntary,  mandatory, automatic, by reason of acceleration, or otherwise);  (b) any failure by the Borrower (for a reason other than the failure of such Lender to  make a Loan) to prepay, borrow, continue or convert any BSBY Rate Loan on the date or in the  amount notified by the Borrower; or  (c) any assignment of a BSBY Rate Loan on a day other than the last day of the  Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13.  Such loss, cost or expense shall be limited to the actual loss, cost or expense arising from any actual  liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to  terminate the deposits from which such funds were obtained.  The Borrower shall also pay any customary  and reasonable administrative fees charged by such Lender in connection with the foregoing.  For purposes of calculating amounts payable by the Borrower to the Lenders under this  Section 3.05, each Lender shall be deemed to have funded each BSBY Rate Loan made by it at the BSBY  Rate used in determining the BSBY Rate for such Loan by a matching deposit or other borrowing in the  London interbank eurodollar market for a comparable amount and for a comparable period, whether or  not such BSBY Rate Loan was in fact so funded.  3.06 Mitigation of Obligations; Replacement of Lenders.  





 






  70  CHAR1\1834980v7  (a) Designation of a Different Lending Office.  If any Lender requests compensation  under Section 3.04, or the Borrower is required to pay any Indemnified Taxes or additional  amounts to any Lender, the L/C Issuer, or any Governmental Authority for the account of any  Lender or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to  Section 3.02, then at the request of the Borrower such Lender or the L/C Issuer, as applicable,  shall use reasonable efforts to designate a different Lending Office for funding or booking its  Loans hereunder or to assign its rights and obligations hereunder to another of its offices,  branches or affiliates, if, in the reasonable judgment of such Lender or the L/C Issuer, as  applicable, such designation or assignment (i) would eliminate or reduce amounts payable  pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the  notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such  Lender or the L/C Issuer, as the case may be, to any material unreimbursed cost or expense and  would not otherwise be materially disadvantageous to such Lender or the L/C Issuer, as the case  may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any  Lender or the L/C Issuer in connection with any such designation or assignment.  (b) Replacement of Lenders.  If any Lender requests compensation under Section  3.04, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any  Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01  and, in each case, such Lender has declined or is unable to designate a different lending office in  accordance with Section 3.06(a), the Borrower may replace such Lender in accordance with  Section 11.13.  3.07 Survival.  All of the Loan Parties’ obligations under this Article III shall survive termination of the  Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation of the  Administrative Agent.  ARTICLE IV    GUARANTY  4.01 The Guaranty.  Each of the Guarantors hereby jointly and severally guarantees to the Administrative Agent, the  L/C Issuer, the Lenders and each other holder of Obligations as hereinafter provided, as primary obligor  and not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as  a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in  accordance with the terms thereof.  The Guarantors hereby further agree that if any of the Obligations is  not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a  mandatory cash collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay  the same, without any demand or notice whatsoever, and that in the case of any extension of time of  payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether  at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization  or otherwise) in accordance with the terms of such extension or renewal.  Notwithstanding any provision to the contrary contained herein or in any other of the Loan  Documents or the other documents relating to the Obligations, the obligations of each Guarantor under  this Agreement and the other Loan Documents shall not exceed an aggregate amount equal to the largest  amount that would not render such obligations subject to avoidance under applicable Debtor Relief Laws.  





 






  71  CHAR1\1834980v7  4.02 Obligations Unconditional.  The obligations of the Guarantors under Section 4.01 are joint and several, absolute and  unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the  Loan Documents or other documents relating to the Obligations, or any substitution, release, impairment  or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent  permitted by applicable Law, irrespective of any other circumstance whatsoever which might otherwise  constitute a legal or equitable discharge or defense of a surety or guarantor (other than the defense that the  Loans have been paid in full), it being the intent of this Section 4.02 that the obligations of the Guarantors  hereunder shall be absolute and unconditional under any and all circumstances.  Each Guarantor agrees  that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against  the Borrower or any other Guarantor for amounts paid under this Article IV until such time as the  Obligations (other than (x) contingent indemnification or reimbursement obligations for which no claim  has been asserted, (y) obligations and liabilities under Secured Cash Management Agreements and  Secured Hedge Agreements as to which arrangements reasonably satisfactory to the applicable Cash  Management Bank or Hedge Bank shall have been made and (z) Letters of Credit as to which other  arrangements reasonably satisfactory to the Administrative Agent and the L/C Issuer shall have been  made or that have been Cash Collateralized in the amount of the Minimum Collateral Amount) have been  paid in full and the Revolving Commitments have expired or terminated.  Without limiting the generality  of the foregoing, it is agreed that, to the fullest extent permitted by Law, the occurrence of any one or  more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall  remain absolute and unconditional as described above:  (a) at any time or from time to time, without notice to any Guarantor, the time for  any performance of or compliance with any of the Obligations shall be extended, or such  performance or compliance shall be waived;  (b) any of the acts mentioned in any of the provisions of any of the Loan Documents  or any other document relating to the Obligations shall be done or omitted;  (c) the maturity of any of the Obligations shall be accelerated, or any of the  Obligations shall be modified, supplemented or amended in any respect, or any right under any of  the Loan Documents or any other document relating to the Obligations shall be waived or any  other guarantee of any of the Obligations or any security therefor shall be released, impaired or  exchanged in whole or in part or otherwise dealt with;  (d) any Lien granted to, or in favor of, the Administrative Agent or any other holder  of the Obligations as security for any of the Obligations shall fail to attach or be perfected; or  (e) any of the Obligations shall be determined to be void or voidable (including for  the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person  (including any creditor of any Guarantor).  With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,  presentment, demand of payment, protest and all notices whatsoever (other than any notices required to  be delivered pursuant to the terms of the Loan Documents) and any requirement that the Administrative  Agent or any other holder of the Obligations exhaust any right, power or remedy or proceed against any  Person under any of the Loan Documents or any other document relating to the Obligations or against any  other Person under any other guarantee of, or security for, any of the Obligations.  4.03 Reinstatement.  





 






  72  CHAR1\1834980v7  The obligations of each Guarantor under this Article IV shall be automatically reinstated if and to  the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is  rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of  any Debtor Relief Law or otherwise, and each Guarantor agrees that it will indemnify the Administrative  Agent and each other holder of the Obligations on demand for all reasonable and documented out-of- pocket costs and expenses (including the fees, charges and disbursements of one primary outside counsel  and one local counsel in each relevant jurisdiction for the Administrative Agent and the holders of the  Obligations taken as a whole and, in the case of an actual or potential conflict of interest, one additional  counsel in each relevant jurisdiction to each group of affected Administrative Agent and/or holder(s) of  the Obligations similarly situated taken as a whole) incurred by the Administrative Agent or such holder  of the Obligations in connection with such rescission or restoration, including any such costs and  expenses incurred in defending against any claim alleging that such payment constituted a preference,  fraudulent transfer or similar payment under any Debtor Relief Law.  4.04 Certain Additional Waivers.  Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the  Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02 and through the  exercise of rights of contribution pursuant to Section 4.06.  4.05 Remedies.  The Guarantors agree that, to the fullest extent permitted by Law, as between the Guarantors, on  the one hand, and the Administrative Agent and the other holders of the Obligations, on the other hand,  the Obligations may be declared to be forthwith due and payable as specified in Section 9.02 (and shall be  deemed to have become automatically due and payable in the circumstances specified in Section 9.02) for  purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition preventing such  declaration (or preventing the Obligations from becoming automatically due and payable) as against any  other Person and that, in the event of such declaration (or the Obligations being deemed to have become  automatically due and payable), the Obligations (whether or not due and payable by any other Person)  shall forthwith become due and payable by the Guarantors for purposes of Section 4.01. The Guarantors  acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the  Collateral Documents and that the holders of the Obligations may exercise their remedies thereunder in  accordance with the terms thereof.  4.06 Rights of Contribution.  The Guarantors agree among themselves that, in connection with payments made hereunder, each  Guarantor shall have contribution rights against the other Guarantors as permitted under applicable Law.   Such contribution rights shall be subordinate and subject in right of payment to the obligations of such  Guarantors under the Loan Documents and no Guarantor shall exercise such rights of contribution until  the Obligations (other than (x) contingent indemnification or reimbursement obligations for which no  claim has been asserted, (y) obligations and liabilities under Secured Cash Management Agreements and  Secured Hedge Agreements as to which arrangements reasonably satisfactory to the applicable Cash  Management Bank or Hedge Bank shall have been made and (z) Letters of Credit as to which other  arrangements reasonably satisfactory to the Administrative Agent and the L/C Issuer shall have been  made or that have been Cash Collateralized in the amount of the Minimum Collateral Amount) have been  paid in full and the Revolving Commitments have terminated.  4.07 Guarantee of Payment; Continuing Guarantee.  





 






  73  CHAR1\1834980v7  The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing  guarantee, and shall apply to the Obligations whenever arising.  4.08 Keepwell.  Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty in this Article IV by  any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (a  “Specified Loan Party”) or the grant of a security interest under the Loan Documents by any such  Specified Loan Party, in either case, becomes effective with respect to any Swap Obligation, hereby  jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or  other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by  such Specified Loan Party from time to time to honor all of its obligations under this Guaranty and the  other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum  amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s  obligations and undertakings under this Article IV voidable under applicable Debtor Relief Laws, and not  for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this  Section 4.08 shall remain in full force and effect until the Obligations (other than (x) contingent  indemnification or reimbursement obligations for which no claim has been asserted, (y) obligations and  liabilities under Secured Cash Management Agreements and Secured Hedge Agreements as to which  arrangements reasonably satisfactory to the applicable Cash Management Bank or Hedge Bank shall have  been made and (z) Letters of Credit as to which other arrangements reasonably satisfactory to the  Administrative Agent and the L/C Issuer shall have been made or that have been Cash Collateralized in  the amount of the Minimum Collateral Amount) have been paid and performed in full. Each Loan Party  intends this Section 4.08 to constitute, and this Section 4.08 shall be deemed to constitute, a “keepwell,  support, or other agreement” for the benefit of each Specified Loan Party for all purposes of the  Commodity Exchange Act.  4.09 Appointment of Borrower.  Each of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this  Agreement, the other Loan Documents and all other documents and electronic platforms entered into in  connection herewith and agrees that (a) the Borrower may execute such documents and provide such  authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and  each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed  on its behalf, (b) any notice or communication delivered by the Administrative Agent, L/C Issuer or a  Lender to the Borrower shall be deemed delivered to each Loan Party and (c) the Administrative Agent,  L/C Issuer or the Lenders may accept, and be permitted to rely on, any document, authorization,  instrument or agreement executed by the Borrower on behalf of each of the Loan Parties.  ARTICLE V    CONDITIONS PRECEDENT TO CREDIT EXTENSIONS  5.01 Conditions of Effectiveness.  This Agreement shall be effective upon satisfaction of the following conditions precedent in each  case in a manner reasonably satisfactory to the Administrative Agent and each Lender:  (a) Loan Documents.  Receipt by the Administrative Agent of executed counterparts  of this Agreement and each Note requested by any Lender, each properly executed by a  Responsible Officer of the signing Loan Party (or the general partner thereof).  





 






  74  CHAR1\1834980v7  (b) Opinions of Counsel.  Receipt by the Administrative Agent of reasonably  satisfactory opinions of legal counsel to the Loan Parties (including, to the extent required, local  counsel to the Loan Parties), addressed to the Administrative Agent and each Lender, dated as of  the Closing Date.  (c) Organization Documents, Resolutions, Etc.  Receipt by the Administrative Agent  of the following:  (i) copies of the Organization Documents of each Loan Party certified, in  the case of each certificate of limited partnership, certificate of formation or certificate of  incorporation, to be true and complete as of a recent date by the appropriate  Governmental Authority of the state or other jurisdiction of its incorporation or  organization, where applicable, and certified by a secretary or assistant secretary of such  Loan Party (or its general partner) to be true and correct as of the Closing Date;  (ii) such certificates of resolutions or other action, incumbency certificates  and/or other certificates of Responsible Officers of each Loan Party as the Administrative  Agent may reasonably require evidencing the identity, authority and capacity of each  Responsible Officer thereof authorized to act as a Responsible Officer in connection with  this Agreement and the other Loan Documents to which such Loan Party is a party; and  (iii) such documents and certifications as the Administrative Agent may  reasonably require to evidence that each Loan Party is duly organized or formed, and is  validly existing, in good standing and qualified to engage in business in its state of  organization or formation.  (d) Evidence of Insurance.  Receipt by the Administrative Agent of copies of  insurance policies, declaration pages, certificates, and endorsements of insurance evidencing  liability and property insurance meeting the requirements set forth herein or in the Loan  Documents or as required by the Administrative Agent (provided that evidence of insurance shall  only be required with respect to U.S. assets).  (e) Financial Statements. The Administrative Agent and the Lenders shall have  received copies of the financial statements referred to in Section 6.05, each in form and substance  satisfactory to each of them.  (f) Personal Property Collateral. The Administrative Agent shall have received, in  form and substance satisfactory to the Administrative Agent:  (i) (A) searches of UCC filings or analogous public filings in the  jurisdiction of incorporation or formation, as applicable, of each Loan Party and each  jurisdiction where any Collateral is located or where a filing would need to be made in  order to perfect the Administrative Agent’s security interest in the Collateral, copies of  the financing statements on file in such jurisdictions and evidence that no Liens exist  other than Permitted Liens and (B) tax lien, judgment and bankruptcy searches;  (ii) searches of ownership of Intellectual Property in the appropriate  governmental offices and such patent/trademark/copyright filings as requested by the  Administrative Agent in order to perfect the Administrative Agent’s security interest in  the Intellectual Property;  





 






  75  CHAR1\1834980v7  (iii) completed UCC financing statements for each appropriate jurisdiction as  is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative  Agent’s security interest in the Collateral;  (iv) stock or membership certificates, if any, evidencing the Pledged Equity  and undated stock or transfer powers duly executed in blank; in each case to the extent  such Pledged Equity is certificated;  (v) to the extent required to be delivered, filed, registered or recorded  pursuant to the terms and conditions of the Collateral Documents, all instruments,  documents (including relevant page(s) of the share register book of the company showing  the pledge registration) and chattel paper in the possession of any of the Loan Parties,  together with allonges or assignments as may be necessary or appropriate to create and  perfect the Administrative Agent’s and the Lenders’ security interest in the Collateral;  and  (vi) in the case of any personal property Collateral located at a premises  leased by a Loan Party, estoppel letters, consents and waivers from the landlords on such  real property as may be reasonably required by the Administrative Agent.  (g) Closing Certificate.  Receipt by the Administrative Agent of a certificate signed  by a Responsible Officer of the Borrower as of the Closing Date certifying that (i) there has not  occurred, since December 31, 2020, any event or condition that has had, or could be reasonably  expected, either individually or in the aggregate, to have, a Material Adverse Effect, (ii) there are  no actions, suits, investigations, proceedings, claims or disputes pending or, to the knowledge of  the Loan Parties, threatened or contemplated, at law, in equity, in arbitration or before any  Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of  their properties or revenues that (x) purport to affect performance under this Agreement or any  other Loan Document or (y) could be reasonably expected, either individually or in the aggregate,  to have, a Material Adverse Effect, and (iii) the conditions specified in Sections 5.02(a) and (b)  have been satisfied as of the Closing Date.  (h) Solvency Certificate. Receipt by the Administrative Agent of a certificate signed  by a Responsible Officer of the Borrower as of the Closing Date attesting to the Solvency of each  Loan Party before and after giving effect to the transactions contemplated hereby.  (i) Refinance of Existing Indebtedness.  The Borrower and its Subsidiaries shall  have repaid all outstanding Indebtedness (other than Indebtedness permitted under Section 8.03)  (the “Existing Indebtedness”) excluding unasserted contingent indemnification or reimbursement  obligations not then due and owing, and terminated all commitments to extend credit with respect  to the Existing Indebtedness, and all Liens securing the Existing Indebtedness shall have been  released.  (j) KYC; Beneficial Ownership.  Upon the reasonable request of any Lender made  at least three (3) days prior to the Closing Date, the Borrower shall have provided to such Lender,  and such Lender shall be reasonably satisfied with, the documentation and other information so  requested in connection with applicable “know your customer” and anti-money-laundering rules  and regulations, including, without limitation, the Patriot Act, in each case at least three (3) days  prior to the Closing Date and (y) at least three (3) days prior to the Closing Date, any Loan Party  that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have  





 






  76  CHAR1\1834980v7  delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such  Loan Party.  (k) Consents. Receipt by the Administrative Agent of evidence that all members,  boards of directors, governmental, shareholder and material third party consents and approvals  necessary in connection with the entering into of this Agreement have been obtained, all  applicable waiting periods shall have expired without any action being taken by any authority that  could restrain, prevent or impose any material adverse condition on the Loan Parties and their  Subsidiaries or the transactions contemplated hereby, or that could seek or threaten any of the  foregoing, and no Law or regulation shall be applicable which, in the reasonably judgment of the  Administrative Agent, could have such effect.  (l) Fees.  Receipt by the Administrative Agent, the Arranger and the Lenders of any  fees required to be paid on or before the Closing Date.  (m) Attorney Costs.  The Borrower shall have paid all reasonable and documented  out-of-pocket fees, charges and disbursements of outside counsel to the Administrative Agent and  Arranger (directly to such counsel if requested by the Administrative Agent and/or the Arranger)  to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees,  charges and disbursements as shall constitute its reasonable estimate of such fees, charges and  disbursements incurred or to be incurred by it through the closing proceedings (provided that such  estimate shall not thereafter preclude a final settling of accounts between the Borrower, the  Administrative Agent and the Arranger).  Without limiting the generality of the provisions of the last paragraph of Section 10.03, for  purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that  has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied  with, each document or other matter required thereunder to be consented to or approved by or acceptable  or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender  prior to the proposed Closing Date specifying its objection thereto.  5.02 Conditions to all Credit Extensions.  The obligation of each Lender to honor any Request for Credit Extension (other than a Loan  Notice requesting only a conversion of Loans to the other Type or a continuation of BSBY Rate Loans) is  subject to the following conditions precedent:  (a) The representations and warranties of each Loan Party contained in Article VI or  any other Loan Document, or which are contained in any document furnished at any time under  or in connection herewith or therewith, shall be true and correct in all material respects (except to  the extent any such representation and warranty is qualified by materiality, in which case, such  representation and warranty shall be true and correct in all respects after giving effect to such  materiality qualification) on and as of the date of such Credit Extension, except to the extent that  such representations and warranties specifically refer to an earlier date, in which case they shall  be true and correct in all material respects (except to the extent any such representation and  warranty is qualified by materiality, in which case, such representation and warranty shall be true  and correct in all respects after giving effect to such materiality qualification) as of such earlier  date.  (b) No Default or Event of Default shall exist at the time of or would result from  such proposed Credit Extension or from the application of the proceeds thereof.  





 






  77  CHAR1\1834980v7  (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line  Lender shall have received a Request for Credit Extension in accordance with the requirements  hereof (except as otherwise provided in Section 2.03(c)(i) and Section 2.04(c)(i)).  (d) No Foreclosure Event shall have occurred.    Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of  Loans to the other Type or a continuation of BSBY Rate Loans) submitted by the Borrower shall be  deemed to be a representation and warranty that the conditions specified in Sections 5.02(a) and (b) have  been satisfied on and as of the date of the applicable Credit Extension.  ARTICLE VI    REPRESENTATIONS AND WARRANTIES  The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:  6.01 Existence, Qualification and Power.  The Borrower and each of its Subsidiaries (a) is duly organized or formed, validly existing and, as  applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has  all requisite power and authority and all requisite governmental licenses, authorizations, consents and  approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its  obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and,  as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or  operation of properties or the conduct of its business requires such qualification or license; except in each  case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected  to have a Material Adverse Effect.  6.02 Authorization; No Contravention.  The execution, delivery and performance by each Loan Party of each Loan Document to which  such Person is party have been duly authorized by all necessary corporate or other organizational action,  and do not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or  result in any breach or contravention of, or the creation of any Lien (other than a Permitted Lien) under,  or require any payment to be made under (i) any Contractual Obligation to which such Person is a party  or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order,  injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or  its property is subject; or (c) violate any Law, except in each case referred to in clause (b) and (c), to the  extent that such conflict, breach, creation, payment or violation could not reasonably be expected to have  a Material Adverse Effect.  6.03 Governmental Authorization; Other Consents.  No approval, consent, exemption, authorization, or other action by, or notice to, or filing with,  any Governmental Authority or any other Person is necessary or required in connection with the  execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any  other Loan Document other than (i) those that have already been obtained and are in full force and effect,  (ii) filings to perfect the Liens created by the Collateral Documents, and (iii) such approvals, consents,  





 






  78  CHAR1\1834980v7  exemptions, authorizations, actions, notices or filings that the failure to obtain could not reasonably be in  expected to have a Material Adverse Effect.  6.04 Binding Effect.  Each Loan Document, when delivered hereunder, has been duly executed and delivered by each  Loan Party that is party thereto.  Each Loan Document constitutes a legal, valid and binding obligation of  each Loan Party party thereto, enforceable against such Loan Party that is party thereto in accordance  with its terms (subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization  or other similar laws affecting the enforceability of creditors rights generally and to the effect of general  principles of equity which may limit the availability of equitable remedies whether in a proceeding at law  or in equity).  6.05 Financial Statements; No Material Adverse Effect.  (a) The 2020 Financial Statements (i) were prepared in accordance with GAAP  consistently applied throughout the period covered thereby, except as otherwise expressly noted  therein; and (ii) fairly present in all material respects the financial condition of the Borrower and  its Subsidiaries as of the last day of the period covered thereby and their results of operations for  the period covered thereby in accordance with GAAP consistently applied throughout the period  covered thereby, except as otherwise expressly noted therein.  (b) The Interim Financial Statements (i) were prepared in accordance with GAAP  consistently applied throughout the period covered thereby, except as otherwise expressly noted  therein; and (ii) fairly present in all material respects the financial condition of the Borrower and  its Subsidiaries as of the last day of the period covered thereby and their results of operations for  the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes  and to normal year-end audit adjustments;  (c) The financial statements delivered pursuant to Section 7.01(a) and (b) have been  prepared in accordance with GAAP (except as may otherwise be permitted under Section 7.01(a)  and (b)) and present fairly in all material respects (on the basis disclosed in the footnotes to such  financial statements) the consolidated and consolidating financial condition, results of operations  and cash flows of the Borrower and its Subsidiaries as of the dates thereof and for the periods  covered thereby.  (d) Since the date of the 2020 Financial Statements, there has been no event or  circumstance that has had or could reasonably be expected to have a Material Adverse Effect.  6.06 Litigation.  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the  Responsible Officers of the Loan Parties, threatened or contemplated, at law, in equity, in arbitration or  before any Governmental Authority, by or against the Borrower or any Subsidiary or against any of their  properties or revenues that, if determined adversely, could reasonably be expected to have a Material  Adverse Effect.  6.07 No Default.  (a) Neither the Borrower nor any Subsidiary is in default under or with respect to  any Contractual Obligation that could reasonably be expected to have a Material Adverse Effect.  





 






  79  CHAR1\1834980v7  (b) No Default has occurred and is continuing.  6.08 Ownership of Property; Liens.  Each of the Borrower and its Subsidiaries has good record and marketable title in fee simple to, or  valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business,  except for Permitted Liens and for such defects in title as could not reasonably be expected to have a  Material Adverse Effect.  The property of the Borrower and its Subsidiaries is not subject to any Liens  other than Permitted Liens.  6.09 Environmental Compliance.  Except as could not reasonably be expected to have a Material Adverse Effect:  (a) Each of the Borrower and its Subsidiaries is in compliance with Environmental  Laws applicable to the facilities and real properties owned, leased or operated by the Borrower or  any Subsidiary (the “Facilities”) or applicable to  the businesses operated by the Borrower or any  Subsidiary (the “Businesses”), and there is no current violation of any Environmental Law by the  Borrower or any Subsidiary with respect to the Facilities or the Businesses, and, to the knowledge  of the Responsible Officers of the Loan Parties,  there are no present conditions at the Facilities or  related to the Businesses that would reasonably be expected to give rise to liability of the  Borrower or any Subsidiary under any applicable Environmental Laws.  (b) Neither the Borrower nor any Subsidiary, nor, to the knowledge of the  Responsible Officers of the Loan Parties, any other Person, has caused any of the Facilities to  contain, or to have previously contained, any Hazardous Materials at, on or under the Facilities in  amounts or concentrations that constitute or constituted an unresolved violation by the Borrower  or any Subsidiary of, or could reasonably be expected to give rise to liability of the Borrower or  any Subsidiary under, Environmental Laws.  (c) Neither the Borrower nor any Subsidiary has received any written or unequivocal  verbal notice of, or written inquiry from any Governmental Authority regarding, any violation,  alleged violation, non-compliance, liability or potential liability regarding environmental matters  or compliance with Environmental Laws with regard to any of the Facilities or the Businesses  that is unresolved, nor to the knowledge of the Responsible Officers of the Loan Parties, is  any  such notice  being threatened.  (d) Hazardous Materials have not been transported or disposed of from the Facilities,  or generated, treated, stored or disposed of at, on or under any of the Facilities or any other  location, in each case by or on behalf of the Borrower or any Subsidiary in violation of, or in a  manner that would be reasonably likely to give rise to liability under, any applicable  Environmental Law.  (e) No judicial proceeding or governmental or administrative action is pending or, to  the knowledge of the Responsible Officers of the Loan Parties, threatened, under any  Environmental Law to which the Borrower or any Subsidiary is or, to the knowledge of the  Responsible Officers of the Loan Parties, will be named as a party, nor are there any consent  decrees or other decrees, consent orders, administrative orders or other governmental orders, or  other administrative or judicial requirements (outside the ordinary course of compliance with  Environmental Law applicable to the Borrower and any Subsidiary) outstanding under any  Environmental Law with respect to the Borrower, any Subsidiary, the Facilities or the Businesses.  





 






  80  CHAR1\1834980v7  (f) There has been no release or threat of release of Hazardous Materials at or from  the Facilities by the Borrower or any Subsidiary or, to the knowledge of the Responsible Officers  of the Loan Parties, by any other person, or arising from or related to the operations (including  disposal) of the Borrower or any Subsidiary in connection with the Facilities or otherwise in  connection with the Businesses, in violation of or in amounts or in a manner that could  reasonably be expected to give rise to liability under Environmental Laws.  6.10 Insurance.  The properties of the Borrower and its Subsidiaries are insured with insurance companies not  Affiliates of the Borrower that the Borrower has reasonably determined are financially sound and  reputable, in such amounts, with such deductibles and covering such risks as the Borrower has reasonably  determined as are customarily carried by companies engaged in similar businesses and owning similar  properties in localities where the Borrower or the applicable Subsidiary operates.  If at any time any  owned real property is pledged as collateral hereunder, the Borrower shall and shall cause each  appropriate Loan Party to (A) maintain, if available, fully paid flood hazard insurance on all real property  that is located in a special flood hazard area and that constitutes collateral hereunder, on such terms and in  such amounts as required by The National Flood Insurance Reform Act of 1994, the Federal Flood  Disaster Protection Act and rules and regulations promulgated thereunder or as otherwise required by the  Administrative Agent or any Lender, (B) furnish to the Administrative Agent evidence of the renewal  (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof,  and (C) furnish to the Administrative Agent prompt written notice of any re-designation of any such  improved real property into or out of a special flood hazard area.  6.11 Taxes.  The Borrower and its Subsidiaries have filed all federal and state income tax returns and reports  required to be filed, and have paid all federal and state income taxes, assessments, fees and other  governmental charges levied or imposed upon them or their properties, income or assets otherwise due  and payable, except those which are being contested in good faith by appropriate proceedings diligently  conducted and for which adequate reserves have been provided in accordance with GAAP.  There is no  proposed tax assessment against the Borrower or any Subsidiary that would, if made, have a Material  Adverse Effect.  Neither the Borrower nor any Subsidiary is party to any tax sharing agreement.  6.12 ERISA Compliance.  (a) Each Plan is in compliance in all respects with the applicable provisions of  ERISA, the Internal Revenue Code and other federal or state laws, except as would not have a  Material Adverse Effect. Each Pension Plan that is intended to be a qualified plan under Section  401(a) of the Internal Revenue Code has received a favorable determination letter or is subject to  a favorable opinion letter from the IRS to the effect that the form of such Plan is qualified under  Section 401(a) of the Internal Revenue Code and the trust related thereto has been determined by  the IRS to be exempt from federal income tax under Section 501(a) of the Internal Revenue Code,  or an application for such a letter is currently being processed by or will timely be submitted to  the IRS. To the knowledge of the Loan Parties, nothing has occurred that would reasonably be  expected to have an adverse effect on such letter, except as would not have a Material Adverse  Effect.  (b) There are no pending or, to the knowledge of the Loan Parties, threatened claims,  actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could  reasonably be expected to have a Material Adverse Effect. There has been no prohibited  





 






  81  CHAR1\1834980v7  transaction or violation of the fiduciary responsibility rules with respect to any Plan that has  resulted or would reasonably be expected to result in a Material Adverse Effect.  (c) Except as would not reasonably be expected to result in a Material Adverse  Effect, (i) no ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is aware of  any fact, event or circumstance that would reasonably be expected to constitute or result in an  ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) as of the most recent  valuation date for any Pension Plan, the funding target attainment percentage (as defined in  Section 430(d)(2) of the Internal Revenue Code) is 60% or higher and no Loan Party nor any  ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause  the funding target attainment percentage for any such plan to drop below 60% as of the most  recent valuation date; (iii) no Loan Party nor any ERISA Affiliate has incurred any liability to the  PBGC other than for the payment of premiums, and there are no premium payments which have  become due that are unpaid; (iv) neither the Borrower nor any ERISA Affiliate has engaged in a  transaction that is subject to Section 4069 or Section 4212(c) of ERISA; and (v) no Pension Plan  has been terminated by the plan administrator thereof nor by the PBGC, and no event or  circumstance has occurred or exists that could reasonably be expected to cause the PBGC to  institute proceedings under Title IV of ERISA to terminate any Pension Plan.  (d) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has  any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension  Plan other than (i) on the Closing Date, those listed on Schedule 6.12 hereto and (ii) thereafter,  Pension Plans not otherwise prohibited by this Agreement.  (e) The Borrower represents and warrants that the Borrower is not and will not be  using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more  Benefit Plans with respect to the Borrower’s entrance into, participation in, administration of and  performance of the Loans, the Letters of Credit, the Revolving Commitments or this Agreement.  6.13 Subsidiaries; Equity Interests; Loan Parties.  As of the Closing Date, the Borrower has no Subsidiaries other than those specifically disclosed  on Schedule 6.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly  issued, are fully paid and non-assessable and are owned by a Loan Party in the amounts specified on  Schedule 6.13 free and clear of all Liens except those created under the Collateral Documents. As of the  Closing Date, no Loan Party has any equity investments in any other corporation or entity other than  those specifically disclosed on Schedule 6.13. All of the outstanding Equity Interests in the Borrower  have been validly issued, are fully paid and non-assessable and are owned by Ciner Resources LP and  NRP Trona LLC in the amounts specified on Schedule 6.13 free and clear of all Liens except those  created under the Collateral Documents. Set forth on Schedule 6.13 is a complete and accurate list of all  Loan Parties, showing as of the Closing Date (as to each Loan Party) the jurisdiction of its incorporation,  the address of its principal place of business and its U.S. taxpayer identification number or, in the case of  any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique  identification number issued to it by the jurisdiction of its incorporation.  The copy of the charter of each  Loan Party and each amendment thereto provided pursuant to Section 5.01(c) is a true and correct copy of  each such document, each of which is valid and in full force and effect.  6.14 Use of Proceeds; Margin Regulations; Investment Company Act.  (a) The proceeds of all Credit Extensions have been used for the purposes set forth in  Section 7.11.  





 






  82  CHAR1\1834980v7  (b) The Borrower is not engaged and will not engage, principally or as one of its  important activities, in the business of purchasing or carrying margin stock (within the meaning  of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying  margin stock.  Following the application of the proceeds of each Borrowing or drawing under  each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or  of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section  8.01 or Section 8.05 or subject to any restriction contained in any agreement or instrument  between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and  within the scope of Section 9.01(e) will be margin stock.  (c) None of the Loan Parties and their Subsidiaries is or is required to be registered  as an “investment company” under the Investment Company Act of 1940.  6.15 Disclosure.  No written report, financial statement, certificate or other information (other than projections, pro  forma financial information and information of a general economic or industry nature) (taken as a whole)  furnished (in writing) by or on behalf of any Loan Party to the Administrative Agent or any Lender in  connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered  hereunder or under any other Loan Document (in each case, as modified or supplemented by other  information so furnished) contains any material misstatement of fact or omits to state any material fact  necessary to make the statements therein (taken as a whole), in the light of the circumstances under which  they were made, not misleading; provided that, it is understood and agreed that for purposes of this  Section 6.15, such reports, statements, certificates and information shall not include projections, pro  forma financial information or any information of a general economic or industry nature.  With respect to  projected financial information, pro forma financial information and information of a general economic or  industry nature, the Loan Parties represent only that such information was prepared in good faith based  upon assumptions believed to be reasonable at the time delivered or furnished to the Administrative  Agent or the Arranger, it being understood and recognized by the Administrative Agent, L/C Issuer,  Swing Line Lender and the Lenders, that projections as to future events are not to be viewed as facts and  that actual results during the period or periods covered by such projections may differ from the projected  results.  6.16 Compliance with Laws.  Each of the Borrower and each Subsidiary is in compliance with the requirements of all Laws and  all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in  which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by  appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably  be expected to have a Material Adverse Effect.  6.17 Intellectual Property; Licenses, Etc.  Except to the extent it would not reasonably be expected to result in a Material Adverse Effect,  the Borrower and its Subsidiaries own, or possess the right to use, all of the trademarks, service marks,  trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights  (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses as  currently conducted.  Set forth on Schedule 6.17 is a list of (i) all IP Rights registered or pending  registration with the United States Copyright Office or the United States Patent and Trademark Office  that as of the Closing Date a Loan Party owns and (ii) all material licenses under which a Borrower or any  Subsidiary has been granted exclusive rights by a third party to IP Rights registered with the United States  





 






  83  CHAR1\1834980v7  Copyright Office or the United States Patent and Trademark Office as of the Closing Date (excluding  licenses for off-the-shelf software).  Except for such claims and infringements that would not reasonably  be expected to have a Material Adverse Effect, no claim has been asserted and is pending by any Person  before any court or Governmental Authority challenging or questioning the use of any IP Rights by the  Borrower or any Subsidiary or the validity or effectiveness of any IP Rights owned by a Borrower or any  Subsidiary, and, to the knowledge of the Responsible Officers of the Loan Parties, the use of any IP  Rights by the Borrower or any Subsidiary, the granting of a right or a license in respect of any IP Rights  from the Borrower or any Subsidiary does not infringe on any rights of any other Person.  As of the  Closing Date, none of the IP Rights owned by any Loan Party is subject to any exclusive licensing  agreement or similar arrangement except as set forth on Schedule 6.17.  6.18 Solvency.  The Loan Parties (a) are Solvent on a consolidated basis and (b) do not intend, in any transaction  contemplated by any Loan Document, to hinder, delay or defraud either present or future creditors or any  other person to which such Person is or will become, through such transaction, indebted.  6.19 Business Locations; Taxpayer Identification Number.  Set forth on Schedule 6.19-1 is a list of all real property located in the United States that is owned  or leased by any Loan Party as of the Closing Date (identifying whether such real property is owned or  leased and which Loan Party owns or leases such real property).  Set forth on Schedule 6.19-2 is the chief  executive office, U.S. tax payer identification number and organizational identification number of each  Loan Party as of the Closing Date.  The exact legal name and state of organization of each Loan Party as  of the Closing Date is as set forth on the signature pages hereto.  Except as set forth on Schedule 6.19-3,  as of the Closing Date, no Loan Party has during the five (5) years preceding the Closing Date (i) changed  its legal name, (ii) changed its state of formation, or (iii) been party to a merger, consolidation or other  change in structure.  6.20 OFAC.  Neither the Borrower nor any Subsidiary, nor, to the knowledge of the Borrower and its  Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or  entity that is, or is owned or controlled by one or more individuals or entities that are (i) currently the  subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals or  HMT’s Consolidated List of Financial Sanctions Targets, or any similar list enforced by any other  relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction. The  Borrower and its Subsidiaries have conducted their businesses in compliance with all applicable  Sanctions and have instituted and maintained policies and procedures designed to promote and achieve  compliance with such Sanctions.  6.21 Patriot Act; Anti-Corruption Laws.  (a) Each Loan Party is in compliance, in all material respects, with (i) the Trading  with the Enemy Act, as amended, and each of the foreign assets control regulations of the United  States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) 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) (the “Patriot Act”). No part of the proceeds of the Loans will be used, directly or indirectly,  for any payments to any governmental official or employee, political party, official of a political  party, candidate for political office, or anyone else acting in an official capacity, in order to  





 






  84  CHAR1\1834980v7  obtain, retain or direct business or obtain any improper advantage, in violation of the United  States Foreign Corrupt Practices Act of 1977, as amended.  (b) The Loan Parties and their Subsidiaries have conducted their businesses in  compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act  2010, and other similar anti-corruption legislation in other jurisdictions to the extent applicable  based on the Loan Parties’ and their Subsidiaries’ business and international activities (if any),  and have instituted and maintained policies and procedures designed to promote and achieve  compliance with such laws.  6.22 Anti-Money Laundering Laws.  None of the Loan Parties (a) is under investigation by any Governmental Authority for, or has  been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other  money laundering predicate crimes under any applicable Law (collectively, “Anti-Money Laundering  Laws”), (b) has been assessed civil penalties under any Anti-Money Laundering Laws or (c) has had any  of its funds seized or forfeited in an action under any Anti-Money Laundering Laws.  Each Loan Party  has taken reasonable measures appropriate to the circumstances (in any event as required by applicable  Law), to ensure that such Loan Party and its Subsidiaries each is and will continue to be in compliance  with all applicable current and future Anti-Money Laundering Laws.  6.23 EEA Financial Institution.  No Loan Party is an EEA Financial Institution.  6.24 Covered Entities.  No Loan Party is a Covered Entity.  6.25 Beneficial Ownership Certification.  The information included in the Beneficial Ownership Certification, if applicable, is true and correct in all  respects.  6.26 Perfection of Security Interests in the Collateral.  At all times, and except as enforceability may be limited by applicable bankruptcy, insolvency,  reorganization, moratorium or other laws affecting creditors’ rights generally, the Collateral Documents  providing for the grant of security interests or Liens upon personal property of the Loan Parties create in  favor of the Administrative Agent for the benefit of the holders of the Obligations valid security interests  in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens are  perfected security interests and Liens, prior to all other Liens other than Permitted Liens (or, upon (i) the  filing of appropriate UCC financing statements in the applicable financing offices and payment of  applicable filing fees, and (ii) the taking possession or control by the Administrative Agent of Collateral  with respect to which a security interest may be perfected only by possession or control).  ARTICLE VII    AFFIRMATIVE COVENANTS  





 






  85  CHAR1\1834980v7  So long as any Lender shall have any Revolving Commitment hereunder, any Loan or other  Obligation hereunder shall remain unpaid or unsatisfied (other than (x) contingent indemnification or  reimbursement obligations for which no claim has been asserted, (y) obligations and liabilities under  Secured Cash Management Agreements and Secured Hedge Agreements as to which arrangements  reasonably satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made  and (z) Letters of Credit as to which other arrangements reasonably satisfactory to the Administrative  Agent and the L/C Issuer shall have been made or that have been Cash Collateralized in the amount of the  Minimum Collateral Amount), the Loan Parties shall and shall cause each Subsidiary to:  7.01 Financial Statements.  Deliver to the Administrative Agent for further prompt distribution to each Lender, in form and  detail reasonably satisfactory to the Administrative Agent:  (a) as soon as available, but in any event within ninety (90) days after the end of  each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021, a  consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of  such fiscal year, and the related consolidated and consolidating statements of income or  operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in  each case in comparative form the figures for the previous fiscal year, all in reasonable detail and  prepared in accordance with GAAP, and in the case of such consolidated statements audited and  accompanied by a report and opinion of Deloitte & Touche LLP or another independent certified  public accountant of nationally recognized standing reasonably acceptable to the Administrative  Agent, which report and opinion shall be prepared in accordance with generally accepted auditing  standards and shall not be subject to any “going concern” or like qualification or exception or any  qualification or exception as to the scope of such audit (provided, for the avoidance of doubt,  audited financial statements delivered pursuant to this Section 7.01(a) shall not be deemed to be  qualified solely because of the inclusion of an “emphasis of matter” statement, explanatory note  or like qualificiation or exception resulting solely from a potential or actual event of default with  respect to the Existing WE Soda Facility or other debt or obligation of an indirect parent of the  Borrower), and in the case of such consolidating statements certified by the chief executive  officer, chief financial officer, treasurer or controller of the Borrower (or its general partner) to  the effect that such statements are fairly stated in all material respects when considered in relation  to the consolidated financial statements of the Borrower and its Subsidiaries;  (b) as soon as available, but in any event within forty-five (45) days after the end of  each of the first three fiscal quarters of each fiscal year of the Borrower, commencing with the  fiscal quarter ending March 31, 2021, a consolidated and consolidating balance sheet of the  Borrower and its Subsidiaries as at the end of such fiscal quarter, the related consolidated and  consolidating statements of income or operations for such fiscal quarter and for the portion of the  Borrower’s fiscal year then ended, and the related consolidated and consolidating statements of  changes in shareholders’ equity and cash flows for the portion of the Borrower’s fiscal year then  ended, in each case setting forth in comparative form, as applicable, the figures for the  corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the  previous fiscal year, all in reasonable detail and in the case of such consolidated statements  certified by the chief executive officer, chief financial officer, treasurer or controller of the  Borrower (or its general partner) as fairly presenting in all material respects the financial  condition, results of operations, shareholders’ equity and cash flows of the Borrower and its  Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and  the absence of footnotes, and in the case of such consolidating statements certified by the chief  executive officer, chief financial officer, treasurer or controller of the Borrower (or its general  





 






  86  CHAR1\1834980v7  partner) to the effect that such statements are fairly stated in all material respects when considered  in relation to the consolidated financial statements of the Borrower and its Subsidiaries; and  (c) as soon as available, but in any event within thirty (30) days after the end of each  fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021,  forecasts prepared by management of the Borrower, in form reasonably satisfactory to the  Administrative Agent, of consolidated balance sheets and statements of income or operations and  cash flows of the Borrower and its Subsidiaries on a quarterly basis for the immediately following  fiscal year (including the fiscal year in which the Maturity Date occurs).  As to any information contained in materials furnished pursuant to Section 7.02(c), the Borrower  shall not be separately required to furnish such information under Section 7.01(a) or 7.01(b), but  the foregoing shall not be in derogation of the obligation of the Borrower to furnish the  information and materials described in Section 7.01(a) or 7.01(b) at the times specified therein.  7.02 Certificates; Other Information.  Deliver to the Administrative Agent for further distribution to each Lender, in form and detail  reasonably satisfactory to the Administrative Agent:  (a) concurrently with the delivery of the financial statements referred to in  Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive  officer, chief financial officer, treasurer or controller of the Borrower (or its general partner)  (which delivery may, unless the Administrative Agent requests executed originals, be by  electronic communication including fax or email and shall be deemed to be an original authentic  counterpart thereof for all purposes);  (b) promptly after the same are available, copies of each annual report, proxy or  financial statement or other material report or communication (to the extent the same would be  required to be delivered to stockholders of a public corporation pursuant to Section 13 or 15(d) of  the Securities Exchange Act of 1934, assuming that such Loan Party were a public corporation  for purposes of determining this disclosure standard) sent to the equityholders of the Borrower,  and copies of all annual, regular, periodic and special reports and registration statements which  the Borrower or any Subsidiary may file or be required to file with the SEC under Section 13 or  15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the  Administrative Agent pursuant hereto;  (c) promptly after any request by the Administrative Agent, copies of any detailed  audit reports, management letters or recommendations (in each case to the extent not client- attorney privileged communication) submitted to the board of directors (or the audit committee of  the board of directors) of the Borrower by independent accountants in connection with the  accounts or books of the Borrower or any Subsidiary, or any audit of any of them;  (d) promptly, and in any event within five (5) Business Days after receipt thereof by  the Borrower or any Subsidiary, copies of each notice or other correspondence received from the  SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation  or possible investigation or other inquiry by such agency regarding financial or other operational  results of the Borrower or any Subsidiary;  (e) promptly following any request therefor, information and documentation  reasonably requested by the Administrative Agent or any Lender for purposes of compliance with  





 






  87  CHAR1\1834980v7  applicable “know your customer” and anti-money-laundering rules and regulations, including,  without limitation, the Patriot Act;  (f) to the extent any Loan Party qualifies as a “legal entity customer” under the  Beneficial Ownership Regulation, an updated Beneficial Ownership Certification promptly  following any change in the information provided in the Beneficial Ownership Certification  delivered to any Lender in relation to such Loan Party that would result in a change to the list of  beneficial owners identified in such certification;  (g) promptly, and in any event within five (5) Business Days following the making  of any Restricted Payment by the Borrower (other than any Permitted Tax Distribution) or the  consummation of any Permitted Acquisition by the Borrower or any Subsidiary, written notice of  such Restricted Payment or Permitted Acquisition as the case may be; and  (h) promptly, such additional information regarding the business, financial or  corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan  Documents, as the Administrative Agent or any Lender may from time to time reasonably  request.  Documents required to be delivered pursuant to Section 7.01(a) or 7.01(b) or Section 7.02(b) (to  the extent any such documents are included in materials otherwise filed with the SEC) may be delivered  electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the  Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at  the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the  Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative  Agent have access (whether a commercial, third-party website or whether sponsored by the  Administrative Agent); provided that: the Borrower shall notify the Administrative Agent (by facsimile or  electronic mail)  (who will notify each Lender) of the posting of any such documents.  The Administrative  Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents  referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower  with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting  delivery to it or maintaining its copies of such documents.  The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger may,  but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or  information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by  posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic  system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may have personnel who  do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or  the respective securities of any of the foregoing, and who may be engaged in investment and other  market-related activities with respect to such Persons’ securities.  The Borrower hereby agrees that (w) all  Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously  marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently  on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to  have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such  Borrower Materials as not containing any material non-public information with respect to the Borrower or  its securities for purposes of United States federal and state securities laws (provided, however, that to the  extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07);  (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the  Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger shall  be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for  





 






  88  CHAR1\1834980v7  posting on a portion of the Platform not designated “Public Side Information”.  Notwithstanding the  foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”  7.03 Notices.  Promptly notify the Administrative Agent and each Lender of:  (a) the occurrence of any Default (provided that if such Default is subsequently  cured within the time periods set forth herein, the failure to provide notice of such Default shall  not itself result in an Event of Default hereunder).  (b) any matter that has resulted or could reasonably be expected to result in a  Material Adverse Effect.  (c) without limiting the generality of the foregoing, the occurrence of any ERISA  Event that has resulted or could reasonably be expected to result in a Material Adverse Effect.  (d) any material change in accounting policies or financial reporting practices by the  Borrower or any Subsidiary, including any determination by the Borrower referred to in Section  2.10(b).  Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible  Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action  the Borrower has taken and proposes to take with respect thereto.  Each notice pursuant to Section 7.03(a)  shall describe with reasonable particularity any and all provisions of this Agreement and any other Loan  Document that have been breached.  7.04 Payment of Taxes.  Pay and discharge as the same shall become due and payable all material tax liabilities,  assessments and governmental charges or levies upon it or its properties or assets, unless the same are  being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in  accordance with GAAP are being maintained by the Borrower or such Subsidiary.  7.05 Preservation of Existence, Etc.  (a) In the case of Borrower and any Material Subsidiary, preserve, renew and  maintain in full force and effect its legal existence under the Laws of the jurisdiction of its  organization except in a transaction permitted by Section 8.04 or 8.05.  (b) In the case of Borrower and any Material Subsidiary, preserve, renew and  maintain in full force and effect its good standing under the Laws of the jurisdiction of its  organization except in a transaction permitted by Section 8.04 or 8.05.  (c) In the case of Borrower and any Material Subsidiary, take all reasonable action to  maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the  normal conduct of its business, except to the extent that the failure to do so could not reasonably  be expected to have a Material Adverse Effect.  





 






  89  CHAR1\1834980v7  (d) In the case of Borrower and any Material Subsidiary, preserve or renew all of its  IP Rights, the non-preservation or non-renewal of which could reasonably be expected to have a  Material Adverse Effect.  7.06 Maintenance of Properties.  (a) Maintain, preserve and protect all of its material properties and equipment  necessary in the operation of its business in good working order and condition, ordinary wear and  tear excepted.  (b) Make all necessary repairs thereto and renewals and replacements thereof, except  where the failure to do so could not reasonably be expected to have a Material Adverse Effect.  7.07 Maintenance of Insurance.  (a) Maintain with insurance companies not Affiliates of the Borrower that the  Borrower reasonably determines are financially sound and reputable, insurance with respect to its  properties and business against loss or damage as the Borrower reasonably determines to be of  the kinds customarily insured against by Persons engaged in the same or similar business and  owning similar properties in locations where the Borrower or any of its Subsidiaries operates, of  such types, with such deductibles and in such amounts as the Borrower reasonably determines are  customarily carried under similar circumstances by such other Persons.  (b) Cause the Administrative Agent and its successors and/or assigns to be named as  lender’s loss payee as its interest may appear, and/or additional insured with respect to any such  insurance providing liability coverage or coverage in respect of any Collateral, and cause each  provider of any such insurance to agree, by endorsement upon the policy or policies issued by it  or by independent instruments furnished to the Administrative Agent, that it will give the  Administrative Agent thirty (30) days (or such lesser amount as the Administrative Agent may  agree) prior written notice before any such policy or policies shall be canceled.  7.08 Compliance with Laws.  Comply with the requirements of all Laws (including Environmental Laws) and all orders, writs,  injunctions and decrees applicable to it or to its business or property, except in such instances in which (a)  such requirement of Law or order, writ, injunction or decree is being contested in good faith by  appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably  be expected to have a Material Adverse Effect.  7.09 Books and Records.  (a) Maintain proper books of record and account, in which full, true and correct  entries in material conformity with GAAP consistently applied shall be made of all financial  transactions and matters involving the assets and business of the Borrower or such Subsidiary, as  the case may be.  (b) Maintain such books of record and account in material conformity with all  applicable requirements of any Governmental Authority having regulatory jurisdiction over the  Borrower or such Subsidiary, as the case may be.  7.10 Inspection Rights.  





 






  90  CHAR1\1834980v7  Permit representatives and independent contractors of the Administrative Agent, and the  representatives of any Lender accompanying the representatives and/or independent contractors of the  Administrative Agent, to visit and inspect any of its properties, to examine its corporate, financial and  operating records, and make copies thereof or abstracts therefrom, and, so long as a Responsible Officer  of the Borrower (who shall make himself or herself promptly available upon request) is present, to discuss  its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the  expense of the Borrower and at such reasonable times during normal business hours and as often as may  be reasonably desired, upon reasonable advance notice to the Borrower; provided, however, that when an  Event of Default has occurred and is continuing the Administrative Agent (or any of its respective  representatives or independent contractors), and the representatives of any Lender accompanying the  representatives and/or independent contractors of the Administrative Agent, may do any of the foregoing  at the expense of the Borrower at any time during normal business hours and without advance notice; and  provided, further, that notwithstanding the foregoing, so long as no Event of Default has occurred and is  continuing, such visits and inspections shall not occur more than once per calendar year.  7.11 Use of Proceeds.  Use the proceeds of the Credit Extensions to (a) refinance the Existing Indebtedness (including  continuation of the Existing Letters of Credit) and (b) for working capital, capital expenditures, Permitted  Acquisitions and other lawful corporate, limited liability company purposes, provided that in no event  shall the proceeds of the Credit Extensions be used in contravention of any Law or of any Loan  Document.  7.12 Additional Guarantors.  Within forty-five (45) days (or such later date as the Administrative Agent may agree in its sole  discretion) after any Person becomes a Domestic Subsidiary (other than any Excluded Subsidiary), cause  such Person to (a) become a Guarantor by executing and delivering to the Administrative Agent a  Guarantor Joinder Agreement and (b) deliver to the Administrative Agent such Organization Documents,  customary resolutions and customary opinions of counsel (which shall cover, among other things, the  legality, validity, binding effect and enforceability of the documentation referred to in clause (a)), all in  form, content and scope reasonably satisfactory to the Administrative Agent.  7.13 Anti-Corruption Laws.  Conduct its business in compliance in all material respects with the United States Foreign Corrupt  Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in other  jurisdictions and with all applicable Sanctions, and maintain policies and procedures designed to promote  and achieve compliance with such laws and Sanctions.  7.14 Pledged Assets.  (a) Equity Interests.  Within forty-five (45) days (or such later date as the  Administrative Agent may agree in its sole discretion) after any Person becomes a Subsidiary of  any Loan Party, cause (i) 100% of the issued and outstanding Equity Interests of each Domestic  Subsidiary of any Loan Party and (ii) 66% of the issued and outstanding Equity Interests in each  Subsidiary of a Loan Party that is (x) a “controlled foreign corporation” under Section 957 of the  Internal Revenue Code (each, a “First-Tier Foreign Subsidiary”) or (y) a disregarded entity  substantially all of the assets of which consist (directly or indirectly through one or more other  disregarded entities) of Equity Interests of one or more Subsidiaries of a Loan Party that are  “controlled foreign corporations” under Section 957 of the Internal Revenue Code to be subject at  





 






  91  CHAR1\1834980v7  all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the  Obligations pursuant to the Collateral Documents, and, in connection with the foregoing, deliver  to the Administrative Agent such other customary documentation as the Administrative Agent  may reasonably request including, any filings and deliveries to perfect such Liens and customary  opinions of counsel all in form and substance reasonably satisfactory to the Administrative  Agent; provided that, notwithstanding the foregoing, none of the outstanding Equity Interests of  (1) any Foreign Subsidiary that is not a First-Tier Foreign Subsidiary or (2) any Domestic  Subsidiary of a Foreign Subsidiary that is a “controlled foreign corporation” (owned either  directly or indirectly through one or more entities that are disregarded entities or partnerships for  U.S. federal income tax purposes) shall be subject to this Section 7.14(a) or otherwise constitute  Collateral.  (b) Personal Property.  Within forty-five (45) days (or such later date as the  Administrative Agent may agree in its sole discretion) of the acquisition by any Loan Party of any  personal property (other than Excluded Property and Equity Interests), cause all such personal  property (other than Excluded Property and Equity Interests) of each Loan Party to be subject at  all times to first priority, perfected Liens (subject to Permitted Liens) in favor of the  Administrative Agent for the benefit of the Lenders in order to secure the Obligations and, in  connection with the foregoing, deliver to the Administrative Agent such other documentation as  the Administrative Agent may request including filings and deliveries necessary to perfect such  Liens, Organization Documents, resolutions, landlord’s waivers and customary opinions of  counsel to such Person, all in form, content and scope reasonably satisfactory to the  Administrative Agent. Notwithstanding the foregoing, no Loan Party shall be required to enter  into deposit account or securities account control agreements.  (c) Further Assurances. Promptly upon request by the Administrative Agent, or any  Lender through the Administrative Agent, (a) correct any material defect or error that may be  discovered in any Loan Document or in the execution, acknowledgment, filing or recordation  thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re- register any and all such further acts, deeds, certificates, assurances and other instruments as the  Administrative Agent, or any Lender through the Administrative Agent, may reasonably require  from time to time in order to (i) carry out more effectively the purposes of the Loan Documents,  (ii) to the fullest extent permitted by applicable Law, subject any Loan Party’s or any of its  Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be  covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness  and priority of any of the Collateral Documents and any of the Liens intended to be created  thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more  effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted  to the Secured Parties under any Loan Document or under any other instrument executed in  connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to  be a party, and cause each of its Subsidiaries to do so.  7.15 Post-Closing Matters.  To the extent not delivered to the Administrative Agent on the Closing Date, not later than thirty  (30) days following the Closing Date (or such later date as agreed by the Administrative Agent in its sole  discretion), deliver to the Administrative Agent the property insurance certificate and insurance  endorsements required by Section 7.07(b), in each case, as reasonably acceptable to the Administrative  Agent.    





 






  92  CHAR1\1834980v7  ARTICLE VIII    NEGATIVE COVENANTS  So long as any Lender shall have any Revolving Commitment hereunder, any Loan or other  Obligation hereunder shall remain unpaid or unsatisfied (other than (x) contingent indemnification or  reimbursement obligations for which no claim has been asserted, (y) obligations and liabilities under  Secured Cash Management Agreements and Secured Hedge Agreements as to which arrangements  reasonably satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made  and (z) Letters of Credit as to which other arrangements reasonably satisfactory to the Administrative  Agent and the L/C Issuer shall have been made or that have been Cash Collateralized in the amount of the  Minimum Collateral Amount), no Loan Party shall, nor shall it permit any Subsidiary to:  8.01 Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues,  whether now owned or hereafter acquired, other than the following:  (a) Liens pursuant to any Loan Document;  (b) Liens existing on the Closing Date and listed on Schedule 8.01 and any renewals  or extensions thereof, provided that the property covered thereby is not increased;  (c) Liens (other than Liens imposed under ERISA) for taxes, assessments or  governmental charges or levies not yet due or which are being contested in good faith and by  reasonable and appropriate responses and/or proceedings diligently conducted, if adequate  reserves with respect thereto are maintained on the books of the applicable Person in accordance  with GAAP;  (d) Liens of landlords, carriers, warehousemen, mechanics, materialmen and  repairmen and other like Liens arising in the ordinary course of business, provided that such  Liens secure only amounts not overdue for more than thirty (30) days or, if overdue for more than  thirty (30) days, are being contested in good faith by reasonable and appropriate responses and/or  proceedings diligently conducted for which adequate reserves determined in accordance with  GAAP have been established;  (e) pledges or deposits in the ordinary course of business in connection with  workers’ compensation, unemployment insurance and other social security legislation, other than  any Lien imposed by ERISA;  (f) deposits to secure the performance of bids, trade contracts and leases (other than  Indebtedness), statutory obligations, surety and appeal bonds, revenue bonds, performance bonds  and other obligations of a like nature incurred in the ordinary course of business;  (g) easements, rights-of-way, restrictions and other similar encumbrances affecting  real property which, in the aggregate, do not materially detract from the value of the property  subject thereto or materially interfere with the ordinary conduct of the business of the applicable  Person;  (h) Liens securing judgments for the payment of money (or appeal or other surety  bonds relating to such judgments) not constituting an Event of Default under Section 9.01(h);  





 






  93  CHAR1\1834980v7  (i) Liens securing Indebtedness permitted under Section 8.03(e) or (n); provided that  (i) such Liens do not at any time encumber any property other than the property financed by such  Indebtedness and (ii) such Liens attach to such property concurrently with or within ninety (90)  days after the acquisition thereof;  (j) leases or subleases granted to others not interfering in any material respect with  the business of the Borrower or any Subsidiary;  (k) any interest of title of a lessor under, and Liens arising from UCC financing  statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to,  leases permitted by this Agreement;  (l) Liens deemed to exist in connection with Investments in repurchase agreements  permitted under Section 8.02;  (m) bankers’ liens and normal and customary rights of setoff upon deposits of cash in  favor of banks or other depository institutions;  (n) Liens of a collection bank arising under Section 4-210 of the Uniform  Commercial Code on items in the course of collection;  (o) Liens arising on any real property as a result of any eminent domain,  condemnation or similar proceeding being commenced with respect to such real property;  (p) Liens securing Indebtedness permitted under Section 8.03(g);  (q) Liens of sellers of goods to the Borrowers and any of their Subsidiaries arising  under Article 2 of the UCC or similar provisions of applicable law in the ordinary course of  business, covering only the goods sold and securing only the unpaid purchase price for such  goods and related expenses;  (r) Liens securing Indebtedness permitted under Section 8.03(k);  (s) licenses and sublicenses of intellectual property granted in the ordinary course of  business;  (t) [reserved];  (u) Liens securing Secured Hedge Agreements and Secured Cash Management  Agreements; and  (v) other Liens of a nature not contemplated in the foregoing clauses securing  Indebtedness in an amount not to exceed, with respect to the Loan Parties and their Subsidiaries,  $1,000,000 in the aggregate at any time outstanding.  Notwithstanding anything to the contrary in this Section 8.01 or in any other Loan Document, in  no event shall the Loan Parties create, incur, assume or suffer to exist any Lien upon any mineral right or  mining reserve owned or held by any of the Loan Parties, whether owned or leased by virtue of deed,  contract or otherwise, other than a Lien permitted under clause (c), (d), (g), (o) or (v) of this Section 8.01.  





 






  94  CHAR1\1834980v7  8.02 Investments.  Make any Investments, except:  (a) Investments in the form of cash or Cash Equivalents;  (b) Investments outstanding on the Closing Date and set forth in Schedule 8.02 and  any renewals, refinancing, amendments, replacements or extensions thereof that do not increase  the amount thereof;  (c) (i) Investments in any Person that is a Loan Party prior to giving effect to such  Investment and (ii) Investments by a Loan Party or any Subsidiary of a Loan Party in any Person  that is not a Loan Party, provided that the aggregate amount of all such Investments does not  exceed $1,000,000 in the aggregate during the term of this Agreement;  (d) Investments by any Subsidiary that is not a Loan Party in any other Subsidiary  that is not a Loan Party;  (e) Investments consisting of extensions of credit in the nature of accounts  receivable or notes receivable arising from the grant of trade credit in the ordinary course of  business, and Investments received in satisfaction or partial satisfaction thereof from financially  troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;  (f) Guarantees permitted by Section 8.03;  (g) Permitted Acquisitions;  (h) lease, utility and similar deposits made in the ordinary course of business of the  Borrower and its Subsidiaries, including investments consisting of pledges and deposits permitted  under Section 8.01(f);  (i) contingent obligations with respect to any Swap Contract or hedging agreements  otherwise permitted by this Agreement;  (j) loans or advances to customers of the Borrower or any Subsidiary in an  aggregate amount not to exceed $250,000 at any one time outstanding;  (k) loans or advances to employees, officers and directors for business, travel and  entertainment expenses in the ordinary course of business consistent with past practice;  (l) prepaid expenses in the ordinary course of business consistent with past practice;  (m) the creation of new Subsidiaries so long as the formation of such Subsidiary has  complied with the requirements of Sections 7.12 or will comply therewithin prior to the deadlines  provided therein;  (n) Investments received in connection with the bankruptcy or reorganization of  suppliers or customers or other Persons and in settlement of delinquent obligation of, and disputes  with, any such supplier, customer or other Person or upon foreclosure with respect to any secured  Investment or other transfer of title with respect to such secured Investment;  





 






  95  CHAR1\1834980v7  (o) Investments of a Subsidiary acquired after the Closing Date to the extent that  such Investments were made prior to, and not made in contemplation or in connection with, such  acquisition, merger or consolidation;  (p) Investments constituting non-cash proceeds of sales, transfers and other  dispositions of assets to the extent permitted under Section 8.05;  (q) [reserved];  (r) Indebtedness and Guarantees to the extent permitted under Section 8.01; and  (s) Investments of a nature not contemplated in the foregoing clauses in an amount  not to exceed with respect to the Loan Parties and their Subsidiaries, $5,000,000 in the aggregate  at any time outstanding.  8.03 Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness, except:  (a) Indebtedness under the Loan Documents;  (b) Indebtedness outstanding on the Closing Date and set forth in Schedule 8.03 and  any renewals, refinancings, amendments, replacements and extensions thereof; provided that (i)  the amount of such Indebtedness is not increased at the time of such refinancing or extension  except by an amount equal to a reasonable premium or other reasonable amount paid, and fees  and expenses reasonably incurred, in connection with such refinancing or extension and by an  amount equal to any existing commitments unutilized thereunder and (ii) the material terms taken  as a whole of such refinancing or extension are not materially less favorable in any material  respect to the Borrower and its Subsidiaries or the Lenders than the terms of the Indebtedness  being refinanced or extended;  (c) Intercompany Indebtedness permitted under Section 8.02; provided that in the  case of Indebtedness owing by a Loan Party to a Foreign Subsidiary (i) such Indebtedness shall  be subordinated prior to the Obligations in a manner and to an extent reasonably acceptable to the  Administrative Agent and (ii) such Indebtedness shall not be prepaid unless no Default exists  immediately prior to or after giving effect to such prepayment;  (d) obligations (contingent or otherwise) existing or arising under any Swap  Contract, provided that (i) such obligations are (or were) entered into by such Person in the  ordinary course of business for the purpose of directly mitigating risks associated with liabilities,  commitments, investments, assets, or property held or reasonably anticipated by such Person, or  changes in the value of securities issued by such Person, and not for purposes of speculation or  taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating  the non-defaulting party from its obligation to make payments on outstanding transactions to the  defaulting party;  (e) purchase money Indebtedness hereafter incurred to finance the purchase of fixed  assets, and obligations in respect of capital leases and Synthetic Lease Obligations, and renewals,  replacements, amendments, refinancings and extensions of the foregoing, provided that (i) the  aggregate outstanding principal amount of all such Indebtedness shall not exceed $50,000,000 at  





 






  96  CHAR1\1834980v7  any one time outstanding; and (ii) such Indebtedness when incurred shall not exceed the purchase  price of the asset(s) financed;  (f) Guarantees with respect to Indebtedness permitted under clauses (a) through (e)  this Section 8.03; and  (g) Indebtedness in respect of worker’s compensation claims, self-insurance  obligations, bankers’ acceptances and bid, performance bonds, revenue bonds, stay bonds,  customs bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related  letters of credit and performance and completion guarantees issued for the account of any Loan  Party, in each case, incurred in the ordinary course of business;  (h) Indebtedness arising from the honoring by a bank or other financial institution of  a check, draft or similar instrument drawn against insufficient funds in the ordinary course of  business;  (i) Indebtedness arising in connection with the endorsement of instruments for  deposit in the ordinary course of business;  (j) Indebtedness in the form of obligations under indemnification, purchase price  adjustments, incentive, non-compete, consulting, deferred compensation, earn-out and similar  obligations incurred in connection with any Permitted Acquisition;  (k) other Indebtedness of a nature not contemplated in the foregoing clauses in a  principal amount not to exceed, with respect to the Loan Parties and their Subsidiaries,  $1,000,000 in the aggregate at any time outstanding;  (l) Indebtedness representing deferred compensation to employees of the Borrower  or any Subsidiary;  (m) [reserved]; and  (n) term loan Indebtedness provided by Banc of America Leasing & Capital LLC  related to the Specified Capital Expansion; provided, that (i) the aggregate outstanding principal  amount of all such Indebtedness shall not exceed $225,000,000 at any one time outstanding, (ii)  such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, (iii)  if such term loan is secured, and upon the request of the Administrative Agent, the lenders  providing such term loan (or their agent or representative) shall have entered into an intercreditor  agreement in form and substance reasonably satisfactory to the Administrative Agent, (iv) on the  date of the incurrence thereof, the Loan Parties would be in compliance with the financial  covenants set forth in Section 8.11 on a Pro Forma Basis after giving effectt to such Indebtedness,  (v) no Default or Event of Default then exists or would result therefrom and (vi) the terms of such  Indebtedness are reasonably acceptable to the Administrative Agent.  8.04 Fundamental Changes.  Merge, dissolve, liquidate or consolidate with or into another Person, except that so long as no  Default has occurred and is continuing or would result therefrom, (a) the Borrower may merge or  consolidate with any of its Subsidiaries provided that the Borrower is the continuing or surviving Person,  (b) any Subsidiary may merge or consolidate with any other Subsidiary provided that if a Loan Party is a  party to such transaction, the continuing or surviving Person is a Loan Party, (c) subject to clause (a) and  





 






  97  CHAR1\1834980v7  (b) above, the Borrower or any Subsidiary may merge with any other Person in connection with a  Permitted Acquisition or a Disposition permitted hereunder, (d) any Subsidiary may dissolve, liquidate or  wind up its affairs at any time provided that such dissolution, liquidation or winding up, as applicable,  could not have a Material Adverse Effect, and (e) any Subsidiary may Dispose of all or substantially all of  its assets (whether as a contribution to capital, dividend, upon voluntary liquidation or otherwise) to the  Borrower or to a Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then the  transferee must either be the Borrower or another Loan Party unless the transaction is otherwise permitted  under Section 8.05.  8.05 Dispositions.  Make any Disposition unless (a) the consideration paid in connection therewith shall be not less  than 75% cash or Cash Equivalents (it being understood that for the purposes of this clause (a), the  following shall be deemed to be cash:  (A) any liabilities (as shown on the Borrower’s or such  Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or  such Subsidiary that are directly or indirectly assumed by the transferee with respect to the applicable  disposition and for which all of the applicable Loan Parties shall have been validly released by all  applicable creditors in writing, and (B) any securities received by such Loan Party from such transferee  that are promptly (in any event, within ninety (90) days) converted by such Loan Party into cash or Cash  Equivalents (to the extent of the cash or Cash Equivalents received)) and shall be in an amount not less  than the fair market value of the property disposed of, (b) such transaction does not involve the sale or  other disposition of a minority equity interest in any Subsidiary, (c) such transaction does not involve a  sale or other disposition of receivables other than receivables owned by or attributable to other property  concurrently being disposed of in a transaction otherwise permitted under this Section 8.05, and (d) the  aggregate net book value of all of the assets disposed of by the Loan Parties and their Subsidiaries in all  such transactions in any fiscal year of the Borrower shall not exceed $2,500,000.  For the avoidance of  doubt, to the extent described therein, the transactions in clauses (a) through (l) of the definition of  “Disposition” are not restricted or limited by this Section 8.05.  8.06 Restricted Payments.  Make, directly or indirectly, any Restricted Payment, or incur any obligation (including  contingent obligations to the extent the satisfaction of the contingencies is solely under the control of the  Borrower or any of its Subsidiaries) to do so, except that:  (a) each Loan Party may declare and make Restricted Payments to any other Loan  Party, and each Subsidiary that is not a Loan Party may declare and make Restricted Payments to  any other Subsidiary that is not a Loan Party;  (b) the Borrower and each Subsidiary may declare and make dividend payments or  other Restricted Payments payable solely in Equity Interests (other than Disqualified Equity  Interests) of such Person;  (c) the Borrower and any Subsidiary may make cash dividends, distributions or other  Restricted Payments to Persons that own Equity Interests therein, ratably according to their  respective holdings of the type of Equity Interests in which such Restricting Payment is being  made; provided, that, for the purpose of this clause (c) with respect to Restricted Payments by the  Borrower (x) no Default or Event of Default has occurred and is continuing at the time such  dividend, distribution or other Restricted Payment is declared or paid, (y) the Consolidated  Leverage Ratio would be less than 3.25:1.0 on a Pro Forma Basis after giving effect to such  





 






  98  CHAR1\1834980v7  Restricted Payment, and (z) the Loan Parties shall be in compliance at such time on a Pro Forma  Basis with the financial covenant set forth in Section 8.11(b); and  (d) the Borrower may make Permitted Tax Distributions.  8.07 Change in Nature of Business.  Engage in any material line of business substantially different from those lines of business  conducted by the Borrower and its Subsidiaries on the Closing Date or any business reasonably related or  ancillary thereto.  8.08 Transactions with Affiliates.  Enter into or permit to exist any transaction or series of transactions with any Affiliate of such  Person other than (a) advances of working capital to any Loan Party, (b) transfers of cash and assets to  any Loan Party, (c) transactions between or among the Borrower and any of its Subsidiaries (or between  any such Subsidiaries) expressly permitted by Section 8.02, Section 8.03, Section 8.04, Section 8.05 or  Section 8.06, (d) transaction (i) among Loan Parties or (ii) among Subsidiaries of the Borrower that are  not Loan Parties, (e) normal and reasonable compensation and reimbursement of expenses and  indemnification arrangements and benefit plans for current or former officers and directors (or persons in  similar positions), (f) the issuance of Equity Interests by the Borrower to its equityholders, (g) the making  of capital contributions by Enterprises or any of its Affiliates to the Borrower or any of its Subsidiaries,  (h) the transfer of employees to the Borrower, (i) the license of trade or business names or marks in the  ordinary course of business to or from the Borrower or any Subsidiary thereof or to any Affiliate thereof,  and (j) except as otherwise specifically limited in this Agreement, other transactions which are on terms  and conditions substantially as favorable to such Person as would be obtainable by it in a comparable  arms-length transaction with a Person other than an Affiliate.  8.09 Burdensome Agreements.  Except as set forth in the Organization Documents of the Borrower as of the Closing Date (with  such amendments, modifications or changes thereto that are not materially adverse to the Lenders), enter  into, or permit to exist, any Contractual Obligation that (a) encumbers or restricts the ability of any such  Person to (i) make Restricted Payments to any Loan Party, (ii) pay any Indebtedness or other obligation  owed to any Loan Party, (iii) make loans or advances to any Loan Party, (iv) transfer any of its property  to any Loan Party, (v) pledge its property pursuant to the Loan Documents or any renewals, refinancings,  exchanges, refundings or extension thereof or (vi) act as a Loan Party pursuant to the Loan Documents or  any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of any of the  matters referred to in clauses (i)-(v) above) for (1) this Agreement and the other Loan Documents, (2) any  document or instrument governing Indebtedness incurred pursuant to Section 8.03(b), (d) and (e),  provided that any such restriction contained therein relates only to the asset or assets constructed or  acquired in connection therewith, (3) any Permitted Lien or any document or instrument governing any  Permitted Lien, provided that any such restriction contained therein relates only to the asset or assets  subject to such Permitted Lien, (4) customary restrictions and conditions contained in any agreement  relating to the sale of any property permitted under Section 8.05 pending the consummation of such sale,  (5) encumbrances or restrictions that are customary restrictions on leases, sublicenses, licenses or asset  sale agreements otherwise permitted under this Agreement or (6) encumbrances or restrictions that are  customary provisions restricting the assignment of any agreement entered into in the ordinary course of  business.  8.10 Use of Proceeds.  





 






  99  CHAR1\1834980v7  Use the proceeds of any Credit Extension, whether directly or indirectly, and whether  immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of  Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin  stock or to refund indebtedness originally incurred for such purpose.  8.11 Financial Covenants.  (a) Consolidated Leverage Ratio.  Permit the Consolidated Leverage Ratio as of the  end of each fiscal quarter of the Borrower, commencing with the fiscal quarter ending December  31, 2021, to be greater than 3.25:1.0; provided, however, during the Specified Capital Expansion  Holiday, the Loan Parties shall not permit the Consolidated Leverage Ratio as of the end of each  fiscal quarter of the Borrower to be greater than 3.75:1.00.  (b) Consolidated Interest Coverage Ratio.  Permit the Consolidated Interest  Coverage Ratio as of the end of any fiscal quarter of the Borrower, commencing with the fiscal  quarter ending December 31, 2021, to be less than 3.00:1.00.  8.12 Organization Documents; Fiscal Year; Changes in Accounting Policy; Legal Name, State  of Formation and Form of Entity.  (a) Amend, modify or change its Organization Documents in a manner materially  adverse to the Lenders, other than amendments, modifications or changes in connection with  capital contributions or the authorization or issuance of Equity Interests (other than any  Disqualified Equity Interests).  (b) Change its fiscal year.  (c) Make any change in accounting policies or reporting practices, except as required  by GAAP or applicable Law.  (d) In the case of any Loan Party, without providing ten (10) days prior written  notice to the Administrative Agent (or such lesser period as the Administrative Agent may agree),  change such Loan Party’s name, state of formation or form of organization.  8.13 Ownership of Subsidiaries.  Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person  (other than the Borrower or any Wholly Owned Subsidiary) to own any Equity Interests of any  Subsidiary, except to qualify directors where required by applicable Law or to satisfy other requirements  of applicable Law with respect to the ownership of Equity Interests of Foreign Subsidiaries, or (b) permit  any Subsidiary to issue or have outstanding any shares of Disqualified Equity Interests, except, in each  case, to the extent set forth on Schedule 6.13.  8.14 Sale Leasebacks and Securitization Transactions.  Enter into any Sale and Leaseback Transaction or Securitization Transaction.  8.15 Sanctions.  Directly or indirectly, use the proceeds of any Credit Extension or lend, contribute or otherwise  make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund  





 






  100  CHAR1\1834980v7  any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the  time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by  any individual or entity (including any individual or entity participating in the transaction, whether as  Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender or otherwise) of Sanctions.  8.16 Anti-Corruption Laws.  Directly or indirectly use any Credit Extension or the proceeds of any Credit Extension for any  purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery  Act 2010 or other similar anti-corruption legislation in other jurisdictions.  ARTICLE IX    EVENTS OF DEFAULT AND REMEDIES  9.01 Events of Default.  Any of the following shall constitute an Event of Default:  (a) Non-Payment.  Any Loan Party fails to pay (i) when and as required to be paid  herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within three (3)  Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or  any fee due hereunder, or (iii) within five (5) Business Days after the same becomes due, any  other amount payable hereunder or under any other Loan Document; or  (b) Specific Covenants.  (i) Any Loan Party fails to perform or observe any term, covenant or  agreement contained in any of Section 7.01 or 7.02 and such failure continues for five (5)  Business Days; or  (ii) Any Loan Party fails to perform or observe any term, covenant or  agreement contained in any of Section 7.03(a), 7.05(a), 7.07, 7.10, 7.11, 7.14 or Article  VIII of this Agreement; or  (c) Other Defaults.  Any Loan Party fails to perform or observe any other covenant  or agreement (not specified in clause (a) or (b) above) contained in any Loan Document on its  part to be performed or observed and such failure continues for thirty (30) days after the earlier of  (i) the date on which a Responsible Officer of any Loan Party becomes aware of such failure or  (ii) written notice thereof shall have been given to the Borrower by the Administrative Agent; or  (d) Representations and Warranties.  Any representation, warranty, certification or  statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other  Loan Document, or in any document delivered in connection herewith or therewith shall be  incorrect or misleading in any material respect when made or deemed made; or  (e) Cross-Default.  (i) The Borrower or any Material Subsidiary fails to make any  payment when due beyond the applicable grace or cure period (whether by scheduled maturity,  required prepayment, acceleration, demand, or otherwise) in respect of any Material  Indebtedness; (ii) the Borrower or any Subsidiary fails to observe or perform any other agreement  or condition relating to any Material Indebtedness or contained in any instrument or agreement  





 






  101  CHAR1\1834980v7  evidencing, securing or relating thereto, or any other event occurs, the effect of which default or  other event is to cause, or to permit the holder or holders of such Material Indebtedness (or a  trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required,  such Material Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed  (automatically or otherwise) prior to its stated maturity, or an offer to repurchase, prepay, defease  or redeem such Material Indebtedness to be made, prior to its stated maturity; or (iii) there occurs  under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting  from (A) any event of default under such Swap Contract as to which the Borrower or any  Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination  Event (as so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an  Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the  Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount; or  (f) Insolvency Proceedings, Etc.  The Borrower or any Material Subsidiary institutes  or consents to the institution of any proceeding under any Debtor Relief Law, or makes an  assignment for the benefit of creditors; or applies for or consents to the appointment of any  receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all  or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator,  rehabilitator or similar officer is appointed without the application or consent of such Person and  the appointment continues undischarged or unstayed for sixty (60) calendar days; or any  proceeding under any Debtor Relief Law relating to any such Person or to all or any material part  of its property is instituted without the consent of such Person and continues undismissed or  unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or  (g) Inability to Pay Debts; Attachment.  (i) The Borrower or any Material Subsidiary  becomes unable or publicly admits in writing its inability or fails generally to pay its debts as they  become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or  levied against all or substantially all of the property of any such Person and is not released,  vacated or fully bonded within sixty (60) days after its issue or levy; or  (h) Judgments.  There is entered against the Borrower or any Material Subsidiary (i)  one or more final judgments or orders for the payment of money in an aggregate amount (as to all  such judgments or orders) exceeding the Threshold Amount (to the extent not covered by  independent third-party insurance as to which the insurer has been notified of the claim and does  not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could  reasonably be expected to have a Material Adverse Effect and, in either case, (A) enforcement  proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period  of fifteen (15) consecutive days during which a stay of enforcement of such judgment, by reason  of a pending appeal or otherwise, is not in effect; or  (i) ERISA.  (i) An ERISA Event occurs with respect to a Pension Plan or  Multiemployer Plan which has resulted or would reasonably be expected to result in liability of  one or more Loan Parties under Title IV of ERISA to the Pension Plan, Multiemployer Plan or  the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) one or more Loan  Parties or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace  period, any installment payment with respect to its withdrawal liability under Section 4201 of  ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount;  or  (j) Invalidity of Loan Documents.  Any provision of any Loan Document, at any  time after its execution and delivery and for any reason other than as expressly permitted  





 






  102  CHAR1\1834980v7  hereunder or thereunder or satisfaction in full of all the Obligations (other than (x) contingent  indemnification or reimbursement obligations for which no claim has been asserted, (y)  obligations and liabilities under Secured Cash Management Agreements and Secured Hedge  Agreements as to which arrangements reasonably satisfactory to the applicable Cash  Management Bank or Hedge Bank shall have been made and (z) Letters of Credit as to which  other arrangements reasonably satisfactory to the Administrative Agent and the L/C Issuer shall  have been made or that have been Cash Collateralized in the amount of the Minimum Collateral  Amount), ceases to be in full force and effect or ceases to give the Administrative Agent any of  the Liens purported to be created thereby on a material portion of the Collateral; or any Loan  Party contests in any manner the validity or enforceability of any provision of any Loan  Document or the Liens purported to be created thereby; or any Loan Party denies that it has any  or further liability or obligation under any provision of any Loan Document, revokes, terminates  or rescinds, or purports to do so in writing available to the Administrative Agent, any Lender or  any of their Related Parties, any Loan Document; or  (k) Change of Control.  There occurs any Change of Control.  9.02 Remedies Upon Event of Default.  If any Event of Default occurs and is continuing,  (a) the Administrative Agent shall, at the request of, or may, with the consent of, the  Required Lenders, take any or all of the following actions:  (i) declare the commitment of each Lender to make Loans and any  obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon  such commitments and obligation shall be terminated;  (ii) declare the unpaid principal amount of all outstanding Loans, all interest  accrued and unpaid thereon, and all other amounts owing or payable hereunder or under  any other Loan Document to be immediately due and payable, without presentment,  demand, protest or other notice of any kind, all of which are hereby expressly waived by  the Borrower;  (iii) require that the Borrower Cash Collateralize the L/C Obligations (in an  amount equal to the Minimum Collateral Amount with respect thereto); and  (iv) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and  remedies available to it, the Lenders and the L/C Issuer under the Loan Documents or  applicable Law or at equity; and  (b) [reserved];  provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with  respect to the Borrower under Debtor Relief Laws, the obligation of each Lender to make Loans and any  obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid  principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall  automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C  Obligations as aforesaid shall automatically become effective, in each case without further act of the  Administrative Agent, the L/C Issuer or any Lender.  





 






  103  CHAR1\1834980v7  9.03 Application of Funds.  After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically  become immediately due and payable and the L/C Obligations have automatically been required to be  Cash Collateralized as set forth in the proviso to Section 9.02), any amounts received on account of the  Obligations shall, subject to the provisions of Sections 2.14 and 2.15, be applied by the Administrative  Agent in the following order:  First, to payment of that portion of the Obligations constituting fees, indemnities,  expenses and other amounts (including reasonable fees, charges and disbursements of counsel to  the Administrative Agent and amounts payable under Article III) payable to the Administrative  Agent in its capacity as such;  Second, to payment of that portion of the Obligations constituting fees, indemnities and  other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and  the L/C Issuer (including reasonable fees, charges and disbursements of counsel to the respective  Lenders and the L/C Issuer and amounts payable under Article III), ratably among them in  proportion to the respective amounts described in this clause Second payable to them;  Third, to payment of that portion of the Obligations constituting accrued and unpaid  Letter of Credit Fees and interest on the Loans and L/C Borrowings, ratably among the Lenders  and the L/C Issuer in proportion to the respective amounts described in this clause Third payable  to them;  Fourth, to (a) payment of that portion of the Obligations constituting unpaid principal of  the Loans and L/C Borrowings, (b) payment of Obligations then owing under any Secured Hedge  Agreements, (c) payment of Obligations then owing under any Secured Cash Management  Agreements and (d) Cash Collateralize that portion of L/C Obligations comprised of the  aggregate undrawn amount of Letters of Credit, ratably among the Lenders, the L/C Issuer, the  Hedge Banks and the Cash Management Banks in proportion to the respective amounts described  in this clause Fourth held by them; and  Last, the balance, if any, after all of the Obligations (other than (x) contingent  indemnification or reimbursement obligations for which no claim has been asserted, (y)  obligations and liabilities under Secured Cash Management Agreements and Secured Hedge  Agreements as to which arrangements reasonably satisfactory to the applicable Cash  Management Bank or Hedge Bank shall have been made and (z) Letters of Credit as to which  other arrangements reasonably satisfactory to the Administrative Agent and the L/C Issuer shall  have been made or that have been Cash Collateralized in the amount of the Minimum Collateral  Amount) have been paid in full, to the Borrower or as otherwise required by Law.  Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn  amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under  such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters  of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other  Obligations, if any, in the order set forth above.  Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts  received from such Guarantor or such Guarantor’s assets, but appropriate adjustments shall be made with  respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth  above in this Section.  





 






  104  CHAR1\1834980v7  Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements  and Secured Hedge Agreements shall be excluded from the application described above if the  Administrative Agent has not received a Secured Party Designation Notice, together with such supporting  documentation as the Administrative Agent may request, from the applicable Cash Management Bank or  Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank not a party to this  Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be  deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the  terms of Article X for itself and its Affiliates as if a “Lender” party hereto.  ARTICLE X    ADMINISTRATIVE AGENT  10.01 Appointment and Authority.  Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its  behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the  Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to  the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are  reasonably incidental thereto.  The provisions of this Article X are solely for the benefit of the  Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party  shall have rights as a third party beneficiary of any of such provisions.  The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and  each of the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), potential Hedge  Banks and potential Cash Management Banks) and the L/C Issuer hereby irrevocably appoints and  authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of  acquiring, holding and enforcing any and all Liens on Collateral, together with such powers and  discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent, as  “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative  Agent pursuant to Section 10.05 for purposes of holding or enforcing any Lien on the Collateral (or any  portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies  thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions  of this Article X and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and  attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with  respect thereto.  10.02 Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers  in its capacity as a Lender as any other Lender and may exercise the same as though it were not the  Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or  unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder  in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as  the financial advisor or in any other advisory capacity for and generally engage in any kind of business  with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the  Administrative Agent hereunder and without any duty to account therefor to the Lenders.  10.03 Exculpatory Provisions.  





 






  105  CHAR1\1834980v7  (a) The Administrative Agent or the Arranger, as applicable, shall not have any  duties or obligations except those expressly set forth herein and in the other Loan Documents, and  its duties hereunder shall be administrative in nature. Without limiting the generality of the  foregoing, the Administrative Agent or the Arranger, as applicable, and its Related Parties:  (i) shall not be subject to any fiduciary or other implied duties, regardless of  whether a Default or Event of Default has occurred and is continuing;  (ii) shall not have any duty to take any discretionary action or exercise any  discretionary powers, except discretionary rights and powers expressly contemplated  hereby or by the other Loan Documents that the Administrative Agent is required to  exercise as directed in writing by the Required Lenders (or such other number or  percentage of the Lenders as shall be expressly provided for herein or in the other Loan  Documents), provided that the Administrative Agent shall not be required to take any  action that, in its opinion or the opinion of its counsel, may expose the Administrative  Agent to liability or that is contrary to any Loan Document or applicable Law, including  for the avoidance of doubt any action that may be in violation of the automatic stay under  any Debtor Relief Law or that may effect a forfeiture, modification or termination of  property of a Defaulting Lender in violation of any Debtor Relief Law; and  (iii) shall not have any duty or responsibility to disclose, and shall not be  liable for the failure to disclose, to any Lender or the L/C Issuer any credit or other  information concerning the business, prospects, operations, property, financial and other  condition or creditworthiness of any of the Loan Parties or any of their Affiliates that is  communicated to, or in the possession of, the Administrative Agent, Arranger or any of  their Related Parties in any capacity, except for notices, reports and other documents  expressly required to be furnished to the Lenders by the Administrative Agent herein.  (b) Neither the Administrative Agent nor any of its Related Parties shall be liable for  any action taken or not taken by the Administrative Agent under or in connection with this  Agreement or any other Loan Document or the transactions contemplated hereby or thereby  (i) with the consent or at the request of the Required Lenders (or such other number or percentage  of the Lenders as shall be necessary), or as the Administrative Agent shall believe in good faith  shall be necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the  absence of its own gross negligence or willful misconduct as determined by a court of competent  jurisdiction by final and non-appealable judgment. The Administrative Agent shall be deemed not  to have knowledge of any Default or Event of Default unless and until notice describing such  Default or Event of Default is given in writing to the Administrative Agent by a Loan  Party, a  Lender or the L/C Issuer.  (c) Neither the Administrative Agent nor any of its Related Parties have any duty or  obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any  statement, warranty or representation made in or in connection with this Agreement or any other  Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder  or thereunder or in connection herewith or therewith, (iii) the performance or observance of any  of the covenants, agreements or other terms or conditions set forth herein or therein or the  occurrence of any Default 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 the creation, perfection or priority of any Lien purported to be created by the  Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of  





 






  106  CHAR1\1834980v7  any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items  expressly required to be delivered to the Administrative Agent.  10.04 Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for  relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing  (including any electronic message, Internet or intranet website posting or other distribution) believed by it  to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The  Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by  it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In  determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension,  renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender  or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such  Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from  such Lender or the L/C Issuer prior to the making of such Loan or the issuance, extension, renewal or  increase of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be  counsel for the Loan Parties), independent accountants and other experts selected by it, and shall not be  liable for any action taken or not taken by it in accordance with the advice of any such counsel,  accountants or experts.  10.05 Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers  hereunder or under any other Loan Document by or through any one or more sub agents appointed by the  Administrative Agent.  The Administrative Agent and any such sub agent may perform any and all of its  duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory  provisions of this Article X shall apply to any such sub agent and to the Related Parties of the  Administrative Agent and any such sub agent, and shall apply to their respective activities in connection  with the syndication of the credit facilities provided for herein as well as activities as Administrative  Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any sub- agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable  judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection  of such sub-agents.  10.06 Resignation or Removal of Administrative Agent.  The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C  Issuer and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have  the right, with approval from the Borrower (so long as no Event of Default has occurred and is  continuing), to appoint a successor, such approval not to be unreasonably withheld or delayed.  If no such  successor shall have been so appointed by the Required Lenders and shall have accepted such  appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation  (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then  the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders and the  L/C Issuer, appoint a successor Administrative Agent; provided that in no event shall any such successor  Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such  resignation shall become effective in accordance with such notice on the Resignation Effective Date.  If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the  definition thereof, the Required Lenders may, to the extent permitted by applicable Law, by notice in  





 






  107  CHAR1\1834980v7  writing to the Borrower and such Person remove such Person as Administrative Agent and, with the  approval from the Borrower (so long as no Event of Default has occurred and is continuing), appoint a  successor, such approval not to be unreasonably withheld or delayed. If no such successor shall have been  so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days  (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then  such removal shall nonetheless become effective in accordance with such notice on the Removal  Effective Date.  With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i)  the retiring or removed Administrative Agent shall be discharged from its duties and obligations  hereunder and under the other Loan Documents (except that in the case of any collateral security held by  the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents,  the retiring or removed Administrative Agent shall continue to hold such collateral security until such  time as a successor Administrative Agent is appointed) and (ii) all payments, communications and  determinations provided to be made by, to or through the Administrative Agent shall instead be made by  or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor  Administrative Agent as provided for above in this Section 10.06.  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) or removed Administrative  Agent, and the retiring or removed Administrative Agent shall be discharged from all of its duties and  obligations hereunder or under the other Loan Documents (if not already discharged therefrom as  provided above in this Section).  The fees payable by the Borrower to a successor Administrative Agent  shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and  such successor.  After the retiring or removed Administrative Agent’s resignation hereunder and under  the other Loan Documents, the provisions of this Article X and Section 11.04 shall continue in effect for  the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related  Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed  Administrative Agent was acting as Administrative Agent.  If Bank of America resigns as Administrative Agent under this Section 10.06, Bank of America  shall also resign as an L/C Issuer.  Upon the appointment of a successor Administrative Agent hereunder,  such successor shall (i) succeed to all of the rights, powers, privileges and duties of Bank of America as  the retiring L/C Issuer and Administrative Agent and Bank of America shall be discharged from all of its  respective duties and obligations as L/C Issuer and Administrative Agent under the Loan Documents, and  (ii) issue letters of credit in substitution for the Letters of Credit issued by Bank of America, if any,  outstanding at the time of such succession or make other arrangement reasonably satisfactory to Bank of  America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.  10.07 Non-Reliance on Administrative Agent, the Arranger and the Other Lenders.  Each Lender and the L/C Issuer expressly acknowledges that none of the Administrative Agent  nor the Arranger has made any representation or warranty to it, and that no act by the Administrative  Agent or the Arranger hereafter taken, including any consent to, and acceptance of any assignment or  review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any  representation or warranty by the Administrative Agent or the Arranger to any Lender or the L/C Issuer as  to any matter, including whether the Administrative Agent or the Arranger have disclosed material  information in their (or their Related Parties’) possession.  Each Lender and the L/C Issuer represents to  the Administrative Agent and the Arranger that it has, independently and without reliance upon the  Administrative Agent, the Arranger, any other Lender or any of their Related Parties and based on such  documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of,  and investigation into, the business, prospects, operations, property, financial and other condition and  





 






  108  CHAR1\1834980v7  creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory  Laws relating to the transactions contemplated hereby, and made its own decision to enter into this  Agreement and to extend credit to the Borrower hereunder. Each Lender and the L/C Issuer also  acknowledges that it will, independently and without reliance upon the Administrative Agent, the  Arranger, any other Lender or any of their Related Parties and based on such documents and information  as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and  decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or  any related agreement or any document furnished hereunder or thereunder, and to make such  investigations as it deems necessary to inform itself as to the business, prospects, operations, property,  financial and other condition and creditworthiness of the Loan Parties.  Each Lender and the L/C Issuer  represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility  and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is  entering into this Agreement as a Lender or L/C Issuer for the purpose of making, acquiring or holding  commercial loans and providing other facilities set forth herein as may be applicable to such Lender or  L/C Issuer, and not for the purpose of purchasing, acquiring or holding any other type of financial  instrument, and each Lender and the L/C Issuer agrees not to assert a claim in contravention of the  foregoing.  Each Lender and the L/C Issuer represents and warrants that it is sophisticated with respect to  decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as  may be applicable to such Lender or such L/C Issuer, and either it, or the Person exercising discretion in  making its decision to make, acquire and/or hold such commercial loans or to provide such other  facilities, is experienced in making, acquiring or holding such commercial loans or providing such other  facilities.  10.08 No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the agents, arrangers or bookrunners  listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or  any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a  Lender or the L/C Issuer hereunder.  10.09 Authorization to Release Collateral and Guarantors.  The Lenders and L/C Issuer authorize the Administrative Agent to release any Lien held by the  Administrative Agent on any Collateral or any Guarantor from its obligations under the Guaranty in  accordance with the provisions of Section 11.19 and to execute and deliver any instruments, documents,  and agreements necessary or desirable to evidence and confirm the release of any Collateral or Guarantor  pursuant to Section 11.19 all without the further consent or joinder of any Lender. Upon request by the  Administrative Agent at any time, the Lenders (or such other percentage or the Lenders whose consent  may be required in accordance with Section 11.01) will confirm in writing the Administrative Agent’s  authority to release its interest in particular types or items of property, or to release any Guarantor from its  obligations under the Guaranty pursuant to this Section 10.09 and Section 11.19.  10.10 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 Patriot Act or the regulations thereunder, including the regulations contained in  31 CFR 103.121 (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 Loan Parties, their  Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (i)  





 






  109  CHAR1\1834980v7  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.  10.11 Secured Cash Management Agreements and Secured Hedge Agreements.  No Cash Management Bank or Hedge Bank that obtains the benefit of Section 9.03, the Guaranty  or any Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to  notice of any action or to consent to, direct or object to any action hereunder or under any other Loan  Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral)  (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the  Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the  extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article X  to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other  satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash  Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein  and unless the Administrative Agent has received a Secured Party Designation Notice of such  Obligations, together with such supporting documentation as the Administrative Agent may request, from  the applicable Cash Management Bank or Hedge Bank, as the case may be.  The Administrative Agent  shall not be required to verify the payment of, or that other satisfactory arrangements have been made  with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge  Agreements in the case of a Maturity Date.  10.12 Recovery of Erroneous Payments.   Without limitation of any other provision in this Agreement, if at any time the Administrative  Agent makes a payment hereunder in error to any Lender Recipient Party, whether or not in respect of an  Obligation due and owing by the Borrower at such time, where such payment is a Rescindable Amount,  then in any such event, each Lender Recipient Party receiving a Rescindable Amount severally agrees to  repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender  Recipient Party in immediately available funds in the currency so received, with interest thereon, for each  day from and including the date such Rescindable Amount is received by it to but excluding the date of  payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by  the Administrative Agent in accordance with banking industry rules on interbank compensation. Each  Lender Recipient Party irrevocably waives any and all defenses, including any “discharge for value”  (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in  respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount.  The Administrative Agent shall inform each Lender Recipient Party promptly upon determining that any  payment made to such Lender Recipient Party comprised, in whole or in part, a Rescindable Amount.  ARTICLE XI    MISCELLANEOUS  11.01 Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Loan Document, and  no consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by  the Required Lenders and the applicable Loan Party, and acknowledged by the Administrative Agent  (which acknowledgment shall not be unreasonably withheld, conditioned or delayed), and each such  waiver or consent shall be effective only in the specific instance and for the specific purpose for which  given; provided, however, that  





 






  110  CHAR1\1834980v7  (a) no such amendment, waiver or consent shall:  (i) extend or increase the Revolving Commitment of any Lender (or  reinstate any Revolving Commitment terminated pursuant to Section 9.02) without the  written consent of such Lender (it being understood and agreed that a waiver of any  condition precedent set forth in Section 5.02 or of any Default or a mandatory reduction  in Revolving Commitments is not considered an extension or increase in Revolving  Commitments of any Lender);  (ii) postpone any date fixed by this Agreement or any other Loan Document  for any payment (excluding mandatory prepayments) of principal, interest, fees or other  amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of  the Revolving Commitments hereunder or under any other Loan Document without the  written consent of each Lender directly affected thereby;  (iii) reduce (including any waiver or forgiveness of) the principal of, or the  rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (i)  of the final proviso to this Section 11.01) any fees or other amounts payable hereunder or  under any other Loan Document without the written consent of each Lender entitled to  receive such amount; provided, however, that only the consent of the Required Lenders  shall be necessary (A) to amend the definition of “Default Rate” or to waive any  obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or  (B) to amend any financial covenant hereunder (or any defined term used therein) even if  the effect of such amendment would be to reduce the rate of interest on any Loan or L/C  Borrowing or to reduce any fee payable hereunder;  (iv) change Section 9.03, Section 2.05(b)(ii) or Section 2.13 in a manner that  would alter the pro rata sharing of payments required thereby without the written consent  of each Lender;  (v) change any provision of this Section 11.01(a) or the definition of  “Required Lenders” without the written consent of each Lender;  (vi) release all or substantially all of the Collateral without the written  consent of each Lender;  (vii) release the Borrower without the consent of each Lender, or, except in  connection with a transaction permitted under Section 8.04 or Section 8.05, all or  substantially all of the value of the Guaranty without the written consent of each Lender,  except to the extent such release is permitted pursuant to Section 10.09 (in which case  such release may be made by the Administrative Agent acting alone);  (b) unless also signed by the L/C Issuer, no amendment, waiver or consent shall  affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating  to any Letter of Credit issued or to be issued by it;  (c) unless also signed by the Swing Line Lender, no amendment, waiver or consent  shall affect the rights or duties of the Swing Line Lender under this Agreement; and  





 






  111  CHAR1\1834980v7  (d) unless also signed by the Administrative Agent, no amendment, waiver or  consent shall affect the rights or duties of the Administrative Agent under this Agreement or any  other Loan Document;  provided, however, that notwithstanding anything to the contrary herein, (i) the Fee Letter may be  amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (ii)  no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent  hereunder (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 (A) the Revolving Commitment of such Defaulting Lender may not be increased or  extended without the consent of such Lender and (B) any waiver, amendment or modification requiring  the consent of all Lenders or each affected Lender that by its terms affects such Defaulting Lender  materially and disproportionately adversely relative to other affected Lenders shall require the consent of  such Defaulting Lender, (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy  reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of  Section 1126(c) of the Debtor Relief Laws supersedes the unanimous consent provisions set forth herein,  (iv) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in  the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of  the Lenders and (v) this Agreement may be amended pursuant to Section 11.06(g) without any such  approval or consent of the Required Lenders.  (e) Notwithstanding any provision herein to the contrary, this Agreement may be  amended with the written consent of the Required Lenders, the Administrative Agent and the  Loan Parties (i) to add one or more additional revolving or term loan credit facilities to this  Agreement and to permit the extensions of credit and all related obligations and liabilities arising  in connection therewith from time to time outstanding to share ratably (or on a basis subordinated  to the existing facilities hereunder) in the benefits of this Agreement and the other Loan  Documents with the obligations and liabilities from time to time outstanding in respect of the  existing facilities hereunder, (ii) in connection with the foregoing, to permit, as deemed  appropriate by the Administrative Agent and approved by the Required Lenders, the Lenders  providing such additional credit facilities to participate in any required vote or action required to  be approved by the Required Lenders or by any other number, percentage or class of Lenders  hereunder, (iii) in connection with Section 2.01(b), and (iv) to change, modify or alter Section  9.03 or any other provision hereof relating to the pro rata sharing of payments among the Lenders  to the extent necessary to effectuate any of the amendments (or amendments and restatements)  enumerated in clause (i), (ii) or (iii) of this clause (e).  (f) Notwithstanding anything to the contrary herein, this Agreement may be  amended and restated without the consent of any Lender (but with the consent of the Borrower  and the Administrative Agent) if, upon giving effect to such amendment and restatement, such  Lender shall no longer be a party to this Agreement (as so amended and restated), the  Commitments of such Lender shall have terminated, such Lender shall have no other commitment  or other obligation hereunder and shall have been paid in full all principal, interest and other  amounts owing to it or accrued for its account under this Agreement.  (g) Notwithstanding any provision herein to the contrary, if the Administrative  Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical  error or other defect in any provision of this Agreement or any other Loan Document (including  the schedules and exhibits thereto), then the Administrative Agent and the Borrower shall be  permitted to amend, modify or supplement such provision to cure such ambiguity, omission,  





 






  112  CHAR1\1834980v7  mistake, typographical error or other defect, and such amendment shall become effective without  any further action or consent of any other party to this Agreement.  11.02 Notices; Effectiveness; Electronic Communications.  (a) Notices Generally.  Except in the case of notices and other communications  expressly permitted to be given by telephone (and except as provided in clause (b) below), all  notices and other communications provided for herein shall be in writing and shall be delivered  by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or  electronic mail as follows, and all notices and other communications expressly permitted  hereunder to be given by telephone shall be made to the applicable telephone number, as follows:  (i) if to any Loan Party, the Administrative Agent, the L/C Issuer or the  Swing Line Lender, to the address, facsimile number, electronic mail address or  telephone number specified for such Person on Schedule 11.02; and  (ii) if to any other Lender, to the address, facsimile number, electronic mail  address or telephone number specified in its Administrative Questionnaire (including, as  appropriate, notices delivered solely to the Person designated by a Lender on its  Administrative Questionnaire then in effect for the delivery of notices that may contain  material non-public information relating to the Borrower).  Notices and other communications sent by hand or overnight courier service, or mailed by  certified or registered mail, shall be deemed to have been given when received; notices and other  communications sent by facsimile shall be deemed to have been given when sent (except that, if not given  during normal business hours for the recipient, shall be deemed to have been given at the opening of  business on the next Business Day for the recipient).  Notices and other communications delivered  through electronic communications to the extent provided in clause (b) below, shall be effective as  provided in such clause (b).  This Agreement was prepared by:  Moore & Van Allen PLLC  100 North Tryon Street  Suite 4700  Charlotte, NC 28202-4003  Attention: Charles Harris  Phone: 704-331-1141  E-mail: charlesharris@mvalaw.com  (b) Electronic Communications.  Notices and other communications to the Lenders  and the L/C Issuer hereunder may be delivered or furnished by electronic communication  (including e-mail and Internet or intranet websites) pursuant to procedures approved by the  Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the  L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the  Administrative Agent that it is incapable of receiving notices under such Article by electronic  communication.  The Administrative Agent, the Swing Line Lender, the L/C Issuer or the  Borrower may each, in its discretion, agree to accept notices and other communications to it  hereunder by electronic communications pursuant to procedures approved by it, provided that  approval of such procedures may be limited to particular notices or communications.  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  





 






  113  CHAR1\1834980v7  intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other  written acknowledgement) and (ii) notices or communications posted to an Internet or intranet website  shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as  described in the foregoing clause (i) of notification that such notice or communication is available and  identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or  other communication is not sent during the normal business hours of the recipient, such notice, email or  communication shall be deemed to have been sent at the opening of business on the next Business Day for  the recipient.  (c) The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS  AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE  ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY  OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY  OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER  CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE  BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent  or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Loan  Party, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or  expenses of any kind (whether in tort, contract or otherwise) arising out of any Loan Party’s or  the Administrative Agent’s transmission of Borrower Materials, notices or any other Information  (as such term is defined and used in Section 11.07) 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 nonappealable judgment to have resulted from the bad faith, gross  negligence or willful misconduct of such Agent Party.  The Administrative Agent will use  commercially reasonable efforts to notify any Person that is provided access to Borrower  Materials that such Person is bound by the confidentiality provisions set forth in Section 11.07.  (d) Change of Address, Etc.  Each Loan Party, the Administrative Agent, the L/C  Issuer and the Swing Line Lender may change its address, facsimile, email address or telephone  number for notices and other communications hereunder by notice to the other parties hereto.   Each other Lender may change its address, facsimile or telephone number for notices and other  communications hereunder by notice to each Loan Party, the Administrative Agent, the L/C  Issuer and the Swing Line Lender.  In addition, each Lender agrees to notify the Administrative  Agent from time to time to ensure that the Administrative Agent has on record (i) an effective  address, contact name, telephone number, facsimile number and electronic mail address to which  notices and other communications may be sent and (ii) accurate wire instructions for such Lender.   Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such  Public Lender to at all times have selected the “Private Side Information” or similar designation  on the content declaration screen of the Platform in order to enable such Public Lender or its  delegate, in accordance with such Public Lender’s compliance procedures and applicable Law,  including United States Federal and state securities Laws, to make reference to Borrower  Materials that are not made available through the “Public Side Information” portion of the  Platform and that may contain material non-public information with respect to the Borrower or its  securities for purposes of United States Federal or state securities laws.  (e) Reliance by Administrative Agent, L/C Issuer and Lenders.  The Administrative  Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including  telephonic or electronic Loan Notices, Notices of Loan Prepayment, Letter of Credit Applications  





 






  114  CHAR1\1834980v7  and Swing Line Loan Notices) purportedly given by or on behalf of any Loan Party even if (i)  such notices were not made in a manner specified herein, were incomplete or were not preceded  or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood  by the recipient, varied from any confirmation thereof.  The Loan Parties shall indemnify the  Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from  all reasonable and documented out of pocket costs, reasonable and documented out-of-pocket  expenses and liabilities resulting from the reliance by such Person on each notice purportedly  given by or on behalf of a Loan Party to the extent required pursuant to Section 11.04(b).  All  telephonic notices to and other telephonic communications with the Administrative Agent may be  recorded by the Administrative Agent, and each of the parties hereto hereby consents to such  recording.  11.03 No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by  any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan  Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,  power or privilege hereunder or under any other Loan Document (including the imposition of the Default  Rate) 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.  Notwithstanding anything to the contrary contained herein or in any other Loan Document, the  authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan  Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection  with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in  accordance with Section 9.02 for the benefit of all the Lenders and the L/C Issuer; provided, however,  that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the  rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and  under the other Loan Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights  and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the  case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff  rights in accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from  filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a  proceeding relative to any Loan Party under any Debtor Relief Law; and provided further, that if at any  time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents,  then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent  pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the  preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders,  enforce any rights and remedies available to it and as authorized by the Required Lenders.  The provisions  of this paragraph are for the sole benefit of the Lenders and the L/C Issuer and shall not afford any right  to, or constitute a defense available to, any Loan Party.  11.04 Expenses; Indemnity; Damage Waiver.  (a) Costs and Expenses.  The Loan Parties shall pay (i) all reasonable and  documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates  (including the reasonable and documented out-of-pocket fees, charges and disbursements of one  primary outside counsel (at any given time) for the Administrative Agent) in connection with the  syndication of the credit facilities provided for herein, the preparation, negotiation, execution,  





 






  115  CHAR1\1834980v7  delivery and administration of this Agreement and the other Loan Documents or any  amendments, modifications or waivers of the provisions hereof or thereof (whether or not the  transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and  documented out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance,  amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder  and (iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative  Agent, any Lender or the L/C Issuer (including the reasonable and documented out-of-pocket  fees, charges and disbursements of one primary outside counsel and one local counsel in each  relevant jurisdiction for the Administrative Agent, any Lender or the L/C Issuer taken as a whole  and, in the case of an actual or potential conflict of interest, one additional counsel in each  relevant jurisdiction to each group of affected Administrative Agent and/or Lender(s) similarly  situated taken as a whole) in connection with the enforcement or protection of its rights (A) in  connection with this Agreement and the other Loan Documents, including its rights under this  Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder,  including all such out-of-pocket expenses incurred during any workout, restructuring or  negotiations in respect of such Loans or Letters of Credit.  (b) The Loan Parties shall indemnify the Administrative Agent (and any sub-agent  thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons  (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless  from, any and all losses, claims, damages, liabilities and related reasonable and documented out- of-pocket costs and expenses (including the reasonable and documented out-of-pocket fees,  charges and disbursements of one primary outside counsel and one local counsel in each relevant  jurisdiction for the Indemnitees taken as a whole and, in the case of an actual or potential conflict  of interest, one additional counsel in each relevant jurisdiction to each group of affected  Indemnitees similarly situated taken as a whole) incurred by any Indemnitee or asserted against  any Indemnitee by any Person (including any Loan Party) other than such Indemnitee and its  Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of  this Agreement, any other Loan Document or any agreement or instrument contemplated hereby  or thereby, the performance by the parties hereto of their respective obligations hereunder or  thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case  of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the  administration of this Agreement and the other Loan Documents (including in respect of any  matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of  the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment  under a Letter of Credit if the documents presented in connection with such demand do not  strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or  release of Hazardous Materials on or from any property owned or operated by the Borrower or  any Subsidiary, or any Environmental Liability related in any way to the Borrower or any  Subsidiary, 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 any Loan Party, 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 costs and expenses (x) are determined by a court of  competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith,  gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by any  Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations  hereunder or under any other Loan Document, if such Loan Party has obtained a final and  nonappealable judgment in its favor on such claim as determined by a court of competent  jurisdiction or (z) result solely from a claim brought by an Indemnitee against another  Indemnitee.  Without limiting the provisions of Section 3.01(c), this Section 11.04(b) shall not  





 






  116  CHAR1\1834980v7  apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc.  arising from any non-Tax claim.  No Indemnitee will consent to any settlement of any claim  made under this Section 11.04 without the consent of the Borrower (which consent will not be  unreasonably withheld, conditioned or delayed).  (c) Reimbursement by Lenders.  To the extent that the Loan Parties for any reason  fail to indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by  them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swing Line  Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the  Administrative Agent (or any such sub-agent), the L/C Issuer, the Swing Line Lender or such  Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the  applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share  of the Total Credit Exposures of all Lenders at such time) of such unpaid amount (including any  such unpaid amount in respect of a claim asserted by such Lender), such payment to be made  severally among them based on such Lenders’ Applicable Percentage (determined as of the time  that the applicable unreimbursed expense or indemnity payment is sought), provided, further that,  the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the  case may be, was incurred by or asserted against the Administrative Agent (or any such sub- agent), the L/C Issuer or the Swing Line Lender in its capacity as such, or against any Related  Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the  L/C Issuer or the Swing Line Lender in connection with such capacity.  The obligations of the  Lenders under this clause (c) are subject to the provisions of Section 2.12(d).  (d) Waiver of Consequential Damages, Etc.  To the fullest extent permitted by  applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, and  acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of  liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual  damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan  Document or any agreement or instrument contemplated hereby, the transactions contemplated  hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee  shall be liable for any damages arising from the use by unintended recipients of any information  or other materials distributed to such unintended recipients by such Indemnitee through  telecommunications, electronic or other information transmission systems in connection with this  Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other  than for direct or actual damages resulting from the gross negligence or willful misconduct of  such Indemnitee as determined by a final and nonappealable judgment of a court of competent  jurisdiction.  (e) Payments.  All amounts due under this Section shall be payable not later than ten  (10) Business Days after demand therefor.  (f) Survival.  The agreements in this Section and the indemnity provisions of Section  11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swing  Line Lender, the replacement of any Lender, the termination of the Revolving Commitments and  the repayment, satisfaction or discharge of all the other Obligations.  11.05 Payments Set Aside.  To the extent that any payment by or on behalf of any Loan Party is made to the Administrative  Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises  its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently  





 






  117  CHAR1\1834980v7  invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any  settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be  repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief  Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended  to be satisfied shall be revived and continued in full force and effect as if such payment had not been  made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to  the Administrative Agent upon demand its applicable share (without duplication) of any amount so  recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand  to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in  effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall  survive the payment in full of the Obligations and the termination of this Agreement.  11.06 Successors and Assigns.  (a) Successors and Assigns Generally.  The provisions of this Agreement and the  other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and  thereto and their respective successors and assigns permitted hereby, except that no Loan Party  (except for any Loan Party (other than Borrower) in connection with the release of its Guaranty  pursuant to Section 11.01(a)) may assign or otherwise transfer any of its rights or obligations  hereunder or thereunder 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 clause (b) of this Section, (ii) by  way of participation in accordance with the provisions of clause (d) of this Section or (iii) by way  of pledge or assignment of a security interest subject to the restrictions of clause (f) of this  Section (and any other attempted assignment or transfer by any party hereto shall be null and  void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any  Person (other than the parties hereto, their respective successors and assigns permitted hereby,  Participants to the extent provided in clause (d) of this Section and, to the extent expressly  contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and  the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.  (b) Assignments by Lenders.  Any Lender may at any time assign to one or more  assignees all or a portion of its rights and obligations under this Agreement and the other Loan  Documents (including all or a portion of its Revolving Commitment and the Loans (including for  purposes of this clause (b), participations in L/C Obligations and in Swing Line 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 Revolving Commitment and the related Loans at the  time owing to it or contemporaneous assignments to related Approved Funds  that equal at least the amount specified in clause (b)(i)(B) of this Section in the  aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender  or an Approved Fund, no minimum amount need be assigned; and  (B) in any case not described in clause (b)(i)(A) of this Section, the  aggregate amount of the Revolving Commitment (which for this purpose  includes Loans outstanding thereunder) or, if the applicable Revolving  Commitment is not then in effect, the principal outstanding balance of the  Loans of the assigning Lender subject to each such assignment, determined as  





 






  118  CHAR1\1834980v7  of the date the Assignment and Assumption with respect to such assignment is  delivered to the Administrative Agent or, if “Trade Date” is specified in the  Assignment and Assumption, as of the Trade Date, shall not be less than  $5,000,000, unless each of the Administrative Agent and, so long as no Event  of Default has occurred and is continuing, the 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 Loans and Revolving  Commitments, and rights and obligations with respect thereto assigned, except that this  clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect  of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its  rights and obligations in respect of its Revolving Commitment (and the related Revolving  Loans thereunder) on a non-pro rata basis;  (iii) Required Consents.  No consent shall be required for any assignment  except to the extent required by clause (b)(i)(B) of this Section and, in addition:  (A) the consent of the Borrower (such consent not to be  unreasonably withheld, conditioned or delayed) shall be required unless (1) an  Event of Default has occurred and is continuing at the time of such assignment  or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved  Fund; provided that the Borrower shall be deemed to have consented to any  such assignment unless it shall object thereto by written notice to the  Administrative Agent within ten (10) Business Days after having received  notice thereof;  (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld, conditioned or delayed) shall be required for  assignments in respect of any Revolving Commitment if such assignment is to a  Person that is not a Lender, an Affiliate of such Lender or an Approved Fund  with respect to such Lender; and  (C) the consent of the L/C Issuer and the Swing Line Lender shall be  required for any assignment in respect of Revolving Loans and Revolving  Commitments.  (iv) Assignment and Assumption.  The parties to each assignment shall  execute and deliver to the Administrative Agent an Assignment and Assumption, together  with a processing and recordation fee in the amount of $3,500; provided, however, that  the Administrative Agent may, in its sole discretion, elect to waive such processing and  recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall  deliver to the Administrative Agent an Administrative Questionnaire.  (v) No Assignment to Certain Persons.  No such assignment shall be made  (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any  Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender  hereunder, would constitute any of the foregoing Persons described in this clause (B), (C)  to a natural Person (or a holding company, investment vehicle or trust for, or owned and  operated for the primary benefit of a natural Person) or (D) to any Competitor.  If the  





 






  119  CHAR1\1834980v7  Borrower approves an assignment to a Competitor, then such assignee will not be  considered a “Competitor” solely for purposes of that assignment.  (vi) Certain Additional Payments.  In connection with any assignment of  rights and obligations of any Defaulting Lender hereunder, no such assignment shall be  effective unless and until, in addition to the other conditions thereto set forth herein, the  parties to the assignment shall make such additional payments to the Administrative  Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which  may be outright payment, purchases by the assignee of participations or  subparticipations, or other compensating actions, including funding, with the consent of  the Borrower and the Administrative Agent, the applicable pro rata share of Loans  previously requested but not funded by the Defaulting Lender, to each of which the  applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in  full all payment liabilities then owed by such Defaulting Lender to the Administrative  Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y)  acquire (and fund as appropriate) its full pro rata share of all Loans and participations in  Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage.   Notwithstanding the foregoing, in the event that any assignment of rights and obligations  of any Defaulting Lender hereunder shall become effective under applicable Law without  compliance with the provisions of this paragraph, then the assignee of such interest shall  be deemed to be a Defaulting Lender for all purposes of this Agreement until such  compliance occurs.  Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this  Section, from and after the effective date specified in each Assignment and Assumption, the assignee  thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such  Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the  assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and  Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment  and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such  Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01,  3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such  assignment); provided, that except to the extent otherwise expressly agreed by the affected parties, no  assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder  arising from that Lender’s having been a Defaulting Lender.  Upon request, the Borrower (at its expense)  shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights  or obligations under this Agreement that does not comply with this clause 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 clause (d) of this Section.  (c) Register.  The Administrative Agent, acting solely for this purpose as an agent of  the Borrower (and such agency being solely for tax purposes), shall maintain at the  Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the  equivalent thereof in electronic form) and a register for the recordation of the names and  addresses of the Lenders, and the Revolving Commitments of, and principal amounts (and stated  interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof  from time to time (the “Register”).  The entries in the Register shall be conclusive absent  manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each  Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder  for all purposes of this Agreement.  The Register shall be available for inspection by the  





 






  120  CHAR1\1834980v7  Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior  notice.  (d) Participations.  Any Lender may at any time, without the consent of, or notice to,  the Borrower or the Administrative Agent, sell participations to any Person (other than a natural  Person (or a holding company, investment vehicle or trust for, or owned and operated for the  primary benefit of a natural Person), a Defaulting Lender, a Competitor or the Borrower or any of  the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such  Lender’s rights and/or obligations under this Agreement (including all or a portion of its  Revolving Commitment and/or the Loans (including such Lender’s participations in L/C  Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations  under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to  the other parties hereto for the performance of such obligations and (iii) the Borrower, the  Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly  with such Lender in connection with such Lender’s rights and obligations under this Agreement.   If the Borrower approves a participation sold to a Competitor, then such participant will not be  considered a Competitor solely for purposes of that participation.  For the avoidance of doubt,  each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the  existence of any 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 to any amendment,  waiver or other modification described in Section 11.01(a) that affects such Participant; provided, further,  that any such agreement or instrument shall require the applicable Participant to represent and warrant for  the benefit of the Borrower and such Lender that such Participant is not a Competitor.  The Borrower  agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same  extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this  Section (it being understood that the documentation required under Section 3.01(e) shall be delivered to  the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its  interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees  to be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under paragraph (b) of  this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with  respect to any participation, than the Lender from whom it acquired the applicable participation would  have been entitled to receive, except to the extent such entitlement to receive a greater payment results  from a Change in Law that occurs after the Participant acquired the applicable participation.  Each Lender  that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to  cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant.   To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as  though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it  were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as an agent of  the Borrower, maintain a register on which it enters the name and address of each Participant and the  principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations  under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation  to disclose all or any portion of the Participant Register (including the identity of any Participant or any  information relating to a Participant’s interest in any commitments, loans, letters of credit or its other  obligations under any Loan Document) to any Person except to the extent that such disclosure is  necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form  under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant  Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is  





 






  121  CHAR1\1834980v7  recorded in the Participant Register as the owner of such participation for all purposes of this Agreement  notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its  capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.  (e) Certain Pledges.  Any Lender may at any time pledge or assign a security interest  in all or any portion of its rights under this Agreement (including under its Note, if any) to secure  obligations of such Lender, including any pledge or assignment to secure obligations to a Federal  Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of  its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party  hereto.  (f) Resignation as L/C Issuer or Swing Line Lender after Assignment.  (i) Notwithstanding anything to the contrary contained herein, if at any time  Bank of America assigns all of its Revolving Commitment and Revolving Loans pursuant  to clause (b) above, Bank of America may, upon thirty (30) days’ notice to the Borrower  and the Lenders, resign as L/C Issuer.  In the event of any such resignation as L/C Issuer,  the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer  hereunder; provided, however, that no failure by the Borrower to appoint any such  successor shall affect the resignation of Bank of America as L/C Issuer. If Bank of  America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties  of the L/C Issuer hereunder with respect to all Letters of Credit issued by it and  outstanding as of the effective date of its resignation as L/C Issuer and all L/C  Obligations with respect thereto (including the right to require the Lenders to make Base  Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section  2.03(c)). Upon the appointment of a successor L/C Issuer, (1) such successor shall  succeed to and become vested with all of the rights, powers, privileges and duties of the  retiring L/C Issuer, and (2) the successor L/C Issuer shall issue letters of credit in  substitution for the Letters of Credit, if any, outstanding at the time of such succession or  make other arrangements reasonably satisfactory to Bank of America to effectively  assume the obligations of Bank of America with respect to such Letters of Credit.  (ii) Notwithstanding anything to the contrary contained herein, if at any time  Bank of America assigns all of its Revolving Commitment and Revolving Loans pursuant  to clause (b) above, Bank of America, upon thirty (30) days’ notice to the Borrower,  resign as Swing Line Lender.  In the event of any such resignation as Swing Line Lender,  the Borrower shall be entitled to appoint from among the Lenders a successor Swing Line  Lender hereunder; provided, however, that no failure by the Borrower to appoint any  such successor shall affect the resignation of Bank of America as Swing Line Lender.  If  Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing  Line Lender provided for hereunder with respect to Swing Line Loans made by it and  outstanding as of the effective date of such resignation, including the right to require the  Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line  Loans pursuant to Section 2.04(c).  Upon the appointment of a successor Swing Line  Lender, such successor shall succeed to and become vested with all of the rights, powers,  privileges and duties of the retiring Swing Line Lender.  (g) In addition, notwithstanding the foregoing, the Borrower may, by written notice  to the Administrative Agent from time to time, make one or more offers (each, a “Loan  Modification Offer”) to all the Lenders to make one or more amendments or modifications to (i)  allow the maturity and scheduled amortization of the Loans of the accepting Lenders to be  





 






  122  CHAR1\1834980v7  extended, or to allow the termination dates for any Revolving Commitments to be extended, and  (ii) increase the Applicable Rate and/or fees payable with respect to the Loans and Revolving  Commitments of the accepting Lenders (“Permitted Amendments”) pursuant to procedures  reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower.   Such notice shall set forth (A) the terms and conditions of the requested Permitted Amendment  and (B) the date on which such Permitted Amendment is requested to become effective.  The  Permitted Amendments shall not become effective unless consented to by the Borrower and those  Accepting Lenders (as defined below), as applicable (the “Required Approval”).  If the Required  Approval is received, (1) such Permitted Amendments shall become effective only with respect to  the Loans and/or Revolving Commitments of the Lenders that accept the applicable Loan  Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting  Lender, only with respect to such Lender’s Loans and/or Revolving Commitments as to which  such Lender’s acceptance has been made and (2) the Borrower, each Loan Party and each  Accepting Lender shall execute and deliver to the Administrative Agent a loan modification  agreement (the “Loan Modification Agreement”) and such other documentation as the  Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted  Amendments and the terms and conditions thereof.  The Administrative Agent shall promptly  notify each Lender as to the effectiveness of each Loan Modification Agreement.  Each of the  parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement,  this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect  the existence and terms of the Permitted Amendment evidenced thereby and only with respect to  the Loans and Revolving Commitments of the Accepting Lenders as to which such Lenders’  acceptance has been made.  (h) Competitors.  (i) No assignment or participation shall be made to any Person that was a  Competitor as of the date (the “Trade Date”) on which the applicable Lender entered into  a binding agreement to sell and assign or participate all or a portion of its rights and  obligations under this Agreement to such Person (unless the Borrower has consented to  such assignment as otherwise contemplated by this Section 11.06, in which case such  Person will not be considered a Competitor for the purpose of such assignment).  For the  avoidance of doubt, with respect to any assignee or participant that becomes a Competitor  after the applicable Trade Date (including as a result of the delivery of a notice pursuant  to, and/or the expiration of the notice period referred to in, the definition of  “Competitor”), such assignee shall not retroactively be considered a Competitor.  Any  assignment in violation of this clause (h)(i) shall not be void, but the other provisions of  this clause (h) shall apply.  (ii) If any assignment is made to any Competitor without the Borrower’s  prior consent in violation of clause (i) above, the Borrower may, at its sole expense and  effort, upon notice to the applicable Competitor and the Administrative Agent, (A)  terminate any Revolving Commitment of such Competitor and repay all obligations of  the Borrower owing to such Competitor in connection with such Revolving Commitment  and/or (B) require such Competitor to assign and delegate, without recourse (in  accordance with and subject to the restrictions contained in this Section 11.06, all of its  interest, rights and obligations under this Agreement and related Loan Documents to an  Eligible Assignee that shall assume such obligations at the lesser of (x) the principal  amount thereof and (y) the amount that such Competitor 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 other the other Loan  





 






  123  CHAR1\1834980v7  Documents; provided that (i) the Borrower shall have paid to the Administrative Agent  the assignment fee (if any) specified in Section 11.06(b) and (ii) such assignment does  not conflict with applicable Laws.  (iii) Notwithstanding anything to the contrary contained in this Agreement,  Competitors (A) will not (x) have the right to receive information, reports or other  materials provided to Lenders by the Borrower, the Administrative Agent or any other  Lender, (y) attend or participate in meetings attended by the Lenders and the  Administrative Agent, or (z) access 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 Competitor will be  deemed to have consented in the same proportion as the Lenders that are not Competitors  consented to such matter, and (y) for purposes of voting on any plan of reorganization or  plan of liquidation pursuant to any Debtor Relief Laws (“Plan of Reorganization”), each  Competitor party hereto hereby agrees (1) not to vote on such Plan of Reorganization, (2)  if such Competitor does vote on such Plan of Reorganization 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 Debtor Relief Laws, and  such vote shall not be counted in determining whether the applicable class has accepted  or rejected such Plan of Reorganization in accordance with Section 1126(c) of the 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 Borrower hereby  expressly authorizes the Administrative Agent, to (A) post Schedule 11.06 on the  Platform, including that portion of the Platform that is designated for “public side”  Lenders or (B) provide Schedule 11.06 to each Lender requesting the same.  (v) Notwithstanding anything to the contrary herein, each of the Borrower  and each Lender acknowledges and agrees that the Administrative Agent, in its capacity  as such, shall not be responsible or have any liability for, or have any duty to ascertain,  inquire into, monitor or enforce, compliance with the provisions hereof relating to  Competitors.  Without limiting the generality of the foregoing, the Administrative Agent,  in its capacity as such, shall not have any liability with respect to or arising out of any  assignment or participation of Loans or Revolving Commitments, or disclosure of  confidential information, to any Competitor (regardless of whether the consent of the  Administrative Agent is required thereto), and none of the Borrower, any Lender or their  respective Affiliates will bring any claim to such effect.  11.07 Treatment of Certain Information; Confidentiality.  (a) Treatment of Certain Information. Each of the Administrative Agent, the Lenders  and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below),  except that Information may be disclosed (i) to its Affiliates, its auditors and its Related Parties (it  being understood that the Persons to whom such disclosure is made will be informed of the  confidential nature of such Information and instructed to keep such Information confidential),  (ii) to the extent required or requested by any regulatory authority purporting to have jurisdiction  





 






  124  CHAR1\1834980v7  over such Person or its Related Parties (including any self-regulatory authority, such as the  National Association of Insurance Commissioners), (iii) to the extent required by applicable Laws  or regulations or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in  connection with the exercise of any remedies hereunder or under any other Loan Document or  any action or proceeding relating to this Agreement or any other Loan Document or the  enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions  substantially the same as those of this Section 11.07, to (A) any assignee of or Participant in, or  any prospective assignee of or Participant in, any of its rights and obligations under this  Agreement or (B) any actual or prospective party (or its Related Parties) to any swap, derivative  or other transaction under which payments are to be made by reference to the Borrower and its  obligations, this Agreement or payments hereunder, (vii) on a confidential basis to (A) any rating  agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided  hereunder or (B) the provider of any Platform or other electronic delivery service used by the  Administrative Agent, the L/C Issuer and/or the Swing Line Lender to deliver Borrower Materials  or notices to the Lenders or (viii) the CUSIP Service Bureau or any similar agency in connection  with the application, issuance, publishing and monitoring of CUSIP numbers or other market  identifiers with respect to the credit facilities provided hereunder, or (ix) with the consent of the  Borrower or to the extent such Information (x) becomes publicly available other than as a result  of a breach of this Section 11.07, (xi) becomes available to the Administrative Agent, any Lender,  the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other  than the Borrower or (xii) is independently discovered or developed by a party hereto without  utilizing any Information received from the Borrower or violating the terms of this Section 11.07.  For purposes of this Section 11.07, “Information” means all information received from the  Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective  businesses, other than any such information that is available to the Administrative Agent, any  Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any  Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this  Section 11.07 shall be considered to have complied with its obligation to do so if such Person has  exercised the same degree of care to maintain the confidentiality of such Information as such  Person must accord to its own confidential information by Law.  (b) Non-Public Information. Each of the Administrative Agent, the Lenders and the  L/C Issuer acknowledges that (i) the Information may include material non-public information  concerning a Loan Party or a Subsidiary, as the case may be, (ii) it has developed compliance  procedures regarding the use of material non-public information and (iii) it will handle such  material non-public information in accordance with applicable Law, including United States  federal and state securities Laws.  (c) Customary Advertising Material. The consent of the Loan Parties shall be  required prior to the publication by the Administrative Agent or any Lender of customary  advertising material relating to the transactions contemplated hereby using the name, product  photographs, logo or trademark of the Loan Parties; provided no consent shall be required for  disclosure of the name and industry of the Borrower, the logo of the Loan Parties, the Lenders  and the types, amounts, tenor and use of proceeds of the credit facilities contained herein in  customary marketing materials of the Administrative Agent. In addition, the Administrative  Agent and the Lenders may disclose the existence of this Agreement and information about the  types, amounts and use of proceeds of the credit facilities contained in this Agreement to market  data collectors and similar service providers to the lending industry and service providers to the  Administrative Agent, the Arranger and the Lenders in connection with the administration of this  Agreement, the other Loan Documents and the Revolving Commitments.  





 






  125  CHAR1\1834980v7  11.08 Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and  each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest  extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or  demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever  currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the  account of any Loan Party against any and all of the obligations of such Loan Party now or hereafter  existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or their  respective Affiliates, irrespective of whether or not such Lender, the L/C Issuer or such Affiliate shall  have made any demand under this Agreement or any other Loan Document and although such obligations  of such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such  Lender or the L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on  such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of  setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further  application in accordance with the provisions of Section 2.15 and, pending such payment, shall be  segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the  Administrative Agent, the L/C Issuer and the Lenders, and (y) the Defaulting Lender shall provide  promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to  such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, the L/C  Issuer and their respective Affiliates under this Section are in addition to other rights and remedies  (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.   Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly  after any such setoff and application, provided that the failure to give such notice shall not affect the  validity of such setoff and application.  11.09 Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or  agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest  permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall  receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the  principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining  whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds  the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any  payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary  prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal  parts the total amount of interest throughout the contemplated term of the Obligations hereunder.  11.10 Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different  counterparts), each of which shall constitute an original, but all of which when taken together shall  constitute a single contract.  This Agreement, the other Loan Documents and any separate letter  agreements with respect to fees payable to the Administrative Agent or the L/C Issuer, constitute the  entire contract among the parties relating to the subject matter hereof and supersede any and all previous  agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided  in Section 5.01, this Agreement shall become effective when it shall have been executed by the  Administrative Agent and when the Administrative Agent shall have received counterparts hereof that,  when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed  





 






  126  CHAR1\1834980v7  counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g.,  “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.  11.11 Survival of Representations and Warranties.  All representations and warranties made hereunder and in any other Loan Document or other  document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the  execution and delivery hereof and thereof.  Such representations and warranties have been or will be  relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the  Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent  or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and  shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain  unpaid or unsatisfied or any Letter of Credit shall remain outstanding.  11.12 Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or  unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement  and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor  in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions  the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable  provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render  unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of this  Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to  Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the  Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall  be deemed to be in effect only to the extent not so limited.  11.13 Replacement of Lenders.  If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any  Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense  and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and  delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents  required by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant  to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an  Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender  accepts such assignment), provided that:  (a) the Borrower shall have paid to the Administrative Agent the assignment fee (if  any) specified in Section 11.06(b);  (b) such Lender shall have received payment of an amount equal to the outstanding  principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other  amounts payable to it hereunder and under the other Loan Documents (including any amounts  under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued  interest and fees) or the Borrower (in the case of all other amounts);  (c) in the case of any such assignment resulting from a claim for compensation under  Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will  result in a reduction in such compensation or payments thereafter;  





 






  127  CHAR1\1834980v7  (d) such assignment does not conflict with applicable Laws; and  (e) in the case of an assignment resulting from a Lender becoming a Non-Consenting  Lender, the applicable assignee shall have consented to the applicable amendment, waiver or  consent.  Notwithstanding anything to the contrary herein, in connection with any such assignment, if such  assigning Lender does not execute and deliver to the Administrative Agent a duly executed Assignment  and Assumption pursuant to Section 11.06(b) reflecting such assignment within five (5) Business Days of  the date on which the applicable assignee executes and delivers such Assignment and Assumption to such  assigning Lender, then such assigning Lender shall be deemed to have executed and delivered such  Assignment and Assumption without any action on the part of such Lender, whereupon such assignment  shall become effective upon payment to such assigning Lender of all amounts owing to such assigning  Lender under clause (b) above (which amounts shall be calculated by the Administrative Agent and shall  be conclusive absent manifest error).  A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such  assignment and delegation cease to apply.  11.14 Governing Law; Jurisdiction; Etc.  (a) GOVERNING LAW.  THIS AGREEMENT AND THE OTHER LOAN  DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION  (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT  OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH  THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY  SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF  THE STATE OF NEW YORK.  (b) SUBMISSION TO JURISDICTION.  EACH LOAN PARTY IRREVOCABLY  AND UNCONDITIONALLY agrees that it will not commence any action, litigation or  proceeding of any kind or description, whether in law or equity, whether in contract or in tort or  otherwise, against the Administrative Agent, any Lender, the l/c Issuer, or any Related Party of  the foregoing in any way relating to this Agreement or any other Loan Document or the  transactions relating hereto or thereto, in any forum other than THE COURTS OF THE STATE  OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES  DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO  IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF  SUCH COURTS  AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH  ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN  SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY  APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO  AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR  PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER  JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER  PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN  DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY  LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR  





 






  128  CHAR1\1834980v7  PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT  AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY  JURISDICTION.  (c) WAIVER OF VENUE.  EACH LOAN PARTY IRREVOCABLY AND  UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY  APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO  THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR  RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY  COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE  PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM  TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.  (d) SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY  PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY  APPLICABLE LAW.  11.15 Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN  ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO  THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS  CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY  OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,  AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR  OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,  SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND  THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT  AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL  WAIVERS AND CERTIFICATIONS IN THIS SECTION.  11.16 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 of the  Loan Parties acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the  arranging and other services regarding this Agreement provided by the Administrative Agent, the  Arranger, and the Lenders are arm’s-length commercial transactions between the Loan Parties and their  respective Affiliates, on the one hand, and the Administrative Agent, the Arranger and the Lenders, on the  other hand, (B) each of the Loan Parties has consulted its own legal, accounting, regulatory and tax  advisors to the extent it has deemed appropriate, and (C) each of the Loan Parties 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, the Arranger and the Lenders each is  and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties,  has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties or any of  their respective Affiliates, or any other Person and (B) neither the Administrative Agent, the Arranger nor  any Lender has any obligation to the Loan Parties or any of their respective Affiliates with respect to the  





 






  129  CHAR1\1834980v7  transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan  Documents; and (iii) the Administrative Agent, the Arranger the Lenders and their respective Affiliates  may be engaged in a broad range of transactions that involve interests that differ from those of the Loan  Parties and their respective Affiliates, and neither the Administrative Agent, the Arranger nor any Lender  has any obligation to disclose any of such interests to the Loan Parties and their respective Affiliates.  To  the fullest extent permitted by Law, each of the Loan Parties hereby waives and releases any claims that it  may have against the Administrative Agent, the Arranger or any Lender with respect to any breach or  alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated  hereby.  11.17 Electronic Execution; Electronic Records.  (a) The words “delivery,” “execute,” “execution,” “signed,” “signature,” and words  of like import in any Loan Document or any other document executed in connection herewith  shall be deemed to include electronic signatures, the electronic matching of assignment terms and  contract formations on electronic platforms approved by the Administrative Agent, or the keeping  of records in electronic form, each of which shall be of the same legal effect, validity or  enforceability as a manually executed signature, physical delivery thereof or the use of a paper- based recordkeeping system, as the case may be, to the extent and as provided for in any  applicable Law, including the Federal Electronic Signatures in Global and National Commerce  Act, the New York State Electronic Signatures and Records Act, or any other similar state laws  based on the Uniform Electronic Transactions Act; provided, that notwithstanding anything  contained herein to the contrary, the Administrative Agent is under no obligation to agree to  accept electronic signatures in any form or in any format unless expressly agreed to by the  Administrative Agent pursuant to procedures approved by it; provided, further, without limiting  the foregoing, upon the request of the Administrative Agent, any electronic signature shall be  promptly followed by such manually executed counterpart. For the avoidance of doubt, the  authorization under this paragraph may include, without limitation, use or acceptance by the  Administrative Agent and each of the Lenders of a manually signed paper document, amendment,  approval, consent, information, notice, certificate, request, statement, disclosure or authorization  related to this Agreement (each a “Communication”) which has been converted into electronic  form (such as scanned into PDF format), or an electronically signed Communication converted  into another format, for transmission, delivery and/or retention.  (b) The Borrower hereby acknowledges the receipt of a copy of this Agreement and  all other Loan Documents. The Administrative Agent and each Lender may, on behalf of the  Borrower, create a microfilm or optical disk or other electronic image of this Agreement and any  or all of the other Loan Documents. The Administrative Agent and each Lender may store the  electronic image of this Agreement and the other Loan Documents in its electronic form and then  destroy the paper original as part of the Administrative Agent’s and each Lender’s normal  business practices, with the electronic image deemed to be an original and of the same legal  effect, validity and enforceability as the paper originals.  11.18 Subordination of Intercompany Indebtedness.  Each Loan Party (a “Subordinating Loan Party”) agrees that the payment of all obligations and  indebtedness, whether principal, interest, fees and other amounts and whether now owing or hereafter  arising, owing to such Subordinating Loan Party by any other Loan Party is expressly subordinated to the  payment in full in cash of the Obligations.  During the continuance of any Event of Default, if the  Administrative Agent so requests, any such obligation or indebtedness shall be enforced and performance  received by the Subordinating Loan Party as trustee for the holders of the Obligations and the proceeds  





 






  130  CHAR1\1834980v7  thereof shall be paid over to the holders of the Obligations on account of the Obligations, but without  reducing or affecting in any manner the liability of the Subordinating Loan Party under this Agreement or  any other Loan Document. Without limitation of the foregoing, so long as no Event of Default has  occurred and is continuing, the Loan Parties may make and receive payments with respect to any such  obligations and indebtedness, provided, that in the event that any Loan Party receives any payment of any  such obligations and indebtedness at a time when such  payment is prohibited by this Section, such  payment shall be held by such Loan Party, in trust for the benefit of, and shall be paid forthwith over and  delivered, upon written request, to the Administrative Agent.  11.19 Release of Collateral and Guarantee Obligations; Subordination of Liens.  (a) Upon the reasonable request of the Borrower, the Administrative Agent shall,  take such actions as shall be reasonably required, at the Loan Parties’ sole expense, to release (i)  its security interest in any Collateral upon termination of the Aggregate Revolving Commitments  and payment in full of all Obligations (other than (x) contingent indemnification or  reimbursement obligations for which no claim has been asserted, (y) obligations and liabilities  under Secured Cash Management Agreements and Secured Hedge Agreements as to which  arrangements reasonably satisfactory to the applicable Cash Management Bank or Hedge Bank  shall have been made and (z) Letters of Credit as to which other arrangements reasonably  satisfactory to the Administrative Agent and the L/C Issuer shall have been made or that have  been Cash Collateralized in the amount of the Minimum Collateral Amount), or (ii) (a) its  security interest in any Collateral transferred, sold or disposed of to persons other than Loan  Parties or Subsidiaries in Loan Parties in a transaction permitted under this Agreement or  approved by the Required Lenders pursuant to Section 11.01, and (b) any Guaranty hereunder or  under any Loan Document of any Person if the ownership interests in such Guarantor are  transferred, sold or disposed to persons other than Loan Parties or Subsidiaries of Loan Parties in  a transaction permitted under this Agreement, in each case to the extent necessary to permit  consummation of such  transfer, sale or disposition in accordance with the Loan Documents.  Any  representation, warranty or covenant contained in any Loan Document relating to any such  property so Disposed, transferred, sold or disposed of (other than property Disposed of to the  Borrower or any Loan Party) shall no longer be deemed to be repeated once such property is so  Disposed, transferred, sold or disposed of.  (b) In connection with any termination or release pursuant to paragraph (a) of this  Section 11.19, the Administrative Agent will not be required to take any action unless the  Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer  of the Borrower certifying that the transaction giving rise to such termination or release is  permitted by the Credit Agreement and was or is consummated in compliance with the Loan  Documents. Any execution and delivery of documents pursuant to this Section 11.19 shall be  without recourse to or warranty by the Administrative Agent.  11.20 USA PATRIOT Act Notice.  Each Lender that is subject to the Act (as hereinafter defined) 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 (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it  is required to obtain, verify and record information that identifies the Loan Parties, which information  includes the name and address of the Loan Parties and other information that will allow such Lender or  the Administrative Agent, as applicable, to identify the Loan Parties in accordance with the Act.  The  Loan Parties shall, promptly following a request by the Administrative Agent or any Lender, provide all  documentation and other information that the Administrative Agent or such Lender requests in order to  





 






  131  CHAR1\1834980v7  comply with its ongoing obligations under applicable “know your customer” and anti-money laundering  rules and regulations, including the Act.  11.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any liability  of any 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 the applicable  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the  application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any  such liabilities arising hereunder which may be payable to it by any 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 the applicable  Resolution Authority.  11.22 ERISA Representation.  (a) Each Lender (x) represents and warrants, as of the date such Person became a  Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party  hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the  Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or  any other Loan Party, that at least one of the following is and will be true:  (i) such Lender is not using “plan assets” (within the meaning of Section  3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s  entrance into, participation in, administration of and performance of the Loans, the  Letters of Credit, the Revolving Commitments, or this agreement,  (ii) the transaction exemption set forth in one or more PTEs, such as PTE  84–14 (a class exemption for certain transactions determined by independent qualified  professional asset managers), PTE 95–60 (a class exemption for certain transactions  involving insurance company general accounts), PTE 90–1 (a class exemption for certain  transactions involving insurance company pooled separate accounts), PTE 91–38 (a class  exemption for certain transactions involving bank collective investment funds) or PTE  96–23 (a class exemption for certain transactions determined by in-house asset  managers), is applicable with respect to such Lender’s entrance into, participation in,  administration of and performance of the Loans, the Letters of Credit, the Revolving  Commitments and this Agreement,  (iii) (A) such Lender is an investment fund managed by a “Qualified  Professional Asset Manager” (within the meaning of Part VI of PTE 84–14), (B) such  Qualified Professional Asset Manager made the investment decision on behalf of such  Lender to enter into, participate in, administer and perform the Loans, the Letters of  Credit, the Revolving Commitments and this Agreement, (C) the entrance into,  participation in, administration of and performance of the Loans, the Letters of Credit, the  





 






  132  CHAR1\1834980v7  Revolving Commitments and this Agreement satisfies the requirements of sub-sections  (b) through (g) of Part I of PTE 84–14 and (D) to the best knowledge of such Lender, the  requirements of subsection (a) of Part I of PTE 84–14 are satisfied with respect to such  Lender’s entrance into, participation in, administration of and performance of the Loans,  the Letters of Credit, the Revolving Commitments and this Agreement, or  (iv) such other representation, warranty and covenant as may be agreed in  writing between the Administrative Agent, in its sole discretion, and such Lender.  (b) In addition, unless either (1) clause (i) in the immediately preceding clause (a) is  true with respect to a Lender or (2) a Lender has provided another representation, warranty and  covenant in accordance with clause (iv) in the immediately preceding clause (a), such Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and (y) covenants, from the date such Person became a Lender party hereto to the date such  Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not,  for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the  Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such  Lender’s entrance into, participation in, administration of and performance of the Loans, the  Letters of Credit, the Revolving Commitments and this Agreement (including in connection with  the reservation or exercise of any rights by the Administrative Agent under this Agreement, any  Loan Document or any documents related hereto or thereto).  11.23 Flood Matters.  If at any time owned real property is pledged as collateral hereunder, (A) the Borrower shall  provide at least forty-five (45) days’ prior written notice to the pledge of such real property as collateral,  (B) the Borrower shall provide (1) standard flood hazard determination forms and (2) if any property is  located in a special flood hazard area, (x) notices to (and confirmations of receipt by) the Borrower as to  the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance  under the National Flood Insurance Program and (y) evidence of applicable flood insurance, if available,  in each case in such form, on such terms and in such amounts as required by The National Flood  Insurance Reform Act of 1994, the Federal Flood Disaster Protection Act and rules and regulations  promulgated thereunder or as otherwise required by the Administrative Agent or any Lender, and (C) the  Administrative Agent shall not enter into, accept or record any mortgage in respect of such real property  until the Administrative Agent shall have received written confirmation from each Lender that flood  insurance compliance has been completed by such Lender with respect to such real property (such written  confirmation not to be unreasonably withheld or delayed).  Any increase, extension or renewal of this  Agreement shall be subject to flood insurance due diligence and flood insurance compliance reasonably  satisfactory to the Administrative Agent and each Lender.  11.24 Acknowledgement Regarding Any Supported QFCs.  To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any  Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”,  and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to  the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance  Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the  regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported  QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan  Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New  York and/or of the United States or any other state of the United States):  





 






  133  CHAR1\1834980v7  (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered  Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of  such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation  in or under such Supported QFC and such QFC Credit Support, and any rights in property  securing such Supported QFC or such QFC Credit Support) from such Covered Party will be  effective to the same extent as the transfer would be effective under the U.S. Special Resolution  Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation  and rights in property) were governed by the laws of the United States or a state of the United  States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject  to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan  Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that  may be exercised against such Covered Party are permitted to be exercised to no greater extent  than such Default Rights could be exercised under the U.S. Special Resolution Regime if the  Supported QFC and the Loan Documents were governed by the laws of the United States or a  state of the United States. Without limitation of the foregoing, it is understood and agreed that  rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the  rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.  (b) As used in this Section 11.24, the following terms have the following meanings:  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined  under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “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).  [SIGNATURE PAGES FOLLOW]    





 






CREDIT AGREEMENT  CINER WYOMING LLC  BORROWER:     CINER WYOMING LLC,  a Delaware limited liability company      By:       Name:  Oguz Erkan  Title:  President & CEO    





 






 





 






CREDIT AGREEMENT  CINER WYOMING LLC  ADMINISTRATIVE AGENT:   BANK OF AMERICA, N.A., as Administrative Agent      By:       Name:   Title:    LENDERS: BANK OF AMERICA, N.A.,  as a Lender, L/C Issuer and Swing Line Lender      By:       Name: Ryan Maples  Title: Senior Vice President 





 






 





 






   Schedule 2.01  CHAR1\1843534v2  Schedule 2.01  Commitments and Applicable Percentages    Lender Revolving Commitment Applicable Percentage  Bank of America, N.A. $112,500,000.00 50.000000000%  PNC Bank, National Association $112,500,000.00 50.000000000%  Total $225,000,000.00 100.000000000%  





 






   Schedule 2.03  CHAR1\1843534v2  Schedule 2.03  Existing Letters of Credit  None.        





 






   Schedule 6.12  CHAR1\1843534v2  Schedule 6.12  Pension Plan    Ciner Pension Plan – Plan 003             





 






   Schedule 6.13  CHAR1\1843534v2  Schedule 6.13  Subsidiaries; Equity Interests; Loan Parties      Ciner Wyoming LLC    Delaware limited liability company  Five Concourse Pkwy., NE, Suite 2500  Atlanta, GA 30328-7108  Tax ID: 22-3133221    Owned by:  Ciner Resources LP: 51%  NRP Trona LLC: 49% 





 






   Schedule 6.17  CHAR1\1843534v2  Schedule 6.17  IP Rights  (i) All IP Rights registered or pending registration with the United States Copyright Office or  the United States Patent and Trademark Office that the Loan Parties own as of the Closing Date.  Ciner Wyoming LLC  (Delaware Limited Liability Company)  U.S. Patents  Issued Patents  OZONE TREATMENT OF ALKALI  METAL COMPOUND SOLUTIONS  8361329 01/29/13    (ii) All material licenses under which a Borrower or any Subsidiary has been granted exclusive  rights by a third party to IP Rights registered with the United States Copyright Office or the United States  Patent and Trademark Office as of the Closing Date (excluding licenses for off-the-shelf software).  Trademark License Agreement dated October 23, 2015, among Park Holding A.S., Ciner  Enterprises Inc., Ciner Resources Corporation (formerly known as OCI Chemical Corporation), Ciner  Wyoming Holding Co. (formerly known as OCI Wyoming Holding Co.), Ciner Resource Partners LLC  (formerly known as OCI Resource Partners LLC), Ciner Resources LP (formerly known as OCI Resources  LP), and Ciner Wyoming LLC (formerly known as OCI Wyoming LLC). The Trademark License  Agreement governs the use of “Ciner” as part of the names used by Ciner Wyoming LLC and the other  related parties thereto, and as a trademark and service mark for products and services.  





 






   Schedule 6.19-1  CHAR1\1843534v2  Schedule 6.19-1  Locations of Real Property    Loan Party Property Address Lease / Ownership  Ciner Wyoming LLC 254 County Road 4-6  Green River, WY 82935  Owned  





 






   Schedule 6.19-2  CHAR1\1843534v2  Schedule 6.19-2  Chief Executive Office, Taxpayer Identification Number,  Organizational Identification Number    Loan Party Chief Executive Office U.S. Tax Payer  Identification  Number  Organizational  Identification  Number  Ciner Wyoming LLC Five Concourse Pkwy., NE,  Suite 2500  Atlanta, GA 30328-7108    22-3133221 2280876  





 






   Schedule 6.19-3  CHAR1\1843534v2  Schedule 6.19-3  Changes in Legal Name, State of Formation and Structure    A. Description of Legal Name Change during the 5 Years preceding the Closing Date for any Loan  Party   None.     B. Change in State of Formation during the 5 Years preceding the Closing Date for any Loan Party   None.    C. Party to a Merger, Consolidation or Other Change in Structure during the 5 Years preceding the  Closing Date for any Loan Party  None.  





 






   Schedule 8.01  CHAR1\1843534v2  Schedule 8.01  Liens Existing on the Closing Date  None.    





 






   Schedule 8.03  CHAR1\1843534v2  Schedule 8.02  Investments Existing on the Closing Date    None.     





 






   Schedule 8.03  CHAR1\1843534v2  Schedule 8.03  Indebtedness Existing on the Closing Date    





 






   Schedule 11.02  CHAR1\1843534v2  Schedule 11.02  Notices  IF TO LOAN PARTY:  Ciner Wyoming LLC  Address:  Five Concourse Pkwy., NE, Suite 2500  Atlanta, GA 30328-7108  Attn: Marla Nicholson    Fax: 770-375-2322  Telephone: 770-375-2438  E-mail: mnicholson@ciner.us.com   Website: http://www.ciner.us.com/  IF TO THE ADMINISTRATIVE AGENT, L/C ISSUER OR SWING LINE LENDER:  ADMINISTRATIVE AGENT  Bank of America, N.A.  Dedicated Servicing  Gateway Village-900 Building  Mail Code: NC1-026-06-04  900 W Trade St  Charlotte, NC 28255  Attn: Patricia Santos  Phone: 980-387-3794  Email: patricia.santos@bofa.com   Fax Number: 704-625-4200    Other Notices/Deliveries to Administrative Agent:    Christine Trotter                           Agency Officer  Bank of America, N.A.     540 W. Madison St.  Chicago, Illinois  60661  Mail Code: IL4-540-22-29  Telephone:  312.828.4172  Fax:             877.207.0702  Email:  christine.trotter@bofa.com       L/C Issuer:    Bank of America, N.A.  Trade Operations  Mail Code: PA6-580-02-30  





 






   Schedule 11.02  CHAR1\1843534v2  1 Fleet Way  Scranton, PA 18507  Telephone: 570-496-9619   Telecopier: 1-800-755-8740   Email: tradeclientserviceteamus@baml.com    with a copy to (which shall not constitute notice):     Moore & Van Allen PLLC  100 North Tryon Street  Suite 4700  Charlotte, NC 28202-4003  Attention: Charlie Harris  Telephone: 704-331-1141  Email: charlieharris@mvalaw.com  





 






   Schedule 11.06  CHAR1\1843534v2  Schedule 11.06  Competitors      1. Genesis Alkali  2. Tata Chemicals Ltd.  3. Solvay Chemicals  4. Searles Valley Minerals  5. ANSAC       And, in each case, any affiliate of any Competitor identified above that is obviously (based solely on the  similarity of the legal name of such affiliate to the name of such Competitor) an affiliate of such  Competitor  





 






CHAR1\1841565v3  EXHIBIT 2.02    [FORM OF] LOAN NOTICE    Date:  ___________, _____  To: Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Credit Agreement, dated as of October 28, 2021 (as amended,  restated, extended, supplemented, increased or otherwise modified in writing from time to time, the  “Credit Agreement”), among Ciner Wyoming LLC, a Delaware limited liability company (the  “Borrower”), the Guarantors identified therein, the Lenders from time to time party thereto and Bank of  America, N.A., as Administrative Agent.  Capitalized terms used herein and not defined herein shall have  the meanings assigned to such terms in the Credit Agreement.  The undersigned hereby requests (select one):    A Borrowing of a Revolving Loan    A conversion or continuation of a Revolving Loan  1. On   (a Business Day).  2. In the amount of $ .  3. Comprised of:   Base Rate Loans    BSBY Rate Loans     4. For BSBY Rate Loans:  with an Interest Period of   months.  With respect to any Borrowing requested herein, (x) such Borrowing complies with the provisos to the  first sentence of Section 2.01(a) of the Credit Agreement and (y) the Borrower hereby represents and  warrants that each of the conditions set forth in Section 5.02 of the Credit Agreement have been satisfied  on and as of the date of such Borrowing.       CINER WYOMING LLC,   a Delaware limited liability company    By:     Name:    Title:   





 






CHAR1\1841565v3    EXHIBIT 2.04    [FORM OF] SWING LINE LOAN NOTICE    Date:  ___________, _____  To: Bank of America, N.A., as Swing Line Lender  Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Credit Agreement, dated as of October 28, 2021 (as amended,  restated, extended, supplemented, increased or otherwise modified in writing from time to time, the  “Credit Agreement”), among Ciner Wyoming LLC, a Delaware limited liability company (the  “Borrower”), the Guarantors identified therein, the Lenders from time to time party thereto and Bank of  America, N.A., as Administrative Agent. Capitalized terms used herein and not defined herein shall have  the meanings assigned to such terms in the Credit Agreement.  The undersigned hereby requests a Swing Line Loan:   1. On   (a Business Day).  2. In the amount of $ .  The Swing Line Borrowing requested herein complies with the requirements of the provisos to  the first sentence of Section 2.04(a) of the Credit Agreement.  The Borrower hereby represents and  warrants that each of the conditions set forth in Section 5.02 of the Credit Agreement have been satisfied  on and as of the date of such Swing Line Borrowing.     CINER WYOMING LLC,   a Delaware limited liability company    By:     Name:    Title:              





 






CHAR1\1841565v3    EXHIBIT 2.05   [FORM OF] NOTICE OF LOAN PREPAYMENT    TO:  Bank of America, N.A., as [Administrative Agent][Swingline Lender]  RE: Credit Agreement, dated as of October 28, 2021, by and among Ciner Wyoming LLC, a  Delaware limited liability company (the “Borrower”), the Guarantors, the Lenders and  Bank of America, N.A., as Administrative Agent, L/C Issuer and Swingline Lender (as  amended, modified, extended, restated, replaced, or supplemented from time to time, the  “Credit Agreement”; capitalized terms used herein and not otherwise defined shall have  the meanings set forth in the Credit Agreement)  DATE:  [Date]     The Borrower hereby notifies the Administrative Agent that on _____________1 pursuant to the  terms of Section 2.05 (Prepayments) of the Credit Agreement, the Borrower intends to prepay/repay the  following Loans as more specifically set forth below:       Optional prepayment of Revolving Loans in the following amount(s):       BSBY Rate Loans: $   2    Applicable Interest Period:          Base Rate Loans:  $   3      Optional prepayment of Swingline Loans in the following amount:   $   4    Delivery of an executed counterpart of a signature page of this notice by fax transmission or other  electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed  counterpart of this notice.    [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]   1 Specify date of such prepayment.  2 Any prepayment of BSBY Rate Loans shall be in a principal amount of $500,000 or a whole multiple of  $100,000 in excess thereof (or if less, the entire principal amount thereof outstanding).  3 Any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of  $100,000 in excess thereof (or if less, the entire principal amount thereof outstanding).  4 Any prepayment of Swingline Loans shall be in a principal amount of $100,000 or a whole multiple of  $100,000 in excess thereof (or if less, the entire principal amount thereof outstanding).  





 






CHAR1\1841565v3  CINER WYOMING LLC,  a Delaware limited liability company      By:       Name:  Title:  





 






  CHAR1\1841565v3  EXHIBIT 2.11    [FORM OF] NOTE  [ ]  FOR VALUE RECEIVED, Ciner Wyoming LLC, a Delaware limited liability company (the  “Borrower”), hereby promises to pay to [_____________________] or registered assigns (the “Lender”),  in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount  of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement,  dated as of October 28, 2021 (as amended, restated, extended, supplemented, increased or otherwise  modified in writing from time to time, the “Credit Agreement”), among the Borrower, the Guarantors  identified therein, the Lenders from time to time party thereto and Bank of America, N.A., as  Administrative Agent.  Capitalized terms used herein and not defined herein shall have the meanings  assigned to such terms in the Credit Agreement.  The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date  of such Loan until such principal amount is paid in full, at such interest rates and at such times as  provided in the Credit Agreement.  Except as otherwise provided in Section 2.04(f) of the Credit  Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to the  Administrative Agent for the account of the Lender in Dollars in immediately available funds at the  Administrative Agent’s Office.  If any amount is not paid in full when due hereunder (after giving effect  to any applicable grace periods), upon the request of the Required Lenders, such unpaid amount shall bear  interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent  permitted by applicable Laws.  Accrued and unpaid interest on past due amounts (including interest on  past due interest) shall be due and payable upon demand.  This Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits  thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  This  Note is also entitled to the benefits of the Guaranty.  Upon the occurrence and continuation of one or  more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on  this Note shall become, or may be declared to be, immediately due and payable all as provided in the  Credit Agreement.  Loans made by the Lender shall be evidenced by one or more loan accounts or  records maintained by the Lender in the ordinary course of business. The Lender may also attach  schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with  respect thereto.  The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest  and demand and notice of protest, demand, dishonor and non-payment of this Note.  THIS NOTE AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION  (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR  RELATING TO THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE  WITH, THE LAW OF THE STATE OF NEW YORK.  [Signature Page Follows]  





 






  CHAR1\1841565v3  IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed by its duly  authorized officer as of the day and year first above written.   CINER WYOMING LLC,   a Delaware limited liability company    By:           Name:    Title:    





 






  CHAR1\1841565v3  EXHIBIT 3.01-1     [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)    Reference is hereby made to the Credit Agreement dated as of October 28, 2021 (as  amended, restated, extended, supplemented, increased or otherwise modified in writing from time to time,  the “Credit Agreement”) among Ciner Wyoming LLC, a Delaware limited liability company, the  Guarantors identified therein, each lender from time to time party thereto and Bank of America, N.A., as  Administrative Agent.    Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s)  evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the  meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of  the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a  controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal  Revenue Code.  The undersigned has furnished the Administrative Agent and the Borrower with a  certificate of its non-U.S. Person status on an IRS Form W-8BEN or W-8BEN-E.  By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the  undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the  undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly  completed and currently effective certificate in either the calendar year in which each payment is to be  made to the undersigned, or in either of the two calendar years preceding such payments.   Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]  By:  _______________________    Name:  ________________________   Title:  ________________________  Date: ________ __, 20[  ]  





 






  CHAR1\1841565v3  EXHIBIT 3.01-2    [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)    Reference is hereby made to the Credit Agreement dated as of October 28, 2021 (as  amended, restated, extended, supplemented, increased or otherwise modified in writing from time to time,  the “Credit Agreement”) among Ciner Wyoming LLC, a Delaware limited liability company, the  Guarantors identified therein, each lender from time to time party thereto and Bank of America, N.A., as  Administrative Agent.   Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it  is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal  Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section  871(h)(3)(B) of the Internal Revenue Code, and (iv) it is not a controlled foreign corporation related to the  Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.  The undersigned has furnished its participating Lender with a certificate of its non-U.S.  Person status on an IRS Form W-8BEN or W-8BEN-E.  By executing this certificate, the undersigned  agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so  inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with  a properly completed and currently effective certificate in either the calendar year in which each payment  is to be made to the undersigned, or in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]  By:  _______________________    Name:  ________________________   Title:  ________________________  Date: ________ __, 20[  ]  





 






  CHAR1\1841565v3  EXHIBIT 3.01-3     [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)    Reference is hereby made to the Credit Agreement dated as of October 28, 2021 (as  amended, restated, extended, supplemented, increased or otherwise modified in writing from time to time,  the “Credit Agreement”) among Ciner Wyoming LLC, a Delaware limited liability company, the  Guarantors identified therein, each lender from time to time party thereto and Bank of America, N.A., as  Administrative Agent.  Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing  this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such  participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect  partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary  course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code,  (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the  meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect  partners/members is a controlled foreign corporation related to the Borrower as described in Section  881(c)(3)(C) of the Internal Revenue Code.   The undersigned has furnished its participating Lender with IRS Form W-8IMY  accompanied by one of the following forms from each of its partners/members that is claiming the  portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY  accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial  owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned  agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so  inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly  completed and currently effective certificate in either the calendar year in which each payment is to be  made to the undersigned, or in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF PARTICIPANT]  By:  _______________________    Name:  ________________________   Title:  ________________________  Date: ________ __, 20[  ]  





 






  CHAR1\1841565v3  EXHIBIT 3.01-4    [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)    Reference is hereby made to the Credit Agreement dated as of October 28, 2021 (as  amended, restated, extended, supplemented, increased or otherwise modified in writing from time to time,  the “Credit Agreement”) among Ciner Wyoming LLC, a Delaware limited liability company, the  Guarantors identified therein, each lender from time to time party thereto and Bank of America, N.A., as  Administrative Agent.    Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned  hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such  Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are  the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with  respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither  the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a  loan agreement entered into in the ordinary course of its trade or business within the meaning of Section  881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten  percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue  Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to  the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.  The undersigned has furnished the Administrative Agent and the Borrower with IRS  Form W-8IMY accompanied by one of the following forms from each of its partners/members that is  claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form  W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s  beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the  undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall  promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all  times furnished the Borrower and the Administrative Agent with a properly completed and currently  effective certificate in either the calendar year in which each payment is to be made to the undersigned, or  in either of the two calendar years preceding such payments.  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.  [NAME OF LENDER]  By:  _______________________    Name:  ________________________   Title:  ________________________  Date: ________ __, 20[  ]      





 






  CHAR1\1841565v3  EXHIBIT 7.02    [FORM OF] COMPLIANCE CERTIFICATE1    Financial Statement Date:  ___________, _____                     To: Bank of America, N.A., as Administrative Agent  Ladies and Gentlemen:  Reference is made to that certain Credit Agreement, dated as of October 28, 2021 (as amended,  restated, extended, supplemented, increased or otherwise modified in writing from time to time, the  “Credit Agreement”), among Ciner Wyoming LLC, a Delaware limited liability company (the  “Borrower”), the Guarantors identified therein, the Lenders from time to time party thereto and Bank of  America, N.A., as Administrative Agent.  Capitalized terms used herein and not defined herein shall have  the meanings assigned to such terms in the Credit Agreement.  The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the [        ] of the Borrower (or its general partner), and that, as such,  he/she is authorized to execute and deliver this Compliance Certificate (this “Certificate”) to the  Administrative Agent on the behalf of the Borrower, and that:    [Use following paragraph 1 for fiscal year-end financial statements]  1. The Borrower has delivered the year-end audited financial statements required by Section  7.01(a) of the Credit Agreement for the fiscal year of the Borrower ended as of the above date, together  with the report and opinion of an independent certified public accountant required by such section.  The  consolidating financial statements are fairly stated in all material respects when considered in relation to  the consolidated financial statements of the Borrower and its Subsidiaries.  [Use following paragraph 1 for fiscal quarter-end financial statements]  1. The Borrower has delivered the unaudited financial statements required by Section  7.01(b) of the Credit Agreement for the fiscal quarter of the Borrower ended as of the above date.  Such  financial statements fairly present in all material respects the financial condition, results of operations,  shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at  such date and for such period, subject only to normal year-end audit adjustments and the absence of  footnotes.  The consolidating financial statements are fairly stated in all material respects when  considered in relation to the consolidated financial statements of the Borrower and its Subsidiaries.  2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and  has made, or has caused to be made under his/her supervision, a review of the transactions and condition  (financial or otherwise) of the Borrower during the accounting period covered by such financial  statements as are necessary and appropriate for purposes of providing this Certificate.    1 In the event of any conflict between this Exhibit and the Credit Agreement, the Credit Agreement shall  control.  





 






  CHAR1\1841565v3  3. A review of the activities of the Borrower during such fiscal period has been made under  the supervision of the undersigned with a view to determining whether during such fiscal period the  Borrower performed and observed all its Obligations under the Loan Documents, and   [select one:]  [to the best knowledge of the undersigned, during such fiscal period, no Default has  occurred and is continuing.]  --or—    [to the best knowledge of the undersigned, during such fiscal period, the following is a list of  each Default or Event of Default that has occurred during such period (or if in a previous period, is  continuing during such period) and its nature and status:]  4. The representations and warranties of the Borrower and each other Loan Party  contained in Article VI of the Credit Agreement or any other Loan Document, or which are  contained in any document furnished at any time under or in connection therewith are true and  correct in all material respects (expect to the extent any such representation and warranty shall be  true and correct in all respects after giving effect to such materiality qualification) on and as of  the date hereof, except to the extent that such representations and warranties specifically refer to  an earlier date, in which case they are true and correct in all material respects (except to the  extent any such representation and warranty is qualified by materiality, in which case, such  representation and warranty shall be true and correct in all respects after giving effect to such  materiality qualification) as of such earlier date, and except that for purposes of this Compliance  Certificate, the representations and warranties contained in clauses (a) and (b) of Section 6.05 of  the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant  to clauses (a) and (b), respectively, of Section 7.01 of the Credit Agreement, including the  statements in connection with which this Compliance Certificate is delivered.    5. The financial covenant analyses and information set forth on the Schedules attached  hereto are true and accurate on and as of the date of this Certificate.  IN WITNESS WHEREOF, the undersigned has executed this Certificate as of  [   ,   ].     CINER WYOMING LLC,   a Delaware limited liability company    By:           Name:    Title:       





 






  CHAR1\1841565v3  EXHIBIT 7.12    [FORM OF] GUARANTOR JOINDER AGREEMENT    THIS GUARANTOR JOINDER AGREEMENT (the “Agreement”) dated as of [__________,  ____], is by and between [__________], a [__________] (the “New Subsidiary”), and Bank of America,  N.A., in its capacity as Administrative Agent under the Credit Agreement (as amended, restated,  extended, supplemented, increased or otherwise modified in writing from time to time, the “Credit  Agreement”) dated as of October 28, 2021 by and among Ciner Wyoming LLC, a Delaware limited  liability company (the “Borrower”), the Guarantors identified therein, the Lenders from time to time party  thereto and the Administrative Agent.  Capitalized terms used herein and not defined herein shall have the  meanings assigned to such terms in the Credit Agreement.    The Loan Parties are required by Section 7.12 of the Credit Agreement to cause the New  Subsidiary to become a “Guarantor”. Accordingly, the New Subsidiary hereby agrees with the  Administrative Agent as follows:    1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of  this Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a  “Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a Guarantor  thereunder as if it had executed the Credit Agreement.  The New Subsidiary hereby ratifies, as of the date  hereof, and agrees to be bound by, all of the terms, provisions and conditions applicable to the Guarantors  contained in the Credit Agreement.  Without limiting the generality of the foregoing terms of this  paragraph 1, the New Subsidiary hereby jointly and severally together with the other Guarantors,  guarantees to the Administrative Agent, each Lender and each other holder of the Obligations, as  provided in Article IV of the Credit Agreement, as primary obligor and not as surety, the prompt payment  and performance of the Obligations in full when due (whether at stated maturity, as a mandatory  prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof.    2. The New Subsidiary hereby represents and warrants to the Administrative Agent that:     (i) Set forth on Schedule 1 is the chief executive office, U.S. tax payer identification  number and organizational identification number of the New Subsidiary as of the date hereof.  (ii) The exact legal name and state of organization of the New Subsidiary as of the date  hereof is as set forth on the signature pages hereto.  3. The address of the New Subsidiary for purposes of all notices and other communications  is the address set forth for the Borrower on Schedule 11.02 to the Credit Agreement.    4. The New Subsidiary hereby waives acceptance by the Administrative Agent and the  Lenders of the guaranty by the New Subsidiary under Article IV of the Credit Agreement.    5. This Agreement may be executed in two or more counterparts, each of which shall  constitute an original but all of which when taken together shall constitute one contract.    6. This Agreement and any claims, controversy, dispute or cause of action (whether in  contract or tort or otherwise) based upon, arising out of or relating to this Agreement shall be governed  by, and construed in accordance with, the law of the State of New York.    [SIGNATURE PAGES FOLLOW]         





 






  CHAR1\1841565v3  IN WITNESS WHEREOF, the New Subsidiary has caused this Guarantor Joinder Agreement to  be duly executed by its authorized officers, and the Administrative Agent, for the benefit of the Lenders,  has caused the same to be accepted by its authorized officer, as of the day and year first above written.           [NEW SUBSIDIARY]    By:           Name:  Title:              Acknowledged and accepted:      BANK OF AMERICA, N.A.,   as Administrative Agent          By:           Name:        Title: 





 






  CHAR1\1841565v3  EXHIBIT 9.03  [FORM OF]  SECURED PARTY DESIGNATION NOTICE  TO:  Bank of America, N.A., as Administrative Agent  RE: Credit Agreement, dated as of October 28, 2021, by and among Ciner Wyoming  LLC, a Delaware limited liability company (the “Borrower”), the Guarantors identified  therein, the Lenders from time to time party thereto and Bank of America, N.A., as  Administrative Agent, L/C Issuer and Swingline Lender (as amended, modified,  extended, restated, replaced, or supplemented from time to time, the “Credit  Agreement”; capitalized terms used herein and not otherwise defined shall have  the meanings set forth in the Credit Agreement)  DATE: [Date]    [Name of Cash Management Bank/Hedge Bank] (the “Secured Party”) hereby notifies  you, pursuant to the terms of the Credit Agreement, that the Secured Party meets the  requirements of a [Cash Management Bank] [Hedge Bank] under the terms of the Credit  Agreement and is a [Cash Management Bank] [Hedge Bank] under the Credit Agreement and  the other Loan Documents.  Delivery of an executed counterpart of a signature page of this notice by fax transmission  or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a  manually executed counterpart of this notice.  A duly authorized officer of the undersigned has executed this notice as of the day and  year set forth above.   ,  as a [Cash Management Bank] [Hedge  Bank]  By:        Name:        Title:          





 






  CHAR1\1841565v3  EXHIBIT 11.06  [FORM OF] ASSIGNMENT AND ASSUMPTION  This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the  Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item  1 below ([the][each, an] “Assignor”) and [the][each] Assignee identified in item 2 below ([the][each, an]  “Assignee”).  [It is understood and agreed that the rights and obligations of [the Assignors][the  Assignees] hereunder are several and not joint.]  Capitalized terms used but not defined herein shall have  the meanings given to them in the Credit Agreement identified below (as amended, restated, extended,  supplemented, increased or otherwise modified in writing from time to time, the “Credit Agreement”),  receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions  set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a  part of this Assignment and Assumption as if set forth herein in full.  For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the  Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes  from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and  Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as  contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its  capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other  documents or instruments delivered pursuant thereto in the amount[s] and equal to the percentage  interest[s] identified below of all the outstanding rights and obligations under the respective facilities  identified below (including, without limitation, the Letters of Credit and the Swing Line Loans included  in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits,  causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective  Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown,  arising under or in connection with the Credit Agreement, any other documents or instruments delivered  pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the  foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims  and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to  clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any]  Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned  Interest”).  Each such sale and assignment is without recourse to [the][any] Assignor and, except as  expressly provided in this Assignment and Assumption, without representation or warranty by [the][any]  Assignor.  1. Assignor[s]: ______________________________       ______________________________   [Assignor [is] [is not] a Defaulting Lender]    2. Assignee[s]: ______________________________       ______________________________     [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]    3. Borrower: Ciner Wyoming LLC, a Delaware limited liability company    4. Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit  Agreement    





 






  CHAR1\1841565v3  5. Credit Agreement: Credit Agreement, dated as of October 28, 2021, among the Borrower,  the Guarantors identified therein, the Lenders from time to time party thereto and Bank of  America, N.A., as Administrative Agent    6. Assigned Interest[s]:          Assignor[s]        Assignee[s]      Facility  Assigned  Aggregate  Amount of  Revolving  Commitment/Loans  for all Lenders1  Amount of  Revolving  Commitment/ Loans  Assigned  Percentage  Assigned of  Revolving  Commitment/  Loans2      CUSIP   Number            ________ $_______________ _  $_________ ___________ _%      ________ $_______________ _  $_________ ___________ _%      ________ $_______________ _  $_________ ___________ _%    [7. Trade Date: __________________]3  Effective Date: __________________, 20__ [TO BE INSERTED BY THE ADMINISTRATIVE  AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN  THE REGISTER THEREFOR.]  The terms set forth in this Assignment and Assumption are hereby agreed to:  ASSIGNOR[S]    [NAME OF ASSIGNOR]    By: _____________________________  Name:  Title:    ASSIGNEE[S]    [NAME OF ASSIGNEE]    By: _____________________________  Name:  Title:    1 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to  take into account any payments or prepayments made between the Trade Date and the Effective Date.  2 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.  3 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be  determined as of the Trade Date.  





 






  CHAR1\1841565v3      [Consented to and]4 Accepted:    BANK OF AMERICA, N.A., as Administrative Agent    By:                Name:  Title:    [Consented to:]5    [BANK OF AMERICA, N.A., as L/C Issuer and Swing Line Lender]     By:           Name:  Title:        [CINER WYOMING LLC, a Delaware limited liability company]    By:             Name:  Title:    4 To be added only if the consent of the Administrative Agent is required by the terms of the Credit  Agreement.  5 To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, L/C Issuer)  is required by the terms of the Credit Agreement.  





 






  CHAR1\1841565v3  ANNEX 1 TO ASSIGNMENT AND ASSUMPTION  STANDARD TERMS AND CONDITIONS FOR  ASSIGNMENT AND ASSUMPTION  1. Representations and Warranties.  1.1. Assignor.  [The][Each] Assignor (a) represents and warrants that (i) it is the legal and  beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and  clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken  all action necessary, to execute and deliver this Assignment and Assumption and to consummate the  transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no  responsibility with respect to (i) any statements, warranties or representations made in or in connection  with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity,  enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii)  the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated  in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its  Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan  Document.  1.2. Assignee.  [The][Each] Assignee (a) represents and warrants that (i) it has full power  and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption  and to consummate the transactions contemplated hereby and to become a Lender under the Credit  Agreement, (ii) it meets all the requirements to be an assignee under Section 11.06(b) of the Credit  Agreement (subject to such consents, if any, as may be required under Section 11.06(b)(iii) of the Credit  Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit  Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have  the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of  the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in  making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such  type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the  opportunity to receive copies of the most recent financial statements delivered pursuant to Section 7.01(a)  or (b) thereof, as applicable, and such other documents and information as it deems appropriate to make  its own credit analysis and decision to enter into this Assignment and Assumption and to purchase  [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative  Agent or any other Lender and based on such documents and information as it has deemed appropriate,  made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase  [the][such] Assigned Interest, (vii) if it is a Foreign Lender, attached hereto is any documentation required  to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by  [the][such] Assignee, and (viii) it is not a Competitor or a Defaulting Lender; and (b) agrees that (i) it  will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other  Lender, and based on such documents and information as it shall deem appropriate at the time, continue  to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will  perform in accordance with their terms all of the obligations which by the terms of the Loan Documents  are required to be performed by it as a Lender.  2. Payments.  From and after the Effective Date, the Administrative Agent shall make  all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees  and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the  Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the  Effective Date.    





 






  CHAR1\1841565v3  3. General Provisions.  This Assignment and Assumption shall be binding upon, and  inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment  and Assumption may be executed in any number of counterparts, which together shall constitute one  instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption  by  fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as  delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and  Assumption and any claims, controversy, dispute or cause of action (whether in contract or tort or  otherwise) based upon, arising out of or relating to this Assignment and Assumption shall be governed  by, and construed in accordance with, the law of the State of New York.